Non-Governmental Interests in International Regional Organizations [1 ed.] 9789004344440, 9789004343887

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Non-Governmental Interests in International Regional Organizations

Legal Aspects of International Organizations Edited by Niels Blokker

volume 59

The titles published in this series are listed at brill.com/laio

Non-Governmental Interests in International Regional Organizations By

Elisa Tino

leiden | boston

The Library of Congress Cataloging-in-Publication Data is available online at http://catalog.loc.gov lc record available at http://lccn.loc.gov/2017061178

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 0924-4883 isbn 978-90-04-34388-7 (hardback) isbn 978-90-04-34444-0 (e-book) Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Acronyms viii Abbreviations xii General Introduction 1 1 Non-governmental Interests in the International Legal Order: Recent Trends 1 2 Participation of Non-governmental Interests in International Organizations 7 2.1 The Un-organic Involvement of Non-governmental Interests and Its Particular Diffusion in Universal Organizations 8 2.2 The Organic Involvement of Non-governmental Interests and Its Significant Diffusion in Regional Organizations 15 3 Studies on the Participation of Non-governmental Interests in International Organizations 18 4 Methodology and Research Plan 21 1 Non-governmental Interests in Regional Organizations 27 1 Evolution in the Institutional Design of Regional Organizations: The Bipolar Institutional Structure and the Multipolar One 27 1.1 The Diffusion of the Bipolar Institutional Structure and the Multipolar One until the End of the 1980s 29 1.2 The Diffusion of the Bipolar Institutional Structure and the Multipolar One from the 1990s 32 2 Non-governmental Institutions: Concept and Criteria for Classification 37 2.1 Ratione Materiae Criterion: Parliamentary, Socio-economic and Territorial Institutions 38 2.2 Legal Criterion: Integrated Institutions versus Connected Institutions 39 3 Reasons for the Establishment of Institutions Representing Non-governmental Interests within Regional Organizations 41 3.1 The Legal Factor: Broadening of the Mandate of International Organizations 42 3.2 The Non-legal Factor: The Trend to Emulation 58

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Contents

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Current Dissemination of the Phenomenon of Institutional Multipolarism of Regional Organizations 62 4.1 The Legal Models of Interstate Institutionalized Cooperation and the Institutional Multipolarism of Regional Organizations 63 4.2 The Geographic Spread of the Phenomenon of Institutional Multipolarism of Regional Organizations 70

2 Institutions Representing Non-governmental Interests in Regional Organizations: Legal Institutional Features and Practice 77 1 General Considerations 77 1.1 Legal Institutional Features of Parliamentary Institutions 78 1.2 Legal Institutional Features of Socio-economic and Territorial Institutions 110 2 Functions of Institutions Representing Non-governmental Interests 128 2.1 Functions of Parliamentary Institutions 129 2.2 Functions of Socio-economic Institutions and Territorial Institutions 156 3 Normative Acts of Institutions Representing Non-governmental Interests 172 3.1 Self-regulation Acts 174 3.2 Inter-organic Acts 175 3.3 Interinstitutional Agreements 178 3.4 External Normative Acts 179 3 The Contribution of Institutions Representing Non-governmental Interests to Strengthening Interstate Institutionalized Cooperation 181 1 Contribution to Enhancing the Functionality of Regional Organizations 181 2 Contribution to Enhancing the Legitimacy of Regional Organizations 182 2.1 The Functionalist Approach and the Role of Non-governmental Institutions in Enhancing Functional Legitimacy 186 2.2 The Constitutionalist Perspective and the Role of Non-governmental Institutions in Enhancing Democratic Legitimacy 190

 Contents

Concluding Remarks: The Contribution of Institutions Representing Non-governmental Interests to the Study of International Organizations 193 List of Normative Acts 198 Bibliography 219 Index 238

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Acronyms accp Assembly of Caribbean Community Parliamentarians acd Asian Cooperation Dialogue acs Association of Caribbean States aec African Economic Community aipa asean Inter-Parliamentary Assembly aipo asean Inter-Parliamentary Organization aladi Asociación Latinoamericana de Integración/ Association of Latin American Integration alalc  Asociación Latinoamericana de Libre Comercio/Latin American ­Association of Free Trade alba-tcp Alianza Bolivariana para los Pueblos de Nuestra América – Tratado de Comercio de los Pueblos/Bolivarian Alliance for the Peoples of Our America – Peoples’ Trade Treaty ap Alianza del Pacífico/Pacific Alliance apec Asia-Pacific Economic Cooperation asean Association of South East Asian Nations au African Union au ecosocc Economic Social and Cultural Council of the African Union biac Business Industry Advisory Committee of the oecd bimstec Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation CAn Comunidad Andina/Andean Community caricom Caribbean Community carifta Caribbea Free Trade Association cbss Council of Baltic Sea States ccie Comité Consultivo de Integración Económica del sieca/Consultative Committee on Economic Integration of sieca ccis Comité Consultivo de Integración Social del sica/Consultative Committee on Social Integration of sica CdE Conseil de l’Entente ceao Communauté Economique de l’Afrique de l’Ouest/Economic Community of West Africa cei Central European Initiative celac Comunidad de Estados Latinoamericanos y Caribeños/Community of Latin American and Caribbean States cemac Communauté Economique et Monètaire de l’Afrique Centrale/Economic and Monetary Community of Central Africa

Acronyms

ix

Communauté des États Sahélo-Sahariens/Community of Sahelo-­ cen-sad  Saharan States cepgl Communauté Economique des Pays des Grands Lacs/Economic Community of Big Lakes Countries cis Commonwealth of Independent States cis ipa Commonwealth of Independent States Inter-Parliamentary Assembly CoE Council of Europe CoE pa Council of Europe Parliamentary Assembly coi Commission de l’Océan Indien/Indian Ocean Commission comesa Common Market for Eastern and Southern Africa CoR Committee of Regions of the European Union csto Collective Security Treaty Organization eac East African Community ec European Commission eccas Economic Community of Central African States ECtHR European Court of Human Rights eco Economic Cooperation Organization eco-cci Chamber of Commerce and Industry of the ECO Economic and Social Council of the un ecosoc ecowas Economic Community of West African States ecsc European Coal and Steel Community eec European Economic Community eesc European Economic and Social Committee ep European Parliament escb European System of Central Banks eu European Union EurAsEc Eurasian Economic Community EurAsEc ipa Eurasian Economic Community Inter-Parliamentary Assembly fao Food and Agriculture Organization fccr Foro Consultivo de Municipios, Estados Federados, Provincias y Departamentos del mercosur/Consultative Forum of Municipalities, ­Federal States, Provinces and Departments of mercosur G5 Sahel Group de Cinq du Sahél/Group of Five Sahel Countries gcc Gulf Cooperation Council guam Georgia, Ukraine, Azerbaijan, Moldova guam pa guam Parliamentary Assembly iaea International Atomic Energy Agency iai Ionian-Adriatic Initiative icao International Civil Aviation Organization iccia Islamic Chamber of Commerce, Industry and Agriculture

x

Acronyms

icty International Criminal Tribunal for the former Yugoslavia ifad International Fund for Agricultural Development igad Inter-Governmental Authority on Development igad ipu igad Inter-Parliamentary Union ila International Law Association ilo International Labour Organization imf International Monetary Fund imo International Maritime Organization iora Indian Ocean Rim Association iorag Indian Ocean Rim Academic Group iorbf Indian Ocean Rim Business Forum ipu Inter-Parliamentary Union isa International Sea-Bed Authority las League of Arab States mercosur Mercado Común del Sur/Common Market of the Southern Cone mru Mano River Union oas Organization of American States oau Organization of African Unity obsec Organization of Black Sea Economic Cooperation odeca Organización de Estados Centroamericanos/Organization of Central American States oded-guam Organization for Democracy and Economic Development – guam oecd Organisation for Economic Co-operation and Development oecs Organization of Eastern Caribbean States oic Organization of Islamic Cooperation osce Organization for Security and Cooperation in Europe osce pa osce Parliamentary Assembly pabsec Parliamentary Assembly of the Black Sea Economic Cooperation paeco Parliamentary Assembly of eco pap Pan-African Parliament Parlacen Parlamento Centroamericano (of sica)/Central American Parliament Parlandino Parlamento andino (of CAn)/Andean Parliament Parlasur Parlamento del mercosur/Parliament of mercosur pc Pacific Community pif Pacific Islands Forum pta Preferential Trade Area for Eastern and Southern African States puic Parliamentary Union of the oic member States repac Réseau des Parlementaires de l’Afrique Centrale/Network of Parliamentarians of Central Africa (of eccas) rcc Regional Cooperation Council rcd Regional Cooperation for Development

Acronyms

xi

saarc South Asian Association for Regional Cooperation saarc asp saarc Association of Speakers and Parliamentarians saarc cci saarc Chamber of Commerce and Industry sacu Southern African Customs Union sadc Southern African Development Community sadcc Southern African Development Coordination Conference sadc pf sadc Parliamentary Forum sco Shanghai Cooperation Organization seecp South-East European Cooperation Process sela Sistema Económico Latinoamericano/Latin American Economic System sica Sistema de Integración Centroamericana/Central American Integration System sieca Sistema de Integración Económica Centroamericana/Central American Economic Integration System teu Treaty on the European Union tfeu Treaty on the Functioning of the European Union tuac Trade Union Advisory Committee of the oecd udeac Union Douanière et Economique de l’Afrique Centrale/Customs and Economic Union of Central Africa uemoa Union Economique et Monètaire de l’Ouest Africain/Economic and Monetary Union of West Africa uma Union du Maghreb Arabe/Union of Arab Maghreb un United Nations unasur Unión de Naciones Suramericanas/Union of South American Nations uncdf United Nations Capital Development Fund unctad United Nations Conference on Trade and Developments undp United Nations Development Program unesco United Nations Organization for Education, Science and Culture unhcr United Nations High Commissioner for Refugees unicef United Nation Children’s Fund unidcp United Nations International Drug Control Program unido United Nations Industrial Development Organization unwto United Nations World Tourism Organization upu Universal Postal Union weu Western European Union who World Health Organization wipo World Intellectual Property Organization wmo World Meteorological Organization wto World Trade Organization

Abbreviations Afr. Ins. ahrlj ajil An. Der. Const. L.A An. Esp. Der. Int’l dpce dudi ejil elj epl Fordham ilj gyil Harvard jil Hastings iclr Hitotsubashi jl&p iclq io iolr irs is jcms jiel jilar Leiden jil mj mpepil Michigan jil Netherland ilr Nordic jil npe rbdc Rev. Fac. Ciencias Jur. Pol. Rev. Int. Dir. Hum. Rev. Int. Org. rgdip ris sfdi

Africa Insight African Human Rights Law Journal American Journal of International Law Anuario de Derecho Constitucional LatinoAmericano Anuario Español de Derecho Internacional Diritto pubblico comparato ed europeo Diritti Umani e Diritto Internazionale European Journal of International Law European Law Journal European Public Law Fordham International Law Journal German Yearbook of International Law Harvard Journal of International Law Hastings International and Comparative Law Review Hitotsubashi Journal of Law and Politics International and Comparative Law Quarterly International Organization International Organizations Law Review International Review of Sociology International Studies Journal of Common Market Studies Journal of International Economic Law Journal of Iberian and Latin American Research Leiden Journal of International Law Maastricht Journal of European and Comparative Law Max Planck Encyclopedia of Public International Law Michigan Journal of International Law Netherland International Law Review Nordic Journal of International Law New Political Economy Revista Brasileira de Direito Constitucional Revista de la Facultad de Ciencias Jurídicas y Políticas Revista Internacional de Direitos Humanos Review of International Organizations Revue Générale de Droit International Public Review of International Studies Société Française de Droit International

Abbreviations

xiii

Spanish YbIL Spanish Yearbook of International Law St. Comp. Int. Dev. Studies in Comparative International Development Texas ilj Texas International Law Journal Virginia jil Virginia Journal of International Law West Eur. Pol. West European Politics World Trade Rev. World Trade Review YbEL Yearbook of European Law ZaöRV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

General Introduction 1

Non-governmental Interests in the International Legal Order: Recent Trends

Traditionally, the origins of international law are traced back to 1648 when the Peace of Westphalia was initiated. It put an end to the Thirty Years’ War and the universal claims of the Holy Roman Empire on the one hand, and gave rise to a plurality of sovereign States on the other hand.1 Since then, a State-­ centred conception of international law has been developed, based on principles of respect for national sovereignty and recognition of States’ equality. ­Notwithstanding domestic separation of power, in the international legal order the State is represented “in its totality”, and over the centuries foreign a­ ffairs have mainly become the realm of the executive branch.2 Thus, traditionally the international representation of the State is assigned to governmental delegates who are in charge of formulating and defending national interests on the world stage.3 This practice has also characterized international organizations, so that since the late 19th century the adjective “intergovernmental” has begun to designate interstate institutionalized cooperation. In particular, the intergovernmental nature of international organizations is expressed in: their 1 For a historical overview of the evolution of international law see Bardo Fassbender and Anne Peters (eds.), Oxford Handbook of the History of International Law (Oxford: oup, 2015). About historical evolution of international organizations see Bob Reinalda, Routledge History of International Organizations (London/New York: Routledge, 2009). 2 In the Tadic case, the icty stated that “It is clear that the legislative, executive and judicial division of powers which is largely followed in most municipal systems does not apply to the international setting nor, more specifically, to the setting of an international organization such as the United Nations”. See Prosecutor vs. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case IT-94-1-AR72 Appeals Chamber, 2 ­October 1995, para. 43. Ideologically, the unitary external representation of the State was made plausible through the concept of reason of State: there can only be one raison d’état, i.e. one national interest given a priori by the natural interest of self-assertion. In this sense, see Isabelle Ley, “Opposition in International Law – Alternativity and Revisibility as Elements of a Legitimacy Concept for Public International Law”, Leiden jil 28 (2015): 717–742. 3 It is worth bearing in mind that international law was born as “law for diplomats”, mainly regulating issues falling outside domestic communities (e.g. diplomatic immunities, consular activities, alliances, as well as warlike matters, etc.). Classical international law was perceived as something far from the everyday life of domestic communities, as its rules – addressing to States – directly affected only specified categories of individuals operating in a defined context (see, for instance, the ius in bello).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004344440_002

2

General Introduction

statutory acts, insofar as they are agreed upon and signed by governmental representatives of the States; their institutional structure where State interests are represented by delegates from national governments;4 in their decisionmaking procedures insofar as they are usually the monopoly of organs made up of governmental representatives,5 as well as in the dualistic relationship between international organization law and domestic law. Thus, over the decades the expressions “international organization” and “intergovernmental organization” have tended to become synonymous.6 These general considerations have just a few exceptions. The Latin American Parliament7 and the International Criminal Court8 are significant examples of these exceptions. Indeed, they are both international organizations whose statutory treaties were signed by national plenipotentiary delegates on behalf of their respective States, but their decision-making organs are not composed of governmental delegates. Rather, 4 It is worth noting that in light of their particular scope in some international organizations national interests are not represented by the Head of State or Ministers but by other specific representatives belonging to the State administration and expressing the desiderata of their governments. Thus, according to the wmo Constitution (art. 7 (b)) delegates to the general congress should be the directors of the national meteorological or hydrometeorological services. The who Constitution (art. 11) provides that delegates should be qualified by their technical competence in the field of health, preferably representing the national health administration of members. 5 See Marie-Clotilde Runavot, “The Intergovernmental Organization and the Institutionalization of International Relations”, in Evolutions in the Law of International Organizations, eds. Roberto Virzo and Ivan Ingravallo (Leiden: Brill, 2015), 18–19; Raphaël Rivier, “L’utilité de la conceptualization d’un genre «organization internationale», in Le phénomène institutionnel international dans tous ses états: transformation, deformation ou reformation?, eds. Laurence Dubin and Marie-Clotilde Runavot (Paris: Pedone, 2014), 19–21; Henry Schermers and Niel Blokker, International Institutional Law. Unity within Diversity (5th edn. Leiden: Brill, 2011), 193–196. 6 Several codification conventions have succinctly defined the term “international organization” as “intergovernmental organization”. See art. 2 (1) (i) of Vienna Convention on the Law of Treaties; art. 1 (1) (1) of Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character; art. 2 (1) (n) of Vienna Convention on Succession of States in respect of Treaties; art. 2 (1) (i) of Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. However, these definitions are considered as appropriate for the purposes of each specific Convention and are not intended as absolute definitions for all purposes. 7 See Institutionalization Treaty of the Latin American Parliament, Lima, 16 November 1987. In literature, see Francesco Seatzu, “When good intentions do not go too well: assessing the role of the Latin American Parliament in the achievement of socio-economic development in Latin America”, An. Esp. Der. Int’l 30 (2014): 457–478. 8 See Rome Statute of the International Criminal Court, Rome, 17 July 1998.

General Introduction

3

the members of the Latin American Parliament are congresses or legislative assemblies of member States. Consistent with its peculiar jurisdictional competence, the organs of the International Criminal Court are made up of judges from member States. Obviously, the peculiarity of the composition of these two organizations’ organs is justified by their particular competence scope. As stated, in the classical Westphalian-based system of international relations, States were the sole actors and thus the principal and only fully recognized subjects.9 However, over the centuries the gradually increasing demand for cooperation changed the international legal order. Indeed, starting from the 19th century institutionalized cooperation became a necessary corollary for States that acknowledged their own limited capacity to individually solve problems of international concern. Thus, international organizations were established; intended as derived entities of States insofar as they are the outcome of the exercise of their own sovereignty, they became actors of international relations and subjects of international law as well. In sum, apart from States and international organizations, before the post World War ii period, neither entities representing interests different from those of State governments nor individuals actively took part in international relations or had any direct entitlement under international law. Thus, for instance, prior to 1945 only three ngos made up of national parliamentarians (i.e. the Inter-­Parliamentary Union,10 the Commonwealth Parliamentary Association11 and the Nordic 9

10

11

In this regard, the metaphor coined by Ryngaert is particularly significant. He defined the State as «the hero of the epic of international law». See, Cedric Ryngaert, “Non-State Actors: Carving out a Space in a State-Centred International Legal System”, Netherland ilr 63 (2016): 184. The Inter-Parliamentary Union was established in 1889 as an association of parliamentarians serving mainly as an arbitrator in disputes among States. Initially, it was made up of individual parliamentarians, but then it was transformed into an organization of State parliaments. Currently it is regulated by Statutes of the Inter-Parliamentary Union adopted in 1976 and extensively revised in October 1983, April 2003 and October 2013. About the role played by the ipu over the years from a political science perspective, see Alexandru Grigorescu, Democratic intergovernmental organizations? Normative pressures and decision-making rules (Cambridge: cup, 2015), 222–262. The Commonwealth Parliamentary Association was founded in 1911 as the Empire parliamentary association to connect parliaments from British dominions and self-governing colonies. Evolving with the Commonwealth, in 1948 the Commonwealth Parliamentary Association adopted its current name and changed its rules to enable all member branches to take part in the association’s management. Currently it is regulated by a constitution adopted by the General Assembly of the cpa at its meeting in Cyprus on 6 September 1993, as amended in 1998, 2004, 2007, 2010 and 2013.

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General Introduction

­Inter-Parliamentary Union12) existed. Similarly, individuals other than governmental representatives were not granted access to international conferences or to negotiations of international multilateral agreements.13 Since the end of World War ii, and in particular after the establishment of the un, a multiplication of actors taking part in international relations was seen as a consequence of the fact that the structure of problems of the International Community increasingly transcended State boundaries by their very nature. Thus, first of all, the number of international organizations rose. They were not only technical associations and military alliances anymore; rather, more and more frequently they were assigned general competences in p ­ olitical and economic fields. Moreover, not only organizations universal in character (e.g. un, imf, World Bank Group, etc.), but also regional forms of ­association – whose presence was almost exceptional before the end of World War ii14 – were established. Then, non-state actors (nsas), namely n ­ on-governmental organizations (ngos), transborder movements ­representing various organized interest groups, multinational enterprises, etc., ­gradually started to act in the international arena. In particular, albeit limitedly, sometimes they were ­granted access to international conferences,15 or their suggestions were listened to by States in negotiating international multilateral agreements. The end of the Cold War and the advent of globalization contributed to the proliferation of regional organizations on the one hand, and to the increase in the number of nsas and their active participation in international ­relations

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The Nordic Inter-Parliamentary Union was founded in 1907 as a forum for cooperation between members of Scandinavian parliaments, which now takes place in the Nordic Council. Thus, for instance, in 1944 delegates from 44 States taking part in the Bretton Woods Conference were governmental representatives from various levels; no other interests were represented in the Conference founding the imf and the World Bank. For a complete list of participants in this Conference, see Kurt Schuler and Mark Bernkopf, “Who was at Bretton Woods?” (paper prepared for the Centre for Financial Stability, 1 July 2014). Similarly, just representatives from Governments took part in negotiations of gatt Agreement in 1947. In this regard, see for instance the Pan-American Union, which was established in 1890 at the first Pan-American Conference in order to promote cooperation among the countries of Latin America and the us. This association was the predecessor of the Organization of American States (oas). Thus, for instance, some ngos took part in meetings in San Francisco for the negotiation of the un Charter. However, over the decades the tensions and ideological divisions of the Cold War limited their role, which was subordinated to the struggle between Western countries and the ussr.

General Introduction

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on the other hand.16 Nowadays, States remain the core actors and the most important subjects of international law; however, their role is partially mitigated by the increasing presence of these new entities which aim at being involved in activities typically belonging to States (i.e. creating norms, monitoring compliance and enforcement) and influencing governments’ actions.17 Thus, over the decades nsas have progressively channelled their activities into specific international law branches18 (such as international human rights and 16

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There are many reasons for the growth in size and importance of nsas on the international stage. They include mainly globalization, the spread of democratic ideals around the world and the technological revolution of communications. Currently, the proliferation of nsas is catalyzing international scholars. The decision of the ila to establish a committee devoted to studying these new entities and their role in international law order is proof of this interest. In this sense, see ila The Hague Conference (2010), NonState ­Actors Committee Annual Report; ila Sofia Conference (2012), Non-State Actors Committee Annual Report; ila Washington Conference (2014), Non-State Actors Committee Annual Report. There is a wide literature on the role of nsas in international legal order. Among others, see Math Noortmann, August Reinisch and Cedric Ryngaert (eds.), Non-State Actors in International Law (Oxford/Portland: Hart Publishing, 2015); Jean D’Aspremont (ed.), Participants in the International Legal System (London/New York: Routledge, 2011); Bob Reinalda (ed.), The Ashgate Research Companion to Non-State Actors (Aldershot: Ashgate, 2011); Math Noortmann and Cedric Ryngaert (eds.), Non-State Actors Dynamics in International Law. From Law-Takers to Law-Makers (Farnham: Ashagate Publishing, 2010). See also Maurizio Arcari, “Remarques sur les dynamiques entre acteurs et normativité en droit international”, in Diversification des acteurs et dynamique normative en droit international, eds. Maurizio Arcari and Louis Balmond (Napoli: esi, 2013), 3–24; Jordan Paust, “Nonstate actors participation in International Law and the Pretense of Exclusion”, Virginia jil (2011): 977–1004; Steve Charnovitz, “The Relevance of Non-State Actors to International Law”, in Developments of International Law in Treaty-Making, eds. Rüdiger Wolfrum and Volker Röben (Heidelberg: Springer, 2005), 543–556. In this sense, see Stephan Hobe, “Individuals and Groups as Global Actors: The Denationalization of International Transactions”, in Non-state actors as new subjects of international Law: international law –from the tradition state order to the law of global community, ed. Rainer Hofmann, (Berlin: Duncher&Humblot, 1999), 115–135. See also Rostane Mehdi, “Mutations de la société internationale et adaptations institutionnelles: le grand défi”, in Une société internationale en mutation: quels acteurs pour une nouvelle gouvernance?, eds. Laurence Boisson de Chazournes and Rostane Mehdi, (Bruxelles: Bruyllant, 2005), 8–18; Ryngaert, “Non-State Actors”, 188–190. The current role of ngos in international law is widely debated in the literature. Among others, see Enzomaria Tramontana, Organizzazioni non governative e ordinamento internazionale (Padova: cedam, 2014); David Armstrong et al. (eds.), Civil Society and ­International Governance: the Role of Non-State Actors in Global and Regional Regulatory Frameworks, (New York/London: Routledge, 2011); Ingrid Rossi, Legal status of NonGovernmental Organizations in International Law, (Antwerp/Oxford/Portland: Hart Publishing, 2010); Pierre-Marie Dupuy and Luisa Vierucci (eds.), ngos in International

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General Introduction

­ umanitarian law, criminal law, protection of the environment, and human h security19). In these fields they have increasingly offered to States and international organizations their support and expertise in negotiating new standards or in monitoring compliance with international conventions concerning their areas of c­ ompetence.20 Furthermore, nsas have expanded their presence in ­international dispute settlement and they are increasingly participating in ­international judicial and quasi-judicial proceedings in various capacities, mainly ­initiating cases21 or intervening as amicus curiae.22

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Law, (Northampton: Edward Elgar, 2008); Anna-Karin Lindblom, Non-Governmental Organizations in International Law, (Cambridge: cup, 2005). See also, Jean-Louis Iten, “L’organisation international à l’epreuve de la “gouvernance globale”, in Le phénomène institutionnel international das tous ses etats: transformation, deformation ou reformation?, eds. Laurence Dubin and Marie-Clotilde Runavot, (Paris: Pedone, 2014), 83–94. For a dense analysis of the increasing role of multinational corporations within international law, see Jan Wouters and Anne-Luise Chané, “Multinational Corporations in International Law”, in Non-State Actors, eds. Noortmann and Rygaert, 225–251; Julien Arato, “Corporations as Law-makers”, Harvard jil 56 (2015) 2: 229–295; Anaïs Lagelle, “L’influence des acteurs privés sur la normativité du droit international économique”, in Diversification, eds. Arcari and Balmond, 57–93. In general terms see ila Sofia Conference (2012), 9–12. About the relationship between ngos and international treaties, in literature see particurlarly Rossi, Legal Status, 171–239. For a complete overview about the role of ngos in the international humanitarian law see Claudie Barrat, Status of ngos in International Humanitarian Law, (Leiden: Brill, 2014); Hans-Joachin Heintze and Charlotte Lülf, “Non-State Actors Under International Humanitarian Law”, in Non-State Actors, eds. Noortmann and Rygaert, 97–111. About nsas under international human rights law see, among other, Manfred Nowak and Karolina Miriam Januszewski, “Non-State Actors and Human Rights”, in Non-State Actors, eds. Noortmann and Ryngaert, 113–161. See Eibe Riedel, “The Development of International Law: Alternatives to Treaty-Making? International Organizations and Non-State-Actors”, in Developments, eds. Wolfrum and Röben, 311–317. Thus, for instance, ngos have locus standi before the World Bank Inspection Panel, the European Court of Human Rights, the European Court of Justice and the ecowas Court of Justice. In Africa the Court on Human and Peoples’ Rights has the discretion to entitle ngos with observer status before the African Commission and individuals to istitute cases before it, provided that the State party concerned has made a declaration accepting the competence of the Court. Moreover ngos may file communications alleging human rights violations before the Inter-American Commission and the African Commission. For in-depth considerations about nsas’ participation in judicial and quasi-judicial fora in different fields of international law, see International Law Association, Sofia Conference (2012), 19–26. See also the interesting investigation of Rossi, Legal Status, 241–331. nsas are allowed to submit, under certain circumstances, amicus curiae briefs, to ­dispute-settlement mechanisms in the field of international economic law and international ­human rights law. In this sense, see Rossi, Legal Status, 313–320.

General Introduction

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In light of this gradual evolution the contemporary international political and legal order has developed into a complex network where different actors (i.e. States, international organizations, nsas, etc.) operate. In particular, the proliferation of nsas and their growing involvement in the international sphere prove a progressive – albeit cautious – opening up of international decision-making space to interests other than governmental ones. Obviously, this does not mean that States have lost their traditional absolute monopoly over international relations. Rather, the increasing presence of nsas is leading progressively to overtake the traditional, strictly State-centric International Community. Moreover, it is contributing to develop an environment in which States still remain the primary subjects, but their interactions with entities representing interests other than governmental ones are strengthened and more relevant.23 2

Participation of Non-governmental Interests in International Organizations

As disclosed in the previous paragraph, the current trend toward the gradual opening of international decision-making space to actors representing interests other than governmental ones also includes international organizations which, as previously stated, are the States’ instruments for action within the international arena and, as such, are traditionally intergovernmental in nature. The need for ensuring the involvement of non-governmental interests has characterized (and is still characterizing) any kind of international organization (namely, both universal and regional ones) and it has been answered variously. In particular, we can distinguish the un-organic method from the organic one.24 As we will see below, the first one is typical of universal organizations, 23

24

Thus, Lagelle, “L’influence”, 57, has stated that “Désormais le constat est clair: le droit international n’est plus exclusivement le droit des Etats et la souveraineté ne constitue plus une barrière infranchissable à la vision communautaire du droit”. For interesting considerations about recent developments of international legal order in light of classical ­theories and their limits see Claire Cutler, “Critical reflections on the Westphalian assumptions of international law and organization: a crisis of legitimacy”, ris 27 (2001): 133–150; ­Nehal Bhuta, “The Role International Actors Other Than States can Play in the New World ­Order”, in Realizing Utopia. The Future of International Law, ed. Antonio Cassese (Oxford: oup, 2012), 61–75. It is worth noting that the need to involve non-governmental interests is typical not only of ­international organizations. Indeed, even the Pacific Alliance (ap) – which still remains an economic multilateral agreement – is being involved in this trend. In 2013 the Presidents of Parliaments of ap member States established the Parliamentary Monitoring

8

General Introduction

but it can characterize also some other international forms of association. ­Differently, the organic method is increasingly characterizing regional organizations endowed with political and economic competences. The choice of either method is conditioned by the need to preserve the functionality of the organization and, in the meantime, it depends on the willingness of member States to realize a more complex institutional balance. Furthermore, in some international organizations (especially in regional ones) these two methods can also co-exist. This is justified by the member States’ willingness to grant non-governmental interests a broader participatory space within interstate institutionalized cooperation. 2.1 The Un-organic Involvement of Non-governmental Interests and Its Particular Diffusion in Universal Organizations The un-organic involvement of non-governmental interests is realized when the international organization establishes legally regulated forms of interaction with nsas, namely ngos or networks of specific interest groups. This ­interaction consists of a mutual relationship between the international organization and the nsa. Therefore, on the one hand, intergovernmental organs of the international organization consult with nsas on a specific issue; thus, they try to take advantage of their specific interest and expertise and, at the same time, to preserve their decisional autonomy. On the other hand, nsas aim at influencing the decision-making and contributing to the adoption of norms by the organization that fulfill the interests of pressure groups they represent. It is worth noting that, despite there being such a relationship, which is generally expressly regulated by the international organization, the nsa is ­independent from the international organization and remains alien from its institutional structure. This means that the nsa’s existence does not depend on the organization it interacts with. Furthermore, the interaction between the international organization and the nsa does not translate into a univocal and exclusive relationship. Indeed, an international organization may be in touch with a plurality of different nsas, while a nsa may be involved in the activities of several international (universal and/or regional) organizations taking into account their areas of competence. The un-organic involvement of non-governmental interests in international organizations has quite a long tradition, dating back roughly to the end of World War ii, and it is currently widespread. Firstly it is typical of universal ­Commission, which is tasked with supporting the incorporation of ap norms into domestic law systems. However this Commission has not yet been endorsed by ap Governments. Moreover, a Business Council has also been recently established.

General Introduction

9

o­ rganizations, such as the un and its Specialized Agencies, the international financial institutions (imf, World Bank Group), the wto, etc. Then, it also characterizes some regional organizations, as well as development banks. The realization of this method allows the international organization to involve nsas and to take advantage from their expertise without undermining its functionality and its institutional balance, which still remains strongly intergovernmental. As mentioned above, the un-organic involvement of nsas is usually governed by rules adopted by the international organization. In this regard, it is possible to distinguish the case in which this interaction has its legal basis in the founding act of the organization itself, from the case in which any statutory provision is lacking. A typical example of a statutory provision constituting the legal basis of the un-organic involvement of nsas with the international organization is art. 71 of the un Charter. It provides expressly for the possibility of making suitable arrangements for consultation with ngos concerned with matters within the competence of the ecosoc.25 A similar provision spread widely within the un system.26 Indeed, many un special programs, funds and units maintain consultative arrangements with ngos,27 and most un Specialized Agencies have formalized a relationship with them in accordance with their constitutive acts.28 Even the founding treaties of universal organizations unrelated to the un, such as the wto (art. v para. 2 Marrakesh Agreement)29 and those 25

26 27

28

29

As early as 1946, ecosoc created the Committee on Non-Governmental Organizations in charge of the organization of relations with NGOs. Firstly, this relationship was regulated by ecosoc Resolution 288B (x) of February 27, 1950. Then it was replaced by Resolution 1296 (xliv) un Doc. E/4548 (1968) which was subsequently updated by Resolution 1996/31 (un Doc. E/1996/L.25). Other provisions relating to consultation with ngos are contained in the ecosoc Rules of Procedure (un Doc. E/5715/Rev.2). Currently, there are more than 4500 ngos in consultative status with the ecosoc. The inclusion of art. 71 in the un Charter was promoted by hundreds of civil society organizations which were present in San Francisco during the negotiation of the un Charter. Thus, for instance, the 1951 un High Commissioner for Refugees Statute provided that its assistance for refugees be channelled through ngos, as well as mandating that unicef used ngos intensely in its programs immediately after its establishment. In this regards, see also: Joint Unite Nations Program on hiv/aids, uncdf, unctad, undp, undcp, unifem, etc. See, in this sense, art. xi, para. 4, unesco Constitution; art. 19, para. 1, unido Constitution; art. 71 who Constitution, art. 26 wmo Constitution; art. 12, para. 3, ilo Constitution; art. 62 imo Constitution; art. 8 ifad Constitution. See also wto General Council Decision wt/L/162 Guidelines for Arrangements on Relations with Non-Governmental Organizations, 23 July 1996.

10

General Introduction

of commodity organizations30 evidence openness towards the involvement of ngos in their activities. Similarly, even some regional organizations pledge to engage with nsas – particularly ngos – in their constitutive acts. In this regard the European Union (eu) constitutes the most famous example. Indeed, art. 11, para. 2, of the teu provides that “the eu institutions shall maintain an open, transparent and regular dialogue with representative association and civil society”.31 Furthermore, the un-organic interaction with nsas also has its legal basis in the statutory acts of other regional organizations in different geographic areas, such as unasur (art. 18) in Latin America, eac (art. 127), sadc (art. 23), aec (art. 90) and ecowas (arts. 81–82)32 in Africa, asean (art. 16) in Asia-Pacific, etc. As mentioned above, sometimes the un-organic interaction with nsas does not have a legal basis in the statutory act of the international organization. In these cases, it is governed by normative acts adopted by its intergovernmental organs expressing their mature will to engage fruitfully in a mutual relationship with civil society. Thus, for instance, even if there is no original legal basis, the World Bank maintains informal relations with ngos as part of its engagement with civil society on an individual basis.33 More or less similarly, the imf 30

31

32

33

See, for example, art. 27 International Tropical Timber Agreement; art. 10, para. 2, Interna­ tional Natural Rubber Agreement; art. 16 International Coffee Agreement; art. 14, para. 3, International Sugar Agreement; art. 13, para. 3, and art. 14, para. 3, International Cocoa Agreement; etc. In the field of social politics the involvement of civil society within the eu is expressly regulated by art. 154 tfeu. Regarding the involvement of nsas in the eu law-making process, in 2000 the Commission published the White Paper on European Governance (com 2001, 428 final) which aimed at structuring the eu’s relationship with civil society, ensuring its transparency, and entrenching a culture of consultation and dialogue across all eu institutions. For a thorough discussion of the White Paper and its implications, see Christian Joerges, Yves Mény and Josef Weiler, “Mountain or Molehill: A Critical Appraisal of the Commission White Paper on Governance”, Jean Monnet Working Paper N. 6/01, Accessed March 20, 2016. www.eui.eu/Documents/RSCAS/Research/OnlineSymposia/Weiler.pdf. In general, about the involvement of nsas within the eu from a political perspective see Justin Greenwood, Interest representation in the European Union, (3rd edn Houndmills: Palgrave, 2011). For legal considerations see Gerard Damien, “Non-state actors in European Law. Enhanced participation of non-state actors in eu law-making and law-­enforcement processes – a quest for legitimacy”, in Participants, ed. D’Asprement, 405–421. Mechanisms for consultation are regulated by ecowas Decision A/DEC.9/8/94 Establishing Regulations for the Granting to Non-Governmental Organizations (ngos) the Status of Observer within the Institutions of the ecowas (1994). The World Bank has concluded that ngo engagement “that fits within [its] purposes is entirely permissible, so long as the general provisions of the Articles are observed”. See

General Introduction

11

has engaged in a variety of informal arrangements regulating contact and consultations with ngos.34 Even some regional organizations, as well as regional development banks (e.g. the Inter-American Development35), whose statutory acts lack any provision in this regard, have adopted specific documents regulating expressly their relationship with nsas (e.g. oas,36 acs,37 pif,38 CoE,39 osce,40 las,41 igad,42 etc.).

34

35

36

37 38

39 40 41

42

World Bank, Issues and Options for improving Engagement between the World Bank and Civil Society Organizations (March, 2005) 7 para. 17. In particular it published a Guide for Staff Relations with Civil Society in 2003, Accessed October 23, 2015. https://www.imf.org/external/np/cso/eng/2003/101003.htm, and 2015 Guidelines on the imf Staff Engagement with Civil Society Organizations, Accessed October 23, 2015. https://www.imf.org/external/np/exr/consult/2015/civilsociety/pdf/ CSOs_Guidelines.pdf . These documents constitute a framework of good practices, but they are not mandatory. In the literature see, Francesco Seatzu, “Civil Society Participation in the Inter-American Development Bank’s Activities and Operations: Enhancing Democratic Accountability”, Spanish YbIL (2011–2012): 43–72. Currently the relationship between the oas and nsas is regulated by cp/res. 759 Guidelines for the Participation of Civil Society Organizations in oas activities and Manual for civil society participation in the Organization of American States and in the Summits of the Americas, 2009. In literature, for a synthetic analysis, see Rossi, Legal Status, 157–166; Jorge Sanin and Eric Ambrose, “Together We Can Achieve More: The Role of Civil Society Organizations in the Organization of American States”, in Inclusive Political Participation and Representation: The Role of Regional Organizations, eds. Raul Cordenillo and Karin Gardes (Strasbourg: International idea, 2014), 25–40. See the Agreement n. 05/1995 adopted by acs Ministerial Council regulating participation of social “partners” in its meetings. See Policy on Consultative Status and Accreditation between the Pacific Islands Forum (pif) and Non-State Actors (nsa), August 2006. In literature see Henry Ivarature, “The Pacific Islands Forum and its Engagement with Civil Society Organizations”, in Inclusive, eds. Cordenillo and Gardes, 43–56. See Resolution Res(2003)8, Statut participative des organisations internationals non gouvernamentales auprès du Conseil de l’Europe, 19 November 2003. See art. iv of the csce Helsinki Document – The Challenges of Change – adopted by Helsinki Summit in 1992. In recent years the las has given increasing importance to civil society and it has tried to create an institutionalized partnership. In this sense, see Final Statement of the 16th session of the Council of the Arab League, Tunis, 23 March 2004; Algiers Declaration and Khartoum Declaration issued respectively during 17th session and 18th session of the Council of the Arab League, as well as the Resolution n. 433/2008. See Khartoum Declaration of the 8th Summit of Heads of State and Government, Khartoum, 23 November 2000 (para. 2.3).

12

General Introduction

The un-organic interaction between the international organization and nsas may assume different forms, which are usually used equally at the universal level and the regional level. Firstly, representatives of ngos or other ­associations and organized interest groups from the member States of the international organization may meet in conferences. These usually precede the meetings of intergovernmental institutions, to which the outcomes of these conferences are transmitted in order that their suggestions can be considered during the decision-making process. As regards universal organizations, this form of un-organic interaction is realized, for instance, within the wto. There, the demand for greater accountability and transparency of decision-making resulted in the realization of annual parliamentary conferences promoted by the European Parliament (ep).43 This form of un-organic interaction is equally realized at the regional level. Thus, for example, civil society organisations of the osce region organize and hold annual parallel conferences that result in recommendations to osce Ministerial Council meetings.44 Similarly, as regards the mercosur, in 2007

43

44

In 1999 – during the Seattle Ministerial Meeting – the ep’s members presented a proposal to establish a wto Parliamentary Assembly. However, most wto Member Governments and many parliamentarians did not support it. The focus then switched to a wto informal interparliamentary dimension whose first meeting was held at the Doha Ministerial Meeting in 2001. Sessions of the Parliamentary Conference are organized each year, as well as on the occasion of wto Ministerial Conferences. For in-depth remarks about the wto parliamentary dimension, see Hilam Rommetvedt, “The Institutionalization of a parliamentary dimension of an intergovernmental organization: the wto”, World Trade Rev. 10 (2011) 4: 423–446; Gregory Shaffer, “Parliamentary Oversight of wto Rule-Making: The Political, Normative, and Practical Contexts”, in Reforming The World Trading System. Legitimacy, Efficiency and Democratic Governance, ed. Ernst-Ulrich Petersmann (Oxford: oup, 2005), 381–408; David Skaggs, “How Can Parliamentary Participation in wto RuleMaking and Democratic Control be Made More Effective in the wto? A United States Congressional Perspective”, in Reforming, ed. Petersmann, 409–412; Meinhard Hilf, “Now Can Parliamentary Participation in wto Rule-Making and Democratic Control Be Made More Effective? The European Context”, in Reforming, ed. Petersmann, 413–420; Erika Mann, “A Parliamentary Dimension to the wto: More than Just a Vision?” in Reforming, ed. Petersmann, 421–431. Furthermore, the Economic and Environmental Forum – a meeting comprising repre­ sentatives of governments, civil society, the business community, and international ­organizations – takes place annually within the osce. This Forum aims at fostering the exchange of views and identifying viable solutions to problems related to specific issues in the economic and environmental fields.

General Introduction

13

Summits gathering regional social organizations (so-called Social Summits) were institutionalized after being established as permanent activities within the framework of the Heads of State meetings, to which their recommendations are submitted. Secondly, un-organic interaction may consist of periodical meetings of businessmen or representatives from national legislative institutions with governmental authorities; these meetings often take place under the aegis of the Secretariat of the organization. This form of un-organic interaction is realized, above all, by regional organizations (e.g. gcc,45 acs,46 eco,47 bimstec,48 pif,49 etc.). Thirdly, un-organic interaction may be formalized in a partnership, or the international organization may decide to endow ngos with a consultative status.50 Such a form of interaction is equally realized at the universal and regional levels. In particular, with regard to universal organizations, it is typical of the un and its Specialized Agencies (e.g. ilo, who, unesco, imo, wmo, wipo,

45

Since 2006 a meeting of speakers of the gcc legislative assemblies has been taking place annually. It is attended by speakers of the Shura councils, parliaments and national assemblies in the gcc, along with the Secretary-General of the organization. 46 Since 2000 a Business Forum has been taking place annually within the acs in order to strengthen a broadened space for regional trade and investment. See ACS/2013/ TRADE.XXVIII/INF.007, Lineamientos para la celebración del Foro Empresarial del Gran Caribe. 47 The eco Business Forum is an institutionalized mechanism for improving relations among the private sectors of member States which takes place annually. It is usually organized under the aegis of the eco Chamber of Commerce and Industry (eco cci). 48 The bimstec Business Forum and the bimstec Economic Forum take place periodically under the Senior Trade/Economic Officials Meeting (steom), which is an operational body comprising senior officials of the Trade/Commerce Ministry of the bimstec member States and representatives from the Ministry of Foreign Affairs. In the Business Forum, private sector representatives from the bimstec Member States meet and discuss various issues. Results from the Business Forum are forwarded to the Economic Forum where the private sector has an opportunity to discuss freely with representatives from the public sector of member States. Then, the Economic Forum reports the outcomes of its meetings to the steom. 49 Thus, for instance, since 2009 a bi-annual meeting between governmental delegates of the pif member States (in particular Suva and Fiji) and members of the cso community has been taking place under the auspices of the pif Secretariat. 50 In this sense we can consider the un and most of its Specialized Agencies, as well as some regional organizations (e.g. eu, au, etc.). See ila Sofia Conference (2012), 13.

14

General Introduction

fao, as well as World Bank and imf51), while at the regional level it characterizes mainly the eu, the CoE52 and the au. The establishment of these formal relationships entails different participatory rights for ngos in the work of the international organization. The most common ones are the right to attend intergovernmental meetings53 and con­ ferences,54 to submit written comments, to make an oral intervention, and to have access to information.55 Rarely, ngos are granted little forms of participation in law-making activities, contributing somehow to the drafting of legal instruments or to the amendment-and-review processes.56 However, although the increasing spread of un-organic interaction is relevant, as it allows the organization to open up to interests different from those of the States, the real decision to involve nsas and to take into serious consideration their suggestions always depends on the international organization and its discretional will. In sum, in spite of the existence of this un-organic interaction, the intergovernmental organs of the organization preserve their monopoly over decision-making and, in concrete terms, the nsas’ real ability to influence it is limited.

51

52

53 54

55

56

Thus, for example, in 2000 the World Bank established a partnership with the Parliamentary Network on the World Bank and imf. This is an independent ngo made up of elected parliamentarians from World Bank member States who represent themselves, not their countries. In the CoE, ngos endowed with the participatory status within the Conference of International Non-Governmental Organizations have great organizational autonomy. See Resolution Res(2003)8, Participatory status for international non-governmental organizations with the Council of Europe, adopted by the Committee of Ministers on 19 November 2003. In this sense, at the regional level see the acs Agreement n. 05/1995 regulating participation of social “partners” in Ministerial Council meetings. In this regard we refer particularly to the increasing participation of ngos in conferences organized by un institutions, see Nicolas Hachez, “The Relations between the United Nations and Civil Society: Past, Present and Future”, iolr (2008) 5: 49–84. Thus, the un and all its Specialized Agencies, as well as many other intergovernmental organizations not related to the un (e.g. wto, iaea, isa, etc.), have established arrangements for sharing information with ngos. In literature, about the relationship between the wto and civil society organizations see Michelle Ratton Sanchez, “Brief Observations on the Mechanisms for ngos Participation in the wto”, Rev. Int. Dir. Hum. 3 (2006) 4: 103–125; Peter Van den Bossche, “ngos Involvement in the wto: A Comparative Perspective”, jiel (2004) 4: 717–749. In this sense, see Tramontana, Organizzazioni non governative, 99–141; Iten, “L’organi­ sation”; Grigorescu, Democratic, 177–221.

General Introduction

15

2.2 The Organic Involvement of Non-governmental Interests and Its Significant Diffusion in Regional Organizations As stated, the involvement of interests different from governmental ones may also be realized through an organic method. This means that these interests are represented inside the institutional structure of the international organization itself. This method may assume three different forms. The first one is realized when the decision-making institutions of the organization are composed of governmental representatives, as well as of delegations of specific civil society sectors from each member State. Currently the realization of this type of organic involvement is exceptional and the ilo constitutes its sole example. Indeed, its institutions (i.e. the Conference and the Governing Body) have a tripartite composition: each national delegation is made up of representatives of government, workers and employers, each one expressing his own vote.57 They all enjoy equal status and participate directly in formulating policy and in decision-making. Obviously, such a form of the organic method is the most efficient, as it pledges a balanced and equal representation both of governmental and non-governmental interests within the international organization without impairing its functionality. Even the unwto is experiencing an original form of organic representation of non-governmental interests within its institutional structure. Indeed art. 4 of its Statute confers the status of Affiliate Members on international (both intergovernmental and non-governmental) bodies concerned with specialized interests in tourism, and to commercial bodies and associations whose activities are related to the aims of the organization; their representatives form the Committee of the Affiliate Members.58 57

58

In particular, each Member State sends four delegates to the Conference; among them only two are governmental representatives. The other two delegates represent the employers and workers of the member State. These two are not allowed to receive instructions from their own Government and they vote according to their own opinion or on the basis of suggestions received from the organization from which they are chosen. This tripartite composition of its decision-making organs makes the ilo a unique forum in which Governments and the socio-economic partners of member States can freely and openly debate and elaborate labour standards and policies. See Schermers and Blokker, International, 196–197. The Committee of the Affiliate Members is articulated in the Plenary and the Board. It may designate up to three observers and each Affiliate Member may designate one observer who may participate in the work of the Assembly of the unwto. Then, a representative of the Committee of Affiliate Members may participate in the work of the Council without the right to vote. See unwto General Assembly Resolution 602 (xix), Rules of Procedure of the Committee of Affiliate Members, October 2011.

16

General Introduction

The second form through which the organic method may be realized is a particular variation of the one characterizing the ilo. It consists in the possibility for officials composing the intergovernmental decision-making organs of the international organization to be accompanied by one or more advisers who represent corporate interests affected by the scope of the organization itself. It is worth noting that, unlike the ilo experience, these non-governmental advisers do not have an autonomous right to vote, and they are only permitted to offer their expertise to the governmental delegate. This model characterizes particularly an international commodity organization, namely the Union of Banana Exporting Countries. Indeed, arts. 5 and 9 of its statutory treaty provide that officials composing the Conference of Ministers and the Council may bring with them from their countries experts and representatives of banana producers or of banana workers’ trade unions.59 Finally, the third form of the organic method may consist in the establishment of ad hoc institutions made up only of representatives of specific nongovernmental interests (i.e. non-governmental institutions); they form part of the institutional structure of the organization itself or are strictly linked with it. In this regard, the ep, as well as the European Economic and Social Committee (eesc) and the Committee of Regions (CoR), represent typical and wellknown examples of non-governmental institutions. Even if such a model of the organic method has reached an incomparable development within the eu, it has recently been realized in other forms of association as well, above all at the regional level. In general terms, non-governmental institutions, whose establishment can be expressly provided for by the statutory act of the organization, or can result from its further normative activity, may exercise different functions. Generally they have an advisory power; they also often perform oversight and deliberative functions. Rarely, they are allowed to actively take part in the decision-making process and, in this regard, the co-legislative p ­ ower exercised by the ep constitutes a unique exception. 59

Such a clear and exhaustive provision is not contained in the statutory treaties of other commodity organizations which provide merely that governmental representatives may be accompanied by one or more advisers without specifying the latter’s qualifications. In this sense, see art. 5, para. 1, Agreement establishing Pepper Community; art. 11 (b) Constitution of Association of Natural Rubber Producing Countries, art. 6, para. 1, Inter­ national Olive Oil and Table Olive Agreement; art. 6, para. 2, International Natural Rubber Agreement; art. 9, para. 2, International Grains Agreement; art. 8, para. 2, International Coffee Agreement; art. 7, para. 2, International Sugar Agreement. Pursuant to the aforementioned experience of the Union of banana exporting countries, it might be thought that these advisers are experts in the field falling within the competence area of the organization.

General Introduction

17

The trend of establishing institutions to represent non-governmental interests is quite recent. It is not widespread within universal organizations, with the sole exception of the upu, where a Consultative Committee made up of delegates from ngos and associations operates.60 This depends mainly on the broad membership of universal organizations and the resulting strong heterogeneity of interests inside and among their member States; these features make unfeasible the idea to involve non-governmental interests by establishing ad hoc institutions. Conversely, these considerations explain why, as seen, in universal organizations the participation of interests different from governmental ones is usually realized through the un-organic method.61 Unlike universal organizations, the trend of establishing n ­ on-governmental institutions is evidenced in some commodity organizations62 and it has reached a significant extent in regional organizations. In particular, it tends to characterize regional forms of association endowed with political and economic competences. Thus, as stated, for a long time the presence of n ­ on-governmental 60

61

62

In 2004 the Congress (i.e. the upu plenary institution) approved the establishment of the Consultative Committee and the necessary amendments to the relevant Acts (arts. 118–125 of upu General Rules). It consists of ngos and companies that have an interest in supporting the objectives of the upu, as well as members designated by the Council of Administration and by the Postal Operations Council from among their members. It is worth noting that originally the UPU – established in 1874 as an international administrative union – had a very simple structure consisting of a plenary intergovernmental body supported by a small secretariat. Then, pursuant to art. 57 of the un Charter the upu became one of the un Specialized Agencies and modified its structure to also include an intergovernmental organ with limited membership. However, neither its 1874 founding Treaty nor its 1947 Convention provided for a body representing civil society interests in the postal sector. Recently the establishment of a parliamentary assembly within the un has been widely discussed. See Claudia Kissling, The Legal and Political Status of International Parliamentary Institutions (Berlin: Committee for a Democratic U.N, 2011), 53; Steven Wheatley, The Democratic Legitimacy of International Law (Oxford/Portland: Hart Publishing, 2010), 67; Richard Falk and Andrew Strauss, “Toward Global Parliament”, Foreign Affairs 80 (2001) 1: 212–220. However, the proposal to establish a parliamentary institution within international universal organizations does not seem to be feasible for the reasons expressed above, so it will – probably – only be the object of doctrinal debates. Thus, for instance, art. 19 of the International Natural Rubber Agreement provides for a panel of experts from the rubber industry and trade of exporting and importing members. Similarly, the International Coffee Agreement (art. 29), the International Cocoa Agreement (arts. 44–45) and the International Jute Study Group Agreement (art. 11) ­prescribe for the establishment of a Consultative Board composed of representatives of the private sector in exporting countries, as well as importing ones and endowed with advisory powers.

18

General Introduction

institutions has been typical only of European organizations. In particular, the first regional parliamentary assembly was established in the CoE. Then, institutions representing non-governmental interests became a peculiarity of the European integration process, which counted since its inception on the ep, the eesc and the ecj;63 moreover, they were also characteristic of other regional organizations in the European Continent. However, as stated above, in recent decades the trend of establishing nongovernmental institutions has significantly characterized also regional organizations in other geographic areas (i.e. Latin America and the Caribbean, Sub-Saharan Africa, Asia-Pacific, Eurasia and the Arab-Islamic World) independently of their legal model of cooperation. Therefore, at present this trend is particularly widespread at the regional level. 3

Studies on the Participation of Non-governmental Interests in International Organizations

The un-organic method of involvement of non-governmental interests in international organizations has been broadly debated by international law scholars. Indeed, there is a wide literature analyzing the relationship between universal organizations (above all, un, Specialized Agencies, imf) and ngos,64 while a lesser (but increasing) attention has been devoted to the relationship between regional organizations and ngos.65 63

64

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As is known, the Maastricht Treaty integrated the institutional structure of the European Community with the Committee of the Regions – CoR – (now arts. 300 and 305–307 tfeu). See, among others, Grigorescu, Democratic, 177–221; Iten, “L’organisation”, 83–94; Rossi, Legal Status, 67–152; Riedel, “The Development”; Hachez, “The Relations”; Susana M ­ osquera Monelos, “Mecanismos jurídicos de participación de la sociedad civil ante los organismos internacionales”, An. Der. Const. l.a. (2007): 807–828; Ratton Sanchez, “Brief Observations”; Van den Bossche, “ngos Involvement in the wto”; John Keane, Global Civil Society (Cambridge: cup, 2003). Currently, existing studies mainly focus on eu, CoE, oas and au. Some important empirical studies on civil society regionalization have been conducted from the socio-political perspective. Regarding East/Southeast Asia see, among others, Julie Gilson, “Governance and non-governental organizations in East Asia”, in Civil Society, ed. Armstrong, 129–147. Regarding Latin America, see Michelle Ratton Sanchez, “Is There Any Room for Input and Control Legitimacy by Civil Society in Mercosur?” in Closing or Widening the Gap? eds. Ribeiro-Hoffmann and Van der Vleuter, 117; Gerda van Roozendaal, “The Contribution of Non-State Actors to the Legitimacy of the caricom”, in Closing or Widening the Gap? eds. Ribeiro-Hoffmann and Van der Vleuter, 135; Jean Grugel, “Regionalist governance

General Introduction

19

Differently, in spite of the large extent and the possibly significant implications for the phenomenon of the international organization as a whole, the organic method and particularly the increasing trend to establish non-­ governmental institutions in regional organizations have not been studied thoroughly by legal academics until now. The lack of reference in handbooks on the law of international organizations until the 1990s is justified by the fact that, as previously stated, in those years this phenomenon was not spread outside the ­European continent.66 Furthermore, the trend of establishing ­non-governmental institutions has also been ignored by recent studies. Indeed, most of the handbooks on international organizations written in the 2000s by scholars trained in the common law legal culture neglect ­non-governmental institutions when dealing with the topic of institutional structure.67 Only

66

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and transnational collective action in Latin America”, Economy and Society 35 (2006) 2: ­209–231. Regarding the Arab-Islamic World, see Michael Schulz, “The role of civil society in regional governance in the Middle East”, in Civil Society, eds. Armstrong, 166–180. Regarding the Baltic region see Marta Reuter, Networking a Regional into Existence? Dynamics of Civil Society Regionalisation in the Baltic Sea Area (Berlin: Berliner WissenschaftsVerlag, 2007). Regarding Sub-Saharan Africa see Andréas Godsäter, “Civil Society and Regional Trade Integration in Southern Africa”, in Mapping Agency. Comparing Regionalism in Africa, eds. Ulrike Lorenz-Carl and Martin Rempe (Farnham: Ashgate, 2013), 115– 131; Andréas Godsäter and Fredrik Söderbaum, “Civil society in regional governance in Eastern and Southern Africa”, in Civil Society, eds. Armstrong et al., 148–165; Moyo Bhekinkosi, “Civil Society Organizations’ engagement with regional economic communities in Africa. People Friendly or People-driven?” (Final Report Submitted to undp Regional Service Centre for Eastern and Southern Africa, Johannesburg, 2007); Fredrik Söderbaum, “Regionalisation and civil society: The case of Southern Africa”, npe 27 (2007) 3: 319–337. Sometimes, handbooks referred briefly only to the ep and to the CoE Parliamentary Assembly. In this sense, see Massimo Panebianco and Gerardo Martino, Elementi di diritto dell’organizzazione internazionale (Milano: Giuffrè, 1997); Jean-Marc Sorel, Droit des organisations internationales (1st edn. Lyon: L’Hermés, 1997); Daniel Dormoy, Droit des organisations internationales (Paris: Dalloz, 1995); Giuseppe Biscottini, Il diritto delle organizzazioni internazionali (2nd edn. Padova: cedam, 1981); Riccardo Monaco, Lezioni di organizzazione internazionale. Principi generali (Torino: Giappichelli, 1975); Paul Reuter, Institutions internationales (Paris: Presse Universitaire de France, 1975); Derek W. Bowett, The Law of International Institutions (2nd edn. London: Stevens&Sons, 1970). In this sense, see among others, Éric David, Droit des Organisations Internationales (Bruxelles: Bruyant, 2016); Jan Klabbers, An introduction to international institutional law (3rd edn. Cambridge: cup, 2015); Laurence Dubin and Marie-Clotilde Runavot (eds.), Le phénomène institutionnel international dans tous ses états: transformation, déformation ou reformation? (Paris: Pedone, 2014); Ian Hurd, International Organizations. Politics, Law, Practice (2nd edn. Cambridge: cup, 2013); Volker Rittberger, Bernhard Zangl and Andreas Kruck (eds.), International Organization (2nd edn. Houndmills: Palgrave MacMillan, 2012);

20

General Introduction

some ­handbooks ­authored by academics belonging to the civil law tradition acknowledge the existence of non-governmental institutions, but they usually limit their investigation to the ep and, to a lesser extent, the CoE pa.68 Probably, low attention given to the phenomenon of the e­ stablishment of non-governmental institutions in regional organizations is due to the limited investigation scope proposed by many international law scholars. Indeed, they often tend to focus only on the un, its Specialized Agencies, the wto at the universal level and on the eu at the regional level. Thus, they tend to neglect the existence of regional organizations in different ­geographic areas and their peculiarities, as well as to underestimate many technical forms of association. However, in recent years a few political scientists69 and, to a lesser extent, international law scholars70 have extended their investigation outside Europe

68

69

70

Jan Klabbers and Åsa Wallendahl (eds.), Research Handbook on the law of international organizations (Cheltenham/Northampton: Edward Elgar, 2011); Kelly-Kate Pease, International Organizations (3rd edn. New Jersey: Prentice Hall, 2008); Michael Scharf, The Law of International Organizations (2nd edn. Durham: Carolina Academic Press, 2007); José E. Alvarez, International Organizations as law-makers (Oxford: oup, 2005); Chittharanjan F. Amerasinghe, Principles of the institutional law of international organizations (2nd edn. Cambridge: cup, 2005); Paul Taylor, International Organization in the Age of Globalization (New York/London: Routledge, 2003); Nigel D. White, The law of international organizations (Manchester: Manchester University Press, 1996). In this regard, see mainly Bjørn Høyland, “Parliaments”, in The Oxford Handbook of International Organizations, eds. Jacobs Katz Cogan, Ian Hurd and Ian Johnstone (Oxford: oup, 2016), 782; Laurence Dubin and Marie-Clotilde Runavot, “Représentativité, efficacité, légitimité: des organisations internationales en crise?” in Droit des organisations internationals, eds. Evelyne Lagrange and Jean Marie Sorel (Paris: lgdj, 2014), 88–92; Claudio Zanghì, Diritto delle organizzazioni internazionali (3rd edn Torino: Giappichelli, 2013); Angela Del Vecchio (ed.), Diritto delle Organizzazioni Internazionali (Napoli: esi, 2012); Mwayila Tshiyembe, Organisations internationales. Théorie générale et étude de cas (Paris: Pedone, 2012); Ugo Draetta, Principi di diritto delle organizzazioni internazionali (3rd edn. Milano: Giuffrè, 2010), 111–114. From political science perspective see particularly Lucio Levi, Giovanni Finizio and Nicola Vallinoto (eds.), The democratization of international institutions: first international democracy report (London/New York: Routledge, 2014); Olivier Costa, Clarissa Dri and Stelios Stavridis (eds.), Parliamentary dimensions of regionalization and globalization: the role of inter-parliamentary institutions (Basinstoke: Palgrave MacMillan, 2013); Lluís Maria de Puig, International parliaments (Strasbourg: Council of Europe Publishing, 2008). For a descriptive study of international parliamentary institutions from legal perspective see Daniel Turp, “La representation parlementaire au sein des institutions internationales”, in Il futuro delle organizzazioni internazionali. Prospettive giuridiche. xix Convegno Courmayeur 26–28 giugno 2014, ed. Michele Vellano, (Napoli: es, 2015), 315–329; Kissling, The Legal; Felix Arndt, “Parliamentary Assemblies, International”, mpepil, October 2007;

General Introduction

21

and have examined non-governmental institutions established in other regional organizations. Their studies are remarkable because they provide accurate descriptions of such institutions and try to elaborate and frame them into categories. However, these scholars have limited their analysis to international parliamentary institutions, thus overlooking bodies representing the interests of specific civil society categories (e.g. eesc, Business Councils, etc.). Just a few international law scholars have demonstrated to know about the phenomenon of the establishment of non-governmental institutions in regional ­organizations outside Europe and have analyzed it more or less broadly and completely.71 In any case, until now no one has provided an organic and systemic study of this trend putting into evidence the rationales for its development. Furthermore, no one has tried to frame it within the general legal theory about international organizations or to reason about its possible implications for the phenomenon of interstate institutionalized cooperation as a whole. 4

Methodology and Research Plan

On the premise that, as stated, the un-organic method of interaction between international organizations and nsas has been widely discussed by international law scholars, further investigations in this regard are not needed here.  On the contrary, the aforementioned limited attention devoted u ­ ntil now by  lawyers and academics to the trend toward the establishment of

71

Henri Klebes, “Les institutions parlementaires internationals”, rgdip (1988) 4: 815–888; Hans-Heinrich Lindemann, “Parliamentary Assemblies, International”, mpepil (1983) 5: 228–235. Currently, a few international law scholars analyze – more or less broadly and completely – both parliamentary institutions and those representing interests of specific civil society categories. In this sense see Matthias Ruffert and Christian Walter, Institutionalised International Law (Baden-Baden: Nomos, 2015); Manuel Diez De Velasco Vallejo, Las ­organizaciones internacionales (16th edn. Madrid: Tecnos 2012), 101–109; Schermers and Blokker, International, 316–317 and 407–435; Evelyne Lagrange, La ­répresentation ­institutionnelle dans l’ordre international. Une contribution à la théorie dela personnalité morale des ­organisations internationales (The Hague/London/New York: K ­ luwer, 2002); Ignaz Seidl-­Hohenveldern, “Les organes des organisationes internationales”, in ­Manuel sur les organisations internationales, ed. Jean-René Dupuy (2nd edn. Dordrecht/ Boston/Leiden: Martinus Nijhoff, 1998), 93 ff.; Benedetto Conforti, “Organizzazione internazionale”, Enciclopedia del Novecento (1979). Accessed April 24, 2015. http:// www.treccani.it/enciclopedia/organizzazione-internazionale_(Enciclopedia-del -­Novecento)/; ­Zbigniew M. ­Klepacki, The Organs of International Organizations (Warsaw: Polish ­Scientific ­Publishers, 1973).

22

General Introduction

­non-governmental institutions in regional organizations and to the broad extent it has reached require an in-depth reflection. Indeed, they leave relevant legal questions unanswered. First of all, on the premise that international organizations are traditionally intergovernmental in nature, it is to be questioned whether the increasing spread of non-governmental institutions can influence it, that is, whether this phenomenon can make conceivable a gradual overrun of the intergovermental model in regional organizations. Then, it remains to be clarified how non-governmental institutions can be framed within the traditional distinction between organs of States and organs of Individuals that is predominant among international organizations law scholars embracing the functionalist theory.72 Finally, it is to be proven if, and to what extent, the establishment of these institutions affects the dialectical relationship between State sovereignty and the functions conferred upon the organization, on which the interpretation of interstate institutionalized cooperation is based according to the functionalist approach.73 The significance of questions raised by the spread of non-governmental institutions and their carelessness by international law scholars make a complete and in-depth investigation essential. This book aims at answering the aforementioned questions not only providing an explanatory and descriptive study 72

73

The functionalist theory is based on the classical Westphalian State-centred perspective. It assumes that international organizations are created by States in order to assign to them those functions the States are incapable of performing themselves. So, international organizations may act just within the limits of what is necessary for them to reach their purpose and they are interpreted in light of the dialectic relationship between State sovereignty on the one hand, and the functions conferred upon them on the other hand. About the functionalist theory see particularly Michel Virally, “La notion de fonction dans la thèorie de l’organisation internationale”, in Mélanges offerts à Charles Rousseau: la Communauté internationale, (Paris: Pedone, 1974), 277–300. Over the years the functionalist theory has been widely accepted by lawyers, and it has had only a few opponents. In this regard, see Finn Seyersted, Common Law of International Organizations (Leiden: Brill, 2008); White, The Law. Recently, Jan Klabbers, “The Transformation of International Organizations Law”, ejil 26 (2015) 1: 9–82 has expressed some criticism of the functionalist theory, stating that it fails to deal with issues of responsibility and accountability that concern actors other than the membership of the organization. In the same sense, see Jan Klabbers, “Contending approaches to international organizations: Between functionalism and constitutionalism”, in Research Handbook, eds. Klabbers and Wallendal, 5–12. In response to Klabbers’ critics see Laurence Boisson de Chazournes, “Functionalism! Functionalism! Do I Look Like Functionalism?” ejil 26 (2015) 4: 951–956; André Nollkaemper, “Saving The Scarecrow”, ejil 26 (2015) 4: 957–964; Guy Fiti Sinclair, “The Original Sin (and Salvation) of Functionalism”, ejil 26 (2015) 4: 965–973.

General Introduction

23

of this trend, but also trying to explain if and to what extent it can influence the general legal theory about international organizations. For this purpose, first of all, I will classify non-governmental institutions in accordance with the types of interests they represent (parliamentary, socio-economic, territorial), and with the legal nature of the founding acts on which the r­ elationship between the institution and the organization depends (integrated institutions vs. connected institutions) (Chapter 1, para. 2). Then, I will outline the current trend towards their establishment; in particular, although it also characterizes some technical organizations (i.e. commodity ones), the broad extent it has reached in the context of regional organizations leads to circumscribe the analysis only to the latter.74 Therefore, I will illustrate which g­ eographic areas (Europe, Latin America and the Caribbean, Sub-Saharan ­Africa, Asia-Pacific, Eurasia and the Arab-Islamic World)75 are affected by the spread of non-governmental institutions, and if their presence is somehow dependent on the legal model realized by interstate institutionalized cooperation (i.e. soft organization,76 cooperation organization, supranational organization77) (Chapter 1, para. 4). The outcomes of this recognitive analysis will be instrumental in explaining legal, economic and sociological reasons underlying the establishment

74

75

76

77

It is worth noting that the broad scope of this investigation concerning almost 41 regional organizations and more or less 71 non-governmental institutions, and the inability at times to access official information and documents have made it difficult. Therefore, some inaccuracies are possible. It is worth noting that the identification of these geographic areas is subjective and is based not only on territorial proximity among States but also on their political, historical and cultural affinities, as well as on the legal peculiarities of the regional organizations they have established. Thus, as we will see hereafter, the oecd will be included among European organizations even if its members are not only European States but industrialized countries in general. A broad definition of “international organization” including both hard organizations (established by an international treaty) and soft organizations (based on non-binding political documents) is currently accepted by a portion of international law scholars. Among others see, Piero Pennetta, “International Regional Organizations. Problems and Issues”, in Evolutions, eds. Virzo and Ingravallo, 70–115. About soft organizations in literature see recently Angela Di Stasi, “About Soft International Organizations: an Open Question”, in Evolutions, eds. Virzo and Ingravallo, 44–69. As is known, the functionalist theory elaborated the categories of cooperation organizations and supranational organizations interpreting interstate institutionalized cooperation on the basis of the dialectic relationship between State sovereignty on the one hand, and the functions conferred upon the international organization on the other. About this distinction in literature see lastly, Schermers and Blokker, International, 55–57.

24

General Introduction

of n ­ on-governmental institutions in regional organizations (Chapter 1, para. 3). In this regard, for the purpose of a thorough analysis this trend will be ­investigated not only from the traditional functionalist perspective – I share fully – but also from the recent constitutionalist view.78 In particular, I will prove that, consistent with functionalist theory, the establishment of non-­ governmental institutions is directed towards promoting a more efficient exercise of functions conferred by the States on the organization in order to ­effectively pursue statutory goals. At the same time, I will try to illustrate why such a trend is regarded as a tool to democratize international organizations under the recent constitutionalist approach. In order to answer the question as to whether the traditional intergovernmental model of interstate institutionalized cooperation is still suitable to ­illustrate the phenomenon of international organization at the regional level, the role played by non-governmental institutions will have to be analyzed. For this purpose, opting for the inductive methodological approach I will carry out a comparative investigation of legal features (mode of establishment, composition, legal status of members, internal organization, etc.), as well as the practice of these institutions. This comparison will be based on the analysis of norms (i.e. the statutory act of each regional organization, as well as the constitutive act, rules of procedure and normative production of each nongovernmental institution) in dynamic terms (Chapter 2). This means that I will take into account not only their original formulation but also their subsequent amendments and integrations.79 A significant attention will be devoted to the study of functions performed by non-governmental institutions and to their involvement in decision-making; this will be functional to understand how

78

79

For a complete overview of the global constitutionalism, see Stephen Gardbaum, The new Commonwealth Model of Constitutionalism (Cambridge, cup, 2013); Christine Schwöbel, Global Constitutionalism in International Law Perspective (Leiden: Brill, 2011); Jan Klabbers, Anne Peters and Geir Ulfstein (eds.), The Constitutionalization of International Law (Oxford: oup, 2009). For a more synthetic but exhaustive description of constitutionalist approach see Thomas Kleinlein, “Non-state Actors from an international constitutionalist perspective. Participation matters!” in Participants, ed. D’Aspremont, 41; Jan Klabbers, “International Legal Positivism and Constitutionalism”, in International Legal Positivism in a Post-Modern World, eds. Jörg Kammerhoffer and Jean D’Aspremont (Cambridge: cup, 2014), 264–290. In this regard, it is worth noting that sometimes an exhaustive analysis is complicated by the difficulty in finding the legal texts of some regional organizations in an accessible version. For instance, founding acts and rules of procedure of parliamentary institutions established in Arab-Islamic organizations and in some Eurasian forms of association are published only in Arabic and Russian, respectively.

General Introduction

25

these institutions can contribute potentially, as well as concretely to the attainment of the organization’s goals. In this regard, it is worth noting that the impact assessment of their work is not an easy task. First of all, this depends on the substantial inactivity of some non-governmental institutions, which is strictly linked to the inactivity of the regional organization itself.80 Secondly, when these institutions are concretely operational, the assessment of their activity’s impact is complicated by the difficulty in tracing the acts they have adopted81 and/or in finding official information about their effective follow-up by intergovernmental decision-making bodies.82 Therefore, considerations regarding the real contribution of nongovernmental institutions to the efficient exercise of the organization’s functions will be expressed also taking into account information inferable from final documents of the intergovernmental organs’ meetings. The outcomes of the empirical investigation will provide the legal foundation for reasoning about the general theory on international organizations; in particular, they will help to ascertain whether some of the axioms it is based on can still be considered fully truthful in light of the phenomenon of institutional multipolarism. Firstly, they will be instrumental in dealing with the issue of the legitimacy of international organizations, which is widely debated by scholars,83 and in proving how non-governmental institutions can ­contribute to its enhancement, both according to the functionalist ­perspective 80

81 82 83

As we will see below, this is the case of uma and its Consultative Council in the ArabIslamic World, as well as of oecs and its Parliamentary Assembly and of aladi and its Labour Council and Business Council in Latin America and the Caribbean. We can also refer to eco and guam and their parliamentary assemblies (respectively, paeco and guam pa). We refer, for instance, to the Arab Parliament, the csto pa in Eurasia, etc. We refer, for example, to the cis ipa and the pabsec in the Eurasian region; the puic in the Arab World; the uemoa, cemac and ecowas Parliaments in Sub-Saharan Africa. Literature addressing the legitimacy of international organizations from political science perspective is very wide. See, among others, Lisa Maria Dellmuth and Jonas Tallberg, “The social legitimacy of international organizations: Interest representation, ­institutional performance, and confidence extrapolation in the United Nations”, ris 41 (2015): 451; Dominik Zaum (ed.), Legitimating International Organizations (Oxford: oup, 2013); ­Satoshi Machida, “Globalization and the Legitimacy of Intergovernmental organizations”, is 46(2009): 371–400; Allen Buchanan and Robert Keohane, “The Legitimacy of Global Governance Institutions”, Ethics and International Affairs 20 (2006), 405; Allen ­Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law ­(Oxford: oup, 2003); Marc Coicaud and Veijo Heiskanen (eds.), The Legitimacy of International Organizations (New York: un University Press, 2001); Zelditch Morris, “Theories of Legitimacy”, in The Psychology of Legitimacy: Emerging Perspectives on Ideology, Justice and Intergroup Relations, eds. John Jost and Brenda Major (Cambridge: cup, 2001): 33.

26

General Introduction

and the constitutionalist one (Chapter 3). Secondly, the results of the empirical analysis will constitute a basis on which to exclude the qualification of n ­ on-­governmental institutions in the categories of either organs of States or o­ rgans of Individuals and to hypothesize the creation of a third category: ­organs of people (Concluding Remarks). Finally, it is worth pointing out that for the purpose of this comparative analysis I will endeavour to leave the Eurocentric perspective deriving from my cultural background, thus avoiding generalizing the experience of the eu as an absolute model. This does not mean that the eu multipolar institutional structure will not be analyzed. On the contrary, the ep, the eesc and the CoR will be my first reference points and will be duly taken into account. However, closer attention will be paid to non-governmental institutions operating within other regional organizations, because they are less known and, sometimes, even ignored. In any case, I will try not to express any evaluation about non-governmental institutions established outside Europe which can be influenced by a direct comparison with the eu experience. More precisely, the latter will be used as a reference point, but only from a diacronic perspective.84

84

From legal perspective see, among others, Dubin and Runavot, “Représentativité”, 88–92; Eric De Brabandere, “The Impact of «Supranationalism» on State Sovereignty from the Perspective of the Legitimacy of International Organizations”, in Statehood and Self-Determination: Reconciling Tradition and Modernity in International Law, ed. French ­Duncan (Cambridge: cup, 2013), 450; Jean d’Aspremont and Eric De Brabandere, “The Complementary Face of Legitimacy in International Law: the Legitimacy of origin and the Legitimacy of exercise”, Fordham ilj 34 (2011): 190; Wheatly, The Democratic L­ egitimacy; Sato Tetsuo, “Legitimacy of International Organizations and their Decisions: Challenges that International Organizations Face in the 21st Century”, Hitotsubashi jl&P 37(2009): 11–30; Markus Krajewski, “International Organizations or Institutions, Democratic Legitimacy”, mpepil (2008); Rüdiger Wolfrum, “Legitimacy of International Law from a Legal Perspective”, in Legitimacy in International Law, eds. Rüdiger Wolfrum and Volker Röben (Heidelberg: Springer, 2008), 1; Alain Pellet, “Legitimacy of Legislative and Executive Actions in International Institutions”, in Legitimacy, eds. Wolfrum and Röben, 63–82. Indeed, it is worth bearing in mind that current features of many non-governmental institutions established within regional organizations outside Europe were typical of the ­European ones in the 1960s and 1970s. In this regard, Jofre Rocabert, Frank Schimmelfennig and Thomas Winzen, “The rise of International Parliamentary Institutions? Conceptualization and First Empirical Illustrations”. Paper presented at the ecpr Joint Sessions, Salamanca, April 10–15, 2014), stated that “the beginnings of the Parliamentary ­Assembly […] resemble other existing ipis much more closely than the current European Parliament, and its development over time might tell us something about the conditions for parliamentarization beyond the eu”.

chapter 1

Non-governmental Interests in Regional Organizations 1

Evolution in the Institutional Design of Regional Organizations: The Bipolar Institutional Structure and the Multipolar One

As previously stated, international organizations constitute the typical instrument for interstate institutionalized cooperation aiming at pursuing common goals within the traditional juxtaposition of national interests. They are ­characterized by stability and permanence which translate into the existence of their own institutional structure. According to the functionalist theory, this is the place where the general interest of the members of the organization and particular interests of each of them are tempered in order to realize common objectives agreed in the statutory act.1 As the institutional structure is ­instrumental for the international organization pursues its goals, sometimes it may undergo an evolution over the years in order to answer to new needs of interstate institutionalized cooperation. This trend characterizes particularly regional organizations. Thus, for instance, institutions existing at the time of their establishment may be modified, new competences may be attributed, as well as new organs may be established.2 In essence, there exists no general rule 1 For general considerations about the institutional structure of international organizations see Klabbers, An introduction, 169–196; Ruffert and Walter, Institutionalised, 131–149; Laurence Burgorgue-Larsen, “La structure institutionnelle de l’organisation internationale”, in Droit, eds. Lagrange and Sorel, 375–401; Zanghì, Diritto, 217–234; De Velasco V ­ allejo, Las ­organizaciones, 101–109; Maria Rosaria Mauro, “La struttura ed il funzionamento delle ­organizzazioni ­internazionali”, in Diritto, ed. Del Vecchio, 77–102; Inger Österdahl, “­International organizations – institutions and organs”, in Research Handbook, eds. Klabbers and ­Wallendahl, 156–189; Schermers and Blokker, International, 155–500; Amerasinghe, Principles, 131–159 and 217–270; Dupuy, Manuel, 89–291; Biscottini, Il diritto, 75–90. From a political science perspective see Volker, Zangl and Kruck, International, 73–89. 2 For the purpose of this investigation the two terms “institutions” and “organs” are used as synonymous. Differently, statutory treaties of some international organizations use them to indicate different kinds of entities. In this regard, we can consider the Treaty on the European Union (teu) and the Treaty on the Functioning of the European Union (tfeu) which use variously the terms “institutions”, “organs” and “organisms”. For general considerations see Österdahl, “International”, 157–159.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004344440_003

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of international law concerning the institutional structure of international organizations and, in practice, there is a great variety of organs and organizational models also depending on the membership size.3 However, while the exact structure of an international organization varies according to its specific needs, some general features may be distinguished. In particular, if we consider the institutional design of international organizations from the interest-oriented perspective, namely looking at interests represented by their organs, we can distinguish the bipolar institutional structure from the multipolar one. International organizations endowed with the bipolar institutional structure have two main categories of organs: those composed of governmental delegates from member States (the so-called organs of States), on the one hand; those composed of persons representing only ­themselves and acting in the interest of the organization itself (i.e. organs of I­ ndividuals), on the other hand.4 The Secretariat serving as bureaucratic ­apparatus of the ­organization is a typical example of organ of Individuals, but sometimes also judicial or quasi-judicial institutions belonging to this category may be p ­ rovided for. However, in organizations developing the bipolar institutional structure, the organs of States usually have the absolute monopoly of ­decision-making power and no other category of interests is represented. So they are regarded to have a strong intergovernmental dimension. On the contrary, the multipolar institutional structure is realized when the international organization is endowed with a plurality of organs representing different interests. I mean that apart from organs of States and the body ­representing the general interest of the organization (i.e. the Secretariat or the Commission), there are also bodies which represent political interests of member States’ people and/or specific categories of civil society affected by the organization’s activities. The latter have autonomous functions and may be more or less involved in the decision-making. Sometimes, in international forms of association developing the multipolar institutional structure the ­representation of the general interest of the organization as such is reinforced by the presence of a judicial organ. Obviously, the presence of a plurality of organs representing different ­interests determines the development of a diverse institutional balance based on complex and duly regulated inter-institutional relationships. However, the 3 The organs of an international organization may be distinguished and classified according to several different criteria, such as their importance or functions performed. For an in-depth critical analysis of classification of organs used in literature, see Klepacki, The organs, 1–18. 4 This classification is widely accepted by international law scholars. In this sense, see literature supra, note 1, Chapter 1.

Non-governmental Interests in Regional Organizations

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role played by intergovernmental organs remains predominant, while institutions representing non-governmental interests usually have a secondary position. The Diffusion of the Bipolar Institutional Structure and the Multipolar One until the End of the 1980s Traditionally international organizations have a bipolar institutional structure, independently of the size of their membership and competences performed. Indeed it characterized first international forms of association established in the 19th century and in the first decades of the 20th century, namely ­administrative unions and fluvial commissions. After the World War ii the bipolar institutional structure became the typical institutional structure both of universal organizations – namely the un and its Specialized Agencies which developed the so-called tripartite structure5 – and of forms of association whose membership was limited to specific States. In this regard, it was a distinctive feature of many international commodity organizations, as well as of first regional organizations established in different geographic areas in the 1940s (e.g. las, 1945; South Pacific Commission, 1947; oas, 1948). In particular, the institutional structure of the latter consisted firstly in one or more plenary organs composed of governmental delegates of different rank (from ­conference of Heads of State to diplomats’ or national officials’ committees) which were organized on a hierarchical basis. They usually exercised ­decision-making powers, as well as executive functions or investigation and preparatory works.6 Then, the institutional structure was completed by the “classical” Secretariat mainly performing technical and administrative functions. The involvement of national political, social and economic interests was carefully avoided, so neither bodies representing parliamentary and various civil society interests nor judicial organs were provided for. A similar institutional structure was then reproduced in almost all regional and sub-regional organizations ­established 1.1

5 The tripartite structure, which is typical of the un and its Specialized Agencies and which had already characterized the League of Nations, is composed of three types of principal organs: (1) the plenary assembly consisting of governmental delegates from all member States; (2) the organ of limited membership which is made up of representatives of a smaller number of States receiving instructions from their own Governments; (3) the secretariat performing mainly administrative functions but, in some cases, even executive or political ones. Obviously, this institutional scheme may be integrated by subsidiary organs composed of lower level State delegates (e.g. sub-ministerial committees) or of independent experts (e.g. thematic work groups). 6 The highest level plenary organ often has also functions in interstate disputes settlement arising within the organization.

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from the 1950s to the late 1980s in Latin America7 and the Caribbean,8 in SubSaharan Africa,9 as well as in the Arab-Islamic World10 and in the Asia-Pacific region.11 It is worth noting that they all were characterized by a strong protection of national sovereignty and were based on classical principles of international law: legal equality of States, mutual respect and non-intervention in domestic affairs, dualism, etc. Moreover, generally in their statutory acts no reference was made either to the respect for democracy or to the opportunity for peoples’ involvement in the activities of the organization.12 Unlike the bipolar institutional structure, traditionally the multipolar one did not have a large diffusion. Indeed, it was unusual in universal organizations and it appeared for the first time at the end of the World War ii at the regional level. In particular, since the end of the 1940s the multipolar institutional structure has become a peculiarity of regional organizations in Europe. First of all, it was typical of the European integration process; since its inception it has been endowed with: the Council – made up of governmental delegates of each member State; the Commission – composed of persons from member 7

8 9

10 11

12

Thus, for instance, the bipolar institutional structure was reproduced in oas (1948), alalc (1960) and aladi (1980), sela (1975), odeca (1951). It is worth noting that in 1962 the odeca member States replaced the 1951 Charter with a new one providing for a Legislative Council (arts. 10–13) and a Court of justice (arts. 14–16) which never became operational. So, in theory, they aimed at going beyond the original bipolar strictly intergovernmental scheme. The bipolar institutional structure also characterized the Grupo de Río which operated according to the model of soft organization. In the Caribbean the bipolar institutional structure characterized carifta (1965), caricom (1973) and oecs (1981). In Sub-Saharan Africa the bipolar institutional structure was reproduced by soft organizations, such as CdE (1959), sadcc (1980), as well as by hard organizations realizing the cooperation model, namely oau (1963), udeac (1964) sacu (1969), ceao (1973), mru (1973), ecowas (1975), cepgl (1976), coi (1982/1984), eccas (1983). Regarding the pta (1981), its statutory treaty (art. 10) provided for the establishment of a Tribunal, but it was never made operational, so its institutional structure was organized according to the bipolar scheme too. Apart from the las, even the oic (1972) and the gcc (1981) were organized around a bipolar institutional structure. See, for instance, the institutional design of asean (1967), rcd (1964/1977), pif (1973) and saarc (1985). It is worth noting that asean was born as soft organization. Similarly, rcd was established as soft organization in 1964 and was subject to a first institutionalization in 1977 with the signing of Treaty of Izmir. Unusually, the preamble of the Bangkok Declation establishing the asean provided that “[…] the aims and purposes of the Association shall be: […]. To promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries of the region […]”.

Non-governmental Interests in Regional Organizations

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States acting in their own capacity and representing the eec/eu interest as such; the European Court of Justice (ecj) – made up of judges from member States who are mandated to ensure the respect for eu law; the ep – composed of representatives of the peoples of member States; the eesc – made up of representatives of the various categories of economic and social life. Apart from the European supranational organizations (i.e. ecsc,13 eec- now eu), also European cooperation organizations with political and military mandate (CoE, weu,14 nato) and those with broad economic competences (Benelux, efta, oecd) have experienced the multipolar institutional structure. In essence, their institutional design was originally characterized by the presence – side by side with the hierarchically organized intergovermental apparatus15 and the organ of Individuals acting in the interest of the organization itself (i.e. the Secretariat or the High Authority/European Commission respectively in the ecsc/eu)16 – with parliamentary bodies17 and/or organs representing specific interest groups of civil society.18 Finally, as previously stated, their 13

The Treaty establishing the ecsc was signed in Paris on 18 April 1951 and entered into force on 23 July 1952, with a validity period limited to 50 years. The Treaty expired on 23 July 2002. 14 The weu was a defensive alliance established by the Treaty on Economic, Social and Cultural Collaboration and Collective Self-Defence (1948), then modified by the Brussles Treaty (1954). The weu had a parliamentary assembly which was regulated by the Charter and Rules of procedure adopted by Resolution of the Assembly at its 3rd sitting in 1955. Following the adoption of the Lisbon Treaty, which contains a mutual assistance clause, all functions of the weu had effectively been incorporated into the eu. Consequently, the organization was closed down on 30 June 2011; therefore, it and its parliamentary assembly will not be further discussed. 15 The composition of plenary organs may vary from Heads of States and Government level or Ministers of foreign affairs (the highest plenary organ) to diplomats or State officials (lower level plenary organs). 16 As is known, unlike secretariats performing mainly administrative functions, the ecsc High Authority and the European Commission exercise executive-governing functions. It is worth noting that similar executive-governing organs were established for the first time in the fao and the unesco. However some member States adopted a critical attitude towards them, so few years after they had been set up, amendments were introduced into their statutory acts to change the legal status of their members from international officials into delegates of States. See Klepacki, The organs, 70–75. 17 In this regard, I refer to the ep, as well as to the CoE pa, the Benelux Parliament, weu ­Assembly, the efta Parliamentary Committee, the nato pa. A forum of parliamentarians – the socalled oecd Global Parliamentary Network – operates within the oecd. 18 I refer to the ecsc Consultative Committee, the eesc and the CoR, the Economic and Social Consultative Council of Benelux, the efta Consultative Committee, the tuac and the biac of the oecd, etc.

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institutional structure was often completed with a judicial organ entitled to settle disputes arising within the organization.19 However, intergovernmental bodies saved a clearly dominant role. Outside the European Continent, from the end of the World War ii to the end of the 1980s the multipolar institutional structure was realized only by the Andean Pact. Indeed, since 1979 it reproduced this institutional design completely, trying to imitate the eec institutional model.20 The Diffusion of the Bipolar Institutional Structure and the Multipolar One from the 1990s Since the end of the Cold War there was a change in the diffusion of the bipolar institutional structure and of the multipolar one in international organizations, especially in regional forms of association with economic mandate. Indeed, the bipolar institutional structure has continued to be typical of universal organizations; thus, for instance, apart from the un and its Specialized Agencies, now it also characterizes the wto whose intergovernmental apparatus is composed of a plurality of hierarchically organized organs. Regarding organizations whose membership is limited to specific States, this model of institutional structure is still typical of some international commodity organizations,21 as well as of a few regional organizations.22 1.2

19

20

21

22

I refer, for instance, to the European Court of Justice, the Benelux Court of Justice, the weu Tribunal, the European Court of Human Rights. Regarding the latter, it is worth pointing out that even if it was established within the framework of the CoE, it is entitled to settle only disputes concerning human rights violation on the basis of the European Convention for the Protection of Human Rights and Fundamental Freedom (arts. 38–56). The 1969 Cartagena Agreement provided only for: a Commission which was composed of governmental delegates (arts. 6–12); the Board (Junta in Spanish) which was an administrative organ (arts. 13–18); the Economic and Social Advisory Committee (art. 22). Later, in 1979 this structure was integrated by a Tribunal and a Parliament, thus more or less imitating the experience of the eec. It is worth noting that even the statutory treaty of the East African Cooperation (1967) provided expressly for the Common Market Tribunal (arts. 32–42) and the Legislative Assembly (arts. 56–58) so, in the abstract, this organization had a multipolar structure. However, the Legislative Assembly, which was made up of Ministers and Deputy Ministers, as well as of persons from each member State qualified to be elected in the national legislative assembly (art. 57), and the Tribunal never became operational. See, for instance, the Association of Tin Producing Countries, the Association of Natural Rubber Producing Countries, the International Sugar Association, the Pepper Community, the International Grains Council, the International Olive Council, etc. In particular, regional organizations still saving the bipolar institutional structure are: oas, sela, acs and celac in Latin America and the Caribbean; sacu, mru, coi in SubSaharan Africa; acd, pif and pc in the Asia-Pacific region.

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Therefore, the multipolar institutional structure is still unusual in universal organizations – where, as stated, the involvement of non-governmental interests is realized through the un-organic method -, while since the 1990s it has been subject to a significant reconsideration at the regional level. Indeed, the European integration process reinforced it by the establishment of the Committee of Regions. At the same time, some European soft organizations (e.g. osce, cei, iai, Visegrad Group, etc.) were endowed with this kind of institutional structure. Meanwhile, in other geographic areas some already existing regional organizations were revitalized through the revision of their statutory acts.23 Sometimes this determined the transformation of prior forms of association from soft organizations to hard organizations.24 More frequently revised treaties introduced relevant normative and institutional changes in originally cooperation organizations, which somehow showed their tendency towards the ­supranational model.25 Only in few cases new treaties kept unchanged the original legal nature of interstate institutionalized cooperation.26 23

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Starting from the 1990s the phenomenon of globalization, on the one hand, and the strengthening of democratic parliamentary systems in domestic sphere, on the other hand, gave impetus to a new stage of regionalism. Some international law scholars consider the end of the Cold War as a watershed distinguishing the old regionalism – from the end of the World War ii until 1980s – and a new regionalism which started as a consequence of its demise at the beginning of the 1990s and the needs for a changing and globalizing multipolar world. In this regard see Ján Klučka and Ľudmila Elbert, Regionalism and its contribution to general international law (Košice: Institute of European Law and Department of International Law, 2015), 30–38. About the historical evolution of regional organizations in different geographic areas starting from the 1990s, see Reinalda, Routledge History, 697–735. Thus, for instance, the signing of the sadc Treaty (1992) and the CdE Charter (2011) transformed the previous interstate cooperation from soft organization to hard organization. Similarly, in Asia-Pacific region the asean Charter (2007) institutionalized the interstate cooperation which was initially based on the Bangkok Declaration (1967). Thus, for instance, in Latin America the odeca member States adopted the Tegucigalpa Protocol establishing the sica (1991). In the Caribbean the Revised Treaty of Chagauramas (2001) and the Revised Treaty of Basseterre (2010) were adopted introducing relevant institutional and substantive changes respectively in the caricom and the oecs. In SubSaharan Africa the Agreement on the Preferential Trade Area of Eastern And Southern Africa (1981) and the ecowas Treaty (1975) were replaced respectively by Treaty establishing comesa (1993) and the Revised ecowas Treaty (1993). Finally, apart from changing previous interstate cooperation in a hard organization, the new CdE Charter provides for some significant elements of the model of supranational organization. This is particularly the case of the new Charter of the oic (2008) which did not change the legal nature of the organization. Similarly, the Constitutive Act of au (2000) which

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Additionally, in the same period several new regional organizations, mainly endowed with political and economic competences, were also established in Latin America, as well as in Africa, Eurasia and Asia-Pacific. So currently no geographic area may be considered exempt from the phenomenon of regionalism. Most of these new forms of association have realized the legal model of cooperation organization.27 In some cases – particularly in the Asia-Pacific region, as well as in Eastern Europe and in Eurasia – the model of soft organization has been preferred.28 Among regional organizations established from the 1990s on, the supranational model has been realized completely only by two African organizations (e.g. uemoa, 1994; cemac, 1994)29 and to some extent it also characterizes the eac. This new phase of economic regionalism, which is still ongoing, is characterized by a new attention to the respect for principles of rule of law, democracy and human rights; indeed – at least formally – statutory treaties of many regional organizations indicate them as principles governing interstate ­cooperation.30 Then, in some organizations also democratic conditionality

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substituted the oua Charter (1969) and the cen-sad Revised Treaty (2013) amending the 1998 founding treaty saved the cooperation model embodied by pre-existing organizations. In this sense, see also the adoption of the 1996 eco Charter which revised the Treaty of Izmir (rcd/eco founding act). In Latin America the celac (2011) substituted the Grupo de Río (1986) remaining a soft organization. For istance, the cooperation model is realized by: mercosur (1991), acs (1995) and unasur (2008) in Latin America and the Caribbean; igad (1996), G5 Sahel (2014), sadc (1992) in Sub-Saharan Africa; eco (1996) in Asia-Pacific; cis (1991/1992), obsec (1998), sco (2002), EurAsEc (2000), oded-guam (2006), csto (2002) and eaeu (2014) in Eurasia; uma (1989) and cen-sad (1998/2013) in the Arab-Islamic World. It is worth noting that Mercosur is characterized by the presence of some supranational element in their mainly cooperation model. Starting from the 1990s soft organizations were established in: Asia (apec,1989; bimstec, 1997; ior-arc, 1997 recently remaned iora, 2014; acd, 2002), Latin America and the ­Caribbean (alba-tcp, 2006; celac, 2011), Europe (cei, 1989; Visegrad Group, 1991; cbss, 1992; Southeast European Cooperative Initiative, 1996; Stability Pact, 1999/Regional Cooperation Council, 2008; iai, 2000). In Eurasia obsec, sco and oded-guam were initially established as soft organizations and, then, they were institutionalized and transformed in hard organizations realizing the cooperation model. Regarding the cooperation in the Andean region, amendments to the Cartagena Agreement and to the Treaty establishing the Tribunal introduced by the Trujillo Protocol and the Cochabamba Protocol (1997) confirmed and strengthened the supranational nature of the Andean Pact, then renamed Andean Community (CAn). See, for instance, preambles of treaties establishing cen-sad, asean, cemac, acs, unasur and CAn; art. 6 lett. (d) eac Treaty; art. 3 lett. (g) and (h) and art. 4 lett. (M) au Constitutive Act; art. 4 lett. (g) and (j) ecowas Treaty; art. 6A igad Treaty; preamble para. 7 G5 Sahel Convention; art. 4 lett. (a) and (b) sica Tegucigalpa Protocol; art. 1 oded-guam

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clauses have been introduced.31 In reality, these provisions are somehow surprising if we take into account that most member States of these organizations are not democratic at all32 or they are governed by milder democracy than Western ones.33 Moreover, constitutive acts of some regional organizations refer indirectly to the need for concrete involvement of peoples and civil society in the activities of the organization;34 sometimes it is indicated expressly as an objective of interstate cooperation.35

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Charter; art. 1 para. 7 oic Charter; art. 4 csto Charter. Statutory treaties of cis and sco refer only to the promotion of human rights protection. Thus, for instance, the EEC member States introduced the democratic conditionality clause in the Single European Act (sea) in 1986 and it is now expressly provided for in art. 7 teu. Some other regional organizations have adopted specific normative instruments of different legal nature stating their commitment on democracy. In this regard see, for instance, sica Framework Agreement on Democratic Security (1995), mercosur Ushuaia Protocol (1998), the Additional Protocol to the Cartagena Agreement “Compromiso de la Comunidad Andina” (1998), the ecowas Protocol (2001), as well as the au Charter on Democracy and Governance (2007), the unasur Protocol on democratic commitment (2010), etc. In this regard, in literature see Gaspare M. Genna and Tacko Hiroi, Regional Integration and Democratic Conditionality. How Democracy Clauses Help Democratic Consolidation and Deepening (London: Routledge, 2015). See also Carlos Closa, “Institutional Design of Democratic conditionality in regional organizations”. eui Working Paper – rscas 2013/45. Accessed January 31, 2016. http://cadmus.eui .eu/bitstream/handle/1814/27462/RSCAS_2013_45.pdf?sequence=1. Thus, for instance, Arab countries are still largely authoritarian and have limited pluralism, no leading ideology and no intensive or extensive political mobilization. Indeed members of their national legislative bodies are either appointed or elected through fraudulent procedures. In the Eurasian region most countries comprises more or less consolidated autocracies and semi-democracies, although in the early 1990s they all proclaimed the goal of creating a democratic and open political system. In this regard, Andrea Cofelice and Stephen Kingah, “The Role of Regional Parliaments in Enhancing Democracy in the South”, in Comparative Regionalisms for Developments in the 21st Century, eds. Emmanuel Fanta, Timothy Shaw and Vanessa Tang (Farnham: Ashgate, 2013), 191, asserted wisely that “Democracy is a fraught concept. It is understood differently in various parts of the world. Even when colloquially considered as people power as it is in the West, it tends, in certain cases, to reproduce results that may be regarded to be less appealing”. In this regard see, for instance, the preamble of the sadc Treaty and its art. 5 para. 2 lett. b; art. 4 lett. (f) cen-sad Treaty; the preamble and art. 4 lett. (c) au Constitutive Act; art. 4 lett. (h) ecowas Treaty; art. 3 lett. (p) unasur Treaty; etc. See also art. 2 iora Revised Charter stating that “The Association will facilitate and promote economic cooperation bringing together inter-alia representatives of member States’ governments, businesses and academia”. In this regard art.1, para.2, teu “[…] marks a new stage in the process of creating an ever closer union among the peoples of Europe”. The preamble of the 1999 eac Treaty goes

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Consistent with this commitment and independently of their legal model of cooperation, currently many regional organizations in Sub-Saharan Africa, Latin America and the Caribbean, Euroasia, Asia-Pacific as well as in the ArabIslamic World have realized the multipolar institutional structure. Thus, side by side the complex intergovernmental apparatus (which is hierarchically organized in several levels36) and the secretariat, institutions representing non-governmental interests have been introduced. Then, in some cases the institutional structure is completed by judicial or quasi-judicial systems for disputes settlement.37 In other words, we are witnessing the phenomenon of institutional multipolarism of regional organizations. Its extent is so large that the multipolar institutional structure cannot be considered just a peculiarity

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even further stating that the main reasons contributing to the collapse of the East ­African Cooperation established in 1967 were, among others, the “[…] lack of strong political will, lack of strong participation of the private sector and civil society in the co-operation activities […]”. This explains why a people-centered cooperation is regarded as one of the main operational objectives (art. 7 lett. a eac Treaty). A similar provision is also contained in the asean Charter which indicates the promotion of “a people-oriented asean in which all sectors of the society are encouraged to participate in, and benefit from, the process of asean integration and community building” as one of the asean purposes (art. 1, para. 13). In this sense see also Kuala Lumpur Declaration on a People-Oriented, People-Centred asean adopted in occasion of the 26th asean Summit (Kuala Lumpur, 27 April 2015). It is worth noting that – unlike the previous generation of regionalism – from the 1990s statutory acts of regional organizations provide expressly that the intergovernmental structure is articulated in several hierarchically organized organs. There is a wide literature about the judicialization of regional organizations. Among others see Karen Alter, The new terrain of international law (Princeton: Princeton University Press, 2014); Simone Marinai, La funzione giurisdizionale nelle organizzazioni di integrazione regionale (Torino: Giappichelli, 2012); Mario Hernández Ramos and Santiago Deluca (eds.), Tribunales en Organizaciones de Integración: Mercosur, Comunidad Andina y Unión europea (Cizuz Menor: Aranzadi, 2012); Piero Pennetta (ed.), L’evoluzione dei sistemi giurisdizionali regionali ed influenze comunitarie (Bari: Cacucci, 2010); Carlos R. Fernández Liesa (ed.), Tribunales internacionales y espacio iberoamericano (Madrid, Dykinson, 2009); Katrin Nyman-Metcalf and Ioannis Papageorgiou, Regional Integration and Courts of Justice (Antwerpen/Oxford: Intersentia, 2005); Elizabeth Accioly Rodrigues da Costa, Sistema de Solução de Controvérsias em Blocos Econômicos (Coimbra: Edições Almedina, 2004). See also Elisa Tino, “Settlement of Disputes by International Courts and Tribunals of Regional International Organizations”, in Evolutions, eds. Virzo and Ingravallo, 468–508; Karen Alter, “The Global Spread of European Style International Courts”, West Eur. Pol. 35 (2012) 1: 35–154; Laurence Burgorgue-Larsen, “Le fait regional dans la juridictionnalisation du droit international”, in La juridictionnalisation du droit international, ed. sfdi (Paris: Pedone, 2003), 203–264.

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of European regionalism anymore. Rather, it might be regarded as a salient element of regional organizations. However, it is worth noting that, as we will see in detail in Chapter 3, nongovernmental institutions established in regional organizations of different geographic areas have not yet reached a development comparable to that of their counterparts operating within the eu. They often play a poor role within interstate institutionalized cooperation. So, States remain the “masters of the treaty” and intergovernmental organs hold their monopoly of the decisionmaking power. 2

Non-governmental Institutions: Concept and Criteria for Classification

Before deepening the analysis of the phenomenon of institutional multipolarism of regional organizations, I consider worthwhile clarifying the concept of “non-governmental institutions”. I refer to bodies composed of persons from each member State who represent political interests of the population or the interests of specific categories of national civil society and who are not subordinated to any national authority.38 In essence, they have free mandate which means that they are not formally accountable to their own State for their activities; they are just morally responsible toward the category of individuals they represent and they speak on behalf of. Moving from this definition it is possible to identify some features which are common to all non-governmental institutions under consideration and which distinguish them from mere associations or networks of specific interest groups. They are bodies which: (a) have their own legal basis in a normative act; (b) have their own internal organizational structure and a permanent character; (c) have an univocal and exclusive link with one regional organization, so that they place themselves inside its framework. Several classifications of non-governmental institutions are possible according to different criteria used. For the purpose of this investigation I will classify them in light of: (a) the type of represented interests (ratione materiae criterion); (b) the legal nature of their founding act (legal criterion).

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This definition excludes those organs whose composition is hybrid as they gather representatives from specific categories of the civil society and governmental authorities from each member State. This is the case, for instance, of the Andean Table for the Defense of Consumer’s Rights (Dec. 539/2003) and the Andean Table of Afro-descendant people (Dec. 758/2011) operating within the CAn.

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Ratione Materiae Criterion: Parliamentary, Socio-economic and Territorial Institutions In light of the type of represented interests, non-governmental institutions can be distinguished into three main categories: (1) parliamentary institutions; (2) socio-economic institutions; (3) territorial institutions. Parliamentary institutions are composed of persons representing the general political interest of member States’ population. They may be elected directly by the latter or be delegates from national parliaments or from any national body performing legislative functions.39 The ep and the CoE pa constitute typical examples but – as we will see in detail in paragraph 4 – parliamentary institutions are present in most regional organizations under consideration (almost 33 out of 41 organizations endowed with multipolar institutional structure). Socio-economic institutions are bodies made up of delegates from national associations and interest groups of economic, cultural and social life. Thus, for instance, they may be composed of representatives of traders, workers, consumers, academics, specific ethnic groups,40 etc. and in this regard the eesc is a typical example. Currently, almost 33 socio-economic institutions exist. Obviously, the decision to establish this type of non-governmental institution depends on the area of competence of the organization. Thus, for instance, if a regional organization has its mandate in military and security field (as in the case of nato41 or of csto), the establishment of a body made up of delegates from traders or consumers’ national associations is a nonsense but, rather,

2.1

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Thus, for instance, in Asia-Pacific from among the aipa’s members there are also delegates from the Legislative Council of Brunei comprising the Sultan, the Crown Prince, cabinet ministers and three types of members (namely, members with titles, members representing districts and members among outstanding Bruneians). All members are appointed by the Sultan in accordance with the Brunei Constitution. It is evident that this Legislative Council is different from national parliaments intended according to Western democratic perspective. Similar considerations are also valid for parliamentary institutions established within Arab regional organizations. Thus, for instance, the peculiarities of domestic government systems of las member States explain why art. 4 of the Arab Parliament Statute provides that the members of the parliamentary institution may be elected “[…] by their national parliaments or equivalent thereof [italics added] in each member State”. The Andean Advisory Council of Indigenous People is a typical example in this sense; indeed it is made up exclusively of delegates of national associations representing the interests of specific ethnic groups. It is worth noting that for the purpose of this investigation, the nato is considered as a regional organization having a parliamentary institution and not simply as an agreement of collective self-defense pursuant to art. 51 un Charter.

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a parliamentary institution may be conveniently established (e.g. nato pa, csto pa). Finally, territorial institutions are composed of representatives from subnational communities (regions, municipalities, etc.) who are endowed with an electoral mandate at local level (e.g. the eu CoR, the CoE Congress of Local and Regional Authorities, etc.). As we will see in paragraph 4, their presence in regional organizations is rare (currently, only 4 territorial institutions exist) and the demand for their establishment raises when, under domestic law, regions, municipalities and/or local authorities are endowed with legislative and/or executive powers in matters covered by the law of the organization. Legal Criterion: Integrated Institutions versus Connected Institutions Independently of the type of interests they represent, non-governmental institutions may be classified on the basis of the legal nature of their founding act on which their tie with the organization depends. I have borrowed this criterion from Klebes’ legal studies on international parliamentary institutions and I have then applied it extensively also to socio-economic and territorial institutions.42 Using this legal criterion parliamentary, socio-economic and territorial institutions may be distinguished in: integrated institutions and connected institutions. The category of integrated institutions gathers bodies established by a normative source of international law, i.e. an international treaty, an international declaration or an organic act of secondary law. In sum, this category includes non-governmental institutions which are: (1) established and regulated by the statutory act of the organization; (2) provided for by the statutory act of the organization but whose concrete establishment and regulation is deferred to the adoption of a following treaty;43 (3) not provided for by the statutory act of the organization and established/regulated by a subsequent conventional

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See Klebes, “Les institutions”, 818–820. The same criterion has been even applied by Arndt, “International” and by Cofelice and Kingah, “The Role”, 197 even if they used a different terminology. Similar classifications have been also proposed by Kissling, The Legal, and Andrea Cofelice, “Istituzioni parlamentari internazionali. Tipologie, funzioni e poteri”, Pace diritti umani (2012) 1: 63–81. However, I do not agree with their decision to frame a specific parliamentary institution in a category rather than in another. As we will see in detail in Chapter 2, this hypothesis is frequent in many regional organizations of developing countries with reference to the establishment of parliamentary institutions and courts of justice.

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or organic act.44 Integrated institutions are formally integral part of the institutional structure of the international organization and may be present both in hard organizations and in soft organizations. In particular, as we will see in details in following paragraphs, it can be assumed that their establishment is conditioned by the intention to imitate the institutional structure of the eu. On the contrary, when dealing with connected institutions I refer to bodies which are not provided for in the statutory act of the organization. They are created by private initiative (e.g. an interparliamentary agreement), so their legal basis and regulation are not expressed by a legal instrument of international law adopted by governmental delegates of the o­ rganization’s member States. However they are affiliated with a regional organization and act within it.45 In concrete terms, they are endorsed as entities associated with the organization itself by the Governments of member States through an international legal instrument. The latter can be a non-binding act (e.g. a political declaration46) or a treaty provision.47 Sometimes this acknowledgement is realized de facto through concluding facts (e.g. nato PA). 44

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As we will see in detail in Chapter 2, many socio-economic and territorial institutions are established and regulated by an act adopted by an intergovernmental organ of the organization. The affiliation implies the existence of an univocal and exclusive relationship between the connected institution and the regional organization which can usually be derived from the name of the institution itself (e.g. nato pa, aipa, paeco, etc.). Thus, for instance, sadc Heads of State and Government endorsed the establishment of the sadc pf – which had been created by initiative of national parliaments – ­stating in the Final Communiqué of their annual ordinary Summit (Blantyre, 8 August 1997, 35–36) that “The Summit discussed the establishment of the sadc Parliamentary Forum comprising all the national parliaments of member States. The Summit welcomed this initiative and agreed that the Forum will play a major role in promoting dialogue and popular participation, particularly at the grassroots level, in the affairs of sadc. The Summit, therefore, approved the establishment of the sadc Parliamentary Forum as an autonomous institution (italics added)”. The above wording of the sadc Summit and its lack of reference to art. 9, para. 2, sadc Treaty as legal basis for establishment of the parliamentary institution make me exclude that the sadc pf may constitute an integral part of the sadc institutional structure as maintained by Arndt, “Parliamentary Assemblies”, 12. In this regard, it is to be also considerd that the sadc pf has not been included among sadc institutions (ex art.9 sadc Treaty) even after various emendaments of the statutory treaty. See, for instance, arts. 20–21 obsec Charter. Similarly, art. 16 and Annex 2 of the asean Charter adopted in 2007 recognize expressly the aipa – established in 1977 by initiative of national legislative bodies of some asean member States – as an entity associated with the organization.

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In general, connected institutions tend to be preferred in regional organizations which are less affected by the imitative approach of the eu model (such as the Asian-Pacific ones and the Eurasian ones). It is worth here noting that in relation to statutory acts of many non-­ governmental institutions the principle of variable geometry applies. This means that the institution’s membership is narrower than that of its regional organization and determines the existence of a flexible institutional structure of the organization: all the members are only bound by the regulation originally set out in the statutory act, while bodies established by following ad hoc normative instruments are à la carte. Further considerations about which category of non-governmental institutions are affected by the application of this principle and why it is applied will be discussed in Chapter 2, sub-paras. 1.1.2. and 1.2.2. 3

Reasons for the Establishment of Institutions Representing Nongovernmental Interests within Regional Organizations

As stated in General Introduction (para. 3), in recent years the trend towards the establishment of parliamentary institutions in regional organizations has attracted attention of some political scientists and international relations scholars. In order to explain it they have elaborated various theoretical approaches.48 Thus, for instance, according to liberal institutionalism parliamentary institutions are created to balance the strongly governmental and State-centric nature of regionalism and to democratize regional governance, thereby enhancing its legitimacy.49 Differently, neofunctionalism explains the emergence of parliamentary institutions as the result of spill-over effects exclusively in supranational entities.50 According to intergovernalism they are usually the response to Governments’ monopoly of the decision-making power.51 48

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For an overview of theoretical approaches to regionalism from a political science perspective see among others, Ben Rosamond, Theories of European Integration (Houndmills: Palgrave, 2000). In this sense see, among others, Andrew Hurrell, “Regionalism in Theoretical Perspective”, in Regionalism in World Politics: Regional Organization and International Order, eds. Louise Fawcett and Andrew Hurrell (Oxford: oup, 1995), 283–308. See Ian Bache, Stephen George and Simon Bulmer (eds.), Politics in the European Union (3rd edn Oxford: oup, 2011); Barbara Koremenos, Charles Lipson and Duncan Snidal, “The Rational Design of International Institutions”, io 55 (2001) 4: 761–799. See Amitav Acharya and Alastair I. Johnston, “Conclusions: Institutional Features, Cooperation Effects, and the Agenda for Further Research on Comparative Regionalism”, in

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However, it is worth noticing that most of these theoretical approaches has been developed to account for the European integration process and its evolution, and they ignore other regional organizations. So, they can offer solutions which are only partially shareable when extending the investigation scope outside the European regionalism.52 For an international law scholar trying to provide a complete and exhaustive study taken out of any Eurocentric conditioning, theories elaborated by political scientists and international relations scholars cannot be fully shared and have to be assessed critically; indeed, their investigation scope is limited only to the eu experience and focuses mainly on parliamentary institutions, thus offering just partial solutions. On the contrary, the phenomenon of institutional multipolarism of regional organizations can be considered the joint result of a strictly legal factor and non-legal one. In particular, the strictly legal factor is attributable to the gradual broadening of the mandate of international organizations; it is interpreted variously by legal scholars in light of the theoretical approach (i.e. the classical functionalist paradigm and the constitutionalist one) it is assessed from. Regarding non-legal rationales the establishment of non-governmental institutions is often conditioned by the emulation-driven factor of the eu experience; this depends somehow on political, social, economic and cultural features characterizing the domestic law systems of the organization’s member States. The Legal Factor: Broadening of the Mandate of International Organizations It is widely accepted that international organizations have changed in recent decades as far as their scope and impact on national law, their addresses, as well as the competences upon which they are being based are concerned.53 In particular they have witnessed a gradual broadening of their mandate in

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Crafting Cooperation: Regional International Institutions in Comparative Perspective, eds. Amitav Acharya and Alastair I. Johnston A.I. (Cambridge: cup, 2010), 288; Mark A. Pollak, “The New Institutionalism and ec Governance: The Promise and Limits of Institutional Analysis”, Governance: An International Journal of Policy and Administration 9 (1996) 4: 430. In this regard see Philippe De Lombaerde Fredrik Söderbaum, Luk Van Langenhove and Francis Baert, “The Problem of Comparison in Comparative Regionalism”, Jean Monnet/ Robert Schuman Paper Series Vol. 9, No. 7, April 2009, 12. See also synthetic but interesting considerations of Constanze Koitzsch, “Institutional Similarities Between Regional Organizations: An Analysis of ecowas and the Arab League”, in Roads to Regionalism, eds. Tanja Börzel, Lukas Goltermann and Kai Striebinger (Farnham: Ashgate, 2012), 121–122. For interesting considerations about the recent evolution of the law of international organizations, see Jan Klabbers, “The changing image of international organizations”, in The

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traditionally domestic fields (e.g. trade, labour, finance, environment, health, human rights, etc.). Thus, they are no longer just technical unions or merely political forms of association – as those established in the 19th century and in the first decades of the 20th century – whose normative acts addressed only to member States and had limited implications for individuals.54 On the contrary, in recent decades international organizations have been increasingly characterized by an enlargement of their mandate in “sensitive” matters (e.g. trade, transport, education, health, etc.) whose regulation is addressed primarily to States and, at the same time, affects indirectly but considerably individuals’ rights.55 As regards universal organizations this trend has concerned above all the un, insofar as some Security Council resolutions in the field of fight against international terrorism – formally addressed to States – were accused of affecting specific categories of individuals.56 Similar considerations may also concern the wto, whose rules have serious implications on human rights and environmental issues, as well as the imf and the World Bank. Indeed, the latter’s decisions conditioning loans and financial aids concession on political or non-economic considerations increasingly interfere with State economic policies, welfare and investment programmes, thus affecting citizens’ legal positions and interests. However, except for the aforementioned cases, generally ­decisions adopted by universal organizations have limited impact on individuals’ rights due to their legal nature57 and/or to the kind of matters falling within the scope of the organization itself.58 This justifies somehow the involvement of non-governmental interests through the aforementioned unorganic method. legitimacy of international organizations, eds. Jean-Marc Coicaud and Vejio Heiskanen (Tokyo: un University Press, 2001), 221–255. 54 As stated, it would not be fully correct to say that norms of traditional international organizations addressed only States and that they had no impact on individuals except for a legal reflex. However, in light of matters falling within the scope of the organization, these norms concerned only specific categories of individuals in defined circumstances. 55 In this regard, see particularly Joe Verhoven, “Les activités normatives et quasinormatives”, in Manuel, ed. Dupuy, 415. 56 In recent years hundreds of individuals have been “blacklisted” as suspected terrorists and affected by Security Council resolutions imposing the freezing of their assets and restrictions on travel. 57 Indeed, international organizations usually adopt non-binding normative acts (e.g. recommendations). 58 Thus, for instance, if normative acts adopted by the international organization regulate technical matters (e.g. meteorology, navigation, etc.), they have limited implications on individuals’ rights and everyday life.

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On the contrary, the trend towards the adoption of binding norms formally addressed to States but affecting also individuals has become particularly relevant and almost physiological in regional organizations due to the range of their competences. Indeed, most regional and sub-regional forms of association are competent in political and economic field, as they aim at realizing free trade areas, customs unions up to common markets and exceptionally to a political union.59 These goals imply the formation of integrated markets and civil societies whose concrete realization has inevitably a significant impact on individuals’ interests and rights. In order to achieve these goals regional organizations are usually allowed to adopt binding (conventional, as well as organic) acts which may confer rights and obligations on individuals indirectly following their incorporation into the domestic law systems.60 Thus, even if States are de jure the subjects and formal addressees of these norms, due to the matters covered (e.g. trade, transport, health, labour, etc.), natural and legal persons are de facto their ultimate addressees.61 Then, in some rare cases, regional organizations are even allowed to adopt binding organic acts which are immediately enforceable within the territory of member States and address directly to individuals. This is the typical case of eu regulations62 and of similar acts adopted by other few regional organizations in imitation of the eu experience.63 In this case, specific rights and obligations are conferred directly 59 60

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An expressed reference to the progressive realization of a political federation is contained in the eac Treaty (preamble and art. 11, para. 3). The number of regional and subregional organizations which can adopt binding organic acts is very limited. They are: mercosur, unasur, sica, CAn and oecs in Latin America and the Caribbean; CdE, ecowas, comesa, eac, uemoa and cemac in Sub-Saharan Africa. Generally these binding organic acts are not self-executing, so they need incorporation to produce legal effects into domestic law systems. In this regard, some scholars refer to individuals as second level addressees. In this sense see particularly Matthias Goldmann, “Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority”, in The Exercise of Public Authority by International Institutions, eds. Armin von Bogdandy et al. (Heidelberg/ Dordrecht/London/New York: Springer, 2010), 687. Furthermore, as noticed by Seidl-­ Hohenveldern, “Les organs”, 94 activities of many organizations concern the population of member States not only as electors but also as members of social groups. Pursuant to art. 288 tfeu “A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States”. The adoption of organic acts, which are binding and directly applicable in member States, is expressly provided for by uemoa Modified Treaty (art. 43), cemac Revised Treaty (art. 41), Andean Tribunal Treaty (arts. 2–3), Revised ecowas Treaty as amended in 2006 (art. 9, para. 4). It is also provided for by art. 15, para. 4, of the CdE Charter, as well as by art. 9 of the Regulation for the adoption of sica decisions (approved in 2013). It is worth

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on natural and legal persons who may appear before the regional Court (if any) to defend them under certain conditions.64 In essence, although States remain the “master of the treaty”, individuals tend to be more and more closely affected by norms adopted by international organizations (mainly regional ones and to less extent universal ones) on whose elaboration they have no influence.65 Obviously, this situation has significant implications for the domestic functioning of States. Indeed, the participation in an international organization entails the transfer of decision-making power in certain matters from national legislative bodies to regional intergovermental organs which usually exercise it exclusively.66 Currently, in consequence of the aforementioned broadening of mandate of international organizations, national legislative bodies – which are expression of popular sovereignty in democratic systems – are increasingly deprived of their prerogative to define the content of norms concerning “sensitive” areas traditionally belonged to the realm of national law. So, decisions affecting not only States but also individuals are the outcome of goverments’ bargaining at the international/regional level, even though respecting the principle of State consent.67 However, it is

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noting that the wording of above mentioned provisions is very similar to that of art. 288 tfeu. In this regard, in literature see Piero Pennetta, “Considerazioni sugli atti normativi delle organizzazioni internazionali regionali”, in Dialoghi con Ugo Villani, eds. Ennio Triggiani et al. (Bari: Cacucci, 2017), 1227. In this regard, see art. 263, para. 4, tfeu. About individuals’ locus standi before courts established in regional organizations outside Europe, in literature see among others Elisa Tino, “L’accesso diretto dei soggetti privati alla giustizia nelle organizzazioni regionali dei Paesi in via di sviluppo”, dudi (2013) 1: 3–30. In this regard, read considerations expressed by Christian Dominicé, “Organisations internationales et démocratie”, in The International Legal System in Quest of Equity and Universality. Liber Amicorum Georges Abi-Saab, eds. Laurence Boisson de Chazournes and Vera Gowlland-Debbas (Boston/Leiden: Brill, 2001), 736. In this regard, see remarks expressed by Seidl-Hohenveldern, “Les organs”, 93. In this regard see Markus Krajewski, “International Organizations”, para. A sub. 1, stating that “The starting point […] is the observation that powers which have traditionally be located at the level of the nation State are increasingly transferred to supranational, international, and transnational entities and regimes […]. International organizations increasingly fulfill regulatory functions and engage in policy-making rather than in coordination or advisory activities”. In sum, the transfer of competences from the national level to an international, as well as regional one may determine a process of denationalization of legal issues in favour of internationalization/regionalization and of de-parliamentarization in favour of stengthening the role of the executive. In this sense see Rüdiger Wolfrum, “Legitimacy of International Law from a Legal Perspective: Some Introductory Considerations”, in Legitimacy, eds. Wolfrum and Röben, 20–21.

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worth bearing in mind that generally the relationship between the domestic law system and that of the organization is dualist, therefore national legislative bodies usually save their power to ratify agreements and to incorporate binding organic acts adopted by the organization.68 Obviously, in exercising this power national legislative bodies may even decide to stop the incorporation process of an international/regional (conventional or organic) act, whenever they are not confident of its political desirability or they do not agree on its normative content. In this regard, it is worth noting that the more the principle of variable geometry is applied within the organization and no sactions are inflicted on member States which do not incorporate regional acts,69 the more this obstructionist behavior is performed by national legislative bodies.70 In this way, the latter may impede that the international/regional normative act produces legal effects into their domestic law systems and, as a consequence, that the uniform application of the law of the organization is realized.71

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As noticed by Dominicé, “Organisations”, 737, “Le rapport du Gouvernment au Parlement sur la politique étrangère est un instrument qui, s’il donne des informations suffisantes sur la politique menée au sein des organizations internationales, peut fournir l’occasion d’un certain contrôle parlementaire, dont la portée cependant est limités. Il intervient a posteriori. […] Le contrôle parlementaire, voire populaire s’il y a référendum, peut s’exercer, mais dans des conditions qui ne sont pas toujours satisfaisante”. If the legislative assembly of an eu member fails to transpose a directive by the prescribed deadline, its State may be subject to an infringment action before the ecj and condemned to the payment of a lump sum or penalty (arts. 258 and 260, para. 3, tfeu). Unfortunaly, this obstructionist behaviour characterizes many national legislative bodies. Thus, in most regional and sub-regional organizations of different geographic areas the percentage of normative acts which are incorporated into domestic law systems is very low. For instance, most normative acts concerning trade issues adopted within ­m ercosur are not in force as they have not yet been incorporated by all member States. In particular, as inferred by the website of the organization, by December 2014 less than 50% of treaties and protocols were in force. Similarly, in 2015 during their ordinary Summit the eac Heads of State stressed the steady progress made in the implementation of the eac programmes. In particular, they noted that Council decisions/directives had remained outstanding over the years and that ratification of protocols had been ­delayed (Communiqué of the 6th Ordinary Summit of the East African Community Heads of State, Nairobi, 26 February 2015, paras. 3–4). A similar situation is clearly illustrated by the Report of the comesa Policy Organs Meetings held in Kinshasa in 2014. However, it is worth noting that this possible behaviour is not without consequences. Indeed, each member State is under the obligation to adhere to the organization’s decisions and its failure could be sanctioned if the organization is endowed with an arbitral or judicial system.

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On the contrary, in the rare event that international organizations adopt decisions which are directly applicable in member States and do not require any domestic implementation measure, they remain outwith the direct reach of national parliaments. So, the latter can only call the government to account for its position regarding each of them.72 Additionally, the broadening of the mandate of international organizations (above all regional ones) on “sensitive” matters traditionally belonging to the realm of domestic law deprives national associations and interest groups of civil society of their prerogative to influence the content of norms. The lack of involvement of concerned parties in decision-making at the international/­ regional level could determine the adoption of norms taken out of real domestic context they are to be implemented in and so they could be not appropriately informed and balanced. The more the intergovernmental decision-making organs of the international organization are not duly trained or informed about economic, social and cultural background of each member State, the more this risk is real. In this case, even if international norms are formally consistent with and functional to the realization of statutory objectives of the organization, they could not be immediately necessary for and become ineffective.73 Finally, sometimes the enlargement of competences of international organizations (above all regional ones) may determine that their decisions creep into the sphere of municipal and local authorities. So, the latter find themselves responsible for on-the-ground implementation of many policies decided far from their own influence. In sum, the broadening of the mandate of international organizations implies that increasingly matters concerning closely individuals’ interests and rights are regulated by norms which are decided and adopted by intergovernmental organs only. In other words, they are the result of bargaining among governmental delegates each one representing the interest of his own State as a whole. In such a way, the political and societal pluralism underlying the adoption of decisions at the domestic level is sacrified. 3.1.1 The Functionalist Approach As is known, the functionalist theory is based on the classical Westphalian State-centred perspective and focuses on the relationship between the international organization and its member States. In particular, it assumes that 72 73

In this sense, see Schermers and Blokker, International, 409. For instance, this happens when – in order to create a free trade area – member States focus firstly on the elimination of customs and non-tariff barriers without taking into account the need to foster infrastructures which are necessary for goods to move.

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international organizations are functional entities which are established to pursue goals fixed by their members. Therefore, their functionality consists in their ability to reach successfully and efficiently these goals and, for this purpose, they can act just within the limits of what is necessary. On this premise, it is evident that the aforementioned broadening of competences of regional organizations in “sensitive” matters and the correlated lack of involvement of parties concerned (i.e. individuals, civil society interest groups) in the decision-making could have significant implications according to the functionalist approach. Indeed, it could compromise the organization’s ability to reach successfully and efficiently its statutory goals. First of all, as stated, whenever national legislative bodies are not confident in the desirability of a norm adopted by the international organization, they could decide not to incorporate it, thus impeding the uniform application of the law of the organization. Then, the lack of consultation of national interest groups of civil society could determine the adoption of decisions which could not be duly informed and balanced and, maybe, not immediately required for the realization of statutory goals. All this could jeopardize the functionality of the organization. So, on these premises, it can be asserted that, according to the functionalist approach, the involvement of non-governmental interests through ad hoc institutions answers the demand for strengthening the pragmatism of decisions adopted by the organization and the confidence in their political and practical desirability,74 in order to preserve the functionality of the organization itself. In particular, the establishment of institutions made up of those to whom decisions will apply and their participation in the organization’s life could contribute more effectively to the adoption of decisions which are able to answer the real need of interstate institutionalized cooperation. Then, it could also facilitate the full implementation of rules and policies by member States, thus improving the functionality of the organization. Therefore, it is not by chance that the establishment of non-governmental institutions often arises in the context of a broader revision of the institutional features of the regional organization (e.g. its institutional structure and the sources of law) aimed at deepening interstate cooperation and, consequently, strengthening the organization’s functions. 74

Supposing that regional norms are regularly incorporated into domestic law systems, if their ultimate addressees think that their interests are not fully taken into account by regional decision-makers, they may decide not to enact and respect them. This situation determines not only a member State’s infringement of obligations deriving from the law of the organization, but also a de facto obstacle to the real attainment of statutory objectives.

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Neither the Rome Treaties establishing the European Communities nor the CoE Statute stated expressly this rationale, but it was implicit.75 On the contrary, the wording of constitutive acts of non-governmental institutions recently established in some regional organizations outside Europe is illustrative in this regard. Thus, for instance, in Africa the Protocol relating to the pap asserts that the latter has the objective to “facilitate the effective implementation of the policies and objectives of the oua/aec and, ultimately, of the African Union” (art. 3 para. 1). A similar assertion can be found in the new ecowas Parliament Supplementary Act,76 in the Declaration on the establishment of the guam Parliamentary Assembly,77 as well as in the aipa Statute78 and in the sadc pf Constitution.79 Likewise, the preamble of the additional act establishing the uemoa Labour and Social Dialogue Council declares unequivocally that “[…] la promotion d’un dialogue social efficace au niveau régional favorisera la réalisation des objectives de l’uemoa […]”.80 75

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Both the European Commission and the ep expressed the need to strengthen the involvement of civil society, as well as regional and local authorities in the process of the drawing-up of eu decisions and in the implementation of eu policies. In this regard, see Communication from the Commission of 25 July 2001 “European governance – A white paper” [com(2001) 428 final – Official Journal C 287 of 12 October 2001]; European Parliament Resolution of 14 January 2003 “On the Role of Regional and Local Authorities in European Integration” [2002/141(ini)]. Art. 4 of the ecowas Parliament Supplementary Act provides that “The objectives of the Parliament shall be to: a) Contribute to the efficient and effective implementation of objectives and policies of the Community […]”. “Considering that an essential input into the development and enhancement effectiveness of the cooperation in the joint activity of the Parliaments of the guam Member States directed to approximation of their national legislations and creation of appropriate mechanisms for its successful implementation […] we have agreed on the establishing of a parliamentary body […] to assist implementation of the decisions taken by the Heads of the guam Member States”. “The aims and purpose of aipa shall be: […] to facilitate the achievement of the goals of the asean as constituted in the asean Declaration of August 1967 made at Bangkok, Thailand, as well as the asean Vision 2020 taking into account Bali concord ii 2003 leading to the realization of an asean Community based on three (3) pillars: asean Security Community (asc), asean Economic Community (aec) and asean Socio-Cultural Community (ascc)” (art. 2, para. 2, aipa Statute). See art. 5 lett. (a) and (b) of the sadc pf Constitution, stating that “The objectives of the sadc Parliamentary Forum shall be: (a) to strengthen the implementation capacity of sadc by involving Parliamentarians of sadc activities; (b) to facilitate the effective implementation of sadc policies and projects; […]”. Acte additionnel N° 02/2009/CCEG/UEMOA, portant création et organisation du Conseil du Travail et du dialogue social de l’UEMOA, Ouagadougou, 17 March 2009.

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In essence, according to the functionalist approach, the establishment of non-governmental institutions expresses member States’ awareness that economic development they pursue can be better realized through the ­involvement of national political and/or socio-economic circles concerned.81 In other words, these institutions answer the need for direct and active participation of peoples and civil society representatives in the regional organization, to the extent that member States become aware that this may contribute to the efficiency of institutionalized cooperation and the concrete realization of its objectives. This awareness was implicit in the Rome Treaty establishing the eec, as well as in the CoE Statute, while it is often expressed clearly in constitutive acts of other regional organizations or of their non-governmental institutions. Thus, for instance, the preamble of the Protocol to the Treaty establishing the aec relating to the pap asserts expressly that its establishment “is informed by a vision to provide a common platform for African peoples and their grass-roots organizations to be more involved in discussions and decision-making on the problems and challenges facing the Continent” and then reiterates that it “will ensure effectively the full participation of the African peoples in the economic development and integration of the continent”.82 Likewise, regarding Latin American regionalism aladi member States justified the establishment of the Business Council noticing it was necessary to encourage the progress in the regional integration process.83 A similar wording can be retraced in statutory acts of almost all parliamentary,84 socio-economic85 and territorial institutions86 established in regional organizations. 81

Thus, for example, the wording of UNASUR/CJEG/PDECISIÓN/N° 7/2012 establishing the unasur Forum for citizens’ participation is particularly illustrative of this States’ awareness. 82 Similarly, the Supplementary Act A/SA.1/12/16 states that the objectives of the ecowas Parliament are to “[…] ensure the right of scrutiny and involvement of the West African populations in the process of integration of the region” (art. 4, lett. c). 83 See Preamble of the ALADI/CR/Resolución n. 97, 22 December 1988. 84 See, for instance, the preamble of the Convention establishing the cemac Parliament, as well as that of the Parlandino Treaty; art. 4 lett. (a) and (b) accp Agreement; art. 2, paras. 1 and 4, Montevideo Protocol. Similarly, the Declaration on the establishment of the pabsec states that the latter aims at providing for “democratic participation and support of the peoples […]”. See also the preamble of the aipa Statute “Convinced that the strenght of asean emanates from the roots of our societies and that closer cooperation among the respective legislatures would result in greater participation by the people of asean Countries”. 85 In this regard see, for instance, the preamble of Dec. n. 175/83 and of Dec. n. 176/83 – ­establishing respectively the Andean Advisory Business Council and the Andean Advisory Labour Council. 86 About integrated territorial institutions see, for instance, the preamble of Decision camre n. 585/04 establishing the Andean Advisory Council of Municipal Authorities.

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It is worth noting that sometimes these assertions express naïve desires which are not followed by member States’ consistent actions, thus remaining unimplemented. Thus, for instance, the unasur Constitutive Treaty (art. 3 lett. p.) considers the participation of citizens and civil society as one of the objectives of interstate cooperation. However, until now this provision has not been applied and neither the unasur Parliament nor any other organ representing member States’ civil society are operational. Obviously, the democratic nature of member States can favour the birth of their awareness that the participation of national political and socio-economic circles concerned is functional to the efficiency of interstate institutionalized cooperation.87 Indeed, in principle, only when political and social pluralism and popular participation in governing activities are tested and consolidated at the domestic level, they can reverberate to international, as well as regional level.88 This is absolutely true for European organizations and explains why their parliamentary, as well as socio-economic and territorial institutions were established earlier than in any other regional forms of interstate ­association.89 In essence, in the eec/eu, as well as in the CoE and in the other European organizations the creation of a multipolar institutional structure also answered member States’ intention to reproduce their domestic democratic and ­corporate models at the regional level.90 This does not mean that democracy 87

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About the strict connection between the widepread of State democratic systems and democratization of international organizations intended as direct involvement of peoples and civil society in their activities see Grigorescu, Democratic, 278 stating that “[…] just as the number of democratic countries and institutions has continued to grow across time […], igos have moved toward adopting and applying decision-making rules more closely related to the ones characterizing democratic polities […]”. For general considerations about the relationship between democracy and interstate cooperation in Africa, see Boafo-Arthur Kwane, “Democracy and the prospects for integration in West Africa”, Afr. Ins. (1996) 6, 281. Regarding regionalism in Latin America and the Caribbean see Christian Pirzer, “mercosur’s Contribution to Democratic Consolidation”, in Roads to Regionalism, eds. Tanja Börzel et al. (London: Routledge, 2012), 199. About the impulse of State democratization to participating in international organizations see Edward Mansfield and Jon Pevehouse, “Democratization and International Organizations”, io 60 (2006) 1: 137–167. In this regard, with reference to regional organizations established in the 1960s and the 1970s in Latin America see Juan Mario Vacchino, “¿Son democráticos los procesos de integración en América Latina?” Rev. Fac. Ciencias Jur. Pol. (2002): 205. In Europe democratic systems consolidated strongly at the end of the World War ii as a reaction against rigidities of nationalist policies that had proved so disastrous throughout the first half of the 20th century. Thus, for instance, the idea for establishing an economic and social committee as part of the eec was brought onto the negotiations agenda by Belgium and Netherlands which

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is a necessary condition for the establishment of non-governmental institutions at the regional level, but certainly it encourages it. Indeed, as seen, it is not by chance that the phenomenon of institutional multipolarism in regional organizations spread at the end of the Cold War, contextually to the new wave of States’ democratization.91 Secondly, this awareness depends on the strength of the associative link underlying interstate institutionalized cooperation and on its level of deepening. Thus, for instance, if a regional organization is inactive as their intergovernmental organs do not make decisions which are functional to the realization of statutory goals, the need for the establishment of non-governmental i­nstitutions does not raise. On the contrary, the more member States are goals-oriented and are moved by strong cooperation will, the more pragmatism is needed to realize statutory objectives.92 In sum, according to the functionalist approach the phenomenon of institutional multipolarism answers the need for improving the functionality of regional organizations undermined by the aforementioned broadening of their mandate. The presence of democratic institutions at the domestic level and a strong political willingness of member States to cooperate can foster its emergence and spread. 3.1.2 The Constitutionalist Approach In recent years, the growing interconnectedness of culture, society and economy brought by globalization, the fragmentation of international law resulting from its increased specialization and the growing trend of international norms to affect not only States but also individuals have brought to the development of the constitutionalist theory.93 It is a particular doctrinal approach within

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wanted to reproduce the corporate models provided by their domestic social and economic councils. Their proposal fell on fertile ground: other member States (except for Germany) had similar domestic institutions. The end of the Cold War determined the end of the bipolar stalemate and a decisive victory for liberal democracy and capitalist ideology. The growing recognition of the practical importance of democracy within States contributed to recognition of the practical importance of democracy among States, and generated increased demand for democratization internationally. Since the 1990s the un have become engaged in promoting democracy. In this sense, see Boutros Boutros-Ghali, An Agenda for Democratization (New York, un, 1996). In this sense, the preamble of Decision n. 176/83 concerning the Andean Advisory Business Council is significant; it stated that the establishment of a business council was of particular importance in order to develop a new model of integration. About the literature on the constitutionalist approach see General Introduction, note 78.

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the positivist mainstream of public international law scholarship,94 which tries to describe already existing developments in international law in terms borrowed from domestic constitutionalism.95 The constitutionalist paradigm leaves the classical Westphalian-inspired approach and assumes that the sovereignty of States should not be the last principle of the international legal order. Rather, the latter should be based on and derived from the principle of humanity, understood as “the legal principle that human rights, interests, needs, and security must be respected and promoted”.96 It argues that the ultimate international legal subjects are individuals, while States are merely instrumental in their rights and needs and act as “mediators” or “bridge” among communities at different levels. In sum, the ultimate aim of international law is to serve not “State interests” but, rather, the well-being of individuals.97 94

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Anne Peters deals with the global constitutionalism as an “intellectual movement which both identifies some features and functions of international law (in the interplay with domestic law) as constitutional and even constitutionalist (positive analysis), and also seeks to provide arguments for their further development in a specific direction (normative analysis)”. See Anne Peters, “Constitutionalisation”, mpil Research Paper Series No. 2017/8, 1. Anne Peters, “Membership in the Global Constitutional Community”, in The Constitutionalization, eds. Klabbers, Peters, Ulfstein, 157, stated that “the emergence and extension of a global constitutional community is both a manifestation and a driver of global constitutionalism, while the constitutionalization of international law is at the same time an explanation and a promoter of this communitarization”. According to this approach, the process of constitutionalization concerns also international organizations. It is interpreted as “emergence of constitutional and even constitutionalist elements within their primary and secondary law”. In this sense, see Peters, “Membership”, 202. See Anne Peters, “Humanity as A and Ω of Sovereignty”, ejil 20 (2008): 514. For interesting considerations about the principle of humanity in international law see also Antônio Augusto Cançado Trindade, “Quelques reflexions sur l’humanité comme sujet du droit international”, in Unity and Diversity of International Law. Essays in Honour of Professor Pierre-Marie Dupuy, ed. Denis Alland et al. (Leiden/Boston: Martinus Nijhoff Publishers, 2014), 157. In essence, according to constitutionalists public international law recognizes a common interest of humanity transcending State interests and hierarchically supreme “constitutional principles” set boundaries to the hitherto unlimited will of States which are no longer left with a genuine domaine reserve. For an in-depth clarification of these a­ ssumptions see Peters, “Membership”, 157–179. It is worth noting that some lawyers have even proclaimed the emergence of an international constitutional order. In this sense see Erika de Wet, “The International Constitutional Order”, iclq 55 (2006): 51–76; José E. Alvarez, “Constitutional interpretation in International Organizations”, in The Legitimacy, eds. ­Coicaud and Heiskanen, 104–154. In particular, the un Charter has been considered akin to a constitution for the international community (see particularly Bardo Fassbender,

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In addition to rejecting the traditional State-centred perspective, constitutionalists also criticize the interpretation of international organizations proposed by the traditional functionalist theory. Indeed, the latter is deemed to be incapable of accommodating the issue of accountability of international organizations, insofar as it focuses exclusively on the relationship between the organization and its member States and vice versa. Then, constitutionalists think that the focus on functions and goals of the organization – which is typical of the functionalist approach – leaves little room for the rule of law, for check and balances and for legal constraints.98 Differently, according to the constitutionalist paradigm, international organizations are constitutional regimes; this means that, insofar as they exercise public authority, they are regimes which focus not on achieving g­ overnmental aims, but on providing a stable and legitimate framework for interaction between their subjects based on the respect for the rule of law.99 Moreover, their ultimate accountability forum are not States, but individuals, to the extent that the latter are increasingly affected by their decisions. Thus, on the premise that rules over individuals should be democratic, constitutionalists maintain that international organizations should be governed by democratic benchmarks (e.g. respect for the rule of law, human rights protection, representation and participation of all interests concerned, accountability, checks and balances, transparency, judicial review). Therefore, the State-consent is deemed not enough anymore to justify general and dynamic commitments underlying the participation in an international organization, even more when these commitments have significant implications on individuals’ rights and ­interests. Rather, only when international organizations meet aforementioned democratic standards, they can be regarded as legitimate.100

The United Nations Charter as the Constitution of the International Community, (Leiden/­ Boston: Brill, 2009), while wto agreements are regarded as a sort of world trade constitution. In this regard, see Deborah Cass, “The Constitutionalization of International Trade Law: Judicial Norm-Generation as the Engine of Constitutionalization”, ejil 12 (2001): 39–77; John O. McGinnis and Mark I. Movsesian, “The World Trade Constitution”, Harvard Law Review 114 (2000): 511–605. 98 In this sense, see Anne Peters, “International Organizations: Effectiveness and Accountability”, mpil Research Paper Series No. 2016-01. 99 Jan Klabbers, “Constitutionalism Lite”, iolr (2004): 33. 100 These concepts have been illustrated clearly by Susanna Cafaro, “Elementi per la costruzione di una teoria della democraticità delle organizzazioni internazionali”, in Il futuro, ed. Vellano, 302; Sato, “Legitimacy”, 26–29; Krajewski, Markus, “Democratic Governance as an Emerging Principle of International Economic Law, Working Paper No. 14/08, 4–10.

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Personally, moving from the traditional State-centred perspective, I believe that the constitutionalist paradigm is not well-founded and that it should be taken into account with caution.101 First of all, constitutionalists fail in considering international organizations as constitutionalized regimes characterized by judicial application of the law and issue-oriented implementation schemes. Their assertion is based on the role played by the ecj in the development of the eu and on similar constitutional developments for the wto. However, it cannot be generalized and extended to the phenomenon of international organization as a whole, insofar as the presence of a judicial (or quasi-judicial) system characterizes only a few forms of association. In general terms, the limits of the constitutionalist paradigm rests on the fact that it is elaborated focusing on the experience of a few and well-known international organizations (i.e. eu, un, wto). Therefore, it offers only a partial view of the phenomenon of international organizations which is not perfectly adherent to a broader reality. A carefull assessment of norms and practice of a wider number of ­international organizations reveals that constitutionalists’ considerations are not feasible.102 101 Constitutionalist approach has not persuaded Italian scholars. So, from a disappointing perspective see Carlo Focarelli, “Costituzionalismo internazionale e costituzionalizzazione della global governance: alla ricerca del diritto globale”, Politica del diritto, 42 (2011) 2: 207; Aldo Ligustro, “Il dibattito sul costituzionalismo globale e quello sulla costituzionalizzazione del diritto internazionale: prospettive a confronto”, dpce (2013): 17. It is worth noting that in her more recent articles even Anne Peters – who is one of main supporters of the constitutionalist theory – seems to have partially modified her view recognizing that the idea of global constitutionalism is hardly feasible. Indeed she asserted that “[…] constitutionalisation is itself fragmentated. Global constitutionalism relates to multi-level governance […]. It concerns various subfields […] of the law. Besides, the various members of the process of the global (constitutional) order, not only the nation States, but some international organizations may have their own sectoral constitution […]. All this also means that constitutional substance may be dispersed (vertically) across different levels of the law, horizontally across areas of the law, and across the public – private realms. This diagnosis precludes any conceptionalisation of constitutionalisation as the emergence of a super-constitution which would lie both above domestic state constitutions and which would completely embrace all separate international regimes, too (italics added)”. See Peters, “Constitutionalisation”, 11. 102 Thus, for instance, the assessment of a wider number of International organizations would reveal that: the adoption of non-binding acts is the rule; the provision of binding organic acts is rare and their adoption usually require the consent of all States or – at least – of the willing ones; therefore, the majority vote is exceptional and above all limited to secondary matters (e.g. procedural ones); binding acts eventually adopted by ­international organizations usually need incorporation into domestic law systems to produce legal effects; the presence of judicial or quasi-judicial systems is rare.

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Furthermore, the claim to transpose democratic standards elaborated within and for States to international organizations is questionable103 because, as stated in recent literature, “[…] International organizations, although created by States, cannot be seen as their equivalent, especially in terms of democratic legitimacy”.104 In particular, democracy requires a demos and there is no equivalent political community of people at the international level; indeed subjects over whom organizations exercise their authority are their member States, not their citizens and international organizations are usually governed by principles of consent and sovereign equality of States.105 Finally, even constitutionalist criticism about the incapability of the functionalist paradigm to accommodate the issue of international organizations’ accountability cannot be shared. Indeed, these theorists forget that according to the functionalist approach the legal constraints to international organizations and their activities are defined by their constitutive acts in relation to which member States have given their consent. Although the constitutionalist paradigm cannot be regarded as fully shareable, it is significant for the purpose of this investigation, because it considers positively and tries to explain the phenomenon of institutional multipolarism of regional organizations. In particular, according to the constitutionalist approach, non-governmental institutions are regarded as instruments for democratization of international organizations. Indeed, on the premise that – as stated – constitutionalists consider individuals as full and active legal subjects of the organization’s legal order and that all norms over them should respect the democratic value, the rule of law, human rights, etc., since the decision-making power of international organizations increases, both f­ ormally and in practice the need for their democratization and respect for the above ­mentioned principles increases accordingly.106 Taking into account the typical bipolar institutional structure of international organizations, which have a strictly intergovernmental character, this democratization requires new forms

103 See Alison Duxbury, The participation of States in International Organizations. The Role of Human Rights and Democracy (Cambridge: cup, 2011), 284–288. 104 D’Aspremont and De Brabandere, “The Complementary Face”, 216. 105 In this sense, see particularly, Armin von Bogdandy, “Globalization and Europe: How to Square Democracy, Globalization and International Law”, ejil 15 (2004): 896–897. 106 According to the constitutionalist paradigm, for the purpose of democratization of international organizations, political equality, participation, inclusion of all governed (namely individuals), on the one hand, and responsiveness and accountability of governing subjects to governed, on the other hand, should be strengthened.

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of political action for citizens and civil society.107 Therefore, the establishment of non-governmental institutions answers this need.108 In essence, the constitutionalists share functionalists’ idea that the gradual diffusion of the multipolar institutional structure in various regional organizations originates from the broadening of their mandate in “sensitive” matters and from the increasing influence of their norms on individuals’ rights and interests. However, constitutionalists interpret this phenomenon in a different manner, because they ascertain it from bottom-up, namely from the perspective of individuals, and not from that of States. Thus, they consider the establishment of parliamentary, socio-economic and territorial institutions as a tool to compensate: (1) the partial reshaping of decision-making power in certain matters characterizing national parliaments or legislative bodies; (2) the lost of possibility for specific civil society categories to influence national policy choices following the increasing transfer of competences from domestic level to the international organization.109 Therefore, these institutions serve for guaranteeing inclusiveness and representativeness of individuals in interstate institutionalized cooperation. Their establishment aims at balancing the lost of responsibilities for some municipal institutions stemming from the ­aforementioned transfer of ­ competences beyond national borders.110 In this perspective

107 Anne Peters, “Dual Democracy”, in The Constitutionalization, eds. Klabbers, Peters and Ulfstein, 261–341. 108 See Geir Ulfstein, “Institutions and Competences”, in The Constitutionalization, eds. Klabbers, Peters and Ulfstein, 45–80. 109 In this regard Anne Peters, “Are we Moving towards Constitutionalization of the World Community?” in Realizing Utopia, ed. Cassese, 119–120, asserted clearly that “The argument here is that globalization has put the State and State constitutions under strain. Global problems have compelled States to transfer previously typically governmental functions, such as guaranteeing human security, freedom, and equality, to higher levels. […] All this has led to governance which is exercised beyond the States’ constitutional confines. ­National constitutions are, so to speak, hollowed out; traditional constitutional principles become dysfunctional or empty”. This concept was expressed previously in Anne Peters, “Conclusions”, in The Constitutionalization, eds. Klabbers, Peters and Ulfstein, 347. In this regard, see also Ingolf Pernice, “Multilevel Constitutionalism in the European Union” (paper presented at Walter Hallstein Institut, Humboldt University of Berlin, July 2001), 11. 110 In this sense, see Berthold Rittberger, Building Europe’s Parliament: Democratic Representation Beyond the Nation State, (Oxford: oup, 2005) 199, who thinks that ­de-parliamentarisation at the domestic level and re-parliamentarisation at the international and supranational level are insolubly linked. For him “where the procedural legitimacy of a democratic polity is challenged, political elites will feel compelled to press for compensatory mechanisms, either at the domestic or supranational level”.

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­non-governmental institutions constitute significant instruments for democratization of international organizations.111 3.2 The Non-legal Factor: The Trend to Emulation Apart from being fostered by the presence of democratic institutions at the domestic level and a strong political willingness of member States to cooperate, the establishment of parliamentary, socio-economic and territorial institutions is often conditioned by the emulation-driven approach adopted by member States with reference to the eu model. Indeed, if we evaluate carefully peculiarities of interstate institutionalized cooperation in different geographic areas, as well as its legal political and cultural background, we learn that sometimes the establishment of these institutions is not supported by a real increased commitment of member States to democracy and social pluralism. This condition is not rare in regional and sub-regional organizations in Sub-Saharan Africa, the Arab-Islamic World, as well as Asia-Pacific; there, States rest on mild democratic institutions compared to Western standards or even on authoritarian regimes and the development of their institutionalized cooperation is almost low. Thus, sometimes the Western model of democracy is just declared by Heads of State in their meetings, but it is not really applied or it is applied one-sidedly. In these regional contexts the imitative factor may play a significant role in explaining the establishment of non-governmental institutions112 and in 111 For an interesting analysis of tools for democratization of international law, as well as of international organizations, see Peters, “Dual Democracy”. 112 From political science perspective emulation or isomorphic behaviour is one instrument of diffusion which is regarded as a mechanism whose outcome could be convergence. Literature on diffusion and its instruments is large. Among others see Tanja Börzel and Thomas Risse, “The Transformative Power of Europe. The European Union and the Diffusion of Ideas” (kfg Working Paper Series, No. 1, May 2009); Dietmar Braun et al., “Ex Pluribus Unum: Integrating the Different Strands of Policy Diffusion Theory”, in Transfer, Diffusion und Konvergenz. Politische Vierteljahresschrift, eds. Katharina Holzinger, Helge Jörgens and Christoph Knill (Wiesbaden: Springer, 2007), 39–55; Zachary Elkins and Beth Simmons, “On Waves, Clusters and Diffusion: A Conceptual Framework”, Annals of American Academy of Political and Social Science 598 (2005): 33–51. About the isomorphic behavour theory explaining the establishment of parliamentary institutions in regional organizations outside Europe, see particularly Jürgen Rüland and Karsten Bechle, “Defending State-Centric Regionalism through Mimicry and Localization: Regional Parliamentary Bodies in the Association of Southeast Asian Nations (asean) and Mercosur”, Occasional Paper N° 2, March 2011. Accessed June 4, 2016. https:// www.southeastasianstudies.uni-freiburg.de/publications/op-series/op-overview/op2 -ruelandbechle-2011-defending-state-centric-regionalism-rev.pdf. The same idea is more

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this regard the eu represents a significant reference point.113 Several considerations may be traced about the rationales for emulation of the eu model of multipolar institutional structure.114 First of all, it may be adopted because its benefit is taken for granted in light of the positive experience witnessed by the European integration process. Indeed, in light of the success of its legal model and relevant economic and political achievements, member States of regional organizations outside ­Europe often choose the eu path to increase their economic performance and competitiveness and to achieve comparable successful goals. Then, aiming at similar trade and economic objectives initially pursued by the eec, when they are confronted with a particular problem, they look at the European integration process that has already successfully managed that challenge.115 This or less agreed by Koitzsch, “Institutional Similarities”, 125–129. For critical considerations see Clarissa Dri, “Limits of the Institutional Mimesis of the European Union: The Case of the Mercosur Parliament”, Latin American Policy 1 (2010): 52–74. 113 Thus, for instance, apart from stressing democracy and popular participation as important motives for launching a regional parliamentary body, heads of delegation at the preparatory meeting of the asean Inter-Parliamentary Organization (aipo) suggested that Europe provided the reference model for asean Governments. See Report of the asean Parliamentary Meeting, Jakarta, 8–11 January 1975; aipo Central Office, 11 Years asean Inter-Parliamentary Organization. Collection of the Joint Communiqué 1975–1985 (Jakarta, 1985): 6, 21, 33. 114 In this regard, see Francisco Santos Carrillo, “El rol de la sociedad civil en los procesos de integración regional: virtualidad y aspiración. Análisis comparative Comité económico y social europeo/Comité consultivo del Sistema de Integración Centroamericano”, in Integración, desarrollo e interregionalismo en las relaciones entre la Unión Europea y América Latina, eds. Ángel M. Casas Gragea and Marta Ochman (México: Porrula Miguel Angel S.a., 2008), 305. 115 About the eu as a model for other regional organizations in general terms see Richard Kirkham and Paul James Cardwell, “The European Union: a role model for regional governance?” epl 12 (2006) 3: 403–431; Sanoussi Bilal, “Can the eu be a model and a driving force for regional integration in developing countries”, ecdpm Working Paper, 2007. Accessed April 25, 2015. http://ecdpm.org/wp-content/uploads/2013/11/EU-Model -Regional-Integration-Risks-Challenges-2007-.pdf; Fraser Cameron, “The eu model of integration – relevance elsewhere?” Jean Monnet/Robert Schuman Paper Series Vol.5 No.37, December 2005. Accessed April 25, 2015. http://aei.pitt.edu/8166/1/Cameronfinal.pdf; Antonio Manuel de Oliveira Guterres, “La Unión Europea como modelo de integración regional”, Colección Cuadernos cari (1997): 25. Regarding specific organizations see, among others, Orlando José Mejia Herrera, La Unión Europea como modelo de integración: análisis comparativo del Sistema de la Integración Centroamericana (León: Editorial Universitaria, 2008); Axel Berkofsky, “Comparing eu and Asian Integration processes – the eu a role model for Asia?” epc Issue Paper, Brussels 2005. Accessed September 8, 2015. http://

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e­ mulation is particularly evident in regional organizations trying to realize the supranational model (i.e. CAn in Latin America and uemoa and cemac in Africa), as well as in those which – moving from the cooperation model – have gradually introduced elements of supranationality in their institutional structure (e.g. sica, ecowas, eac, etc.116). Obviously, this tendency towards isomorphism may apply to and explain not only the establishment of nongovernmental institutions or judicial organs in regional organizations outside Europe, but also their following evolution.117 Secondly – and even more importantly – the involvement of population and civil society in the activities of the organization through the creation of a multipolar institutional structure may be seen as an instrument for political legitimation of the regional organization at the international level. In particular, the establishment of parliamentary, as well as socio-economic and t­ erritorial institutions may have the function of masking that member States of the organization are autocracies and of improving the international credibility of the organization, thus creating trust and respect of the International Community.118 Furthermore, increased credibility of the organization may .

www.epc.eu/documents/uploads/606968147_EPC%20Issue%20Paper%2023%20EU%20 Asian%20Integration.pdf. There is also a wide literature regarding the imitation of the eu judicial system and jurisprudence in regional organizations outside Europe. See among others Piero Pennetta and Elisa Tino, “I sistemi giurisdizionali regionali in America Latina e nei Caraibi: una analisi comparata con l’esperienza comunitaria europea”, in Scritti in onore di Giuseppe Tesauro (Napoli: esi, 2014), 1121–1172; Karen Alter, “The global spread”; Allan F. Tatham, “Exporting the eu model: a judicial dimension for eu international relations”, Studia Diplomatica 63 (2010) 3–4: 137–158; Carl Baudenbacher, “Judicialization: can the European model be exported to other parts of the world?” Texas ilj 39 (2004): 381–399. 116 In reality, similarities with the eu are evident if we analyze the legal discipline of these organizations in diachronic terms, namely comparing it to the developments of the European integration process in the 1950s and the 1960s. 117 Thus, for instance, the ad hoc committee of the ecowas Parliament carried out study visits to other regional Parliaments (e.g. the eala and the ep) in order to prepare proposals concerning Parliament’s reforms. This interaction contributed to the draft of the Supplementary Act relating to the enhancement of the powers of the ecowas Parliament which was adopted by ecowas Heads of State and Government in December 2016 and is already in force. 118 Thus, for instance, it is quite likely that the decision to create the aipo/aipa aimed at providing the asean with a democratic façade, thus increasing its international legitimacy and respectability insofar as in the 1970s asean member States came overwhelmingly under scrutiny because they had authoritarian regimes and their legislatures were

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facilitate its interaction with international public and private business partners and help attracting foreign capitals and financial aids.119 Thirdly, the establishment of non-governmental institutions in regional organizations of developing countries may be the result of an expressed request in this sense by the eu. Indeed, as is known, pursuant to art. 21 of the teu, it subordinates its financial support to regional organizations outside Europe to the respect and promotion of democracy, rule of law, universality and indivisibility of human rights and fundamental freedoms, etc. (the so-called positive conditionality);120 the creation of “democratic” institutions satisfies this condition. Furthermore, the ep is engaged directly in supporting the creation of parliaments worldwide and, in order to contribute actively to this purpose, in 2007 it established the Office for Promotion of Parliamentary Democracy.121 not the result of fair and free elections. In this sense, see Jürgen Rüland, “Participation without Democratization: The asean Inter-Parliamentary Assembly (aipa) and asean’s Regional Corporatism”, in Parliamentary Dimension, eds. Costa, Dri and Stavridis, 170–171. 119 Since the end of the Cold War democratization, respect for human rights, rule of law, good governance, disarmament and development orientation became part of policy conditionalities to which the Western countries tied development aid. 120 Thus, for instance, the Africa-eu Partnership, defined by the 2007 Joint eu-Africa Strategy (Council of the European Union, Lisbon, 9 December 2007, 16344/07 – Presse 291), is expressly “guided by the fundamental principles of […] respect for human rights, democratic principles and the rule of law, as well as the right to development” (para. 6). Furthermore, this partnership is also based on an active involvement both of the pap and au ecosocc which are tasked to interact with their European counterparts. Moreover, consistent with the eu propulsive role, the phenomenon of institutional multipolarism also characterizes the institutional framework established within association agreements that the eu often concludes with other organizations or groups of States. In this regard the example of the Association Agreement between eu and Central America is illustrative. It provides for the establishment of an Association Parliamentary Committee – c­ omposed of members of the ep and the Parlacen – and a Joint Consultative Committee (art. 9) – composed of an equal number of representatives of the eesc, on the one side, and of representatives of the cc-sica and the ccie, on the other side (art. 10). About the involvement of civil society see also art. 11, art. 72, para. 3, and art. 120 of the aforementioned Association Agreement. 121 For an interesting analysis of the propulsive role played by the ep in establishing and strengthening parliamentary organs in other regional organizations see Stephen Kingah and Andrea Cofelice, “eu’s Engagement with African (Sub)Regional Parliaments of ecowas, sadc, the eac and the au”, unu-cris Working Paper W-2012/8. Accessed July 10, 2016. http://www.ucrm.org/fileadmin/workingpapers/W-2012-8.pdf. About the relationship between the ep and other regional parliaments see Stelios Stavridis and Daniela Irrera, The European Parliament and its International Relations (London: Routledge, 2015),

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Current Dissemination of the Phenomenon of Institutional Multipolarism of Regional Organizations

As stated, the multipolar institutional structure, which characterized initially only European organizations (particularly the CoE and the eec/eu), has recently spread in other regional forms of association operating in different geographic areas and mainly endowed with political and/or economic competences. In particular, an overview reveals, first of all, that the multipolar institutional structure is realized in regional organizations independently from their legal model. Secondly, it characterizes regional organizations of any geographic area: not only the European continent but also Latin America and the Caribbean, Sub-Saharan Africa, Eurasia, Asia-Pacific and the Arab-Islamic World.122 However, it is worth noting that the dissemination of the multipolar institutional structure is not uniform. This means that not all regional organizations have both parliamentary, socio-economic and territorial institutions. Moreover, in some organizations (included the eu) non-governmental interests are represented by integrated institutions, while in some others there are connected institutions. In particular, as previously stated, the establishment of integrated institutions tends to characterize above all regional organizations which are influenced considerably by the eu institutional model. Differently, connected institutions tend to be typical of soft organizations, insofar as they ensure the flexibility which is intrinsic to these associative forms, as well as of regional ­organizations realizing the cooperation model which are little influenced by the eu experience (e.g. organizations operating in Eurasia and in Asia-Pacific). In order to have a complete overview of the extent and main features of the phenomenon of institutional multipolarism of regional organizations, it is worth analyzing it combining the categories of non-governmental institutions elaborated in this Chapter (para. 2) with the geographic criterion and the legal one. I mean that it is worth taking into account respectively different continents or regions (identified according to subjective parameters) where 143–233; Olivier Costa and Clarissa Dri, “How Does the European Parliament Contribute to the Construction of the eu’s Interregional Dialogue?” in Intersecting Interregionalism, eds. Francis Baert, Tiziana Scaramgli and Fredrik Söderbaum (Heidelberg: Springer, 2014), 129–149. 122 As previously stated, the identification of these geographic areas is subjective and is based not only on territorial proximity among States but also on their political, historical and cultural affinities, as well as on legal peculiarities of regional organizations they have established.

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organizations operate and the legal models of interstate institutionalized cooperation. The Legal Models of Interstate Institutionalized Cooperation and the Institutional Multipolarism of Regional Organizations As stated, the phenomenon of institutional multipolarism characterizes indiscriminately supranational organizations, cooperation organizations and soft organizations. This means that the legal models of interstate institutionalized cooperation do not influence the dissemination of multipolar institutional structure in regional organizations. Rather, the legal model realized by each of them seems to condition the decision to opt for the establishment of an integrated institution or a connected one.

4.1

i) Supranational Organizations First of all, an overall view of the phenomenon of institutional multipolarism reveals that all supranational organizations have the multipolar institutional structure. Indeed, the eu and the regional organizations in developing countries which tend to imitate its legal model (i.e. CAn, uemoa, cemac) have integrated non-governmental institutions, namely bodies which are established by a legal instrument of international law and form integral part of the organization’s institutional design. The presence of integrated institutions rather than connected ones is absolutely consistent with their legal basis – which is an international treaty – and with their high level of institutionalization, that is typical of supranational organizations. So, they all have integrated parliamentary institutions, which are endowed with different functions and may take part variously in the decision-making process.123 Then, most of them has at least one integrated institution representing interests of specific categories of civil society which are particularly affected by rules and policies of these organizations. In particular, in light of their mandate aiming at the realization of a common market or even an economic union, generally these institutions have competence in social and economic fields,124 123 As we will see in detail in Chapter 2, functions exerted by CAn, uemoa and cemac parliaments are comparable to those conferred on the ep by the 1957 Rome Treaty. 124 Regarding eu socio-economic institutions, apart from the aforementioned eesc, also seven Regional Advisory Councils (racs) in the field of fisheries were established in 2004 in order to involve stakeholders of this sector more closely in the decision-making ­process. Furthermore, the Employment Committee and the Social Protection Committee were established respectively by Council Decision (2000/98/EC) and Council Decision (2015/773) repealing Decision 2004/689/EC. They both have consultative status.

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but they may also represent the interests of specific ethnical groups.125 Finally, except for cemac, all supranational organizations have also integrated territorial institutions, namely bodies representing interests of local communities.126 Their establishment is attributable to the domestic decentralized articulation of member States in regions and municipalities and to the influence of the organization’s normative activity on their sphere of competence. It is worth noting that non-governmental institutions established in organizations outside Europe are often less active or they are not operational at all;127 this seems to confirm that their establishment is the outcome of the imitation of the eu multipolar institutional structure. ii) Cooperation Organizations The phenomenon of institutional multipolarism is also characterizing most regional forms of association which realize the legal model of cooperation organization.128

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126 127 128

In the CAn there are the Andean Advisory Business Council and the Andean A ­ dvisory Labour Council which substituted the Advisory Economic and Social Committee, initially provided for by art. 22 of the 1969 Cartagena Agreement. Then, in 2009 the A ­ ndean ­Advisory Council of High Authorities on Women and Equal Opportunities was established. Furthermore, within the CAn the involvement of civil society is also realized through the Andean Table for the Defense of Consumer’s Rights and the Andean Table of Afro-descendant people (Chapter 1, note 38) performing advisory functions. In the uemoa the Regional Advisory Committee of Agricultural Field and the Labour and Social Dialogue Council have recently joined the Regional Chamber of Commerce which was expressly provided for by uemoa Modified Treaty. In this regard, the main example is represented by the Andean Advisory Council of Indigenous People established within the CAn. It substitutes the Working Table on Indigenous People’s Rights which was established by Decision n. 524/2002. In this regard see, for instance, the eu CoR, the uemoa Council of Regional Authorities and the Andean Advisory Council of Municipal Authorities. Thus, for instance, the uemoa Parliament, whose founding treaty entered into force in 2014, is not yet operational. Regarding cooperation organizations, currently the bipolar institutional structure is realized only by mru, sacu, coi, G5 Sahel and CdE in Sub-Saharan Africa; sela and acs in ­Latin America and the Caribbean; pif and pc in the Asia-Pacific region. It is worth noting that according to provisions of the 1998 statutory treaty the cen-sad has a bipolar ­institutional structure. However, consistent with the recent phenomenon of institutional multipolarism the 2013 cen-sad Revised Treaty – which is not yet in force – provides for a socio-economic institution, namely the Economic Social and Cultural Council (arts. 37–40).

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First of all, non-governmental institutions are present in regional cooperation organizations that are progressively inserting some typical elements of supranational model (e.g. adoption of secondary law, majority vote, immediate application of norms or a judiciary mechanism for disputes settlement, etc.) into their legal framework (i.e. sica, oecs and caricom in Latin America and the Caribbean; ecowas, eac, comesa in Sub-Saharan Africa).129 Then, even many cooperation organizations which do not seem to have a similar ambition have established non-governmental institutions. In particular, cooperation organizations endowed with a multipolar institutional ­structure – with the sole exception of aladi and unasur in Latin America130 and gcc in the Arab-Islamic region131 – have a parliamentary institution. Moreover, the presence of institutions made up of representatives of national corporations and interest groups in economic and social field is equally frequent.132 Finally, except for mercosur and CoE,133 no cooperation organization has t­ erritorial institutions; maybe this is attributable to the centralized structure of their member States where regional and local communities do not have any strong governing power.

129 In particular, the sica has both a parliamentary institution (Parlacen) and an institution representing economic, cultural and social interests (cc-sica). The eac, the oecs and the caricom have just a parliamentary institution, while in the comesa there is only a Business Council. The ecowas Revised Treaty provides for both a parliament and an economic and social council but the latter’s establishment is still pending. 130 In reality, the unasur Treaty (art. 17) provides for a regional Parliament, but its establishment is subordinated to the adoption of an ad hoc protocol which has not yet been concluded. However, both the aladi and the unasur have integrated socio-economic institutions: the aladi Business Council and Labour Council and the unasur Forum for citizens’ participation. 131 In the gcc parliamentary dimension is realized through the un-organic method, by an annual Meeting of Speakers of the gcc Legislative Assemblies in which the gcc Secretary General takes part too. See General Introduction, note 45. 132 Thus, for instance, from among cooperation organizations characterized by the institutional multipolarism currently socio-economic institutions are not present in: sadc, eccas, igad, uma, cis, csto, las, Benelux, nato, CoE. Sometimes, this is due to the ­lacking efficiency of the regional organization in pursuing economic goals. More frequently, in these regional forms of association the involvement of civil society is realized through the un-organic method discussed in the General Introduction. 133 In particular, in mercosur there is the Consultative Forum of Municipalities, Federal States, Provinces and Departments (fccr), while since 1994 the Congress of Local and Regional Authorities has been operating within the CoE.

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Futhermore, an overall view of cooperation organizations endowed with the multipolar institutional structure reveals that they tend to prefer broadly the establishment of integrated institutions to represent both parliamentary and socio-economic institutions. As for supranational organizations, this choice may be considered consistent with the binding conventional nature of their legal basis. So, the establishment of connected institutions is less frequent. As regards the European continent it characterizes only nato134 and oecd,135 while in Eurasia it is typical of sco136 and oded-guam.137 Regarding the Asian regionalism connected non-governmental institutions are present in eco,138 134 The nato Parliamentary Assembly (nato pa), created in 1955 by initiative of national parliaments and then endorsed by Governments of nato member States, is to be considered a connected institution. 135 The Trade Union Advisory Committee (tuac) and the Business Industry Advisory Committee (biac) are both autonomous organizations made up respectively of representatives of trade unions of oecd member States and of delegates from business. They both have a consultative status with the oecd since 1962. 136 In 2006 the Speakers of Parliaments of sco member States signed an inter-parliamentary agreement establishing the so-called sco Parliamentary Initiative. This was endorsed by sco member States as stated in Joint Communique of meeting of Council of sco Heads of States (Shanghai, 21 June 2006). In reality, no further information about its functioning are available. Differently, the sco Business Council has the form of an integrated institution being established by resolution of sco member States on 14 June 2006. However, neither the founding agreement of the sco Parliamentary Initiative nor the resolution establishing the sco Business Council are reachable. 137 Both the guam pa and the Business Council were provided for neither by 2001 Yalta Charter nor by the 2006 oded-guam Charter and were established by private initiative. They can be considered connected institutions of the oded-guam pursuant to art. 2, para. 2, lett. (i) of the Provision on the Secretariat of the oded-guam stating that “The functions of the Secretariat shall include […] to conduct relevant consultations with the Member States, partners, observers, the Parliamentary Assembly and Business Council of guam, as well as with non-governmental organizations participating in the events of guam”. 138 The paeco is to be qualified as connected institution because it was not provided for by eco Treaty and it was established by a Charter signed by Speakers of national Parliaments (Islamabad, 11 February 2013) after being submitted to eco Council of Ministers for consideration/approval. Socio-economic interests are represented by a connected institution too. Indeed, the eco Chamber of Commerce and Industry (eco-cci) was established by an agreement signed by the presidents of national chambers of commerce in 1990 and its affiliation with the regional organization is based on art. 30 of the eco Treaty. It is worth noting that currently its founding agreement is not reachable, so an in-depth analysis of its institutional features and functioning will not be possible.

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asean139 and saarc;140 finally, they also characterize sadc141 in Sub-Saharan Africa and oic142 in the Arab-Islamic World. iii) Soft Organizations As already outlined, the phenomenon of institutional multipolarism is characterizing also many soft organizations, so currently only celac in Latin ­America and acd in Asia143 still have a bipolar institutional structure. It is

139 Both the aipa and the asean Business Advisory Council (asean-bac) may be classified as connected institutions. Indeed, their founding acts are not sources of international law and the asean Charter includes them in the list of Entities associated with the organization (Annex ii of the asean Charter). Furthermore, the establishment of the asean-bac was previously agreed by asean member States. In this regard, see Final Declaration of the 7th asean Summit (Bandar Seri Begawan, 5 November 2001), para. 15. It is worth noting that even the recent asean Young Entrepreneurs Council belongs to the category of connected institutions because it has been established by initiative of the asean-bac and it has been then endorsed by asean member States which are directly involved in its members’ selection. 140 Within the saarc both political and socio-economic interests are represented by connected institutions. The saarc asp was created by private initiative in 1992 and then it was formally recognised by saarc member States (Dhaka Declaration -7th Summit of Heads of State and Government – 11April 1993, para. 46). It is worth noting that currently the founding act of the assp is not reachable, so an in-depth analysis of its institutional features and functioning is not possible at this stage. Similarly, the saarc cci and the SAARCLaw were created by private initiative and obtained then the status of Regional Apex Bodies within the organization. 141 See Chapter 1, note 46. 142 Both the puic and the Islamic Chamber of Commerce and Industry (iccia) may be regarded as connected institutions as their constitutive acts are not sources of international law. The former was created by initiative of Speakers of oic Parliaments (Statute of the puic, Teheran, 17 June 1997, amended in Abu Dhabi, 17 January 2011) and its endorsement by oic member States is clearly expressed by the Memorandum of Understanding on cooperation between puic and oic (Jeddah, 17 June 2014). The iccia was established by national Chambers of Commerce of oic member States in 1977 following the political agreement of the oic Foreign Ministers in this regard. Currently it is qualified as an oic affiliated organ. 143 It is worth noting that, consistent with the phenomenon of institutional multipolarism of regional organizations, recently acd Provisional Secretariat has proposed the creation of a Business Forum. In occasion of the 14th acd Ministerial Meeting (Bangkok, 9–10 March 2016).

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worth ­noting that generally statutory acts of soft organizations do not provide for the ­establishment of non-governmental institutions. This is absolutely consistent with the legal model realized by interstate cooperation aiming at preserving national sovereignty. In this regard, the experiences of iora and of cei represent an interesting exception. Indeed, both their non-binding statutory acts provide expressly for the inclusion of non-governmental institutions in the institutional structure of their organizations. In particular, the original provision of the Business Forum and the Academic Group in the iora Revised Charter (art. 5, lett. c) is the result of a pragmatic approach to interstate cooperation, which is typical of Asian regionalism and has characterized iora since the negotiations of its Charter.144 Indeed, representatives of Governments, business and academia from each country took part in them.145 As previously stated, even the cei Guidelines and Rules of procedure assert expressly that the Parliamentary and Business Dimensions are two pillars of the organization (arts. 12–13).146 Moreover, an overall view of soft organizations endowed with a multipolar institutional structure reveals that they tend to prefer the establishment of connected institutions.147 This is not surprising, as their formal autonomy – due to the fact they are created by private initiative and their activity is then endorsed by member States’ governments – allows soft organizations to ­preserve their intrinsic flexibility and low level of institutionalization. On the

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Ministers of Foreign Affairs took note of this proposal. However, due to the limited activity of this organization and its lack of consolidated multipolar institutional structure, the acd will not be further discussed. Indeed, most iora member States took part in the First Meeting of the Working Group (15–17 August 1995) concerning the creation of the Indian Ocean Rim Initiative with a tripartite delegation. It was composed of representatives from goverments, business sector and academia. Currently, the tripartite participation (governments, businessmen and academics) is one of main principles underlying interstate cooperation within iora. Thus, art. 2 of the iora Revised Charter states that “The Association will facilitate and promote economic cooperation, bringing together inter-alia representatives of Member States’ governments, businessmen and academia”. Thus, for instance, the cei Parliamentary Dimension and Business Dimension represent two of the three pillars of the organization and their roles and tasks are defined in the cei Guidelines and Rules of Procedure adopted by the Heads of Government. These acts are not legally binding. Thus, for instance, a connected parliamentary institution operates within the Visegrad Group, the rcc, the iai, seecp.

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contrary, the establishment of integrated institutions is rare; however, in this case – ­consistent with the legal nature of the organization – their constitutive act is an international instrument of soft law.148 With respect to the distinction between integrated institutions and connected institutions, the classification of the osce pa is uncertain. Indeed, in 1990 Paris Charter osce member States mandated their Ministers of foreign affairs to assess its establishment;149 this intention expressed in a legal non-binding instrument of international law could make me assert that the osce pa is an integrated institution. However, the latter was then established by interparliamentary agreement and not by a document adopted by governmental delegates of osce member States. So, the osce pa should be considered a connected institution. However, its qualification by osce member States as “one of the most important osce institutions”150 seems to support its inclusion in the category of integrated institutions. Finally, it is worth noting that in past years some parliamentary or socioeconomic institutions – created by private initiative and linked to soft organizations (e.g. bsec and asean) – remained formally and substantially ­outside the institutional structure of the organization as long as their member States decided to institutionalize the cooperation and to transform their soft organization into a hard one. Thus, the statutory treaty establishing the “new” organization according to the cooperation model codified previous non-governmental experience and recognized it as connected institutions.

148 In addition to the iora Business Forum and Academic Group and the cei Parliamentary and Business Dimensions, even the apec Business Advisory Council (apec-bac) may be qualifies as an integrated institution. Indeed it was established by the Economic Leaders’ Declaration of Osaka in 1995 (paras. 7–8). 149 In the Charter of Paris for New Europe (Paris, 21 November 1990), 13, osce Heads of State and Government stated that “Recognizing the important role parliamentarians can play in the csce process, we call for greater parliamentary involvement in the csce, in particular through the creation of a csce parliamentary assembly, involving members of parliaments from all participating States. To this end, we urge that contacts be pursued at parliamentary level to discuss the field of activities, working methods and rules of procedure of such a csce parliamentary structure, drawing on existing experience and work already undertaken in this field”. 150 Charter for European Security, SUM.DOC/1/99, Istanbul, 19 November 1999, para. 17. Previously, in Budapest Summit Declaration (1994) osce member States expressed their decision to “[…] to enhance our contacts and dialogue with the csce Parliamentary Assembly” (para. 9).

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The Geographic Spread of the Phenomenon of Institutional Multipolarism of Regional Organizations As previously stated, the phenomenon of institutional multipolarism of regional organizations is characterizing all geographic areas (Europe, Latin America and the Caribbean, Sub-Saharan Africa, Asia-Pacific, Arab-Islamic World,151 Eurasia152), so currently no one may be considered exempt from it. However, it is worth noting that just as in each geographic area regionalism has developed autonomously, so the phenomenon of institutional multipolarism has assumed different connotations and non-governmental institutions have reached a diverse level of efficiency in each continent or region under consideration. As we will see below in details, this is mainly due to the fact that this phenomenon is directly influenced both by constitutional systems of member States and by peculiarities of regional organizations belonging to that specific area.

4.2

i) Europe As stated, in Europe – where countries have a strong and consolidated democratic tradition and civil society takes part actively in the State life – the multipolar institutional structure has characterized regional interstate cooperation since its inception.153 Currently all European forms of association are endowed with non-governmental institutions which are more or less seriously involved in the activities of their regional organization; sometimes they have even gradually increased their role, as the case of the ep. In particular, organizations with political/economic competences (i.e. eu, efta,154 Benelux,155 151 When dealing with the Arab-Islamic World I refer to regional organizations made up by Arab countries (e.g. las, gcc, uma) or by Islamic States independently from their geographic position (e.g. oic). 152 The Eurasian region includes States which are located on the border between the European continent and the Asian one; most of them were former Soviet Republics. 153 As previously stated, when dealing with Europe I refer to a broader geographic area including industralized countries in general. Therefore, the oecd is included in this classification. 154 The efta has a Parliamentary Committee and a Consultative Committee. They were not provided for by 1960 efta statutory treaty and were then established by Council Decisions. 155 The 1958 Benelux Treaty provided for the Economic and Social Advisory Council (arts. 15 and 54) and an Inter-parliamentary Council (arts. 15–23). In reality, the latter had been established by an international treaty adopted by Belgium, Netherlands and Luxembourg in 1955 and was then included in Benelux institutional structure. Recently, a new

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iai,156 cei,157 as well as oecd158) have both parliamentary and ­socio-economic institutions. Differently, because of their field of competence, strictly political organizations (i.e. CoE, osce, Visegrad Group,159 Regional Cooperation Council160), as well as those with political-military mandate (i.e. nato, weu) have only parliamentary institutions. Finally, territorial institutions constitute a peculiarity only of the eu and the CoE. Their lack in other European organizations is due to the fact that their normative production usually does not affect the field of competence of local and regional communities, so representation of their own interests at the regional level is not needed. ii) Latin America and the Caribbean In the Latin American sub-continent the multipolar institutional structure was realized for the first time by the Andean Pact (now CAn) at the end of the 1970s.161 In reality, previously – in 1962 – odeca member States already showed ­ onvention concerning the inter-parliamentary assembly has been signed (Buxelles, 20 C January 2015), but it is not yet in force. Concerning the Economic and Social Advisory Council, it is worth noting that, in contrast to the phenomenon of institutional multipolarism, the 2008 Benelux Revised Treaty does not provide for it anymore. 156 The iai has a parliamentary dimension, structured in a Conference of Presidents of Parliaments, as well as in ad hoc Parliamentary delegations. 157 The cei operates through three dimensions: governmental, parliamentary and business which are regulated by cei Guidelines and Rules of Procedure. Parliamentary and Business Dimensions have a complex hierarchical internal articulation. 158 Withn the oecd parliamentary interests are represented through the oecd Global Parliamentary Network, while socio-economic ones are represented through the aforementioned tuac and biac (see Chapter 1, note 135). 159 The Visegrad Group is a soft organization whose members are Central European States (Czech Republic, Hungary, Poland and Slovakia). It has cultural and political competences aiming at furthering their European integration, as well as advancing their military, economic and energy cooperation. A Meeting of Speakers of member States’ Parliaments takes place yearly within the Visegrad Group. 160 The Regional Cooperation Council (rcc) is a soft organization which is made up of countries from the South East Europe. It pursues a political climate of dialogue, reconciliation and openness towards cooperation in order to implement regional programmes aimed at economic and social development to the benefit of the people in the region. Within the rcc an Inter-Parliamentary Cooperation operates following the adoption of the Memorandum of Understanding on Inter-parliamentary Cooperation in South East Europe (Sofia, 14 April 2008). The latter was signed by Speakers or Presidents of rcc members’ Parliaments. 161 Ten years after the establishment of the organization its members decided to introduce a Parliament and a Tribunal in the original bipolar institutional structure, thus converting it into a multipolar one. See Chapter 1, note 20. Currently, the CAn constitutes the Latin

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their intention to imitate the 1957 eec institutional structure and in the new Charter replacing the 1951 one they provided for a Legislative Council and a Court of justice. However, they were never established and odeca carried on working through its original bipolar institutional structure. In essence, apart from these scant and only partially successful experiences, in Latin America and the Caribbean the diffusion of the phenomenon of institutional multipolarism of regional organizations dates back to the 1990s. Currently almost all forms of association in the sub-continent have a multipolar institutional structure.162 In particular, most of them has – or, at least, provides for (e.g. unasur) – both parliamentary and socio-economic institutions.163 Exceptionally, caricom and oecs are endowed only with a parliamentary institution, while in aladi and alba-tcp there are just socio-economic institutions.164 Finally, similarly to the European experience, even in Latin American and Caribbean organizations the establishment of territorial institutions is rare. Indeed, currently they are present only in CAn and mercosur; they both have a council made up of representatives of municipalities and local communities. However, it is worth noting that the ability of these non-governmental institutions to exercise efficiently the functions underlying their establishment is often influenced by domestic constitutional systems. Indeed, the strong presidentialism of Latin American countries – namely the personalization of national politics by Presidents and the resulting limitation of national ­parliaments and civil society – also reverberates in regional cooperation. Thus, frequently, non-governmental institutions are not put in a position to really exercise relevant powers they are endowed with in the view of strengthening the functions of the organization. Thus, for instance, the Parlasur has never been American organization in which the multipolar institutional structure has its ultimate expression. Indeed, it has a parliamentary institution (Parlandino), as well as the Advisory Labour Council, the Advisory Business Council, the Advisory Council of Indigenous People and the Advisory Council of Municipal Authorities. 162 As previously stated, only celac, sela and acs still have a bipolar institutional structure. 163 Both parliamentary and socio-economic institutions are present in mercosur (i.e. Parlasur, Economic and Social Consultative Forum – fces), CAn (i.e., Parlandino, Andean Advisory Labour Council, Andean Advisory Business Council, Andean Advisory Council of Indigenous People), sica (i.e. Parlacen, cc-sica, as well as the sectorial committes of the ccie and the ccis), unasur (i.e. Parlamento – provided for by the unasur Treaty but not yet established – Forum for citizens’ participation). 164 aladi has the Business Council and the Labour Council, while the Council of Social Movements operates within alba-tcp.

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consulted by the intergovernmental decision-making body, even if the latter is obliged to do so. iii) Sub-Saharan Africa In Sub-Saharan Africa the diffusion of the phenomenon of institutional multipolarism of regional organizations has similarities with the Latin American and Caribbean experience. Indeed, even in this geographic area it dates back to 1990s and currently it characterizes most existing forms of association. Thus, all those endowed with a multipolar institutional structure have parliamentary institutions with the sole exception of comesa and cen-sad.165 However, sometimes they are not operational (e.g. igad ipu, repac of eccas) due to the lacking activity of regional organizations they are established in. On the contrary, only a few African organizations (i.e. au, cen-sad, comesa, ecowas and uemoa) provide for socio-economic institutions.166 This could be surprising if we take into account that African regional forms of association have mainly economic competences, but it could be justified by the fact that some of them (e.g. eac, sadc, igad, etc.) realize – or aim at realizing – the involvement of civil society in their activities through the un-organic method described in General Introduction (para. 2.1.).167 Sometimes, the absence of socio-economic institutions may depend on the limited efficiency of the organization, so that the need for pragmatic participation of civil society is not perceived (e.g. eccas, etc.). 165 Parliamentary institutions are present in: au (Pan-African Parliament – pap); sadc (sadc Parliamentary Forum – sadc pf); igad (igad Inter-Parliamentary Union – igad ipu); eac (eala); ecowas (ecowas Parliament); uemoa (uemoa Parliament); cemac (cemac Parliament); eccas (repac). 166 In particular, the ecosocc and the Business Council operate respectively within the au and the comesa. The uemoa has the Regional Chamber of Commerce, made up of representatives from national chambers of commerce, in addition to the Regional Advisory Committee of Agricultural Field and the Labour and Social Dialogue Council whose composition is limited to specific categories of civil society. Finally cen-sad and ecowas Treaties provide for the establishment of a socio-economic institutions but they have not yet been established. 167 As previously stated, the un-organic method of civil society involvement in the organization’s activities has its expressed legal basis in the sadc Treaty (art. 23). Differently, igad and eac Treaties are silent in this regard. So, the development of the un-organic method shows their members’ new awareness that involvement of people and promotion of its interests are vital elements in economic and social progress. This is clearly expressed in Khartoum Declaration adopted at the 8th igad Summit of Heads of State and Government.

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Finally, even in the African continent the establishment of territorial i­ nstitutions is rare and characterizes only the uemoa (i.e. Council of Regional Authorities). This may be attributable to the strong role played by national Presidents in African States and, consequently, to their centralized management of governing power. iv) Asia-Pacific Surprisingly, the phenomenon of institutional multipolarism of regional organizations also characterizes the Asia-Pacific area, where regionalism has developed just in recent decades. Thus, almost all organizations belonging to this region (i.e. asean, saarc, eco, iora, apec) have non-governmental institutions. An overview of the Asian-Pacific regionalism reveals that all organizations endowed with a multipolar institutional structure (namely, both soft organizations and cooperation ones) have socio-economic institutions.168 This is justified by their mandate in economic field and is also due to the strong pragmatism which is a qualifying element of Asian interstate institutionalized cooperation and makes it closer to economic interests. Differently, the political heterogeneity among Asian States, the lack of long and consolidated parliamentary democracy – according to the Western meaning – in domestic systems, as well as a less accentuated emulation-driven approach toward the eu model determines the scarse relevance of regional parliamentary institutions. Therefore, they are not present in soft organizations (e.g. iora, apec169) which are characterized by low level of institutionalization by definition, while in some cooperation organizations (e.g. asean, saarc, eco) the ­representation of political interests of population is entrusted to connected parliamentary institutions which are created by weak private initiative and are then somehow endorsed by member States’ Governments. In general terms, it can be said that the activity of these non-governmental institutions is particularly differentiated and relies on the vitality of their own regional organization.

168 Socio-economic institutions are present in: asean (asean-bac, asean Young Entrepreneurs Council); saarc (saarc cci, SAARCLaw); eco (eco-cci); apec (apec-bac); iora (Academic Group, Business Forum). 169 It is worth noting that in 1993 the Asia-Pacific Parliamentary Forum was created by initiative of parliamentarians from the region (1993 Tokyo Declaration). It aims at acting as the legislative branch of the apec, but it is not clear if this initiative has been really endorsed by the organization.

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v) Eurasia In last two decades the phenomenon of institutional multipolarism of regional organizations has also concerned Eurasian forms of association, which are all endowed with non-governmental institutions. In particular, almost all E ­ urasian organizations with a multipolar institutional structure have a parliamentary institution170 which can be integrated or connected. On the contrary, socioeconomic institutions are present just in some of them, namely sco, EurAsEc/ EAEU,171 obsec and oded-guam. In particular, they all are endowed with a Business Council made up of representatives of business communities of each member State aiming at ensuring horizontal information exchange between companies from different countries and vertical consultations between business associations and intergovernmental bodies of the organizations.172 On the contrary, the lack of socio-economic institutions in cis and csto may be justified by their mainly political and military competences which makes it useless the establishment of bodies representing business and social interests. Finally, no ­Eurasian ­organization has territorial institutions; this is due to the fact that in each member State municipalities and local communities are not endowed with legislative or executive competences in matters covered by the organization.

170 The parliamentary institution is present in: cis (cis ipa), csto (csto pa), obsec (pabsec), oded-guam (guam pa), sco (sco Parliamentary Initiative – see Chapter 1, note 136). It is worth noting that the idea to establish a parliamentary institution within the eaeu has been recently discussed; however, to date, there is no agreement on either its real desirability or format. 171 The EurAsEc was established in 2000 aiming at the economic integration of its member. It had its own integrated parliamentary institution (the EurAsEc ipa) which was endowed with advisory and deliberative powers. In particular, it could adopt model laws addressed to national parliaments in order to foster the harmonization of national legislation in trade field. Moreover, it could prepare and approve draft of fundamentals of legislation relating to basic legal relations and sending it to the Integration Committee, to be subsequently introduced, as appropriate, to the Interstate Council for review. As is known, on the 10 October 2014 an agreement on the termination of the EurAsEc was signed in Minsk after a session of the Interstate Council. The organization was terminated from 1 January 2015 in connection with the launch of the eaeu, so its parliamentary institution will not be discussed further. 172 Pursuant to arts. 44–46 of the Annex i to the eaeu Treaty, the Board of the Commission may establish advisory bodies composed of authorised representatives of public authorities of the member States and – if suggested by the latter – of representatives of the business community, scientific and non-governmental organizations and other independent experts.

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vi) Arab-Islamic World Since the 1990s the phenomenon of institutional multipolarism of regional organizations has also concerned the Arab-Islamic World. In this area regionalism tended to develop hardly due to historical, cultural and political background. There, traditionally States are governed by autocracies which are by definition less prone to cooperation. This makes it difficult to explain why all regional organizations established in this geo-political area are endowed with a parliamentary dimension. Indeed since 1997 a Parliamentary Union (puic) has been operating within the oic, while in 2005 las member States established the Transitional Parliament and then replaced it with a permanent one. Even the uma Treaty provides for the establishment of a Consultative Council; differently, as previously stated, in gcc the parliamentary dimension is realized through the un-organic method (General Introduction, para. 2.1.). In light of previous considerations, far from being the result of strong democratic systems at national level, the establishment of parliamentary institutions aims at strengthening trust and respect of the international Community in these regional forms of association. Furthermore, as we will see in the following Chapter, activities concretely carried out by these institutions are bare and this is attributable to limited vitality of regional organizations they are established in or connected to. As regards the representation of civil society interests, neither the las nor the uma have socio-economic institutions due to their original political mandate. On the contrary, they are present both in the oic and the gcc. Within the former the private sector is represented by the Islamic Chamber of Commerce, Industry and Agriculture (iccia) which is regarded as an oic affiliated organ. The gcc has a Consultative Commission which belongs to the category of integrated institutions and is composed of nationals from member States who enjoy the appropriate qualifications and expertise in economic field.

chapter 2

Institutions Representing Non-governmental Interests in Regional Organizations: Legal Institutional Features and Practice 1

General Considerations

The study of legal institutional features of non-governmental institutions, namely the mode of their establishment, their composition and internal organization, as well as the functions and powers they are endowed with, is not an end in itself. On the contrary, it is intended to outline the phenomenon of institutional multipolarism of regional organizations identifying its main legal characteristics in order to frame it into the general legal theory about international organizations and to offer a contribution to the study of the international associative phenomenon. For this purpose, following paragraphs will be based on a comparative analysis of normative sources, namely statutory acts of non-governmental institutions, as well as their rules of procedure (where adopted), as amended over the years. The study of legal regulation will be then integrated by an assessment of relevant practice, that is to say, it will be taken into account how legal provisions have been really applied and which activities non-governmental institutions have concretely performed. It is worth noting that the following analysis will take account of the classification of non-governmental institutions as defined in Chapter 1 (para. 2). In particular, regarding the ratione materiae criterion, parliamentary i­ nstitutions will be investigated separately from socio-economic and territorial ones, as their institutional features often have significant differences. Then, the ­legal criterion of classification will be applied to each of the above three categories, so possible peculiarities of integrated and connected institutions will be put into evidence regarding each feature. It is to be noted here that the analysis this chapter is devoted to has been complicated by difficulties or even impossibility in finding the texts of legal instruments regulating some non-­governmental institutions.1 Therefore, although it has been carried out a­ ccurately, the ­following

1 In particular, currently statutory acts and/or rules of procedure of connected institutions operating in different geographic areas (e.g. sco Parliamentary Initiative, saarc asp, saarc cci, eco-cci, asean-bac, csto pa, etc.) are not reachable. So, in relation to these

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empirical investigation has no claim to be exhaustive and it is to be considered perfectible. 1.1 Legal Institutional Features of Parliamentary Institutions A general overview reveals that the representation of political interests within regional organizations of different geographic areas tends to be realized through the establishment of integrated institutions according to the eu example. As stated, from the functionalist perspective this trend expresses the member States’ awareness about the instrumentality of parliamentary institutions to the efficient performance of functions conferred on the regional ­organization.2 On the contrary, the presence of connected parliamentary institutions characterizes a very limited number of regional forms of association, above all operating in Asia-Pacific and in Eurasia.3 The spread of this trend in those geographic areas is not casual; it reflects the strongly intergovernmental nature of interstate institutionalized cooperation, insofar as this kind of institutions ensures the right compromise between the member States’ willingness to preserve national sovereignty on the one hand, and the need for functionality of the regional organization, on the other hand. Moreover, traditionally regionalism in these geographic areas is not influenced significantly by the eu model. 1.1.1 Conditions for Establishment As regards the establishment of parliamentary institutions, differences between integrated and connected ones are evident in relation to some aspects, but they become more veiled with reference to others. First of all, by definition the establishment of connected parliamentary institutions has no legal basis in the statutory act of the organization they ­relate to.4 i­nstitutions the analysis of institutional features will be based on existing studies and on un-official information. 2 In particular, integrated parliamentary institutions are present in: Europe (ep, CoE pa, Benelux Parliament, efta Parliamentary Committee, osce pa, cei Parliamentary Dimension); Latin America and the Caribbean (Parlasur, Parlacen, Parlandino, accp, oecs Assembly); SubSaharan Africa (eala, ecowas Parliament, igad ipu, uemoa Parliament, cemac Parliament); Eurasia (cis-ipa); Arab-Islamic World (Arab Parliament, uma Consultative Council). 3 Connected parliamentary institutions are present in: Europa (nato pa); Africa (sadc pf); Asia-Pacific (aipa, saarc asp; paeco); Eurasia (guam pa, pabsec, sco Parliamentary Initiative; csto pa); Arab-Islamic World (puic). 4 It is worth remembering here that, for the purpose of this investigation, the sadc pf, the sco Parliamentary Initiative, the pabsec, the csto pa, the guam pa, the paeco, the aipa, the saarc asp, the puic, the nato pa, the Parliamentary Cooperation in see belong to the category of connected parliamentary institutions.

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As a consequence, their establishment is never simultaneous and, sometimes, the parliamentary institution is created many years later. In this regard, the examples of the paeco, as well as of the puic are typical. Indeed, the former dates back to 2013 while the organization was established in 1977.5 Similarly, the creation of the puic came thirty years after the establishment of the oic. Furthermore, it is worth noting that generally the recognition of connected parliamentary institutions by their related regional organizations and intergovernmental organs does not follow immediately their creation; sometimes it takes a little time, sometimes many years. Maybe it depends on the level of maturity reached by interstate institutionalized cooperation. Differently, as regards the establishment of integrated parliamentary institutions four hypotheses may be identified. Firstly, the statutory act of the regional organization provides for and regulates expressly the establishment, as well as the composition and functioning of the parliamentary institution. In this regard, the typical example is that of the ep which was originally foresaw as one of the ecsc institutions (art. 7 ecsc Treaty) and expressly regulated by arts. 20–25 ecsc Treaty.6 Likewise, also treaties establishing the CoE, the uma, the eac, the oecs, as well as cei Guidelines provide for the establishment of the parliamentary institution and do also regulate more or less widely their composition, functioning and powers.7 The second hypothesis is realized when the integrated parliamentary institution has its legal basis in the statutory act of the regional organization. This means that it is included among the latter’s organs8 but its formal establishment and the regulation of its functioning and powers are then deferred to the adoption of a specific normative act.9 In this regard, the experience of the mercosur Joint Parliamentary Commission is illustrative. The Asunción Treaty founding the mercosur provided for it as a means of facilitating the creation of a common market, but it did not contain its regulation. It was the 5 The eco – which is the evolution of the Regional Cooperation for Development (rcd) – was established by the Treaty of Izmir signed in 1977, then substituted by the Revised Treaty of Izmir (socalled eco Charter) in 1996. 6 Similar provisions were then included in the 1957 eec Treaty (arts. 4 and 137–144) and are now present in the Lisbon Treaty (arts. 13–14 teu and arts. 223–234 tfeu). In the ecsc Treaty, as well as in the 1957 eec Treaty the ep was called “Assembly”. 7 See arts. 22–35 CoE Statute; art. 12 uma Treaty; arts. 48–65 eac Treaty; art. 10 oecs Revised Treaty. 8 See art. 2 cemac Revised Treaty; art. 6 ecowas Revised Treaty; art. 7 aec Treaty; art. 5, para. 1, lett. (c) au Constitutive Act. 9 See art. 24 mercosur Treaty; art. 4 cemac Revised Treaty; art. 37 uemoa Modified Treaty; art. 13 ecowas Revised Treaty; art. 14 aec Treaty; 17 au Constitutive Act; art. 37 cis Charter.

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1994 Protocol of Ouro Preto which established formally the Joint Parliamentary Commission and, at the same time, defined the overall institutional structure of the mercosur. This Commission operated as mercosur parliamentary institution until 2007 when the Parlasur – which was established by the 2005 Montevideo Protocol – was put in place. In the third hypothesis – which is very frequent – the parliamentary istitution is not provided for in the constitutive act of the organization; it is established through an ad hoc binding (conventional or organic) act which is ­adopted many years later. This is the case, for instance, of: Parlandino10 and accp11 in Latin America and the Caribbean; repac12 and igad ipu13 in SubSaharan Africa; efta Parliamentary Committee14 in Europe; Arab Parliament15 in the Arab-Islamic World, etc. In this category even the osce pa can be inserted. Indeed, as previously stated, its establishment, which had not been provided for in the csce/osce statutory act, was decided by Heads of State and Government in the 1990 Paris Charter, even if it was then formalized in an interparliamentary agreement. It is worth noting that in this hypothesis, as well as in the event that ­integrated parliamentary institutions are provided for but not regulated by the statutory act of the regional organization, the set-up phase of the institution 10

11

12

13 14

15

The Parlandino, which was not provided for by the 1969 Cartagena Agreement, was established by a treaty signed in 1979 which was then modified by an Additional Protocolo in 1997. The 1973 caricom Treaty did not provide for a parliamentary institution. In 1989 during its 10th meeting the Conference of Heads of State and Government decided to establish the accp, whose founding treaty was then signed in 1992 (Agreement for the Establishment of an Assembly of Caribbean Community Parliamentarians, Kingston, 31 July 1992). The caricom Revised Treaty (art. 21) – adopted in 2001 – includes the Assembly among caricom institutions. In spite of the lack of a specific provision in the 1985 eccas Treaty, the Protocol establishing the repac was signed in Malabo in 2002. The repac seems not to be operational yet. In this regard, see Angela Meyer, “Economic Community of Central African States”, in The Democratization, eds. Levi, Finizio and Vallinoto, 215–220. Protocol establishing igad Inter-Parliamentary Union, Addis Abeba, 22 February 2005. Pursuant to art. 32, para. 3, of the 1960 efta Convention (now art. 43 para. 3), in 1977 the efta Council of Ministers adopted a decision establishing the Parliamentary Committee. It is worth noting that parliamentarians from the efta countries had met informally each year since 1963. The Transitional Arab Parliament was established by the Arab League Council resolution n. 292 adopted during the 17th ordinary session in 2005. In the same occasion the resolution n. 290 was adopted introducing art. 19 in the las Charter. It stipulates that “an Arab Parliament should be established within the framework of the League of Arab States which defines the statute, formation, tasks and term of reference thereof”.

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may require several years. Indeed, as previously stated, this ad hoc founding act is usually adopted many years after the establishment of the organization. Then, its entry into force is usually subordinated to ratification or incorporation by all or some (as provided) signatory States and these domestic procedures are often very long. This “delay” in adopting and ratifying/incorporating the act establishing the parliamentary institution reflects clearly the traditional reluctance of member States’ Governments to limit – albeit partially – some of their sovereign powers in certain matters and to delegate their exercise to interstate institutionalized cooperation. So, it is strictly linked to the lacking political dynamism of the regional organization. Additionally, the concrete activation of the integrated parliamentary institution is often hampered by difficulties in finding adequate financial support for the project and capacitybuilding measures. Finally, the forth hypothesis is realized when the parliamentary institution is established through a treaty signed by States before the establishment of the regional organization. In other words, the creation of the parliamentary institution forerun the regional organization. The Parlacen in Central ­America and the Benelux Parliament in Europe are typical examples in this regard. Thus, “Animés du désir de resserrer les liens entre Leurs Etats et à cette fin, de réaliser une coopéeration régulière entre les trois Parlements”, Belgium, N ­ etherlands and Luxembourg signed a Convention establishing an ­interparliamentary consultative council in 1955; this means that the parliamentary institution had already existed for three years when the Benelux Economic Union was established in 1958. So, by including the parliamentary institution among the organs of the Economic Union, the latter’s founding treaty simply integrated the preexisting parliamentary experience in the institutional structure of the new organization.16 In the Central American region, the creation of Parlacen was first envisaged in the 1986 Declaration of Esquipulas i, which was signed by the Central ­American Presidents in order to put an end to traditional rivalries and to foster democracy and peace in the region. The Constitutive Treaty of the Parlacen was then signed by Guatemala, El Salvador, Costa Rica, Nicaragua and Honduras in 1987 and entered into force in three of them (Guatemala, El Salvador and Honduras) in 1990.17 When the Tegucigalpa Protocol establishing sica was signed in 1991, it included the Parlacen as one of its organs (art. 12). 16 17

Thus, the interparliamentary consultative council is commonly referred to as the Benelux Parliament. See arts. 15 and 23–24 Benelux Revised Treaty. It is worth noting that the Parlacen was neither integrated in nor connected to the odeca which still existed at the time of its establishment. This is confirmed by the fact that no reference to this organization was made in the Parlacen statutory treaty.

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In light of this preliminary analysis some considerations can be expressed about the qualification of integrated parliamentary institutions according to the traditional distinction between “principal” and “subsidiary” organs. This classification, which is embodied in arts.7, 22 and 29 of the un Charter and (expressly or by implication) in some statutory acts of other international forms of association,18 has become an accepted feature of the “typology of organs” of international organizations within the general theory about international organizations.19 This classification is broadly based on the method of establishment of the organs. Thus, according to the classical definition, a body is conceived as “principal” organ if it is established by member States through the statutory act of the organization also providing for its composition, powers and functioning. Conversely, “subsidiary organs” are bodies established by decision of a “principal” organ as it deems necessary for the performance of its functions, in pursuance of an expressed or implied authorization provided for in the statutory act of the organization. In essence, the distinctive element between principal organs and subsidiary ones lies in the different legal nature of their founding act. The former are established and regulated by a conventional act attributable to the member States of the organization, while the constitutive instrument of subsidiary organs is an act of secondary law. In light of this definition, it is undeniable that integrated parliamentary institutions which are expressly provided for and regulated by the founding act of the regional organization (e.g. the ep) may be qualified as principal organs. Moreover, it can be assumed that also institutions which are provided for by the statutory act of the organization but whose regulation is deferred to the adoption of an ad hoc normative act belong to this category, insofar as their establishment has its expressed legal basis in the constitutive act of the organization. Furthermore, as the previous analysis has revealed, the regulation of their institutional features is usually expressed in an conventional act adopted by member States; this corroborates the thesis of their inclusion in the category of “principal” organs. ­Finally, as regards integrated parliamentary institutions which are not provided for by the constituent act of the regional organization, their ­qualification is less intuitive. Indeed, the lack of an expressed statutory 18

19

Apart from the un Charter, the distinction between “principal” and “subsidiary” organs is embodied by constituent instruments of some un Specialized Agencies (e.g. imo, ­u nido, ilo, etc.), as well as of some regional organizations (e.g. oas, oau, etc.). For an interesting analysis about the distinction between principal organs and subsidiary ones, in literature see, among others, Santiago Torres Bernárdez, “The Organs”, in Manuel, eds. Dupuy, 109; Paul Reuter, “Les organes subsidiaires des organisations internationales”, in Hommage d’une géneration de juristes au président Basdevant (Pedone: Paris, 1960), 415.

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­provision concerning their establishment and regulation might lead to consider them as subsidiary organs. However, it is to be taken into account that they are usually established through a binding conventional instrument which is adopted by the member States and has the same legal validity of the founding treaty of the ­organization. So, it can be assumed that these institutions have the same qualification of bodies provided for and established by the founding treaty of the regional organization; in other words, they belong to the category of “principal organs”. 1.1.2 Legal Nature of the Founding Act In order to provide a comprehensive investigation of the manner by which parliamentary institutions are established, an analysis of the legal nature of their founding act may not be left out of consideration. Regarding this aspect differences between integrated and connected institutions are marked. As outlined in Chapter 1, para. 2, integrated institutions are established by a normative source of international law. In particular, whether they are provided for by the statutory act of the regional organization or not, integrated parliamentary institution are usually established by a binding conventional act. It can be the treaty establishing the regional organization (e.g. ep, CoE pa, eala, uma Consultative Council, oecs Assembly,) or an ad hoc treaty which can be variously called (e.g. protocol, convention, agreement, etc.). It is worth noting that being governed by the rules of international law, such an ad hoc treaty is subject to the acceptance by all member States or by those who want to (in the event that the application of the variable geometry principle is provided for). In the practice, ad hoc treaties establishing parliamentary institutions are often signed and then ratified just by some members of the organization.20 This means that frequently the membership of the institution does not coincide with that of its organization; it is narrower. As a consequence, the parliamentary institution is able to exercise its powers only towards those States that have agreed to sign 20

Thus, for instance, the principle of variable geometry operates in relation to the: accp Agreement, igad ipu Agreement; the repac Protocol; cis ipa Convention; pap Protocol, etc. In this regard the experience of the Parlacen is emblematic. Originally the entry into force of its founding treaty – signed in 1987 – was subordinated to the ratification of five signatories. However the ratification process was blocked for more than two years by national resistance, stemming essentially from Costa Rica. As a way out of this impasse, member States adopted a Protocol to the Treaty modifying the regulation of its entry into force and providing that ratification from all signatory States was not necessary anymore. Treaty would have been entered into force just following the deposit of the third ratification instrument. Currently only 6 out of 8 sica member States take part in the Parlacen.

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and ratify its ad hoc treaty of establishment.21 This determines the existence of a flexible institutional structure of the regional organization where all the members are bound only by the regulation originally set out in the basic treaty, while bodies established by following ad hoc normative instruments are à la carte. The application of the variable geometry principle to conventional acts establishing many parliamentary institutions proves that member States perceive these bodies representing political interests of their own population as further tool reducing or – at least – conditioning their autonomous bargaining prerogatives at the regional decision-making level.22 So, although they are aware of their usefulness for the functionality of the institutionalized interstate cooperation, their intrinsic reluctance to limit – albeit partially – some of their sovereign powers induces them to temporize in signing and/or ratifying the treaty establishing the parliamentary institution. Rarely the founding act of the integrated parliamentary institution is a nonbinding conventional act, as in the case of the cei Parliamentary Dimension which is established and regulated by cei Guidelines and Rules of Procedure. It is equally rare that integrated parliamentary institutions are established by an organic act, namely a binding act of secondary law adopted by an intergovernmental organ of the regional organization. Currently, there are only two examples in this sense: the Arab Parliament and the efta Parliamentary Committee. They were not originally provided for by the statutory treaties of the two organizations and were established respectively by an Arab Council resolution and a decision of Committee of Ministers.23 In light of reasoning expressed in the previous paragraph, unlike most integrated parliamentary institutions, both the Arab Parliament and the efta Parliamentary Committee can be qualified as subsidiary organs. Different considerations can be expressed with reference to connected institutions. As previously stated, they are not established by a normative instrument of international law, rather they are created by private initiative, generally 21

22 23

In this regard, an interesting opinion was expressed by the Central American Court of Justice. It stated that its jurisdiction extended over all sica member States, even those which are not parties to its constitutive agreement, as they signed and ratified the sica Tegucigalpa Protocol that is the statutory treaty of the organization providing for the establishment of the judicial organ. See Case n.1-30-4-2004, Reyes Wyld vs. Guatemala, 3 January 2005, at 43, and lastly, Case n.123-12-06-12-2011, fonare y Fundación Nicaragüesa para el Desarrollo Sostenible vs. Costa Rica, 21 June 2012, at 9 ff. As we will see in Chapter 2, an opposite approach is usually applied to integrated socioeconomic and territorial institutions. In light of available information, it seems that the principle of the variable geometry does not operate in relation to these organic acts.

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through the adoption of an interparliamentary agreement signed by the Presidents or Speakers of national parliaments of the organization’s member States. Sometimes, only parliamentary representatives of some member States participate in the parliamentary institution; in other words, the principle of variable geometry may be applied to.24 Firstly, this may depend on practical p ­ roblems: the national legislative body and the State it belongs to lack resources to support this initative. Additionally, in autocratic countries the marginal role played by the legislative body at the domestic level may result in disinterest in the parliamentary initiative at the regional level. As previously stated, being created by private initiative, these parliamentary institutions are not formally an integral part of the institutional structure of the regional organization. In order that they are regarded as connected institutions, their establishment and affiliation with the regional organization have to be recognised by the Governments of member States. This recognition is usually expressed through an unilateral act; in this regard, it may be realized in four different ways. Firstly, it may consist in a formal approval by the highest intergovernmental organ of the organization contained in a non-binding act, namely a political declaration (e.g. sadc pf,25 sco Parliamentary Initiative,26 paeco,27 24

25

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27

Thus, for instance, the paeco Charter was signed by parliamentary Speakers of 6 out of 10 eco member States. Similarly, the puic is composed of parliamentary representatives from 53 out of 57 oic member States. The recognition of the sadc pf by sadc member States is expressed in paragraph 34 of the sadc Summit Communiqué (Blantyre, 8 August 1997) stating that “The Summit discussed the establishment of the sadc Parliamentary Forum comprising all the national parliaments of member States. The Summit welcomed this initiative and agreed that the Forum will play a major role in promoting dialogue and popular participation, particularly at the grassroots level, in the affairs of sadc. The Summit, therefore, approved the establishment of the sadc Parliamentary Forum as an autonomous institution”. In occasion of its 6th annual meeting in 2006 the Council of Heads of sco member States “[…] expressed full support for the agreement (the sco Parliamentary Initiative) signed at the Meeting of Parliament Speakers of sco member States held in Moscow on 30 May 2006, believing that the agreement is a good innovating action to consolidate the Organization and develop the interparliamentary relations among the member states”. See Joint Communiqué of the Meeting of the Council of Heads of member States of the Shanghai Cooperation Organization, Shanghai, 15 June 2006. In Baku Declaration adopted at the 12th eco Summit (Baku, 16 October 2012) Heads of State and Government “Welcomed the initiative by the Islamic Republic of Pakistan for establishment of the Parliamentary Assembly of the Economic Cooperation Organization and expressed the hope that the Assembly would enable the eco Parliaments to support activities/programmes of eco through necessary legislative measures” (para. 32). It is worth noting that the draft paeco Charter, elaborated by some representatives

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saarc asp28). Secondly, the recognition by the Governments of member States may be expressed in a provision of the statutory treaty of the organization.29 Thirdly, it may be inferred by mere mentions in acts of secondary law adopted by intergovernmental organs30 or, lastly, it may be realized implicitly through concluding facts by the related organization and its intergovernmental organ (e.g. nato pa31). Apart from being expressed through an unilateral act, the recognition by member States may take the form of an ad hoc bilateral conventional act which regulates expressly cooperation between the connected parliamentary institution and the regional organization. In this regard, currently the unique example seems to be that of the puic whose affiliation with the oic has been formalized in a memorandum of understanding.32 Before concluding the analysis about this aspect, it is worth noting that some parliamentary institutions were put in place on a provisional basis in order to prepare the set-up of a permanent Parliament on the one hand, and

28

29 30

31

32

of national parliaments (meeting on Establishment of eco Parliamentary Assembly, Islamabad, 4–5 September 2012), was submitted to the 20th eco Council of Ministers for consideration/approval before its formal adoption by Speakers of national parliaments. As stated in Dhaka Declaration (7th saarc Summit, Dhaka, 11 April 1993) “The Heads of State or Government welcomed the initiative of the Speakers of Parliaments of saarc Countries in forming an saarc asp. They were of the view that the establishment of this Association would add another important dimension to the process of regional cooperation” (para. 46). In this regard, see arts. 20–21 obsec Charter; art. 16 and Annex 2 of the asean Charter; art. 11 csto Charter (as amended in 2010). In this regard we can consider the example of the guam pa which can be regarded as a connected institution of the oded-guam by virtue of its mention in art. 2, para. 2 lett. (i), Provision on the Secretariat. Similarly, the Parliamentary Cooperation in seecp is mentioned in several resolutions adopted within the rcc. In November 1967 the North Atlantic Council recommended that an informal relationship was established between nato and the nato pa. In 1974, the Belgian Parliament granted the nato pa special legal status and, later in the year, the leaders of Allied Governments indirectly endorsed its work in the Ottawa Declaration on Atlantic Relations (para. 13) without naming it expressly. Since 1997 the Presidents of the nato pa have been participating in nato Summits of Heads of State and Government. A Memorandum of Understanding (mou) on cooperation between the puic and the organization of the Islamic Cooperation (oic) was signed by their respective Secretaries General in Jeddah on Tuesday 17 June 2014. It provides for coordination and consultation between the puic and oic; exchange of information and documents; holding joint conferences and seminars; mutual obligations concerning the implementation of joint activities.

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to raise overall awareness among the population about interstate institutionalized cooperation and the forthcoming establishment of the Parliament as the representative of the people, on the other hand. Thus, for instance, pending the entry into force of the ad hoc convention establishing the ­community parliament, both in uemoa and cemac an interparliamentary commission was established.33 Still, the Preamble of the Protocol establishing the ­r epac ­defines the latter as “prélude au Parlement de la Communauté” whose ­creation – called “the end of the transition period” – should be decided by the Conference of Heads of State and Government (art. 7 Protocol). Even the Arab League Council resolution n.292 established a transitional parliament whose shift into a permanent institution was agreed during the 23rd Arab Summit in 2012, when a resolution containing its Statute was adopted.34 Finally, as previously stated, in Latin America the Parlasur succeeded to the Joint Parliamentary Commission which was instructed by the Common Market Council (cmc) to write its protocol of establishment. 1.1.3 Composition It is an obvious observation that the number of members in parliamentary institutions differs considerably. It is equally obvious that the larger the membership of the organization is, the more numerous the composition of the parliamentary institution tends to be.35 However, in spite of this heterogeneity it is possible to identify similarities as regards the criteria underlying the distribution of seats and the selection of members. i) Representative Criteria An overall analysis of parliamentary institutions under consideration reveals that there are three criteria which determine the distribution of seats and are 33

34 35

In this regard, see art. 35 uemoa Modified Treaty; art. 44 Additional Act to cemac Treaty. Regarding the cemac the interparliamentary commission was operational until 2010 when the Convention establishing cemac Parliament entered into force. cemac Parliament took its first ordinary session in March 2014. Differently, according to available information the uemoa interparliamentary commission seems to be still operational, even if the treaty establishing the Parliament (signed in 2003) entered into force in 2014. las Council Resolution n. 559 “approval of the Statute of the Arab Parliament, 23rd Summit, Bagdad, 29 March 2012. It is worth noting that statutory acts of some parliamentary institutions (i.e. Parlacen, Parlandino, CoE pa, nato pa, accp, etc.) also provide for the appointment of substitutes whose number is usually identical to that of regular delegates. When the latter are absent, their substitutes take their place speaking and voting on behalf of them. In such a way the activity of the parliamentary institution is not hampered.

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usually applied alternatively: (1) the principle of equality between member States; (2) the principle of proportionality; (3) the mixed criterion. Where the former principle is applied, the parliamentary institution is composed of the same number of delegates for each member State, independently of population size, political and economic weight, contribution to the budget of the organization, etc.36 The application of this criterion – which is typical of most parliamentary institutions – expresses the willingness to ensure the sovereign equality between States even in relation to bodies which are established to act as voice of the people within interstate institutionalized cooperation.37 Consistent with this consideration, the equal distribution of seats constitutes the rule for connected parliamentary institutions38 and it is also almost frequent for integrated ones39 independently of the cooperation model realized by the organization they operate within. Thus, it is also applied in parliamentary institutions of supranational organizations (i.e. cemac, uemoa, CAn) and of some cooperation organizations more or less tending towards supranationality (e.g. oecs, eac, etc.) where, according to the functionalist approach, by definition the strict protection of national sovreignty should give way to functions conferred upon the organization. As stated, the composition of parliamentary institutions may be also based on the principle of proportionality, namely the number of seats to be allocated to each member State is detected in proportion to its population. In principle, this means that the more a State is populous, the more its parliamentary delegation is numerous. The ep is the main prototype of parliamentary i­ nstitution 36

37

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It is worth noting that the accp is also composed of delegations from Associate members of caricom which are usually smaller that those of member States. See art. 3, para. 3, accp Agreement. Differently, art. 2 Parlacen Protocol provides that the parliamentary institution is also integrated by Heads of State and Government of the sica member States, at the end of their term of office, as well as Vice-Presidents or those designated to the Presidency of the Republic of each member State, at the end of their term. In this sense see Schermers and Blokker, International, 416. It is worth noting that sometimes statutes indicate the maximum number of representatives of which each national delegation has to be composed. Therefore, the delegation of a member State might be constituted by a smaller number of parliamentarians. In this regard, see art. 6, para. 1, aipa Statute; art. 3 accp Agreement; art. 4, para. 1, puic Statute; art. 6, para. 3, sadc pf Constitution. The principle of State equality characterizes the composition of: sadc pf, paeco, guam pa, puic, aipa and seecp Parliamentary Assembly. An equal distribution of seats among member States characterizes the composition of parliamentary institutions in: efta in Europe; au, eccas, igad, eac, cemac and ­u emoa in Sub-Saharan Africa; caricom, oecs, CAn, sica in Latin America and the Caribbean; uma and las in the Arab-Islamic World.

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whose seats are distributed according to the principle of proportionality. However, it is not the sole example; currently the application of this principle is common in some integrated parliamentary institutions. In particular, it characterizes those established within most European organizations other than the eu (i.e. CoE, osce, cei, Benelux),40 as well as Parlasur in Latin America and cis ipa in the Eurasian region.41 On the contrary, the principle of proportionality constitutes an exception for connected parliamentary institutions being applied only by nato pa, csto pa and pabsec.42 In general terms, the application of the proportional criterion is justified by strong demographic differences among member States. Moreover, in Eurasian organizations its application meets the need to confirm the central position and authority of Russia, while in the European organizations as well as in the mercosur the use of this criterion is intended to strengthen the democratic nature of the parliamentary institution. It is worth noting that sometimes, if population size is taken into account to some extent, further factors also play a significant role in defining the dimension of parliamentary delegations. Thus, for instance, in the CoE pa as well as in the csto and cis ipas the economic weight of member States and consequently their contributions to the budget of the organization influence directly their number of delegates. When there exist relevant asymmetries in the size of the population and in the gross domestic product among the member States, in order to protect smaller ones the dimension of each parliamentary delegation may be defined according to the yardstick of degressive proportionality. This means that bigger member States agree to accept fewer seats than they would receive if the total were divided according to population size, so as to allow for better representation of lessdensely populated States. This method characterizes the distribution of seats in the ep (art. 14, para. 2, teu)43 and has been recently also applied in the

40

See art. 26 CoE Statute; art. 1 Benelux Parliament Convention; art. 3, para. 4, cei Parliamentary Dimension Rules of procedure; art. 1 osce pa Madrid Document. 41 The cis ipa Convention does not fix the size of delegations which is decided by each national parliament. 42 See art. 1 nato pa Rules of procedure and Appendix i; art. 2, para. 1, pabsec Rules of procedure. Similarly to the cis ipa Convention, the csto pa Convention does not determine the number of members for each delegation which is decided freely by national parliaments. Obviously the Russian one is the most numerous. 43 For critical considerations about the method of degressive proportionality see Federico Fabbrini, “Representation in the European Parliament: Of False Problems and Real Challenges”, ZaöRV 75 (2015): 823.

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Parlasur.44 In general terms, it can be said that the definition of the dimension of parliamentary delegations is not an easy task and it usually follows a complex political bargaining among member States.45 Finally, the distribution of seats among member States may be based on a mixed approach combining together the principle of State equality and the criterion of proportionality. Currently its application is limited and it seems to characterize only the ecowas Parliament. Indeed, it is composed of 115 seats; each member State has a guaranteed minimum of 5 delegates and the remaining 40 seats are shared on the basis of population (art. 6 ecowas Parliament Supplementary Act). As far as representation is concerned, parliamentary institutions are often required to fulfill the criterion of political pluralism.46 This means that national delegations have to reflect different national political trends, so both majority and opposition parties have to be represented. As a consequence of the strong democratic tradition of European countries, the principle of fair political representation is typical of the ep as well as of other European p ­ arliamentary

44 The mercosur Montevideo Protocol prescribed that in the transitional period (from December 2006 to December 2010) each delegation in the Parlasur should have been composed of 18 parliamentarians according to the principle of State equality (See Transitory Dispositions). The distribution of seats according to the principle of attenuated proportionality is regulated by MERCOSUR/CMC/DEC. n° 28/10, Criterio de representación ciudadana, viii cmc ext- Montevideo, 18 October 2010 and by MERCOSUR/CMC/DEC. n° 18/11, Funcionamento del Parlamento del Mercosur, xli cmc – Asunción, 28 November 2011. About the application of proportionality in the distribution of seats, in literature see Adriana Dreyzin De Klor, “La proporcionalidad en la composición del Parlamento del Mercosur y el desafío de las legislaciones electorales nacionales”, rbdc 15 (2010): 13. 45 In this sense, it is to be considered the experience of the Parlasur. Indeed the distribution of seats according to the principle of proportionality was opposed by Uruguay and, above all, Paraguay which were afraid that the parliamentary institution became a pressure tool managed by stronger States, namely Brasil and Argentina. So the final decision was the result of a complex political agreement among member States. Regarding the first legislature after the transitional period, it was agreed that Brasil had 37 seats, Argentina 26, ­Venezuela 23, Paraguay and Uruguay 18. An increase of delegates for bigger States was then decided starting from the second legislature: 75 seats for Brasil, 43 for Argentina and 33 for Venezuela. In this regard, in literature see Clarissa Dri and Deisy Ventura, “The Mercosur Parliament: a challenging position between late institutionalisation and early stalemate”, in Parliamentary Dimensions, eds. Costa, Dri and Stavridis, 83; Maria Claudia Drummond, “Representación ciudadana en el Parlamento del Mercosur: la construcción del acuerdo político”, Puente Europa 7 (2009): 66. 46 See Klebes, “Les institutions”, 850–852.

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institutions,47 but it is expressly provided for by founding acts or rules of procedure of many parliamentary institutions operating elsewhere.48 Furthermore, unlike the ep, some parliamentary institutions – above all those established within regional organizations in developing countries – give strong emphasis to ensuring gender representation allocanting a specific number of seats to women members.49 This provision is justified by the social and cultural background of member States of regional organizations under consideration, where an equal status between men and women is being realized hardly. So, if the national rules for election of regional parliamentarians contravene these provisions, they could be challenged before national courts50 or (if any) the regional judicial body consistent with its jurisdiction.51

47

48

49

50

51

In this regard, see for instance rule 6.2 CoE pa Rules of Procedure; art. 4, para. 2, Benelux Parliament Rules of Procedure; rule 3 seecp Parliamentary Assembly Rules of Procedure. It is worth noting that communist members – who had more than 20% of seats in Italian Parliament during the Cold War – appeared in the ep only in 1969. An equal representation of national political parties is provided for by: art. 10.3 oecs Revised Treaty and art. 6 Parlacen Protocol in Latin America and the Caribbean; art. 4, para. 3, pap Protocol, art. 50 eac Treaty, art. 25 E ecowas Parliament Supplementary Act, art. 6, para. 3, sadc pf Constitution, art. 5, para. 8, igad ipu Protocol in Sub-Saharan Africa. Thus, in Sub-Saharan Africa the pap Protocol (art. 4, para. 2) allocates 20% of seats to women members. In this sense, see also art. 6, para. 3, sadc pf Constitution; art. 6, para. 1, aipa Statute; art. 50, para. 1, eac Treaty; art. 5, para. 2, igad ipu Protocol. Differently, as regards the European continent, in the CoE pa the percentage of women in the delegation should at least reflect the percentage in the national Parliament and includes at least one representative of each sex (rule 6.2 Rules of Procedure). Similarly, see art. 1, para. 4, osce pa Rules of procedure. The principle of equal gender representation is also provided for by art. 3 las Parliament Statute; art. 6, para. 2, mercosur Montevideo Protocol; rule 3 seecp Parliamentary Assembly Rules of Procedure; art. 4 (b) paeco Charter. Thus, for instance, the Ugandan Rules for election of eala members were found to be in contravention of art. 50 of eac Treaty and various articles of the Ugandan Constitution by Uganda’s Constitutional Court. See Constitutional Petition No.28 of 2006, Jacob Oulanyah vs. The Attorney General , 30th May 2008. Thus, for instance, the eacj ruled that the rules for election of eala members adopted by the National Assembly of Tanzania were in breach of art. 50, para. 1, eac Treaty insofar as they did not grant adequate representation to shades of opinion, gender and other special interest groups. See eacj Reference No. 7 of 2012, Anthony Calist Komu vs. The Attorney General of the United Republic of Tanzania, 26 September 2014. Even the Ugandan rules for election of eala members were challenged several times before the eacj for alleged violation of art. 50, para. 1, eac Treaty, to the extent that they did not guarantee adequate representation of national political parties. See eac Reference No. 6 of 2011, Democratic Party and Mukasa Mbidde vs. Secretary General of the eac, Attorney General of the Republic

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ii) Selection of Members Assuming that – as stated – parliamentary institutions are representative bodies of the peoples over which the regional organization has jurisdiction, the selection of their members may be governed by one of these two criteria: the principle of delegation and the yardstick of direct election. A general overview of existing regional parliamentary institutions reveals that – taking the original experience of the ep as a model52 – all connected ones53 and most integrated ones54 are composed of persons appointed by national parliaments from among their members (principle of delegation).55 This means that each delegate holds a dual mandate acting simultaneously as national and regional parliamentarian. In such a way, delegates have an important function as a link between the regional parliamentary institution and the national one, thus facilitating

52

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55

of Uganda, 10th May 2012; Reference No. 5 of 2012, Abdu Katuntu vs. Attorney General of Uganda and the Secretary General of the eac, 25 November 2013; Reference No. 6 of 2012, Anita vs. Attorney General of Uganda and Secretary General of the eac, 29 November 2013. Indeed, the original eec and ecsc Treaties (respectively art. 138 and art. 21) prescribed that the ep was composed of delegates appointed by national parliaments from among their members in accordance with the procedure laid down by each member State. As regards European parliamentary institutions see art. 1 nato pa Rules of procedure; rule 3 seecp Parliamentary Assembly Rules of procedure. Regarding Eurasian ones see art. 3, para. 1, guam pa Rules of procedure; art. 2, para. 2, csto pa Rules of procedure; art. 3 pabsec Rules of procedure. In Asia-Pacific see art. 6 aipa Statute; art. 2 paeco Charter. In Sub-Saharan Africa see art. 6 sadc pf Constitution, while in the Arab-Islamic World see art. 2.1 and art. 4.1 puic Statute. Regarding European institutions see art. 25 CoE Statute; art. 1 efta Parliamentary Committee Rules of procedure; rule 3, paras. 1–2, cei Parliamentary Dimension Rules of procedure; art. 3 osce pa Rules of Procedure; art. 1 Benelux Parliament Convention. As regards parliamentary institutions in Sub-Saharan Africa see art. 5.1 pap Protocol; art. 7, para. 1 (a), repac Protocol; art. 5.1 igad-ipu Protocol. In the Caribbean see art. 3 accp Agreement and art. 10.1 oecs Revised Treaty. As regards Eurasian institutions see art. 3 cis ipa Convention, while in the ArabIslamic World see art. 4 las Parliament Statute and art. 12 uma Treaty. Even the interparliamentary Commissions operating within the cemac and the ­u emoa pending the establishment of their respective regional parliaments were composed of delegates from national parliaments (see art. 44 Additional Act to cemac Treaty and arts. 5 and 7 Interparliamentary Commission Rules of procedure; art. 35 uemoa Modified Treaty). Originally, art. 25 of the CoE Statute empowered Governments of member States to appoint the members of the parliamentary institution and did not stipulate that they were parliamentarians only. In 1951 this provision was amended conferring the power of selection of regional parliamentarians on national parliaments that have been choosing them from among their members since 1970.

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communication between them and enabling a closer scrutiny of the activities of the organization.56 In particular, they have the ability to keep adequately informed their own national parliament about the reasons behind the adoption of an act at the regional level. This could facilitate its process of incorporation when it will then pass under consideration in the domestic parliament. However, the dual mandate has also some negative implications. Firstly, being appointed by national parliaments or legislative bodies regional p ­ arliamentarians provide an indirect representation of populations of member States. Then, the membership within the regional parliamentary institution is conditioned by the diverse national election calendars, so problems in terms of longevity of its members and continuity of its work are posed. Furthermore, being engaged on two fronts delegates that make up the regional parliamentary institution may not be able to attend all the sessions and to devote all the necessary time to regional issues. Finally, they could consider themselves primarily as representatives of national parliaments and look at the priorities of the regional body exclusively through the prism of domestic priorities.57 Among parliamentary institutions whose members are elected indirectly, the eala constitutes an exception. Indeed its parliamentarians are elected by national parliaments of eac member States but not from among their members (art. 50, para. 1, eac Treaty).58 Each national parliament is free to determine its own procedure for election of eala parliamentarians.59 Concerning the selection of regional parliamentarians, the founding treaties of a few integrated parliamentary institutions provide that their members

56 57

58

59

In this sense, see Arndt, “Parliamentary Assembly”, 14. In this regard, see Šabič Zlatko, “Building Democratic and Responsible Global Governance: The Role of International Parliamentary Institutions”, Parliamentary Affairs 61 (2008) 2: 266. In order to be elected as eala parliamentarian a person has: (a) to be a citizen of an eac member State; (b) to be qualified to be elected as member of the National Assembly of that Partner State under its Constitution; (c) not to be holding office as a Minister in that Partner State; (d) not to be an officer in the service of the Community; (e) to have proven experience or interest in consolidating and furthering the aims and the objectives of the Community. Rules of procedure for election of eala members passed by national parliaments were challenged several times before the eacj. Thus, for instance in Reference No. 1 of 2006, Prof. Peter Anyang’ Nyong’o and Others vs. Attorney General of Kenya and Others, 30 March 2007, the eacj declared that the Rules of election applied by Kenya National Assembly infringed art. 50 eac Treaty because they did not undertake an election within the meaning of the above Treaty provision.

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are elected directly by all citizens of member States.60 In this regard, the ep plays a pioneering role insofar as it has been applying this selection method since 1979 (art. 14 para. 3 teu).61 In imitation of the eu model, currently this provision is duly applied also in relation to the Parlacen in Central America (art. 2 and art. 6 Parlacen Treaty). In other regional organizations (e.g. ecowas, cemac and uemoa in Africa62 as well as mercosur and CAn in Latin America63) direct election of the parliamentary institutions’ members is prescribed but – pending its difficult operationalization – parliamentarians are still appointed by national parliaments from among their members pursuant to a temporary provision.64 On the one hand, the selection of regional parliamentarians by popular vote ensures a direct and immediate representation of political interests of member States’ populations; this confers a stronger democratic legitimacy to the parliamentary institution. Direct election also allows the regional parliamentary institution to have full-time members who can devote all their time and energy to regional issues. Then, it can ensure a wider and more objective representation of various national political parties. 60 61

62 63

64

See art. 2 Parlandino Treaty and Additional Protocol to Parlandino Treaty; art. 5, para. 1, and art. 6, para. 1, mercosur Montevideo Protocol. As stated, originally the ep was composed of delegates appointed by national parliaments from among their members. Direct elections were subordinated to proposal of the Parliament itself. The first proposal was made as early as 1960 but only in 1976 the Council of Ministers was finally able to reach the required unanimity in this regard. As is known, first direct elections of European parliamentarians took place in 1979. See art. 18, para. 1, ecowas Parliament Supplementary Act; art. 5 cemac Parliament Convention; art. 5 uemoa Parliament Treaty. See art. 2 Parlandino Treaty and Additional Protocol to Parlandino Treaty; art. 5, para. 1, and art. 6, para. 1, mercosur Montevideo Protocol. As regards mercosur, currently only citizens of Paraguay and Argentina elect directly their representatives in the Parlasur. In literature see Rita Marcela Gajate and Juan Carlos Fernández Saca, “Elección de parlamentarios para el Mercosur. Avances en la constitución del Parlasur”, Revista Aportes para la integración Latinoamericana 32 (2015): 58–98. Regarding the CAn Bolivia was the last member of the CAn to implement the provision concerning the direct election of Parlandino members and only in 2014, after the promulgation of its new Constitution, it selected its regional parliamentarians by popular vote. However the Colombian Congress approved the Statutory Law N. 1729 (29 July 2014) repealing Law N. 1157 of 2007 regarding the direct election of the Parlandino. So currently the Colombian parliamentarians to the regional body are appointed by the national parliament. See art. 18, para. 1, lett. g) ecowas Parliament Supplementary Act; art. 32 cemac Parliament Convention; art. 31 uemoa Parliament Treaty; art. 2 Parlandino Treaty; transitional provisions of the mercosur Montevideo Protocol.

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On the other hand, d­ irect election determines the separation of the regional parliamentary function from the national one, thus increasing the risk that regional parliamentarians become isolated or even idle insofar as the regional organization itself is little operational.65 1.1.4 Legal Status of Members An overall analysis of parliamentary institutions under consideration reveals that there are certainly some significant differences from an institution to another in relation to who is represented by them. In this regard, three main trends may be identified. According to the first one, parliamentarians are described as representatives of the peoples of member States. Originally, this view characterized the ep, insofar as art. 137 of the 1957 eec Treaty provided expressly that “The Assembly [now, the Parliament] […] shall be composed of representatives of the peoples of the States united within the Community […]”.66 Currently, a similar assertion is present in statutory acts of a fair number of parliamentary institutions.67 In some other founding acts the reference to the “representation of peoples” is implicit or it can be inferred from a joint reading of several provisions.68 Thus, for instance, when stating that “the csce’s [now osce] Parliamentary Assembly will be composed of 245 parliamentarians representing participating countries”, art. 1 of the Madrid Declaration refers implicitly to “population of participating countries”. In this regard, the original formulation of art. 25 (a) of the CoE Statute, which was even less clear lacking any reference to member States’ populations as well as national parliaments,69 was amended in order to provide expressly that the parliamentary institution “shall consist of representatives of each member, elected by its 65 66 67

68 69

In this sense, regarding the experience of the ep, see Schermers and Blokker, International, 422. In this sense, see also art. 20 ecsc Treaty; art. 107 Euratom Treaty. In particular, a similar assertion is present in integrated parliamentary institutions in: Sub-Saharan Africa (art. 2, para. 2, pap Protocol; art. 3 repac Protocol; art. 2, para. 2, and art. 3, para. 1 ecowas Parliament Supplementary Act; Preamble of the cemac Parliament Convention) and in Latin American parliamentary institutions (art. 1, para. 1, mercosur Montevideo Protocol; art. 1 Parlacen Protocol; art. 2 Parlandino Treaty). As regards connected parliamentary institutions see Preamble of the sadc pf Constitution. In this regard provisions concerning the “objectives” are often relevant. See, for instance, art. 4 (a) and (c) accp Agreement; art. 1 Parlacen Protocol. Originally, art. 25 (a) CoE Statute provided that “The Consultative Assembly shall consist of representatives of each Member appointed in such a manner as the Government of that member shall decide. Each representative must be a national of the Member whom he represents, but shall not at the same time be a member of the Committee of Ministers”.

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parliament from among the members thereof, or appointed from among the members of that parliament, in such manner as it shall decide […]”. Differently, according to the second trend parliamentary institutions represent national parliaments or legislative bodies of each member State. In other words, they can be regarded as an union of national parliaments and, therefore, the representation of interests of State populations is realized only in a mediated way. This approach characterizes most connected parliamentary institutions (e.g. nato pa, aipa, guam pa, puic, paeco, pabsec) and some ­integrated ones (e.g. eala, oecs Assembly, cei Parliamentary Dimension, uma Consultative Council, cis ipa, igad ipu, Benelux Parliament).70 Finally, according to the third approach parliamentary institutions represent the population of the regional organization as a whole. Therefore, as far as national borders are overtaken, they seem to obtain a real “supranational” connotation.71 As is known, this approach is typical of the ep which – pursuant to the current wording of art. 14, para. 2, teu – is “composed of representatives of the Union’s citizens” and in light of previous consideration it is absolutely consistent with the eu legal nature.72 Currently, a similar approach is also shared by the las Parliament. Indeed, art. 7 of its Statute states clearly that “the members of the Parliament shall represent the entire Arab nation ­(italic added)”. This means that they are not considered representatives of their own national parliaments or legislative bodies, rather they represent the Arab ­Nation as a whole.73 Such a provision is almost surprising if we take into account the strongly intergovernmental nature of the las as well as the absence or limited importance of democratic institutions in Arab countries. So, it is to be excluded that it aims at conferring a supranational character on interstate institutionalized cooperation; rather, it might stem from a cultural background of Arab region which is traditionally animated by nationalism.74 70

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In this sense, see for instance art. 3 aipa Statute; art. 2 (a) paeco Charter; art. 2, para. 1, puic Statute; art. 7 EurAsEc Treaty; art. 20, para. 1, obsec Treaty; art. 3, para. 1, cis ipa Convention; art. 13, para. 1, igad ipu Protocol. In this sense, see Ugo Villani, Istituzioni di Diritto dell’Unione europea (4th edn, Bari: ­Cacucci, 2016), 136. As is known, the reference to the “Union’s citizens” as a whole – rather than to the “peoples of the member States” according to the aforementioned original formulation of eec Treaty – is due to the notion of “European citizenship” which was established by the Maastricht Treaty. The reference to the “entire Arab nation” is very unusual as it is not present in any other provision either of the las Parliament Statute or of the las Charter. The Arab nationalism is a common ideology to the Arab world. It is based on the assumption that countries ranging from Morocco to the Arabian Peninsula are united by their common linguistic basis, as well as their common cultural and historical legacy.

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Bearing in mind these different trends and their spread, in order to retrace the legal status of regional parliamentarians under consideration it is worth focusing on: (i) the character of their mandate; (ii) the term of their office; (iii) the discipline of incompatibilities; and (iv) regulation of privileges and immunities granted to them. i) Character of the Mandate Independently of the subjects they represent (populations of each member State, national parliaments/legislative bodies, population of the organization as a whole), regional parliamentarians usually act individually and independently.75 Their free mandate is often asserted expressly by the statutory act or rules of procedure of the parliamentary institution76 or it can be inferred by some provisions.77 Free mandate means, on the one hand, that the regional parliamentarian may not receive instructions from the Government, the parliament and any other organ of the State he/she comes from as well as from any organ of the organization. On the other hand, free mandate implies that the members of the parliamentary institution are not formally accountable or responsabile to anybody for their activities;78 they are just morally responsable toward peoples they represent and they speak on behalf of. This concept is expressed clearly by art. 14 Parlandino Rules of procedure stating that the members of the parliamentary institution are responsible to society and their voters in the fulfillment of obligations deriving from their investiture. Finally, as a consequence of free mandate, the members of parliamentary institutions usually vote individually and independently. This means that the 75 76

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In this sense, in general terms, see Arndt, “Parliamentary Assemblies”, 15; Lindemann, “Parliamentary Assemblies”, 230; Klepacki, The Organs, 59. See art. 2 ep Rules of procedure; art. 15 (h) Parlandino Rules of procedure; art. 1, para. 1, and art. 9 mercosur Montevideo Protocol; art. 23, para. 1, ecowas Parliament Supplementary Act; rule 3 (1) eala Rules of procedure; art. 6 uemoa Parliament Treaty; art. 5 cemac Parliament Convention; art. 8 repac Protocol. Regarding connected parliamentary institutions see art. 4, para. 2, sadc pf Constitution. In this sense, see art. 30, para. 1, nato pa Rules of procedure stating that “members shall vote as individuals”. Similarly see art. 6 pap Protocol; art. 2, para. 2, EurAsEc ipa Rules of procedure; art. 7 las Parliament Statute, etc. Founding acts of some integrated parliamentary institutions (i.e. Parlacen, accp and oecs Assembly in Latin America and the Caribbean; cei Parliamentary Dimension, CoE pa and Benelux Parliament in Europe) and of many connected ones (e.g. pabsec, aipa, guam pa, puic, paeco, etc.) do not include any expressed prescriptions concerning the character of the mandate of regional parliamentarians. In this regard see, for instance, art. 9 las Parliament Statute.

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vote of each parliamentarian is released from his belonging to a State. ­However, in some parliamentary institutions the national dimension is relevant for the achievement of quorum prescribed to take a decision. In this regard, the experience of the Parlasur is illustrative. Indeed pursuant to art. 135, para. 3, of its Rules of procedure, in order that a decision is taken by special majority, the ­affirmative vote of two thirds of members including parliamentarians from each State is required.79 Compared to the aforementioned general trend concerning the individual and independent vote, the experience of parliamentary institutions established within Eurasian organizations constitutes a significant exception. Indeed, the statutory acts and/or rules of procedure of cis ipa, csto pa, pabsec and guam pa provide that each national parliamentary delegation has one vote.80 This can mean that the latter is the result of bargaining among parliamentarians. Furthermore, lacking any expressed provision prescribing their free mandate, it can be even presumed that the delegation vote is conditioned by instructions from the national parliament; in this case, a link between regional parliamentarians and the State would be saved. However, such a provision highlights the importance attributed to the nationality and, consequently, excludes that parliamentarians can be organized in political groups. ii) Term of Office Rules governing the duration of mandate vary from a parliamentary institution to another independently of their classification as integrated or connected.81 However, three general trends may be identified. Firstly, the regulation may be fixed by their statutory act (as in the case of the ep – art. 14, para. 3, tfeu)82 or by their rules of procedure.83 79 80 81

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Similarly, qualified majority requires the affirmative vote of the absolute majority of each national parliamentary delegation (art. 135, para. 4, Parlasur Rules of procedure). See art. 6 cis ipa Convention; rule 7, para. 5, guam pa Rules of procedure; art. 21 pabsec Rules of procedure. The latter provision also indicates cases for individual vote. Despite the existence of deep differences, founding acts of almost all parliamentary institutions do not prescribe any term limits for members’ election. In this regard, only eac Treaty (art. 51) constitutes an exception providing that eala members can only be reelected for one further mandate. A similar provision was also contained in the ecsc Treaty (art. 21). Regarding other parliamentary institutions see, for instance, art. 25 (b) CoE Statute; art. 51 eac Treaty; art. 18, para. 2, ecowas Parliament Supplementary Act; art. 7, para. 2, repac Protocol; art. 5 cemac Parliament Convention; art. 5 uemoa Parliament Treaty; art. 6, para. 4, sadc pf Constitution; art. 14 las Parliament Statute; art. 10 mercosur Montevideo Protocol; art. 5 Parlandino Treaty; art. 10.5 oecs Revised Treaty. See, for instance, art. 4, para. 2, Benelux Parliament Rules of procedure; art. 1, para. 3, nato pa Rules of procedure; art. 2 Parlacen Rules of Procedure.

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Secondly, in the event that members are chosen by national parliaments, statutory acts of parliamentary institutions may assign to member States the task to decide the term of office which is linked to the term of their domestic parliamentary mandate.84 Finally, the third trend realizes when normative sources are silent about the duration of mandate. In reality, it is almost rare and tends to occur when parliamentary institutions are composed of delegates of national parliaments or national legislatures. Thus, for instance, it characterized the ep in the first years of the European integration process.85 The “silence” of statutory acts lets national parliaments – which are entitled to select their delegates at the regional parliamentary institution – free to fix the length of the term of office consistent with their internal discipline.86 Obviously, by giving (expressly or implicitly) this right to national parliaments, the parliamentary institution may be characterized by the existence of mandates of different duration; consequently this poses a problem of continuity in its activities. In this regard, for instance, art. 6 para. 4 of the aipa Statute prescribes that “to ensure continuity, the national parliaments whenever possible shall strive to nominate at least five members to the national parliament to participate in two General Assemblies consecutively”.87 Even the regulation of causes for termination of office is particularly heterogeneous and no general rule exists. However it is possible to distinguish two main hypotheses. Firstly, statutory acts or rules of procedure regulate them expressly. In this case, causes for early termination of mandate may be set in

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See rule 3, para. 2, cei Parliamentary Dimension Rules of procedure; art. 3 osce pa Rules of Procedure; rule 3 seecp Rules of procedure; art. 5, para. 3, pap Protocol; art. 7, para. 5, igad ipu Protocol; art. 3, para. 4, pabsec Rules of procedure; art. 3, para. 3, cis ipa Convention; art. 3, para. 1, guam pa Rules of procedure. Indeed, no normative provision concerning the European parliamentarians’ term of mandate was contained either in the 1957 eec Treaty or in the Euratom Treaty. Similarly, see the accp Agreement, the aipa Statute, the puic Statute and the paeco Charter. In the European experience representatives remained in office, in principle, until the expiry of the mandate given to them by the member State they represented. The mandate lapsed on death or resignation or when members were not re-elected to their national parliaments. Differently, in the European integration process the problems created by the existence of terms of office of different lengths were resolved once the ep was elected by universal suffrage. Indeed, art. 3 of the Act of 20 September 1976 concerning election by direct universal suffrage laid down that the term of office of the ep members should be five years. Then, this provision was included in a new paragraph (3) inserted by the Amsterdam Treaty in art. 21 ecsc Treaty, art. 138 ec Treaty and art. 108 Euratom Treaty.

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details88 or, more often, they are regulated synthetically.89 In this regard, statutory acts or rules of procedure of many parliamentary institutions – whose members are endowed with the dual mandate – prescribe merely the loss of the seat in the national parliament as the only cause of early termination of office.90 However, generally regional parliamentarians can cease their duties because of death, resignation, removal for inability or loss of competences to perform functions. The second hypothesis consists in the lack of any statutory provision regulating causes for early termination of office;91 this could mean that members of the parliamentary institution may not be dismissed before the regular termination of their mandate as long as they retain their position of national parliamentarian (insofar as this is a condition for selection).92 iii) Incompatibilities The above mentioned free mandate of regional parliamentarians justifies the identification of incompatibilities in order to avoid conflicts of interest and to preserve the members’ independence. Generally, either the founding acts or the rules of procedure of parliamentary institutions do not contain any provisions regulating expressly incompatibilities.93 This means that their regulation 88 89

See arts. 28–32 Parlasur Rules of procedure. See, for instance, art. 4, para. 1, ep Rules of Procedure and art. 13 European Election Act; art. 25 (c) CoE Statute; art. 5, para. 4, pap Protocol; art. 6 cemac Parliament Convention; art. 8 uemoa Parliament Treaty; art. 51 eac Treaty; art. 18, para. 3, ecowas Parliament Supplementary Act; art. 13 las Parliament Statute; art. 10.9 and art. 10.10 oecs Revised Treaty; art. 19 Parlandino Rules of procedure; art. 23 Parlacen Rules of Procedure; rule 4 sadc pf Rules of procedure. 90 As regards European parliamentary institutions see rule 3, para. 2, cei Parliamentary Dimension Rules of Procedure; art. 3, para. 3, Benelux Parliament Rules of procedure; art. 1, para. 4, nato pa Rules of procedure; rule 3 seecp rules of procedure. Regarding Eurasian institutions see art. 3, para. 4, pabsec Rules of procedure; art. 3, para. 1, guam pa Rules of procedure. In Sub-Saharan Africa see art. 7, para. 2 (b), repac Protocol. 91 In this regard see, for instance, efta Parliamentary Committee Rules of Procedure and osce pa Rules of Procedure as regards Europe; the aipa Statute and the paeco Charter regarding Asia-Pacific. See also the accp Agreement in Latin America and the Caribbean; the igad ipu Protocol in Sub-Saharan Africa; the cis ipa Convention in Eurasia and the puic Statute in the Arab-Islamic World. 92 In this regard, art. 7, para. 2 (a), repac Protocol provides that the mandate of parliamentarians expires at the end of the legislature with no exception. The CoE Statute prescribes that “No representative shall be deprived of his position as such during a session of the Assembly without the agreement of the Assembly” (art. 25 d). 93 Regarding connected parliamentary institutions I refer to: aipa, paeco, guam pa, puic, seecp, sadc pf, nato pa. In this regards art. 3, para. 4, of the pabsec Rules of procedure

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is reserved to member States which enjoy discretion in this regard. In particular, when the members of parliamentary institutions concerned are selected by national parliaments from among their members, it is likely that incompatibilities are exactly those for national parliamentarians. Obviously this determines the existence of strong heterogeneity not only between a parliamentary institution and another but also – and more importantly – within each parliamentary institution between a member State and another. On the contrary, legal texts of some integrated parliamentary institutions fix expressly conditions of incompatibility for regional parliamentarians. Generally they are outlined briefly in the statutory act or in the rules of procedure94 and only rarely they are regulated in details as in the case of the ep (art. 7 European Election Act).95 On the merits, it can be said that the discipline of incompatibilities usually differs from a parliamentary institution to another. However, some c­ ommon characteristics may be identified. In particular, the membership in regional parliamentary institutions is usually incompatible with the exercise of executive or judicial functions as well as with the membership in any other organ of the organization. Sometimes, even the status of official in any other international organization is incompatible with the membership in a regional parliamentary institution.96 This incompatibilities are usually in addition to those provided for by each domestic legislation for the position of national parliamentarian. iv) Privileges and Immunities In order to ensure that the members of parliamentary institutions are able to perform their functions independently, namely that their free mandate is guaranteed, they are granted privileges and immunities in the territory of member States.

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constitutes an exception stating expressly that “A member of the pabsec […] should not be the member of the national government”. As regards integrated parliamentary institutions refer to: osce pa, Benelux Parliament and cei Parliamentary Dimension (in Europe); cis ipa and csto pa (in Eurasia); oecs Assembly and accp (in the Caribbean); igad ipu (in Sub-Saharan Africa); las Parliament (in the Arab-Islamic World). See art. 7 pap Protocol; rule 4 eala Rules of Procedure; art. 12 repac Protocol; art. 19 ecowas Parliament Supplementary Act; art. 8 Additional Protocol to Parlandino Treaty; art. 11 mercosur Montevideo Protocol; art. 25 (a) and art. 36 (d) CoE Statute. Both the UEMOA Parliament Treaty (art. 7) and the cemac Parliament Convention (art. 5) defer the regulation of incompatibilities to a following additional act whose adoption by the Conference of Heads of State and Government is still pending. Similarly, see arts. 10–14 Parlacen Rules of procedure. In this sense, see art. 4 Parlacen Protocol; art. 12 repac Protocol.

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Their regulation may be expressly provided for in the founding act of the institution itself.97 This hypothesis is very frequent from among integrated parliamentary institutions under consideration. In particular, privileges and immunities may be synthetically defined98 or statutory provisions may simply refer to the rules contained in international legal instruments on this matter, such as the 1961 Vienna Convention on Diplomatic Relations99 or the 1946 Convention on the Privileges and Immunities of the United Nations.100 Differently, statutory acts and rules of procedure of some parliamentary institutions lack rules governing privileges and immunities granted to regional parliamentarians. In this regard, the ep is a typical example.101 This normative gap is often filled – as well as the bare statutory provisions on this matter are often integrated – by a detailed regulation expressed in a separate normative act. The legal nature of this act may be different from a case to another. According to the European experience,102 it is usually an ad hoc treaty concluded by member States; it may regulate privileges and immunities granted to all the officials of the organizations103 or just to the members of the parliamentary 97

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100 101

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In this regard the case of the osce pa constitutes an exception. Rules governing privileges and immunities are not contained either in the statutory act of the organization or in the Madrid Declaration establishing the parliamentary institution. In 2007, a draft convention on international legal personality, legal capacity and privileges and immunities of the osce was drawn up by an Informal Working Group at expert level. Though it continues to enjoy full support among participating States, repeated efforts have not resulted in agreement that would allow the Convention to be adopted by consensus. In this sense, see arts. 8–9 pap Protocol; art. 10 cemac Parliament Convention; arts. 12–13 uemoa Parliament Treaty; art. 9 repac Protocol; art. 20 ecowas Parliament Supplementary Act; arts. 9–12 las Parliament Statute; art. 12 mercosur Montevideo Protocol. See art. 10 Parlandino Treaty; art. 8 pap Protocol; art. 40 (a) CoE Statute; art. 22, para. 1, lett. (b) Parlacen Protocol. The Central American Court of Justice ruled on the interpretation and application of art. 22 Parlacen Protocol in Expediente n. 57-09-03-09-2002, Solicitud de opinión consultiva – Rodrigo Samayoa Rivas, 31 October 2002, and in Expediente n. 5901-08-01-2003, Demanda por violación a la Normativa Comunitaria sobre Inmunidades y Privilegios de un diputado centroamericano, 12 August 2003. See arts. 14–16 cis ipa Convention. Apart from the ep, even statutory acts of the cei Parliamentary Dimension, the igad ipu, as well as the oecs Assembly and the accp lack provisions regulating privileges and immunities granted to regional parliamentarians. Indeed, as regards the ep see Protocol (No. 7) on the privileges and immunities of the European Union annexed to the Lisbon Treaty. Thus, for instance, the CoE pa regulation of privileges and immunities expressed in the CoE Statute is integrated by the General Agreement on Privileges and Immunities of the Council of Europe (Paris, 2 September 1949) and its additional Protocol (6 November

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institution.104 Sometimes, the regulation of privileges and immunities of regional parliamentarians is contained in the headquarters agreement concluded between the member State hosting the parliamentary institution and the regional organization.105 Rarely, they are regulated by a source of secondary law of the organization.106 On the merits, rules governing privileges and immunities usually provide that no administrative or other restriction is to be imposed on the free movement of regional parliamentarians travelling to or from the place of meetings. They may not be legally prosecuted, detained or punished for their opinions or positions taken in the exercise of their functions. They also enjoy the abovementioned immunities when travelling through the territory of third States to or from the sessions of the parliamentary institutions. Generally, immunity may be waived by the parliamentary institution and it cannot be claimed when a parliamentarian is found in the act of committing an offence.107 Differently, statutory acts of connected parliamentary institutions usually do not contain any provision granting immunities to parliamentarians. If we consider that they are a series of privileges and exeptions recognized by member States to regional parliamentarians in their territories, this lack of regulation is not surprising due to the legal nature of these normative instruments. Indeed, as previously stated, they are not agreements concluded by plenipotentiaries of member States but by the Speakers of national parliaments who are not entitled to bind their own States at the international level. Furthermore, since – by definition – connected parliamentary institutions are not formally integral part of the institutional structure of the regional organization, one can exclude that rules governing privileges and immunities granted to the organization itself and its staff can be also applied to the members of the parliamentary

1952). Still, regarding Sub-Saharan African parliamentary institutions see, for instance, art. 12, para. 6, uemoa Parliament Treaty referring to the Protocole Additionnel n. 03 relatif aux droits, privilèges et immunitè de l’UEMOA (10 May 1996), while as regards the accp see Protocol on the Privileges and Immunities of the Caribbean Community (1985, as amended). 104 In this regard, see for instance the Additional Protocol to the Convention establishing the Benelux Parliament (The Hague, 29 December 1958). 105 From among Latin American parliamentary institutions see art. 21, para. 2, mercosur Montevideo Protocol; art. 22, para. 1, lett. (c) Parlacen Protocol. 106 In this regard, see art. 61, para. 1, eac Treaty providing for the enactment of a Community Act on privileges and immunities of the eala and the East African Legislative Assembly (powers and privileges) Act, 2003. 107 Klepacki, The Organs, 60–61; Lindemann, “Parliamentary Assembly”, 231.

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­institution.108 This normative gap may be filled through the adoption of an ad hoc protocol on this matter by member States.109 Where this practice does not take place, considering that regional parliamentarians are delegates from national parliaments, it can be assumed that in the territory of their own State they enjoy the immunities accorded to the members of their own parliaments. 1.1.5 Internal Organization Each parliamentary institution has its own internal structure made up of different organs endowed with specific powers. Rules governing the organization and functioning of parliamentary institutions are usually provided for in their own statutory acts and are then detailed in their rules of procedure. Generally, they are heterogeneous and vary from an institution to another. At present, the complex organizational chart of the ep is not emulated entirely by any parliamentary institution under consideration. However some features – which are common both to integrated and connected parliamentary institutions – may be identified.110 First of all, every parliamentary institution under consideration has a President and one or more Vice-presidents who are usually selected from among their parliamentarians.111 Then, all parliamentary institutions have an organ composed of all the members of each national parliamentary delegation. Its name may be different from an institution to another: it can be called plenary assembly, conference, general assembly, etc. This is the supreme organ of the parliamentary institution being endowed with the decision-making power. The frequency of its meetings – which is usually prescribed by the statutory 108 In this regard, considerations expressed by Kissling, “The Legal and Political”, 30 concerning the sadc pf are not shareable. She maintains that it is granted privileges and immunities in light of art. 31 of the sadc Treaty stating that “sadc, its institutions and staff shall, in the territory of each Member State, have such immunities and privileges as are necessary for the proper performance of their functions under this Treaty, and which shall be similar to those accorded to comparable international organizations […]”. In my view this provision cannot be also applied to the sadc pf because it is an “autonomous institution” as asserted by the sadc Heads of State and Government in the 1997 Summit Communiqué. 109 In light of available information this practice seems to be quite rare and currently it is realized within the bsec (Protocol concerning the privileges and immunities of the pabsec, Baky, 31 October 2003). 110 Therefore, in this regard differences between connected parliamentary institutions and integrated ones are very veiled or they are not even existent. 111 On the contrary, the oecs Revised Treaty (art. 10.6 and art. 10.7) prescribes that the Speaker and the Deputy Speaker of the oecs Assembly are elected among eligible citizens.

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act and/or the rules of procedure – may vary from a parliamentary institution to another.112 However, the general trend tends to differ from the experience of the ep. Indeed, generally at least one ordinary session a year is prescribed;113 sometimes it is provided that the plenary organ meets twice a year.114 In this regard, the experience of the Parlasur constitutes an exception, insofar as its Rules of procedure (art. 114) prescribe that it shall meet in ordinary session at least once a month. It is worth noting that the limited frequency of sessions normatively prescribed and concretely taken place (according to available information) confirms the secondary role attributed to many parliamentary ­institutions under consideration, as well as their poor connection with the normative activity of the organization, which is often very poor too. Generally, it is also provided that the plenary organ may meet in extraordinary sessions at request of its members or its President.115 The rules of procedure of some integrated parliamentary institutions (e.g. the ep – art. 5, para. 5, Rules of procedure) also provide that even the intergovernmental organs of the regional organization may request the convening of an extraordinary session.116 This is absolutely consistent with the “integrated nature” of the parliamentary institution within the institutional structure of the regional organization. Then, in every parliamentary institution there is an organ which is usually responsible for the coordination and the direction of activities of the other institution’s organs and for the supervision of the implementation of acts adopted by the plenary assembly. Sometimes it also prepares and organizes the 112 It is worth noting that in the practice the frequency of meetings may be different from statutory provisions. 113 In this sense, art. 6, para. 1, accp Agreement; art. 5, para. 1 cei Parliamentary Dimension; art. 1 CoE pa Rules of procedure; art. 55, para. 2, eac Treaty; art. 8, para. 1, igad ipu Protocol; art. 5 puic Statute; art. 6, para. 2, aipa Statute; art. 4, lett. (c), paeco Charter. 114 In this sense, see art. 28 pap Rules of procedure; art. 9, para. 1, cemac Parliament Convention; art. 10 uemoa Parliament Treaty; art. 5, para. 1, cis ipa Convention; art. 13, para. 1, lett. (a) repac Protocol; art. 27, para. 1, lett. (a) ecowas Parliament Supplementary Act; art. 4 para. 1 efta Parliamentary Committee Rules of Procedure; art. 7 guam pa Rules of procedure; art. 22, para. 1, sadc pf Rules of procedure; art. 11 pabsec Rules of procedure. 115 In this sense, art. 5, para. 5, cei Parliamentary Dimension Rules of Procedure; art. 13, para. 2, lett. (a) repac Protocol; art. 8, para. 2 igad ipu Protocol; art. 27, para. 2, ecowas Parliament Supplementary Act; art. 15 osce pa Rules of procedure; art. 22, para. 2, sadc pf Rules of procedure; art. 12 pabsec Rules of procedure. 116 See art. 29 pap Rules of procedure; art. 9, paras. 4–6, cemac Parliament Convention; art. 5, paras. 1 and 3, cis ipa Convention; art. 34 Statute CoE and art. 2 CoE pa Rules of procedure; art. 107 Palasur Rules of procedure; art. 10, para. 4, uemoa Parliament Treaty.

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latter’s work. This organ usually has a narrower membership than that of the plenary assembly; in other words, its composition does not ensure that representatives from all member States are present. In the ep this organ – which is called Bureau – is made up of its President along with 14 Vice-Presidents and the 5 Quaestors (arts. 16–18 and arts. 24–25 ep Rules of Procedure). A more or less similar composition also characterizes the Bureau of most integrated parliamentary institutions and some connected ones.117 Sometimes, it may be integrated by the presence of other subjects, such as the chairmen of political groups and of general committees in the CoE pa, or the Quaestors and Secretaries in the repac, etc.118 Oddly, in the puic this organ – which is called Executive Committee – is composed of one member of delegation from the recent host of the Conference, the current host and the future host, in addition to 12 members elected by the Conference from its members based on an equitable geographic distribution (arts. 14–15 puic Statute). It is worth noting that in the ep, as well as in a few parliamentary institutions, the coordination and the management of activities and the preparation of the works are exercised by the Bureau together with one or more organs whose composition varies from a parliamentary institution to another. Thus, in addition to the Bureau the organizational chart of the ep also comprises the Conference of Presidents (arts. 26–27 ep rules of procedure), the Conference of Committee Chairs (arts. 29 ep Rules of procedure) and the Conference of Delegation Chairs (arts. 30 ep Rules of procedure).119 Differently, in other 117 Obviously, the number of Vice-Presidents varies from a parliamentary institution to another. See art. 6 osce pa Rules of procedure; art. 14 CoE pa Rules of procedure; arts. 5–8 Benelux Parliament Rules of procedure; art. 3 efta Parliamentary Committee Rules of procedure as regards European parliamentary institutions. See art. 12, para. 5, pap Protocol and arts. 14–17 pap Rules of procedure; art. 7, para. 1, cemac Parliament Convention; art. 16 repac Protocol; art. 25 B ecowas Parliament Supplementary Act; art. 9, para. 2, uemoa Parliament Treaty in Sub-Saharan Africa. Concerning connected parliamentary institutions see art. 6 nato pa Rules; arts. 4–6 pabsec Rules of Procedure. 118 Still, for instance, the Bureau of the Parlandino is integrated by the Secretary General. In the osce pa it is composed of the President, nine Vice-Presidents, the Treasurer, the Presidents of the general committees and and the President emeritus. 119 For a description of the ep internal organization and functioning in literature see, among others, Roberto Adam and Antonio Tizzano, Lineamenti di Diritto dell’Unione Europea (4th edn. Torino: Giappichelli, 2016), 71–75; Villani, Istitutioni, 136–151; Luigi Daniele, Diritto dell’Unione europea (5th edn. Milano: Giuffrè, 2014), 62–69; Giorgio Gaja and Adelina Adinolfi, Introduzione al diritto dell’Unione europea (3nd edn. Roma/Bari: Laterza, 2014), 36–39; Josiane Auvret-Finck (ed.), Le Parlement européen après l’entrée en vigeur du traité de Lisbonne (Bruxelles: Larcier, 2013); Giuseppe Tesauro, Diritto dell’Unione Europea (7th

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parliamentary institutions the Bureau may be assisted by the: Standing Committee (e.g. nato pa and CoE pa120); Permanent Committee (e.g. Benelux Parliament121); Conference of committees’ Bureaux (e.g. ecowas Parliament122). Compared to the aforementioned organizational chart widely modeled on the ep’s example, the structure of most connected parliamentary ­­institutions and of some integrated ones has some peculiarities. In p ­ articular, in these institutions the responsibility of coordination and direction of the activities of the plenary assembly and the preparation of its work is ­entrusted to an organ which is called variously (Executive Committee,123 ­Standing Committee,124 ­Executive Council,125 Bureau,126 General Committee,127 Council,128 Mesa or Junta ­Directiva129) and whose composition ensures the representation of all member States. In particular, each national parliamentary delegation is usually represented by an equal number of members. Finally, consistent with the ep’s model the internal structure of almost all parliamentary institutions under consideration is completed by a secretariat endowed with the task to provide administrative assistance.130 Where

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123 124 125 126 127 128 129

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edn. Padova: cedam, 2012), 22–28; tc Hartley, The Foundations of European Union Law (7th edn. Oxford: oup, 2010), 12–22. See art. 17 CoE pa Rules of procedure; arts. 14–16 nato pa Rules of procedure. The Permanent Committee of the Benelux Parliament is made up of the members of the Bureau, the Presidents of political groups, the Presidents of Commissions and those of national delegations (arts. 9–13 Benelux Parliament Rules of Procedure). More or less similarly, in the osce pa there is a Permanent Commission which is composed of the members of the Bureau and the Chairmen of the national delegations (art. 35 osce pa Rules of procedure). The Conference of Bureaux comprises the Bureau, Chairmen, 1st Rapporteurs of Standing committees and the Chairmen of Parliamentary Groups (art. 25 C ecowas Parliament Supplementary Act). See arts. 9–10 aipa Statute; art. 9 sadc pf Constitution. See art. 7 pabsec Rules of procedure. See art. 5 paeco Charter; art. 5, paras. 5–7, and art. 6, lett. (b) igad ipu Protocol. See art. 6 guam pa Rules of procedure. See arts. 10–11 puic Statute. See art. 9 cis ipa Convention. It is typical of Latin American parliamentary institutions. See arts. 40–48 Parlandino Rules of procedure; arts. 40–43 Parlasur Rules of procedure; arts. 43–52 Parlacen Rules of procedure. Apart from the ep (art. 222 ep Rules of procedure), regarding integrated parliamentary institutions, see art. 40 osce pa Rules of procedure; arts. 32–33 Benelux Parliament Rules of procedure; arts. 28–31 Parlandino Rules of procedure; art .16, para. 4, mercosur Montevideo Protocol; arts. 190–194 Parlacen Rules of Procedure; art. 10.12 oecs Revised Treaty;

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this ­organ is not provided for,131 the secretariat of the regional organization is obliged to provide administrative and other assistance as the parliamentary institution may require. As regards organizational aspects, in accordance with the ep’s model (art. 196 ep Rules of Procedure) statutory acts and/or rules of procedure of most parliamentary institutions under investigation provide for the possibility to set up standing committees;132 each one is responsible for a specific matter.133 These committees usually mirror the plenary with respect to political and national composition as far as possible and their task is essentially preparatory, investigative and advisory with respect to issues on which the plenary will have to adopt its decisions.134 Sometimes, even the possibility to set up special or ad hoc commission is expressly prescribed; they are temporary, that

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art. 7 accp Agreement; art. 12, para. 6, pap Protocol and arts. 20–21 pap Rules of procedure; art. 8 cemac Parliament Convention; art. 17 repac Protocol; art. 48, para. 4, eac Treaty; art. 26 ecowas Parliament Supplementary Act; art. 6, lett. (c) igad ipu Protocol; art. 11 cis ipa Convention; art. 20 las Parliament Statute. Regarding connected parliamentary institutions see art. 6 paeco Charter; arts. 16–18 puic Statute; art. 10 sadc pf Constitution and arts. 20–21 sadc pf Rules of procedure; art. 28 pabsec Rules of procedure. This is the case of the CoE pa, the cei Parliamentary Dimension and the efta Parliamentary Committee as regards European parliamentary institutions and of the uemoa Parliament regarding Sub-Saharan African experience. In this sense, regarding integrated parliamentary institutions see arts. 15–20 Benelux ­Parliament Rules of procedure; art. 44 CoE pa Rules of procedure; arts. 36–38 osce pa Rules of procedure; art. 12, para. 13, pap Protocol and art. 22 pap Rules of procedure; art. 48, para. 3, eac Treaty and arts. 77–79 eala Rules of procedure; art. 7, para. 2, cemac Parliament Convention; art. 25 D ecowas Parliament Supplementary Act; art. 9, para. 3, uemoa Parliament Treaty; art. 54 and arts. 59–79 Parlasur Rules of procedure; arts. 68–85 Parlacen Rules of procedure; art. 49 and art. 58 Parlandino Rules of procedure; art. 10 cis ipa Convention; art. 19 las Parliament Statute. Regarding connected parliamentary institution see arts. 25–27 pabsec Rules of procedure; art. 4, lett. (h) paeco Charter; arts. 10–13 guam pa Rules of procedure; art. 32 nato pa Rules of procedure; art. 13 puic Statute; arts. 37–38 sadc pf Rules of procedure. Standing committees have been also set up in the cei Parliamentary Dimension. On the contrary their establishment is not provided for in the repac, the efta Parliamentary Committee and the igad ipu. Sometimes rules of procedure indicate expressly which standing committees have to be set up. Obviously, their number may be different from a parliamentary institution to another. Sometimes, as in the case of the aipa, standing committees have to implement decisions adopted by the plenary (art. 11 aipa Statute).

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is, they cease to exist when they reach the goal – generally consisting in studying a particular issue135 – for which they have been created.136 Finally, it is known that European parliamentarians are organized in transnational political groups (art. 32 ff. ep Rules of procedure). In such a way, their activities are further released from their belonging to a specific State and their free mandate is further ensured. In other words, this organizational choice contributes to strengthen the ep’s role as truly representative of the eu citizens and its supranational character.137 In imitation of the ep’s example, the organization of regional parliamentarians in transnational political groups also characterizes a few other integrated parliamentary institutions (i.e. CoE pa, ­Benelux Parliament, osce pa, ecowas Parliament, Parlacen and Parlasur). This organizational choice usually has its legal basis in the rules of procedure,138 but sometimes it is developed on an informal basis.139 On the contrary, unlike the aforementioned ep’s model, in all connected parliamentary institutions and in many integrated ones parliamentarians sit according to national representation and not to their ideological lines. Such an organizational choice may be justified by the intention to preserve a sort of bond with the State parliamentarians belong to. In particular, if we take into account that – as previously stated – regional parliamentarians are mostly delegates of national parliaments, the lack of transnational political groups strengthen essentially the link between the parliamentarians and the domestic parliaments they belong to, thus undermining their free mandate.

135 Sometimes the possibility to set up temporary committees of inquiry is provided for. In this sense, see for instance art. 226 tfeu; art. 5, para. 2, cemac Parliament Convention, art. 38 ecowas Parliament Rules of procedure. 136 In this sense, see art. 197 ep Rules of procedure; art. 15 Benelux Parliament Rules of procedure; art. 59 Parlandino Rules of procedure; arts. 80–82 Parlasur Rules of procedure; art. 66, paras. 2–3, and art. 67 Parlacen Rules of procedure; art. 7, para. 2, cemac Parliament Convention; art. 9, para. 3, uemoa Parliament Rules of procedure; art. 32 ecowas Parliament Rules of procedure; art. 11 cis ipa Convention. 137 In this sense, with reference to the ep, see Villani, Istituzioni, 142. 138 See art. 19 CoE pa Rules of procedure; art. 14 Benelux Parliament Rules of procedure; arts. 57–59 Parlacen Rules of procedure; arts. 33–39 Parlasur Rules of procedure; art. 39 ecowas Parliament Rules of procedure. 139 Thus, for instance, the articulation of osce parliamentarians in political groups is not mentioned either in the Madrid Document or in the osce pa Rules of procedure. So, they have developed on an informal basis. In this regard, in literature see Stefan Marschall, Transnationale Repräsentation in Parlamentarischen Versammlungen: Demokratie und Parlamentarimus jenseits des Nationalstaates (Baden-Baden: Nomos, 2005), 276–277.

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Legal Institutional Features of Socio-economic and Territorial Institutions As previously stated, the establishment of socio-economic and territorial institutions aims at promoting a space for the participation of civil society and local communities in the regional organization’s activities aimed at the latter’s functionality, namely the effective achievement of its statutory goals. An overview of regional associative forms under consideration reveals that integrated institutions tends to be preferred.140 Once again, this trend results from member States’ awareness about the instrumentality of these institutions to pursue efficiently statutory objectives, as well as from the imitative approach of the eu model which characterizes particularly regional organizations in Latin America and Sub-Saharan Africa. Differently, connected socioeconomic ­institutions are spread above all in the Eurasian region and in the Asia-Pacific, where regionalism is younger, interstate institutionalized cooperation is not i­ nfluenced significantly by the eu model and it is characterized by a strongly ­intergovernmental nature.141 1.2

140 For the purpose of this investigation, the following socio-economic institutions are qualified as integrated: eesc; efta Consultative Committee; cei Business Dimension; the comesa Business Council; the uemoa Regional Chamber of Commerce, uemoa Labour and Social Dialogue Council and uemoa Advisory Committee of Agricultural Field; ccsica, as well as its sectorial committee (namely, ccie and ccis); mercosur Consultative Economic and Social Forum (fces); Andean Advisory Business Council, Andean Advisory Labour Council and Andean Advisory Council of Indigenous People; aladi Labour Council and Business Counil; gcc Consultative Committee, the Economic Social and Cultural Council of the au (au ecosocc), the apec Business Advisory Council (apec-bac), the iora Business Forum and the iora Academic Group. Theoretically, the cen-sad Economic Social and Cultural Council and the ecowas Economic and Social Council could be qualified as integrated socio-economic institutions, but they have been not yet established. The category of integrated territorial institutions includes: eu Committee of Regions (CoR); uemoa Council of Regional Authorities; CoE Congress of Local and Regional Authorities; Andean Advisory Council of Municipal Authorities; mercosur Consultative Forum of Municipalities, Federal States, Provinces and Departments. 141 The category of connected socio-economic institutions includes the asean Business ­Advisory Council (asean-bac), the bsec Business Council, the sco Business Council, the eco Chamber of Commerce and Industry (eco-cci), the saarc Chamber of ­Commerce and Industry (saarc cci) and the SAARCLaw, the Islamic Chamber of Commerce, ­Industry and Agriculture (iccia), the Trade Union Advisory Committee (tuac) and the Business Industry Advisory Committee (biac) of oecd. It is worth remembering here that founding acts and/or rules of procedure of most of these institutions are not reachable, so their investigation will be based on available unofficial information.

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However, it is worth remembering that – as previously stated – in addition to the establishment of ad hoc institutions, the involvement of socio-economic interests in regional organizations’ activities may be also realized through the un-organic method (see General Introduction, para. 2.1.), as well as through ­informal consultation of civil society by intergovernmental decision-­making organs. Thus, for instance, the European Commission is usually engaged ­actively in consulting several civil society organizations before preparing its normative proposals.142 1.2.1 Conditions for Establishment A carefull study of the current practice in the establishment of socio-economic and territorial institutions reveals that differences between integrated and connected ones are quite marked. Especially, they relate to the different legal nature of their constitutive act from which a different type of relationship with the organization stems. As regards connected institutions, considerations expressed about parliamentary initiatives in para. 1.1.1. can be also extended to socio-economic and territorial institutions. This means that their establishment has no legal basis in the statutory act of the regional organization and they are created by private initiative. In essence, their founding act is not a source of international law, but a legal act of private law. Therefore, connected socio-economic and territorial institutions are formally autonomous entities which are affiliated with the regional organization. Differently, three main trends may be identified regarding the establishment of integrated socio-economic and territorial institutions. The first one is realized when the statutory act of the regional organization provides expressly for their establishment and regulates their composition and functioning. In this regard, the eu experience constitutes a typical example. Indeed, as is known, the eesc – which is part of the institutional structure of the European integration process since its inception143 – and the CoR – introduced by 142 About the relationship between the European Commission and civil society organizations see Communication “European governance – A white paper” [com(2001) 428 final – Official Journal C 287 of 12 October 2001]. 143 Indeed, originally the establishment of the eesc was provided for by art. 4, para. 2, of the 1957 eec Treaty and then regulated by its arts. 193–198. Currently, art. 13, para. 4, teu includes the eesc among the eu institutions. It is worth noting that even the 1951 ecsc Treaty (arts. 18–19) provided for the establishment of a Consultative Committee, attached to the High Authority. It consisted of not less than thirty and not more than fiftyone members and it included producers, workers and consumers and dealers in equal numbers.

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the Maastricht Treaty144 – are regulated in details by arts. 300–307 tfeu. The spread of this trend does not depend on the legal nature of the regional organization, so it characterizes socio-economic institutions established within both hard organizations (e.g. mercosur,145 sica,146 comesa147) and soft organizations (e.g. cei, iora).148 Obviously, provisions contained in the statutory act of the regional organization are usually integrated by the institution’s rules of procedure. The second trend is typical of regional organizations whose statutory acts provide simply for the establishment of the socio-economic institution. However the regulation of its composition, functioning and powers is entrusted to the adoption of a specific normative act. This approach is almost frequent, above all from among African organizations149 and Latin American ones.150 Finally, the third trend – which is very common – realizes when the establishment of socio-economic institutions has no legal basis in the statutory act of the regional organization. Therefore, they result from a following autonomous 144 The CoR was not present in the original institutional structure of the European integration process as defined by the 1951 ecsc Treaty and the 1957 eec Treaty. It was established in 1994 under the Maastricht Treaty (art. 4, para. 2, and art. 198a, 198b and 198c) and it took the place of the Consultative Council of local and regional authorities which was an advisory body to the European Commission. For a synthetic description of institutional features of the eesc and the CoR, in literature see among others Adam and Tizzano, Lineamenti, 89–92; Villani, Istituzioni, 205–208; Daniele, Diritto, 102–103; Hartley, The Foundations, 35. 145 In particular, the fces is regulated by the mercosur Ouro Preto Protocol (arts. 28–30) defining the organization’s institutional structure. 146 The cc-sica was established by art. 12 of the sica Tegucigalpa Protocol and the ­regulation of its composition and functioning was integrated by the Statute adopted by the cc-sica itself. As regards the ccie and the ccis, they are regulated respectively by the sieca Guatemala Protocol (art. 37, para. 5, and art. 49) and the San Salvador Treaty (arts. 4 and 16). 147 See art. 18 comesa Treaty. Regulation provided for by the comesa Treaty has been completed by the Business Council itself through the adoption of its constitution. 148 In particular, the cei Business Dimension is established and regulated by art. 13 cei Guidelines and Rules of Procedure, while the iora Business Forum and the iora Academic Group are provided for by art. 5 lett. (c) iora Charter. 149 See art. 5 lett. (h) and art. 22 au Constitutive Act; art. 14 ecowas Revised Treaty; art. 40 uemoa Modified Treaty. Similarly, arts. 37–39 of the cen-sad Revised Treaty regulate sinthetically the Economic Social and Cultural Council, while art. 40 defers the definition of its powers and functioning to the adoption of an ad hoc normative act by the Conference of cen-sad Heads of State and Government. It is worth bearing in mind that at present the cen-sad Revised Treaty is not yet in force. 150 See art. 42 aladi Treaty; art. 22 Cartagena Agreement; art. 12 sica Tegucigalpa Protocol.

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decision of member States which may be expressed in a conventional or organic act. It is worth noting that except for integrated institutions which are expressly provided for and regulated by the statutory act of the regional organization, ­socio-economic institutions as well as territorial ones are not usually established contextually to their respective regional organization. As stated in Chapter 1, para. 3, their real constitution is linked to the level of development reached by interstate institutionalized cooperation in economic, social, cultural etc. fields. 1.2.2 Legal Nature of the Founding Act As previously stated, by definition integrated institutions are established through a source of international law. As regards socio-economic and territorial ones rarely it is a treaty. In particular, only when their establishment and regulation are expressly provided for by the statutory treaty of the regional organization (e.g. the eesc and the CoR), their founding act has conventional nature. Differently, whether these institutions are provided for by the statutory act of the organization but their real establishment and regulation is deferred to a following decision or they have no legal basis in the constitutive act of the regional organization, generally their founding act is a source of secondary law. That is, the institution is established by a normative act adopted by an intergovernmental organ of the organization. Generally, it is a binding organic act and the composition of the organ adopting it may vary from case to case. It can be the supreme organ gathering the Heads of State and Government of member States,151 a ministerial organ152 or even a sub-ministerial 151 Thus, for instance, the au ecosocc and the gcc Consultative Committee were established by decision of the organ gathering the Heads of State and Government of the organization’s member States. From among Sub-Saharan African organizations a similar trend has also characterized the uemoa. Indeed its Regional Chamber of Commerce, the Labour and Social Dialogue Council and the Council of Regional Authorities were all established by an additional act adopted by the Conference of Heads of State and Government. However, it is worth noting that in light of their legal features, these acts could be regarded as international treaties concluded in simplified form. See Acte additionnel n° 02/97, fixant les attributions, la composition et les principes d’organisation et de fonctionnement de la Chambre Consulaire Régionale de l’UEMOA, 23 June 1997 (as amended); Acte Additionnel n° 02/2009/CCEG/UEMOA instituant le Conseil du Travail et du Dialogue Social, 17 March 2009; Acte Additionnel n° 02/CCEG/UEMOA/2011 instituant le Conseil des Collectivités Territoriales, 30 May 2011. 152 Thus, for example, the efta Consultative Committee, the CoE Congress of Local and Regional Authorities, the uemoa Regional Advisory Committee of Agricultural Field, the

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body.153 The trend of establishing and/or regulating socio-economic and territorial institutions through a normative instrument of secondary law rather than a protocol attributable to member States and governed by rules of international law (as it is usual for integrated parliamentary institutions) leads to consider these institutions as expression of the organization’s autonomy from its member States. Therefore, according to the functionalist approach this confirms that integrated socio-economic and territorial institutions are aimed at strengthening the organization’s functions and making them more effective. Furthermore, it is to be noted that generally – unlike parliamentary institutions discussed in para. 1.1.2. – the principle of variable geometry does not ­apply to organic acts establishing and regulating integrated ­socio-economic and territorial institutions. First of all, this is justified by the existence of a pragmatic economic interest so that the involvement of civil society is regarded as an added value in order to attain efficiently statutory goals. Secondly, the involvement of civil society is not perceived as a threat against the exercise of national sovereignty. Finally, it is to be noted that socio-economic institutions which are ­integrated in the institutional structure of soft organizations are usually established and regulated by non-binding act. It can be the statutory act of the organization itself (e.g. cei Business Dimension, as well as the iora Business Forum and the iora Academic Group) or an ad hoc declaration of member States (e.g. apec-bac154). In light of this preliminary analysis some considerations can be expressed about the qualification of integrated socio-economic and territorial institutions according to the traditional distinction between principal organs and subsidiary ones. Consistent with the classical definition which has been broadly accepted within the general theory about international organizations, institutions which have their legal basis in and are regulated by the constitutive instrument of the regional organization (e.g. the eesc and the CoR) may be classified as principal organs. However, in the practice, this hypothesis is rare. On the contrary, integrated socio-economic and territorial institutions Mercosur fccr, the Andean Advisory Business Council, the Andean Advisory Labour Council, the Andean Advisory Council of Municipal Authorities and the Andean Advisory Council of Indigenous People were all established by decision of the intergovernmental organ composed of member States’ Ministers. 153 Thus, for instance, the aladi Business Council and Labour Council were both established by the Committee of Representatives. 154 The apec-bac was established by apec Economic Leaders’ Declaration of Action ­(Osaka, 19 November 1995, para. 7).

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whose establishment is deferred by the constitutive act of the organization to the adoption of a following normative act or which are not provided for by the statutory act of the organization at all, can be regarded as subsidiary organs insofar as their founding act is a legal instrument of secondary law, namely an act adopted by a “principal” organ. In the practice, this is the rule. As regards connected socio-economic institutions, their founding act is not a source of international law, but a normative act of private law, being created by private initiative. Therefore, they are formally autonomous entities which cannot be classified either as principal organs or as subsidiary ones insofar as they are not part of the institutional structure of the regional organization. They merely become affiliated with the organization when their activities are endorsed/recognized by its member States. Such a recognition may occur ex ante or a posteriori. In the former hypothesis the establishment of the connected socio-economic or territorial institution is agreed by the member States of the organization before it is realized. Currently this approach is almost rare and has been applied only within the asean and the oic.155 More frequently, the recognition occurs a posteriori, that is, it follows the formal establishment and activation of the institution. In this regard, it may take different forms. Firstly, it may be expressed in the statutory act of the ­regional organization (e.g. eco-cci,156 bsec Business Council157). Secondly, the recognition and endorsement of a connected socio-economic ­institution by the member States may be contained in a non-binding conventional act (e.g. sco Business Council,158 SAARCLaw and saarc-cci159). Thirdly, it may be 155 This is the case, for instance, of the asean-bac (see Chapter 1, note 139). Similarly, in the Final Declaration of the 7th Islamic Conference of Foreign Ministers (Istanbul, 15 May 1976), para. 45, oic member States expressed their endorsement to the establishment of the iccia which was formally created by private initiative the year later. 156 Similarly, the eco-cci – established by agreement of Presidents of national Chambers of Commerce – is affiliated with the organization in term of art. 10 of eco Charter. 157 Similarly, the endorsement of the bsec Business Council by the organization’s member States is expressed in art. 21 of obsec Charter. 158 Thus, the recognition of the sco Business Council by sco member States may be deduced by the wording of the Joint Communiqué of Meeting of the Council of the Heads of sco member States, Shanghai, 15 June 2006. 159 Both the SAARCLaw and the saarc-cci submitted their own draft constitution to the saarc Secretariat and received its approval; this signified the official recognition of the two institutions by all the national Governments of saarc as the apex body saarc, namely as affiliated entities with the organization. Then, their endorsement of saarc cci and SAARCLaw’s activities was expressed several times in the final declarations of their meetings. See, for instance, Declaration of the 9th saarc Summit (SAARC/­Summit/9.11), Malé, 14 May 1997, para. 50; Declaration of the 10th saarc Summit, Colombo, 31 July 1998,

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e­ xpressed by i­ntergovernmental organs of the regional organization through an act of secondary law (e.g. guam Business Council).160 Finally, it is worth noting that except for few cases where they are provided for and regulated by the statutory act of the regional organization, integrated and connected socio-economic institutions, as well as territorial ones are not usually established contextually to their respective regional organization. As stated in Chapter 1, para. 3, their real constitution is linked to the level of development reached by interstate institutionalized cooperation in economic, social, cultural etc. fields. 1.2.3 Composition A comparative analysis of founding acts and rules of procedure of socio-­ economic and territorial institutions under consideration reveals obviously a strong heterogeneity in relation to their composition. However it is possible to identify some common features concerning representative criteria and methods for selection of members which characterize both integrated institutions and connected ones. i) Representative Criteria Before analyzing criteria adopted for the allocation of seats among member States, it is worth expressing some considerations about the membership of socio-economic and territorial institutions. In this regard, two main trends may be identified. According to the first approach socio-economic and territorial institutions represent interests of individuals from each member State belonging to a specific social group (e.g. workers, farmers, consumers, businessmen, ­ethnical community, etc.) or to local communities. So, the membership belongs to physical persons who are represented in the institution by their delegates. The latter are persons endowed with an electoral mandate at regional and/or ­local level (in the case of territorial institutions) or are selected within national associations which are recognized as main representatives of the interests of that specific para. 30; Declaration of the 11th saarc Summit, Kathmandu, 9 January 2001, paras. 8 and 52. 160 Thus, for instance, the recognition of the guam Business Council as affiliated institution with the oded-guam may be inferred by art. 2, para. 2, lett. (i) of the Provision on the Secretariat of the Organization for democracy and economic development – guam stating that […] “The Functions of the Secretariat shall include the following (...) to conduct relevant consultations with the Member States, partners, observers, the Parliamentary Assembly and Business Council of guam, as well as with non-governmental organizations participating in the events of guam […]”.

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social group at the domestic level (in the case of socio-economic institutions). Obviously, the application of this approach ensures that each member State has its representatives in the non-governmental institution i­ndependently of the criterion adopted for the allocation of seats. In other words, a strong link between socio-economic or territorial interests on the one hand, and the State on the other hand, is preserved. Currently, this approach – which is typical of the eesc and the CoR – is very common. Unlike the aforementioned general approach, according to the second trend characterizing only some socio-economic institutions, the latter represent interests of civil society organizations which are qualified in a specific field. This means that the membership is formally conferred on legal persons which are represented in the institution by their own delegates.161 In essence, socioeconomic institutions based on this approach may be regarded as unions of civil society organizations. Therefore, individuals’ interests belonging to the specific social group which is embodied by the civil society organization are represented in an indirect and mediated way. Generally, even this approach tends to preserve the link between the representation of socio-economic interests and the States. Indeed it is usually provided that associations and/or civil society organizations from each member State become member of the institution.162 Thus, for instance, it is provided that the membership of the ecocci, the iccia, the saarc cci, the guam Business Council is attributed to the national chamber of commerce of each member State of the regional organization. However, at times, the distribution of seats does not mirror cogently 161 In this regard, see – for instance – au ecosocc, comesa Business Council. More or less similarly, the fces Rules of procedure (art. 3) provides that the fces is composed of National Sections of each mercosur member State and that in each of them the representation belongs to organizations duly accredited for this purpose, which designate their respective delegates. 162 See art. 4, para. 1, lett. (a) au ecosocc Statute; art. 4, para. 1, comesa Business Council Constitution; art. 3, para. 1, fces Rules of procedure. However it is worth noting that – ­unlike the Mercosur fces – both the au ecosocc and the comesa Business Council have a mixed membership. The former combines the criterion of national representation with the regional and continental ones and it is composed of 2 civil society organizations from each member State; 10 civil society organizations operating at the regional level and 8 at continental level; 20 civil society organization from the African Diaspora and 6 are nomitated by the au Commission on the basis of special considerations (art. 4 au ecosocc Statute). The membership of the comesa Business Council is composed of principal members (namely national associations representing various sectors of national economy of member States), associated members (individual companies and interest groups upon admission by the General Assembly) and honorary members (deserving persons with the potential to contribute to the wellbeing of the Council).

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the criterion of national representation and members of the socio-economic institutions are selected in light of their regional dimension, that is, in light of their capability to represent specific interests at the regional level and not at national one. In such a way, the link between socio-economic or territorial interests on the one hand, and the State on the other hand, fails and a real supranational nature is conferred on the non-governmental institution. This is the case of the cc-sica which is composed of “organizaciones regionals representativas de la sociedad civil comprometidas con el esfuerzo de integración ístmica” (art. 4 cc-sica Statute).163 The aforementioned approaches do not influence the distribution of seats. In this regard two main criteria may be applied: (1) the principle of proportionality; (2) the principle of equality. As regards the eu experience due to strong differences between member States the principle of proportionality is applied. This means that in the eesc as well as in the CoR each country has a different number of seats depending on its population as well as economic weight. It is reviewed at regular intervals by the Council to take account of economic, social and demographic developments within the eu.164 The use of this criterion sacrifices sovereign equality between States in favor of the strengthening of the democratic nature of socioeconomic and territorial institutions it is applied to. In the practice, the proportional allocation of seats between States is almost rare. Indeed, apart from the eu experience, it is applied only to CoE Congress of Local and Regional Authorities.165 In light of previous considerations the reluctance towards the principle of proportionality proves that interstate institutionalized cooperation is still broadly anchored to the sovereign parity between States. 163 The cc-sica Statute prescribes conditions for a civil society organization to become member of the institution (arts. 12–13). However, the wording of art. 9, lett. e) of the cc-sica Statute seems to ensure somehow the criterion of national representation providing that an equal representation of gender, race, sectors and countries is guaranteed in each ccsica organ. As previously stated, connected socio-economic institutions whose members are civil society associations may also have mixed membership. 164 As is known, arts. 301 and 305 of the tfeu prescribe simply that both the eesc and the CoR are composed of not more than 350 members from all eu member States and confer on the Council the task to determine the Committees’ composition on a proposal from the Commission. In this regard, see lastly Council Decision 2014/930/EU of 16 December 2014, determining the composition of the Committee of the Regions, oj L365/143 of 19 December 2014; Council Decision 2015/1157/EU of 14 July 2015, determining the composition of the European Economic and Social Committee, in oj L 187/28 of 15 July 2015. 165 See art. 3, para. 2, CoE Statutory Resolution (94)3 and art. 2, para. 3, CoE Congress of Local and Regional Authorities Charter.

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This view is confirmed by the fact that – in contrast with the eu model – the allocation of seats in socio-economic institutions166 and territorial ones167 is usually governed by the principle of equality. This means that these institutions are composed of an equal number of representatives from each member State. As previously stated, the application of this principle is generalized characterizing socio-economic institutions whose membership belongs to natural persons,168 as well as those whose membership is conferred on legal persons169 166 As regards socio-economic institutions it may be also provided that the various categories of economic and social life are equally represented within each national delegation. Thus, for example, art. 18 of the ecsc Treaty provided expressly that the Consultative Committee was composed of an equal number of producers, workers and consumers and dealers. Currently both teu and tfeu lack a similar provision; nevertheless the eesc members are allocated equally, wherever possible, between 3 “Groups” representing employers (Group i), employees (Group ii), and special interest groups (Group iii) including other socio-economic interests, professional, academic or cultural bodies, farmers and representatives of minority, disadvantaged or excluded groups and those concerned with health, environmental and demographic issues. In this regard, see also art. 5 Additional Act 02/2009/CCEG/UEMOA-Labour and Social Dialogue Council; art. 4 Regulation 12/2007/UEMOA-Regional Advisory Committee of Agricultural Field; art. 6 Additional Act 02/97-UEMOA Regional Chamber of Commerce; art. 5, para. 2, fces Rules of procedure. 167 The principle of equality is also the rule in the allocation of seats in territorial institutions. In this regard see art. 2 Dec. 585/04-Andean Advisory Council of Municipal Authorities; art. 2 Additional Act 02/CCEG/UEMOA/2011-Council of Regional Authorities; arts. 18 and 23 fccr Rules of procedure. The principle of equality usually governs also the representation of various types of local and regional authorities in each national delegation. In this regard, see, for instance, art. 2, para. 2, lett. (b) CoE Congress of Local and Regional Authorities Charter. 168 In this sense, see art. 2 Terms of reference of efta Consultative Committee; art. 2 Dec. 674/07-Andean Advisory Council of Indigenous People; art. 4 ALADI/CR/Acuerdo 156; art. 5 ALADI/CR/Acuerdo 145; art. 5 Additional Act 02/2009/CCEG/UEMOA-Labour and Social Dialogue Council; art. 4 Regulation 12/2007/UEMOA/Regional Advisory Committee of Agricultural Field; art. 6 Additional Act 02/97-UEMOA Regional Chamber of C ­ ommerce; art. 37 cen-sad Revised Treaty; art. 2.2 and art. 5.1, lett. (c) SAARCLaw Charter; art. 8, lett. (b) saarc cci Amended Constitution. Thus, apec-bac comprises up to three senior business people from each apec economy, while the gcc Consultative Committee is composed of five members from each State. Still, every national delegation composing the sco Business Council, as well as the asean-bac is made up of three representatives, while the bsec Business Council comprises one delegate from each national association. 169 Thus, for instance, the au ecosocc Statute prescribes that the institution is composed, among others, of two civil society organizations from each au member State, while in the eco-cci, iccia, saarc cci every country is represented by its own national chamber

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independently from the legal nature of the regional organization. In particular, as regards socio-economic institutions whose membership belongs to civil society organizations, statutory acts prescribe that they are composed of the same number of civil society organizations from each member State.170 However, they do not usually define the criteria governing the size of the delegation of each civil society organization. So, their definition is at the discretion of the members of the institution but it can be assumed that they can agree – even informally – the application of a common criterion. ii) Selection of Members As is known, the selection of members both of the eesc and the CoR is governed by the principle of delegation. In imitation of the European experience the same principle is applied to the selection of members of other socio-­ economic and territorial institutions. In this regard, there is no difference between integrated institutions and connected ones. Regarding socio-economic institutions, this means that physical persons composing them are not elected directly by citizens of member States belonging to the particular economic, social, cultural category whose interests are represented within the institution. Rather, they are delegates of key national associations that represent specific civil society stakeholders in the member State. Concretely, their selection may be realized in different forms. Firstly, delegates may be selected by the national associations themselves from among their members according to procedures they are free to set.171 This procedure ensuring the autonomy of institution from States is typical of connected socio-economic bodies due to their intrinsic nature. Indeed, as previously stated, they result from a private initiative, so it is obvious that their “founders” have decided to release the selection of their members from States. Secondly, it may be provided that physical persons selected by national associations and interest groups are accredited by the executives of their own of commerce. As regards the saarc-cci, in addition to each national chamber of commerce, even other entities may become members. In this regard, see arts. 3 and 8 saarc cci Amended Constitution. 170 In this regard the cc-sica is an exception as its Statute does not prescribe the number of civil society organizations from each member State or that of delegates of each civil society organization having the member status. According to information from its website, the cc-sica is composed of almost thirty civil society organizations. 171 Thus, for instance, delegates of the sco, bsec, guam and comesa Business Councils, the iccia, the eco-cci, the SAARCLaw and the saarc cci, the cc-sica, the au ecosocc are selected by national civil society associations from among their members.

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States.172 Compared to the previous procedure, this one tends to limit the institution’s autonomy from member States. Finally, delegates may be designated by Governments of member States from personalities representing the main sectors of economic and/or social, cultural life. In this case the selection may be preceded by consultations with key national organizations that represent specific civil society stakeholders. Obviously, this procedure tends to strengthen the role of States to the detriment of the institution’s autonomy, and its application does not depend on the legal nature of the regional organization. This means that it characterizes institutions established not only in cooperation organizations,173 but also in supranational ones. In this regard, the example of the eesc is explanatory; indeed Governments of each eu member State propose their candidates ­after consulting key associations that represent employers, workers and other civil society stakeholders at the domestic level. They are then appointed by the Council for a period of five years. From the functionalist perspective the choice for this selection procedure aims at balancing the national dimension against the organization’s goals whose efficient attainment justifies the establishment of socio-economic institutions. As stated, the principle of delegation also governs the selection of members of integrated territorial institutions. Indeed they are usually designated by member States from among representatives of local or regional communities endowed with an electoral mandate. In particular they may be selected by the local or regional authorities themselves174 or by the Government of the member State after consultation with local and regional institutions. Even in this case the European example of the CoR is explanatory (art. 302 tfeu).175 Obviously the method of selection is different from a territorial institution 172 In this regard see, for instance, art. 4 aladi Business Council Rules of procedure; art. 4 aladi Labour Council Rules of procedure; art. 3 mercosur fces Rules of procedure. This method is also applied in relation to socio-economic institutions of uemoa and CAn. 173 Thus, for instance, the asean-bac members are appointed by the Ministers in-charge from among high-level ceos of national companies. Similarly, members of apec-bac, as well as those of the gcc Consultative Committee are selected by Leaders of member States. In this sense see also art. 2 efta Consultative Committe Terms of Reference. 174 In this regard, we can consider the experience of the uemoa Council of Regional Authorities whose members are designated by authority association which hold a local electoral mandate (art. 2 Additional Act 02/CCEG/UEMOA/2011-Council of Regional Authorities). 175 Similarly, see art. 3 CoE Congress of Local and Regional Authorities Charter; art. 2 Dec. 585/04-Andean Advisory Council of Municipal Authorities; art. 2 mercosur fccr Rules of procedure.

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to another. Furthermore, sometimes founding acts of these institutions only ­determine their composition and they leave States free to choose the procedure for the appointment of their members.176 1.2.4 Legal Status of Members As previously stated, two main trends may be identified concerning the membership of socio-economic and territorial institutions. According to the first one the latter represent interests of individuals from each member State belonging to a specific social group (e.g. workers, farmers, consumers, businessmen, ethnical community, etc.) or to local communities. So, the membership belongs to physical persons who are represented in the institution by their delegates. Differently, according to the second trend, socio-economic institutions represent interests of civil society organizations which are qualified in a specific field.177 This means that the membership is conferred on legal persons which are represented in the institution by their own delegates. These two different approaches have to be taken into account in analyzing features concerning the legal status of members of socio-economic and territorial institutions under consideration, namely the character of their mandate, their term of office, their incompatibilities and immunities conferred on them. i) Character of the Mandate The conferral of the membership on natural persons (first case) or on legal persons (second case) is relevant for the character of members’ mandate. In this regard, as is known, art. 300, para. 4, of the tfeu provides expressly that the members of the eesc and CoR are completely independent in the performance of their duties.178 This means that they may be instructed neither by their home State nor by the civil society organization/the local or regional authority which put forward their candidature, so they act in their own capacity and are not formally responsible for the results of their activities. In other words, they enjoy an absolute free mandate and, in this regard, they share the 176 In this regard the wording of art. 3, para. 1, CoE Congress of Local and Regional Authorities Charter. It provides that “Representatives and substitutes to the Congress shall be appointed by an official procedure specific to each member State […]”. For a detailed description of procedures for the selection of CoR members in the eu member States see the interesting document edited by European Communities in 2009: The selection process for Committee of the Regions members Procedures in the Member States. Accessed December 21, 2016. http://cor.europa.eu/en/archived/documents/840ed860-60ca-4af6-8be9 -70b795f42207.pdf. 177 See Chapter 2, note 162. 178 Their free mandate is reiterated by art. 2, para. 3, eesc Rules of Procedure and art. 2 CoR Rules of procedure.

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same legal status of the members of parliamentary institutions. In accordance with the eu model, such an absolute free mandate is conferred on national delegates composing socio-economic and territorial institutions whose membership belongs to natural persons. In particular, it can be expressly provided for by the statutory act of the institution itself (e.g. efta Consultative Committee, Andean Advisory Labour Council)179 or it can be inferred by several statutory norms. Its provision or implicit conferral is aimed at ensuring that the socio-economic and territorial institutions are really able to represent the interests of individuals belonging to specific social categories. In this regard, it is to be assumed that – in spite of their formal independence from States and national associations they belong to – the members of these institutions should be morally responsible for individuals whose interests and view they represent at the regional level.180 Different considerations have to be expressed in relation to socio-economic institutions whose membership belongs to legal persons. First of all, it is to be noted that their founding acts do not provide expressly for free mandate. However, it is to be excluded that their members may receive instructions from any authorities or organs of their home country, insofar as these institutions are charged with the task to represent interests of a particular social category, not of Governments. So it can be said that their members enjoy free mandate from States. On the contrary, taking into account that these socio-economic institutions are unions of civil society organizations due to their membership, it can be assumed that their members do not enjoy free mandate from associations they belong to and they are delegates of. In essence, they act merely as spokepersons of these associations, therefore it can be presumed that they do not have full freedom of opinion. Rather, the view they express is that of the civil society organization they belong to. In sum, members of these socioeconomic institutions have a partial free mandate, that is, they may not be instructed by their home State but they could receive instructions from the civil society association which put forward their candidature. ii) Term of Office and Incompatibilities The term of office of the eesc and the CoR’s members and possible incompatibilities are regulated expressly by their statutes and/or rules of procedure. In particular, as regards the eesc it is provided that the position of member

179 See art. 4 Andean Advisory Labour Council Rules of procedure; art. 2 efta Consultative Committee Terms of Reference. 180 In this sense, see Klepacki, The Organs, 62; Fausto Pocar, Diritto dell’Unione Europea (11th edn. Milano: Giuffè, 2010), 159.

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is incompatible with that of government, parliament, any eu institution and with the post of official or other servant of the eu in active employment (art. 2 eesc Members’ Statute) and that the early termination of office may depend on death, resignation in the event of incompatibility, removal or any other case of force majeure (art. 3 eesc Members’ Statute). More or less similarly, it is provided that the term of office of a member of the CoR or of the CoE Congress of local and regional authorities may be terminated by death, resignation or the end of the electoral mandate on the basis of which he/she was appointed.181 At present, the eu experience has been imitated accurately only by the CoE Congress of local and regional authorities. Indeed, its Charter regulates expressly general conditions of office including incompatibilities which are substantially similar to those concerning the CoR’s members. Unlike the European model, founding legal instruments of other socioeconomic and territorial institutions under consideration lack provisions ­regulating in details the mandate of their members.182 They usually prescribe only the term of office which is variable from an institution to another, but they do not regulate causes for early termination of mandate. However, it can be assumed that, in addition to death and voluntary resignation, members of socio-economic and territorial institutions may be dismissed before the termination of their office when conditions and requirements underlying their appointment fail. So, they may be different from an institution to another, as well as from a member State to another in relation to a specific institution. Moreover, even incompatibilities are not usually regulated expressly. However, it can be assumed that the position of member of socio-economic and territorial institution is incompatible with that of member of a State organ and of any other institution of the regional organization, in light of the task he/she has to perform (that is, representing the interests of a particular category of citizens of member States). iii) Privileges and Immunities of Members Statutory legal instruments of socio-economic and territorial institutions are usually silent even with regard to the regulation of privileges and immunities of their members. As regards connected socio-economic institutions this is not surprising due to the legal nature of their statutory acts; indeed they are agreements concluded by representatives of national civil society organizations 181 See art. 3, para. 2, CoR Rules of procedure; art. 2, para. 6, CoE Congress of Local and Regional Authorities Charter. 182 In this regard, there are no differences between integrated institutions and connected ones.

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which are not entitled to grant privileges and immunities on behalf of their own States. Furthermore – as previously stated – this category of institutions are not formally part of the institutional structure of the regional organization they are affiliated with, so privileges and immunities recognized by member States to the organization’s officials may not be applied also to their members. Therefore, in order that the latter can enjoy privileges and immunities, an ad hoc agreement on these issues should be concluded between the connected socio-economic institution and member States of the regional organization.183 On the contrary, even if statutory acts and rules of procedure of integrated socio-economic and territorial institutions do not usually regulate in details privileges and immunities recognized to their members, it can be assumed that they can enjoy those accorded by the States to the regional organization, its officials and members of its organs, in the view that – as previously stated – integrated institutions form part of the institutional structure of the organization. In this regard, we can consider art. 2, para. 3, of the eesc Rules of ­procedure, art. 4 of the CoR Rules of procedure and art. 28 of the Additional Act establishing the uemoa Chamber of commerce which state expressly that the members of these institutions enjoy privileges and immunities in accordance with the Protocol on the Privileges and Immunities respectively of the eu and of the uemoa.184 In essence, whether privileges and immunities are expressly accorded or not, in light of the above reasoning it can be asserted that during the performance of their duties and on journeys to and from the place of meetings, members of integrated socio-economic and territorial institutions usually enjoy freedom of movement, customary privileges and facilities, personal inviolability and immunity. 1.2.5 Internal Organization Each socio-economic and territorial institution under consideration has its own structure and internal organization which are functional to the efficient performance of its tasks. Even if there is a certain heterogeneity in this regard from an institution to another, the analysis of founding acts or, where these are not available, the assessment of available information reveal that the features of the eesc and the CoR are usually common to the other socio-economic and territorial institutions under consideration. Furthermore, as we will see below, their internal structure has some similarities with that of parliamentary 183 However, in light of available information at present this type of agreements does not seem to have been signed yet. 184 As regards the eesc, privileges are synthetically enunciated by art. 9 of the eesc members’ Statute.

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institutions and there are no differences between integrated institutions and connected ones. First of all it can be noted that the more the composition of the institution is large, the more its internal organization is complex and articulated. In this regard the example of the cc-sica is illustrative; indeed, insofar as it represents diverse interest groups of civil society, it is articulated in sectorial committees. Thus, for instance, the Consultative Committee on Economic Integration (ccie) and the Consultative Committee on Social Integration (ccis) form part of it.185 However, each socio-economic and territorial institution has a President and one or more Vice-presidents who are selected from among their members. Obviously, their selection procedure, as well as their term of office are variable from case to case. Then, each institution has a plenary organ comprising all its members, which is the supreme body of the institution being endowed with the decisionmaking power. The frequency of its ordinary meetings – which is expressly prescribed by the statutory act or by the rules of procedure – may vary from an institution to another; even the possibility of extraordinary meetings is usually provided for. Still, in most of socio-economic and territorial institutions there is an organ which is usually responsible for organizing and coordinating the work of the other institution’s bodies, as well as for preparing the session of the p ­ lenary.186 Sometimes, it has also the responsibility for financial, organizational and ­administrative matters concerning members and for implementation of decisions taken by the plenary. Its name varies from an institution to another,187 as well as its composition. Indeed, at times, it is provided that the representation of all member States is ensured as in the case of the eesc (art. 3 rules of

185 The Central American Court of Justice clarified that the ccie is functionally linked to the cc-sica in accordance with art. 12 of the Tegucigalpa Protocol. Therefore it is not alien to the consultative activity carried out by the cc-sica but it has a specialized competence in the field of regional economic integration. In this sense see Expediente No. 10-17-112008, Solicitud de Opinión Consultiva del Comité Consultivo del Sistema de la Integración Centroamericana (sica), en relación a varias interrogantes sobre la institucionalidad del mismo, 16 December 2008, 7. 186 This organ is not present in the Andean Advisory Labour Council, the Andean Advisory Business Council and the Andean Advisory Council of Indigenous People, as well as in the mercosur fccr, the aladi Labour Council and Business Council, the apec-bac, the efta Consultative Committee and the cei Business Dimension. 187 It can be called Bureau, Directorio, Board of Directors, Executive Council or Executive Committee.

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­procedure) and the CoR (art. 30 rules of procedure).188 Sometimes this requirement is not prescribed.189 However, the overall number of its members is usually lower than that of the plenary. In many socio-economic and territorial institutions members may form standing thematic commissions.190 They are internal bodies aimed at organising the work of the institutions according to the principle of specialization. Indeed, each commission is usually vested with a particular field of action. Their task is essentially preparatory, investigative and advisory with respect to issues on which the plenary will have to adopt its decisions. Here it is worth noting that when the institution represents different categories of interests, it can be provided that its members are divided into groups each one representing a specific category. Thus, for instance, the eesc is made up of three groups of members representing respectively employers, employees and the various other economic and social components of organized civil society (arts. 2 and 27 eesc Rules of procedure). Similarly, the mercosur fccr and the CoE Congress of Local and Regional Authorities are articulated into two chambers: the one is made up of representatives of municipal communities and the other comprises the representatives of regional communities.191 As regards territorial institutions – due to their political nature – it may be provided that their members form groups which reflect their political affinities. Generally the rules of procedure define specific criteria for their creation in order to

188 Similarly, see art. 9, para. 2, CoE Congress of Local and Regional Authorities Charter; art. 10 au ecosocc Statute; arts. 9–10 comesa Business Council Constitution; arts. 16, 20–22 saarc cci Amended Constitution; art. 5 SAARCLaw. In this sense see also the sco Business Council. 189 In this sense, see for instance, the uemoa Regional Chamber of Commerce, Council of Regional Authorities, Labour and Social Dialogue Council, the cc-sica, as well as the eco-cci and the iccia. 190 In this regard, see arts. 14–17 eesc Rules of procedure; arts. 44–45 CoE Congress of Local and Regional Authorities Rules of procedure; art. 32 cc-sica Statute; art. 11 au ecosocc Statute; art. 12 mercosur fces Rules of procedure; art. 10, para. 1, lett. e) comesa Business Council Constitution. Standing thematic commissions are also present in the ecocci, the iccia and the gcc Consultative Committee. On the contrary, they do not seem to be present in the saarc cci, the SAARCLaw, the sco Business Council and the bsec Business Council. In addition to or instead of standing commissions, socio-economic institutions may set up subcommittees (art. 19 eesc Rules of procedure) or working groups (see, for instance, art. 12 efta Consultative Committee Rules of procedure). 191 See art. 7, para. 1, CoE Congress of Local and Regional Authorities Charter; art. 3 mercosur fccr Rules of procedure.

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g­ uarantee the proportion between the number of members of each group and the number of member States represented in the same group.192 Finally, according to the model of the CoR (art. 70 Rules of procedure), the internal structure of most socio-economic and territorial institutions under consideration is completed by the presence of a Secretariat. It is usually headed by the Secretary-General and charged with the task to assist the institution in the management of administrative aspects.193 When this body is not present, the administration of the institution is entrusted to the secretariat of the regional organization.194 2

Functions of Institutions Representing Non-governmental Interests

In order to assess the contribution of institutions representing non-­ governmental interests to the development of regional organizations it is necessary to analyze the functions they exercise. For this purpose the study of legal provisions will be integrated by an empirical examination, that is, by an evaluation of the institutions’ practice – to the extent that this information is available. Before entering in the merits of this investigation, it is worth bearing in mind that activities performed by institutions representing ­non-governmental interests are based on the strict respect for the principle of 192 In this regard, see art. 9 CoR Rules of procedure; art. 6, para. 3, CoE Congress of Local and Regional Authorities Rules of procedure. The CoR Rules of procedure (art. 10) also provide for the possibility to create interregional groups. Futhermore, both the CoR Rules of procedure (art. 8) and the the CoE Congress of Local and Regional Authorities Rules of procedure (art. 1) provide that their members are divided into national delegations. 193 In this sense, see also art. 61 CoE Congress of Local and Regional Authorities Rules of procedure; arts. 29–31 cc-sica Statute; art. 13 mercosur fces Rules of procedure; art. 11 comesa Business Council Constitution; art. 13 cei Guidelines; arts. 24–25 saarc cci Amended Constitution. Even the uemoa Regional Chamber of Commerce, Labour and Social Dialogue Council and Council of Regional Authorities, as well as the apec-bac, asean -bac, eco-cci, bsec Business Council, iccia, sco Business Council have their own Secretariat. 194 In this regard see art. 4 Additional Act 02/CCEG/UEMOA/2011-Council of Regional Authorities; art. 7 Dec. 674/07-Andean Advisory Council of Indigenous People; arts. 15–16 Andean Advisory Labour Council Rules of procedure; art. 13 Andean Advisory Business Council Rules of procedure; art. 8 Dec. 585/04-Andean Advisory Council of Municipal Authorities; art. 14 au ecosocc Statute; art. 6 aladi Labour Council Rules of procedure; art. 7 aladi Business Council Rules of procedure. See also the gcc Consultative Committee and the efta Consultative Committee.

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conferral of powers. As is known, this means that they can only act within the limits of competences conferred upon them by their statutory acts. If the principle of conferral of competences was violated, the action performed by the non-governmental institution would be invalid and – in regional organizations where there is a judicial system – it could also be nullified.195 2.1 Functions of Parliamentary Institutions If you look at the phenomenon of institutional multipolarism from an Eurocentric perspective, that is, if we consider the ep in its current configuration as benchmark, it could be argued that no parliamentary institution is actually able to play a decisive role in the regional organization it is established in or affiliated with, insofar as no one is endowed with a comparable power to influence significantly the decision-making.196 However it is worth bearing in mind that the current role of EP as co-legislator is the result of a long evolution process and that originally it had only deliberative197 and consultative powers.198 So, although a synchronous evaluation of the phenomenon of institutional multipolarism leads to express negative considerations on the current role of 195 In this regard we can consider not only the experience of the eu but also that of can, sica and caricom in Latin America and the Caribbean; uemoa, cemac, ecowas, eac and comesa in Sub-Saharan Africa and eaeu in Eurasia. In literature see, among others, Tino, “Settlement”, 486. 196 About the factors that account for differences between the ep and the other parliamentary institutions under consideration see in literature Andrés Malamud and Luis de Sousa, “Regional Parliament in Europe and Latin America: Between Empowerment and Irrelevance”, in Closing or Widening the gap? Legitimacy and Democracy of regional international organizations, eds. Andrea Ribeiro-Hoffmann and Anna Van der Vleuten (Aldershot: Ashgate, 2007), 89. Similarly, see also Andrés Malamud and Clarissa Dri, “Spillover Effects and Supranational Parliaments: The Case of Mercosur”, jilar 19 (2013): 226. 197 When dealing with the deliberative function I refer to the power of an institution to adopt a statement expressing its own view on an issue at its own initiative. 198 Indeed, the gradual reinforcement of the ep’s powers is one of the major features in the history of the construction of the European integration process. The ecsc Treaty conferred on the ep – which was called Common Assembly – only deliberative and relative accountability functions. Then, the 1957 eec Treaty endowed the ep also with consultative powers regarding budget and legislation. Since 1970, following the new model of financing proposed by the European Commission, the ep has the final word on nonobligatory expenses and in 1975 it was accorded the possibility of rejecting the whole budget. In 1980 the ep began approving the commissioners nominated by the Council through its deliberation capacity. Nowadays it counts on extended attributions regarding representativeness, deliberation, accountability and legislation. For a synthetic illustration of gradual empowerement of the ep, see Malamud and de Sousa, “Regional Parliament”, 88–89.

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parliamentary institutions in regional organizations, the use of a diachronic perspective allows us to make a different assessment. Indeed, as we will see in details in following sub-paragraphs, if we compare the powers conferred on the ep by the ecsc Treaty and the 1957 eec Treaty with those which are currently exercised by the Parlasur or the Parlacen in Latin America or by eala in Sub-Saharan Africa, the latter are more advanced. Furthermore, if we take into account that, as previously stated, the eu usually constitutes a model for other regional organizations, evolution experienced by the ep over the years could be achieved even by other parliamentary institutions under consideration. In this regard, the ecowas Parliament and to less extent the pap seem to move in this direction.199 Moving from this methodological premise, firstly the analysis of statutory acts of parliamentary institutions reveals that differences between integrated and connected ones are very marked regarding functions performed. Indeed, as we will see below in details, integrated parliamentary institutions may be endowed with a certain degree of deliberative, consultative and oversight powers and to some extent they may take part directly in the decision-making or, in a few cases, they may exercise even legislative powers sharing them with intergovernmental bodies. On the contrary, as connected parliamentary institutions are formally stand-alone, they are hardly endowed with any formal legislative, as well as oversight power over the regional organization and its organs. Rather they perform a general deliberative function and a certain degree of consultative powers. In essence, the main peculiarities of the two categories concern particularly their diverse degree of participation in the decision-making process. 2.1.1 Advisory Function Since the origins of the European integration process the ep has been endowed with an advisory power which was its main function for many decades. Indeed, the 1957 Rome Treaties provided that it could be consulted by the Council of Ministers whenever a community act had to be adopted.200 This 199 Indeed reforms aiming at strengthening the powers of the PAP in the legislative field are under discussion, while the Supplementary Act on the Enhancement of Powers of the ecowas Parliament has been recently adopted. In this regard see Linda Boré and Felix Henkel, “Disturbing a Cosy Balance? The ecowas Parliament’s Rocky Road to ­Co-Decision”, International Policy Analysis, January 2015. Accessed November 20, 2016. http://library.fes.de/pdf-files/iez/11185.pdf. 200 For an exhaustive listing of these provisions see Nicola Catalano, Manuale di diritto delle Comunità europee (2nd edn Milano: Giuffrè, 1965), 38–43. The consultative procedure is now applicable in a limited number of legislative areas, such as internal market

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consultation was compulsory in areas expressly prescribed by Treaties. As is known, the progressive enhancement of the ep’s powers over the decades has led to a reshaping of its advisory function. Therefore, the consultative procedure is now applicable in a limited number of legislative areas, as well as in the Foreign Affairs and Security Policy. In this regard, it is provided that the eu High Representative shall regularly consult the ep on the main aspects and the basic choices of the common foreign and security policy and the common security and defence policy and shall ensure that its views are duly taken into consideration (art. 36 teu). Consistent with the early experience of the ep, the large majority of integrated parliamentary institutions under consideration exercise an advisory function.201 On the contrary, only a few connected ones are endowed with this power;202 this may be due to the fact that – as is known – this category of parliamentary institutions does not form part of the institutional structure of the regional organization, so decision-making intergovernmental bodies may be reluctant to trust in opinions delivered by institutions which are formally stand-alone. The exercise of the advisory function consists in examining, discussing and then delivering an opinion on a specific issue upon request of an organ of the regional organization. Generally, the requiring body has intergovernmental nature, but it may be also provided that even other organs (e.g. the SecretaryGeneral) may request an opinion203 to the parliamentary institution. Unlike the experience of the ep, the comparative analysis of institutions under consideration reveals that mandatory consultation is exceptional. This means that rarely statutory acts prescribe the obligation to consult the parliamentary institution before a decision is taken. In particular, mandatory consultation characterizes African parliamentary institutions of cemac, uemoa and ecowas, as well as the Parlasur and the oecs Assembly in Latin America and the Caribbean. Furthermore, its regulation is partially different from a geographic area to another. In particular, in imitation of the ep’model, the consultation of Cemac, e­ xemptions, competition law, some aspects of social policy, etc. The consultation of the EP is also required, as a non-legislative procedure, where international agreements are being adopted under the Common Foreign and Security Policy (cfsp). 201 It seems that currently, only the Parlandino, the cei Parliamentary Dimension, the eala, the igad ipu and the osce pa are not expressly endowed with advisory functions. 202 In particular the advisory power is not exercised by the paeco, the aipa, the guam pa, the puic and the seecp. 203 Thus, for instance, both the Secretary-General and the representatives of the Specialized Agencies of the las may request an advisory opinion to the Arab Parliament (art. 5, lett. c Arab Parliament Statute).

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uemoa and ecowas Parliaments is mandatory in areas which are normatively prescribed.204 On the contrary, the obligation to consult the Parlasur and the oecs Assembly has a general range;205 this means that their opinion has to be requested whenever an organic act has to be adopted by the decision-making body. In particular, the consultative function exercised by the Parlasur has a great relevance insofar as it also affects the incorporation of acts adopted. ­Indeed, if the mercosur intergovernmental body adopts the bill in accordance with the terms of the Parlasur’s opinion voted by a special majority (arts. 135–136 Parlasur Rules of procedure), the normative act has to be submitted to national Parliaments by 45 days so that they incorporate it within 180 days (art. 4, para. 12, mercosur Montevideo Protocol). However, it is worth noting that, in light of available information, this procedure has not been activated yet. Except for the example of the ep and that of a few other institutions emulating it, generally the consultation of parliamentary bodies is optional. This means that the decision-making organ is merely granted the faculty to consult them, but it is free to decide if exercising this faculty or not. Generally, the consultation on voluntary basis can concern any matter falling within the scope of the regional organization.206 However, statutory acts of some parliamentary institutions limit the exercise of the advisory function just to specific matters expressly prescribed.207 Whether the consultation is optional or mandatory and whether it has a general scope or it is just circumscribed to certain matters, frequently the advisory function is performed within the decision-making procedure of the regional organization, thus being one of its phases to be accomplished for the adoption of a normative act. Indeed, it can be provided expressly that the 204 See art. 25, para. 2, cemac Parliament Convention; art. 25, para. 2, uemoa Parliament Treaty; art. 9 ecowas Parliament Supplementary Act. Obviously, in areas which are not covered by mandatory consultation, the referral of a draft act to the parliamentary institution is optional. 205 In particular, it is provided that the oecs Assembly is consulted by the Authority on any proposal to enact an Act of the organization under art. 8.10 of the oecs Revised Treaty and by the Council of Ministers on any proposal to make regulations under art. 9.4 oecs Revised Treaty (see art. 10.13, lett. (a) (i) and lett. b oecs Revised Treaty). 206 In this regard see art. 11, para. 1, pap Protocol; art. 4, para. 2, Benelux Parliament Convention; art. 5, para. 2 lett. (d), accp Agreement; art. 4 lett. (b) cis ipa Convention; art. 23 lett. (a) CoE Statute; art. 4, para. 3, ecowas Parliament Supplementary Protocol; art. 5, lett. (c) Arab Parliament Statute; art. 4, para. 12, mercosur Montevideo Protocol; art. 10.13 (a) (ii) oecs Revised Treaty; art. 12, para. 3, uma Treaty. As regards connected parliamentary institutions see art. 13, paras. 6 and 9 pabsec Rules of procedure; art. 8, para. 3, lett. (e) sadc pf Constitution. 207 In this regard see for instance art. 6 repac Protocol.

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decision-making body may (or must) request the parliamentary institution to express its opinion on a draft normative act before its approval.208 This opinion may concern a draft convention209 or a draft organic act.210 However, it is worth noting that advisory opinions are non-binding on the addressee and, from the formal point of view, they cannot hinder any c­ ontrary decision. Moreover the organ receiving advice are under no obligation whatsoever to account for not giving effect to the view of the parliamentary institution. 2.1.2 Political Oversight Function When dealing with the political oversight function we refer to the competence of parliamentary institutions to scrutinize the activities of the regional organization. In other words, oversight is a means for holding the organization and its organs accountable politically for their actions. The conferral of political oversight function on the parliamentary institution aims at balacing somehow the decision-making power exercised by intergovernmental bodies. In general terms, it can be asserted that the more the oversight is strong and intrusive, the more the aforementioned balance of power between intergovernmental organs and parliamentary institution is strengthened. This explains why the political oversight function tends to be performed significantly by parliamentary institutions established within regional organization embodying the supranational model or aiming at realizing it. As is known, the ep has been endowed with this function since the origins of the European integration. Similarly, most integrated parliamentary institutions under consideration have the power to supervise and monitor the work of the regional organization and its organs; for this purpose they are able to perform tasks that are more or less similar to those performed by the ep in exercising this function.211 On the contrary, rarely connected parliamentary ­institutions are endowed with the political oversight function over the ­regional 208 Thus, for instance, art. 12, para. 3, uma Treaty provides that the Consultative Council gives its opinion on every draft decision submitted to it by the Council of Presidence. 209 In this sense, see art. 218, para. 6, lett. (b) tfeu (in this sense, see also art. 228 eec Rome Treaty). Similarly, see art. 4, para. 1, Benelux Parliament Convention; art. 5, lett. (q) Parlacen Protocol; art. 8, para. 3, lett. (c) (ix) sadc pf Constitution; art. 23, lett. (a) CoE Statute and Resolution (52) 26 of the Committee of Ministers of the Council of Europe, on Consultation of the Consultative Assembly. 210 In the regard see art. 190 eec Rome Treaty. See also art. 25 cemac Parliament Convention; art. 25 uemoa Parliament Treaty; art. 8.10 and art. 10.13 (a) (i) and (b) oecs Revised Treaty; art. 4, para. 12, mercosur Montevideo Protocol. 211 As regards integrated parliamentary institutions the political oversight power is not exercised by the Benelux Parliament, the cis ipa, the oecs Assembly and the uma ­Consultative Council.

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organization and its organs;212 this is absolutely consistent with their nature of stand-alone bodies with respect to regional organizations they are affiliated with and not integrated to. In imitation of the ep’s example, generally parliamentary institutions endowed with oversight power have the right to receive annual reports about activities carried out by the regional organization as a whole. Generally, in organizations aiming to realize the supranational model this report is submitted by the executive organ (e.g. the Commission in the eu,213 as well as in cemac, uemoa and ecowas214), while in cooperation organizations it is usually presented by the intergovernmental body.215 However, it may be also provided that the annual report is submitted to the parliamentary institution by the Secretary-General216 or by bodies specialized in a certain domain. Thus, for instance, the ep receives an annual report on the activities of the escb and on the monetary policy of both the previous and current year (art. 284, para. 3, tfeu). Similarly, the President of the ecowas Bank for Investment and Development has to present an analogous document about the Bank’s work to the ecowas Parliament (art. 89, para. 1, ecowas Parliament Rules of procedure). In addition to annual reports concerning the activities of the organization as a whole, the ep, as well as a few other parliamentary institutions under consideration are also entitled to receive periodical reports by specific organs about their work at the end of their meetings. Generally, they are intergovernmental organs. Thus, for example, pursuant to art. 15, para. 6, lett. (d) teu, the President of the European Council has to submit a report after each meeting of the European Council. More or less similarly, many leading osce representatives regularly deliver their reports at the osce pa meetings, even though they are not obliged to do so, thus offering the parliamentarians opportunities to 212 Thus, the aipa, the pabsec, the paeco, the guam pa, the puic and the seecp are not endowed with political oversight powers. Being formally independent from nato, even the nato pa has no direct role of oversight over the organization’s policies. 213 See arts. 233 and 249, para. 2, tfeu. The European Commission, as well as the ecsc High Authority have been charged with this task since the origins of the European integration process (see art. 156 eec Treaty and art. 17 ecsc Treaty). Currently, the European Commission may also submit to the ep casual reports on specific matters concerning the European integration process. In this regard, see art. 25 tfeu, art. 175 tfue, art. 190 tfue. 214 See art. 16 cemac Parliament Convention; art. 16 uemoa Parliament Treaty; art. 32 ecowas Parliament Supplementary Act. 215 See, for instance, art. 49, para. 2, lett. (c) and art. 59, para. 3, lett. (A) eac Treaty; art. 11, para. 2, igad ipu Protocol; art. 5, lett. (p) Parlacen Protocol; art. 86, para. 1, ecowas Parliament Rules of procedure; etc. 216 This is the case of the sadc PF; see art. 8, para. 3, lett. (c) (viii) sadc pf Constitution.

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engage in a political dialogue. Regardless of the frequency with which these reports are delivered, in discussing them parliamentary institutions exercise an a posteriori control, namely over activities already done. Additionally, in accordance with the model of the ep,217 some parliamentary institutions may also perform an a priori control, insofar as they must receive a report on the work program by one or more organs – as duly specified by the statutory act – at the beginning of its/their mandate.218 However, whether the oversight power is exercised a priori or a posteriori, after assessing reports submitted to them, parliamentary institutions usually deliver recommendations which are not binding. So they are not empowered to impose to the body under monitoring a certain behavior or to subject it to “sanctions” if they deem that actions performed are not consistent with goals pursued. In addition to (or alternatively to) the activity described above, the ep as well as many integrated parliamentary institutions under consideration have also the right to put written and/or oral questions to other organs of the regional organization to have information on a specific matter. Sometimes, this power is not regulated in details and statutory acts do not specify to which bodies these questions may be addressed. Therefore, in this regard parliamentary institutions enjoy a great discretion.219 On the contrary, constituent instruments regulating expressly this power usually confer on parliamentary institutions the right to address questions primarily to decision-making intergovernmental organs. In this regard, it is worth noting that originally the ep was not endowed with the power to hear the Council; it resulted from the ­practice and then it was provided for by Treaties.220 So, in relation to this ­power some 217 At the beginning and end of each six-month presidency the President of the Council of the eu submits to the ep a report concerning its program and results achieved and he discusses it. 218 Thus, for example, the Parlasur must receive the mercosur President Pro-Tempore at the beginning and end of each semester to present its working program (art. 4, paras. 5–7, mercosur Montevideo Protocol). Similarly, see art. 15 cemac Parliament Convention; art. 15 uemoa Parliament Treaty. 219 Thus, for instance, the pap may request officials to produce documents (art. 11, para. 5, pap Protocol). The Parlandino may request periodically information to the other organs of CAn to assess the evolution of the organization (art. 12, para. b, Parlandino Treaty). The accp may request information to other caricom bodies and institutions (art. 5, para. 2, lett. b, accp Agreement). The Parlacen may submit to the meeting of sica Heads of State and Government pertinent considerations regarding the integration process and request for information to the Secretariat, Organisms and Institutions of the organization (art. 5, lett. K, Parlacen Protocol). 220 Currently, pursuant to art. 230, para. 3, tfeu the European Council and the Council may be heard by the ep. Furthermore, the latter may now address questions or make

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integrated parliamentary institutions (e.g. cemac Parliament, uemoa Parliament, eala, ecowas Parliament, osce pa, Parlasur, Arab Parliament, etc.) are more advanced than the ep in its early configuration.221 Then, in addition to intergovernmental organs parliamentary institutions established in organizations which embody or aim at embodying the supranational model (e.g. ep,222 uemoa Parliament, cemac Parliament, ecowas Parliament223) have also the right to put questions to the executive organ (i.e. the Commission) on a specific matter. Except for the aforementioned trend modeled on the European example, the power to put questions to other organs has some peculiarities from a parliamentary institution to another. This shows a sort of “desire for emancipation” of interstate institutionalized cooperation from the eu. Thus, for example, unlike the ep, the Parlasur may also request advisory bodies for information on a specific issue,224 while both the uemoa Parliament and the Arab Parliament may address questions to heads of Specialized Agencies related to their respective organizations.225 Sometimes, questioned organs are expected to answer within a reasonable time which can be fixed normatively. Thus, for instance, it is provided that Parlasur can make request of reports or opinions in writing to the mercosur decision-making and advisory bodies which have to deliver information within 180 days (art. 4, para. 4, Mercosur Montevideo Protocol). However, it is

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r­ ecommendations to the Council or the eu High Representative on issues concerning the Foreign Affairs and Security Policy (art. 36 teu). In this regard, similarly, both art. 17 cemac Parliament Convention and art. 17 uemoa Parliament Treaty provide that regional parliamentarians may submit written, oral or topical questions to the Council of Ministers. In the same sense, see also art. 20 osce pa Rules of procedure; art. 5, lett. (d) Arab Parliament Statute; art. 4, para. 4, mercosur Montevideo Protocol; art. 17 eala Rules of procedure, art. 33 and art. 39, lett. (a) ecowas Parliament Supplementary Act. See art. 230, para. 2, tfeu. It is worth noting that the ep has been exercising this power since the beginning of the European integration process. In this regard see art. 140 eec Treaty, art. 110 Euratom Treaty and art. 23 ecsc Treaty. See art. 17 cemac Parliament Convention; art. 17 uemoa Parliament Treaty; art. 33 and art. 39, lett. (b) ecowas Parliament Supplementary Act. Even the uemoa Parliament may hear the chairman of the Regional Chamber of Commerce. In particular, the Arab Parliament Statute (art. 5, lett. d) provides that it may address questions not only to the chairpersons of ministerial councils and to the Secretary-General of the las, but also to the heads of specialized Arab organizations in respect with any matter within its competence. Pursuant to art. 23 of its Treaty, the uemoa Parliament may also hear the chairman of the Central Bank of West African States and West African Development Bank.

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worth noting that parliamentary institutions are usually under no obligation to reply and, above all, there are neither coercive mechanisms nor sanctions to be applied if they fail to reply. Thus, for instance, it seems that the Common Market Council has never answered to the Parlasur’s request for supplying information.226 Differently, from 2001 to 2009 the eala has asked a total of fifty priority questions on the implementation of the eac Treaty and they were duly answered by the Chairperson of the Council of Ministers.227 As previously stated, the right to monitor the activities of the regional organization and its organs through the aforementioned instruments is not ­usually associated with the power to “sanction” them whenever their work or action is not deemed by the parliamentary institution satisfactory or consistent with commitments undertaken and/or goals pursued by the organization. So, the power to adopt motions of censure on the activities of specific bodies of the organization is rarely conferred and currently it characterizes only integrated parliamentary institutions established within regional supranational organizations. In this regard, the experience of the ep is explanatory. As is known, since the 1957 Rome Treaties (art. 144 eec Treaty and art. 114 Euratom Treaty) it has been endowed with the power to force the European Commission to resign by a motion of censure adopted by a two-thirds majority of vots cast and representing a majority of its total members (art. 234 tfue).228 This motion may be voted in any time. A similar power – which has been clearly borrowed by the European experience – is also conferred on the uemoa and cemac Parliaments,229 while the Parlandino has just the possibility to vote its motion of censure against the executive director of an Andean organ and not against the latter as a whole.230 226 Dri and Ventura, “The Mercosur Parliament”, 80. 227 This information is obtained by the eala website. Accessed February 2, 2017. http://www .eala.org/assembly/category/achievements. 228 Even the ecsc Treaty (art. 24) endowed the ep with the power to adopt a motion of censure against the High Authority. However it could be voted only during the discussion of the annual report submitted by the High Authority to the ep. Since the beginning there have been only eight motions of censure: none has been adopted, but the number of votes in favour of censure has steadily increased. The ep does not have a comparable influence on the Council. 229 See arts. 18–19 cemac Parliament Convention; arts. 18–19 uemoa Parliament Treaty. This power has not yet been exercised in practice. 230 As previously stated, the Parlandino may request periodically information to the other organs of CAn to assess the evolution of the organization. Pursuant to art. 122 Parlandino Rules of procedure, if information received by the permanent representative of the organ

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Sometimes the exercise of the oversight function is also expressed by the involvement of the parliamentary institution in the election of officials of some bodies of the regional organization. Thus, for instance, the ep has the power to approve (or to reject) the appointment of the European Commission’s President by the Council and, as a whole, the appointment of the College of Commissioners by the member States (art. 17, para. 7 teu).231 The Parlacen has the right to elect, nominate or remove the highest officer of bodies of sica (art. 5, lett. e and lett. f Parlacen Protocol), while the eala is entitled only to recommend to the Council the appointment of its Clerk and other officers (art. 49, para. 2, lett. g eac Treaty). This power is also exercised widely by the CoE pa, which is involved in the election of several officials.232 Finally, in exercising the political oversight function some parliamentary institutions may also receive petitions from natural or legal persons on acts or omissions by any organs of the regional organization. In reality, the ­conferral of this right is almost rare at present and it characterizes only three ­parliamentary institutions established within Latin American organizations and emulating the experience of the ep: Parlandino, Parlasur and Parlacen.233 Furthermore, their effective exercise is almost uncertain; probably this relies on the fact that the citizens of member States are not fully aware of regional integration processes and their development. Presumably, they have even no cognizance of their rights under the regional organization law. or ­institution requested does not satisfy the Parlandino, the latter may decide to vote a motion of censure. 231 The 1957 Rome Treaty did not endow the ep with this power. It began informally approving the investiture of the Commission in 1981 by examining and approving its programme, but it was only when the Maastricht Treaty came into force in 1992 that its approval was required before the member States could appoint the President and members of the Commission as a collegiate body. The Amsterdam Treaty took matters further by requiring the ep’s specific approval for the appointment of the Commission President, prior to that of the other Commissioners. According to the Lisbon Treaty, the candidate for Commission President has to be chosen in accordance with the results of the European elections. The ep also gives its assent to the appointment of the members of the Executive Board of the European Central Bank (art. 283 tfue) and of the Court of Auditors (art. 286 tfeu) and it elects the European Ombudsman (art. 228 tfeu). 232 In particular, the CoE pa participates in the selection of the judges of the ECtHR, the Secretary General, the European Commissioner for Human Rights and the members of the European Committee for the Prevention of Torture. It also appoints, on the recommendation of the Committee of Ministers, the Secretary General and the Deputy Secretary General. 233 In this regard, see arts. 226–227 tfeu; art. 4, para. 10, mercosur Montevideo Protocol; art. 5 lett. (s) Parlacen Protocol; art. 127 Parlandino Rules of procedure.

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It is worth noting that the political oversight may be exercised by parliamentary institutions not only over the regional organization and its organs, but also over member States, particularly in relation to the respect for ­democracy and human rights. In this regard, the conferral of this power is justified by the political mandate of the regional organization (e.g. CoE, osce, nato, cis, etc.) and/or by the regional cultural and political context they operate in (e.g. the widespread violation of human rights and democratic ­principles characterizing many countries in Africa, as well as in the Eurasian region). Thus, both integrated parliamentary institutions (e.g. osce pa234 CoE PA, cis ipa,235 pap,236 ecowas Parliament,237 uemoa Inter-Parliamentary Committee,238 eala,239 etc.) and connected ones (e.g. pabsec,240 sadc pf,241

234 Since its establishment the osce pa has been playing a leading role in election observation in the osce area. In particular, it organized 60 missions from 1993 to 2003 and 90 from 2004 to 2015 mainly in Eastern European States. 235 The cis ipa dispatches regularly observers to the elections of national parliaments and presidents, which very often simply seal the existing manipulations and falsifications with their approval. 236 A delegation from the pap usually takes part in election monitoring missions organized by the au according to Guidelines for African Union Electoral Observations and Monitoring Missions (EX.CL/91 (v) Annex ii) in order to ensure fair election in African States. 237 The ecowas Parliament participated in observing and monitoring elections in many member States within the region, even if it does not have an expressed mandate in this regard. In particular, it participated in observing elections held in the Gambia in 2001, Burkina Faso in 2002, Guinea and Sierra Leone in May 2002 and Guinea Bissau in July 2003. Its representatives took also part in Nigerian legislative, presidential and governmental elections in 2003. 238 Pending the effective activation of the uemoa Parliament, the Inter-Parliamentary Committee is still operational. Lastly, it organized an election monitoring mission in Ivory Coast. See Comité Inter-parlementaire uemoa, Communiqué de presse, Bamako, 14 December 2016. 239 Thus, for example, the eala in conjunction with the eac Secretariat, the National Electoral Management Bodies and the National Human Rights Commissions participated in the eac observer missions to the Republic of Uganda general election in February 2016 and the Zanzibar elections in March 2016. See Report of the 34th Meeting of the Council of Ministers – EAC/CM/34/BP/2016, Arusha, 5 September 2016. 240 Members of national delegations gathered in the pabsec have often carried out reciprocal election monitoring missions. The most recent mission has taken place in September 2016 to monitor election in Kazan, Republic of Tatarstan, Russian Federation. 241 From 2012 to 2016 the sadc pf constituted at least 6 election monitoring missions to observe General Elections and Referendum in some sadc member States, such as Angola, Zimbabwe, Lesotho, Zambia, Tanzania, Namibia.

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guam pa242) often conduct election observation missions or fact-finding missions (e.g. nato, Parlandino etc.). As regards the promotion of human rights both the Parlasur in Latin America and the pap in Africa publish annual reports on their respect within the territory of member States.243 The conduct of these activities contributes to strengthen the image of parliamentary institutions as instruments for democratization. 2.1.3 Budgetary Oversight Function The oversight function may be exercised not only over the activities carried out by the regional organization and its organs, but also over its budget and the procedure for its preparation and approval. Obviously, the engagement of the parliamentary institution in budgetary affairs varies from a case to another and, in general terms, it can be assumed that its role in determining the budget is an important indicator of its weight within the regional organization. In this regard, it is worth noting that connected parliamentary institutions are not usually endowed with the power to exert any kind of control over the budget of the regional organization they are affiliated with.244 Once again, this is justified by their qualification as stand-alone bodies; so they enjoy budgetary autonomy from the regional organization.245 Differently, many integrated parliamentary institutions are entitled to take part in the procedure for preparation and approval of the budget of the organization.246 In this regard, the example of the ep is illustrative. As is known, the 242 The guam pa has engaged significantly in election monitoring missions. According to available information on its official website, since 2013 its delegations have taken part in almost six missions. 243 Furthermore, the pap may also adopt a parliamentary questions procedure which would enable the au apical intergovernmental body to undertake direct consultation with national parliaments of the member States charged with alleged violation of human rights, in order to find an appropriate solution that would rectify the situation. In this regard, see Bonolo Ramadi Dinokopila, “The Pan-African Parliament and African Union human rights actors, civil society and national human rights institutions: the importance of collaboration”, ahrlj 13 (2013): 302–323; Tsegaye Demeke, “The new Pan-African Parliament: Prospects and challenges in view of the experience of the European Parliament”, ahrlj 4 (2004): 53–73. 244 Indeed currently only the sadc pf is somehow involved in the procedure for preparation and approval of sadc budget. 245 In this regard see the experience of paeco, pabsec, aipa, guam pa, puic, seecp, nato pa. 246 Regarding integrated parliamentary institutions the budgetary oversight is not exercised by: the cei Parliamentary Dimension, the oecs Assembly, the uma Consultative Council, the accp, the repac and the igad ipu.

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1957 Rome Treaty (art. 203) conferred on it the power to propose amendments to the draft budget prepared by the European Commission. In particular, it provided that if, within a period of one month after receiving the draft budget, the ep had either stated its approval or had not transmitted an opinion to the Council, the draft budget would have been considered as finally adopted. On the contrary, if the Assembly had proposed any amendments, the draft budget so amended would have been discussed by the Council with the Commission and, where appropriate, with the other institutions concerned and would have been finally adopted by means of a qualified majority. It is worth noting that even if the ep was entitled to propose amendments, the latter would have been expressed in an opinion, namely a non-binding act. Over the years amendments to eec Treaties modified the budgetary competences of the EP.247 ­Currently, the ep co-decides on the eu budget as submitted by the European Commission in its entirety together with the Council (art. 314 tfeu). Currently, most parliamentary institutions involved in the budgetary procedure of the organization are endowed with powers which are even more ­limited than those exercised by the ep according to the aforementioned art. 203 of the 1957 Rome Treaty. Indeed, they perform simply an advisory function, that is, they may only debate and express their own recommendations about the draft budget submitted by an organ of the regional organization in charge with the task to prepare it.248 Differently, parliamentary institutions established in organizations embodying or aiming to realize the supranational model exercise the same p ­ owers originally conferred on the ep. Therefore, they can propose modifications for all expediture items.249 However, neither recommendations nor proposed emendaments are binding, so in these cases parliamentary institutions have no real possibility to decide the budget of the regional organization. 247 In 1970 a first Treaty amending certain budgetary provisions of the eec Treaties was adopted, which gave the ep some power of amending the budget. A second Treaty amending certain financial provisions of the eec Treaties was adopted in 1975 and gave the final right of approval of the budget to the ep. 248 In this regard, see art. 5, lett. (f) Arab Parliament Statute; art. 11, para. 2, pap Protocol; art. 12 para. (c) Parlandino Treaty; art. 5, lett. (v) Parlacen Protocol; Similarly the CoE pa is consulted by the Committee of Ministers on the CoE budget as a whole. In this regard see Communication from the Committee of Ministers Doc. 8080 – 21 April 1998, Enlargement of the Council of Europe: the budgetary and administrative powers of the Assembly. As regards connected parliamentary institutions see art. 8, para. 3, lett. (c) (vii) sadc pf Constitution. 249 See arts. 28–29 cemac Parliament Convention; arts. 28–29 uemoa Parliament Treaty; art. 17 ecowas Parliament Supplementary Act.

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Still, some statutory acts endow integrated parliamentary institutions with budgetary oversight powers which are objectively limited but – at the same time – which are somehow more advanced than those of the ep in 1957. This is the case, for instance, of Parlasur and Parlacen in Latin America, repac and igad ipu in Africa, as well as the Arab Parliament; they all are entitled to elabore and approve their own budget.250 Finally, at present the eala is the sole parliamentary institution endowed with budgetary powers comparable to those currently conferred on the ep by the Lisbon Treaty. Indeed, it has a full budgetary authority, insofar as it is entitled to debate and approve the draft budget of the regional organization (art. 49, para. 2, b eac Treaty). 2.1.4 Deliberative Function The deliberative function is widely exercised by parliamentary institutions in general. In this regard it is worth bearing in mind that while the eec Rome Treaty (art. 137) conferred expressly a power of deliberation (in addition to that of control) on the ep, the ecsc Treaty did not and it provided simply that it exercised supervisory powers. In general terms, the deliberative function consists in the institution’s power to adopt – at its own initiative – a statement expressing its view on a specific issue.251 Generally, this statement may concern any matter falling within the competence of the regional organization; however statutory acts of a few parliamentary institutions confer the power to deliberate only on given matters which are duly specified.252 Statements adopted in the exercise of the deliberative function usually take the form of recommendations or resolutions addressed to the organs of the regional organization, particularly to intergovernmental ones,253 and/or – less frequently – to Governments of member 250 See art. 5, lett. (w) Parlacen Protocol; art. 4, para. 20, mercosur Montevideo Protocol; art. 9 igad ipu Protocol; art. 19 repac Protocol; art. 5, lett. (j) Arab Parliament Statute. Differently, the CoE pa just prepares its own budget, which is then approved by the intergovernmental body of the organization. 251 Sometimes it is provided that parliamentary institutions may sign cooperation or technical assistance agreements with public or private bodies (in this regard see, for example, art. 4, para. 17, mercosur Montevideo Protocol; art. 12 cis ipa Convention). Furthermore they are often engaged in organizing panel discussions and seminars on specific issues; sometimes they may involve representatives of civil society, social organizations, etc. 252 In this regard see art. 6 repac Protocol; art. 3, para. 1, Benelux Parliament. 253 As regards integrated parliamentary institutions see art. 12 para. (d) Parlandino Treaty; art. 4, para. 11, mercosur Montevideo Protocol and art. 99 Parlasur Rules of procedure; art. 5, lett. (h) Parlacen Protocol; art. 5, para. 1, lett. (a) and (c) accp Agreement; art. 11,

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States.254 Even in this regard the example of the ep is explanatory, insofar as over the years it has adopted – at its own initiative – several resolutions expressing its position in relation to specific political issues255 or suggesting to the other European institutions the opportunity to act in a given area, even offering guidelines for action.256 In the exercise of their deliberative function parliamentary institutions may also address to national parliaments;257 in particular, they may be entitled to submit recommendations intended to serve as tools for harmonization of national legislations258 or even to adopt model legislative acts on different topics that national parliaments may implement on voluntary basis. The conferral of this power could be regarded as a means to circumvent the frequent hostility of national parliaments to incorporate binding acts of the regional organization. Indeed, there is a “privileged” relationship between the parliamentary institution on the one hand, and national parliaments on the other hand, resulting from the fact that members of the former are usually delegates of national parliaments. Therefore, this could make the latter more confident about the paras. 1 and 4, pap Protocol; art. 12, para. 3, uma Treaty; art. 4 lett. (a) cis ipa Convention; art. 49, para. 2, lett. (c) eac Treaty; art. 5 osce pa Madrid Document and art. 42, para. 1, osce pa Rules of procedure; art. 22 and art. 23 lett. (a) CoE Statute. As regards connected parliamentary institutions see art. 13, paras. 6–7, pabsec Rules of procedure; art. 7 guam pa Rules of procedure; art. 8, para. 3, lett. c (iii, v vi) sadc pf Constitution; art. 24, para. 3, nato pa Rules of procedure. 254 Regarding integrated parliamentary institutions see art. 6, para. 2, lett. (b) igad ipu Protocol; art. 5 lett. (a) Arab Parliament Statute. As regards connected parliamentary institutions see art. 7, para. 1, aipa Statute; art. 13, para. 7, pabsec Rules of procedure; art. 9 seecp Rules of procedure; art. 24, para. 4, nato PA Rules of procedure. 255 For example, see lastly ep Resolutions of 6 April 2017 on the situation in Belarus (2017/2647(rsp)) and on Bangladesh, including child marriages (2017/2648(rsp)). 256 For example, see lastly ep Resolution of 5 April 2017 on addressing refugee and migrant movements: the role of eu External Action (2015/2342(ini)) and ep Resolution of 14 March 2017 on minimum standards for the protection of farm rabbits (2016/2077(ini)). 257 This power is particularly conferred on connected parliamentary institutions see art. 7, para. 2, aipa Statute; art. 13, para. 7, pabsec Rules of procedure; art. 8, para. 3, lett. (c) (iv) sadc pf Constitution and rule 6, para. 4, sadc pf Rules of procedure; art. 2 and art. 9 seecp Rules of procedure; art. 24, para. 4, nato pa Rules of procedure. To less extent this power is also exercised by some integrated parliamentary institutions see particularly cis ipa, as well as the Benelux Parliament and Parlasur. 258 Sometimes recommendations addressed to national parliaments aim at contributing to the ratification of agreements adopted within the regional organization. In this regard, see for instance art. 4, lett. (d) and (e) cis ipa Convention; art. 2 seecp Rules of procedure.

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­ roposed regulation of a specific issue and more inclined to accept it. This p competence, which is innovative compared to those exercised by the ep within the deliberative function, is typical of the cis ipa in Eurasia, the Parlasur in Latin America and the sadc pf in Sub-Saharan Africa.259 In particular, the ­experience of cis ipa is explanatory insofar as the model law-making represents its main activity (art. 4, lett. c) cis ipa Convention). Model laws are legal instruments based on international, mainly European, standards adjusted to the cis context; after their adoption they are submitted to national parliaments as pattern to which they are recommended to adapt their legislation. In essence, they promote the approximation and harmonization of national laws among cis member States and meantime they also facilitate their conformity with the best practices of international and European law. Generally, the formulation of legal basis for a common economic area in the cis (particularly, legal support of the free trade zone) is the priority of model law-making in the cis ipa on the economic track.260 Finally, statements adopted by parliamentary institutions in the exercise of their deliberative function may also have no addressee. They are usually called declarations or resolutions and express the position of the institution on a relevant issue. They often have a merely hortatory nature and are strongly rethorical. It is worth noting that independently of their nomen iuris, normative acts adopted by parliamentary institutions in the performance of their deliberative function are non-binding. This means that even when they are addressed to specific recipients, the latter are neven obliged to take them into consideration. Obviously, this affects the ability of the parliamentary institution to positively influence the process of regional integration.

259 See art. 4, lett. (c) and (g) cis ipa Convention; art. 4, para. 14, mercosur Montevideo Protocol and art. 97 Parlasur Rules of procedure; art. 8, para. 3, lett. (c) (iv) sadc pf Constitution and rule 6, para. 4, sadc pf Rules of procedure. 260 The transition of cis member States to the market economy was facilitated by a number of model legislative acts, including the three parts of the Model Civil Code, the General Provisions of the Internal Revenue Code, Provisions on Investor Protection in the Trade of Securities, as well as model law on Free Economic Zones, Electronic Signature, Securities Exchange and others. For synthetic considerations about cis ipa model laws on companies, in literature, see Mikhail Krotov, “Afterword: The Inter-Parliamentary Assembly of the Commonwealth of Independent States and the 2010 cis Model Joint-Stock Companies Law”, Review of Central and East European Law 36 (2011): 497.

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2.1.5 Participation in the Decision-making Process In the performance of their powers parliamentary institutions may be involved in the decision-making process of the regional organization. In particular, they may contribute to the decision-making indirectly or even directly. In the first hypothesis, statutory acts do not endow parliamentary institutions with the power to take part in the decision-making process. Therefore, the contribution to the adoption normative acts may be realized indirectly through their deliberative function, insofar as recommendations they adopt in the exercise of this power bring to the attention of decision-making organ a particular issue on which the action of the regional organization might be desirable. As it is evident, they submit to the intergovernmental body not a formal draft normative act, but merely a document containing informal suggestions. Therefore, they can be regarded to perform a sort of legislative input, insofar as they assist intergovernmental bodies in making basic policy choices. Furthermore, parliamentary institutions may contribute indirectly to the decision-making through the establishment of formal dialogue and information exchange with decision-making bodies of the regional organization.261 Thus, for example, during the asean Summit the Heads of State and Government of member States conduct an interface with representatives of the aipa in order to discuss regional issues and matters deemed important to the interest of all asean member States. Similarly, the Standing Committee of the nato pa meets annually with both the Secretary-General and the Permanent Representatives to the North Atlantic Council to exchange views on the state of the organization and to provide the perspectives of legislators. Moreover, the view exchange may be also realized when representatives of intergovernmental bodies or the Secretary-General of the regional organization are permitted to take part in the plenary of the parliamentary institution or viceversa.262 Differently, the direct contribution to the decision-making is realized when the participation of parliamentary institutions is provided for and regulated 261 In this sense see, for instance, art. 30, para. 3, pabsec Rules of procedure; art. 16, para. 3 guam pa Rules of procedure. As regards integrated parliamentary institutions see art. 12, lett. g) Parlandino Treaty; rule 16, para. 2, cei Parliamentary Dimension Rules of procedure; art. 27 CoE Statute. 262 Thus, for instance, the Secretary General of CoE and the Minister of Foreing Affairs, who is the rotating president of the organization, can attend plenaries and have exchange with CoE pa representatives. In this regard see also art. 5, lett. m) and n) Parlacen Protocol; art. 11, para. 2, igad ipu Protocol; art. 4, para. 5, mercosur Montevideo Protocol; art. 42, para. 2, osce pa Rules of procedure. As regards connected parliamentary institution see, for example, art. 30, para. 4, pabsec Rules of procedure; art. 8, para. 3, lett. (h) (i) sadc pf Constitution.

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expressly by the statutory act (e.g. ep) or when it is desumed through a broad interpretation of provisions concerning the powers of the institution.263 The direct involvement in the decision-making process characterizes most integrated parliamentary institutions, while it is exceptional for connected ones: in this regard, we can consider just the case of the sadc pf. This reflects the reluctance of member States, which aim at preserving their sovereignty, to involve in the decision-making process institutions that are – by definition – formally autonomous from the regional organization. The direct participation in the decision-making may be realized in different manners and in diverse phases of the process. In imitation of limited participatory powers conferred on the ep by the 1957 Rome Treaties, p ­ arliamentary institutions under consideration usually take part in the decision-making process by exercising an advisory function. In other words, they are required to express their own view on a draft normative act whose final approval and adoption is under the responsibility of the intergovernmental organ. As previously stated, the opinion of the parliamentary institution can be optional or mandatory.264 In addition to the exercise of advisory power, parliamentary institutions established in regional organizations embodying or aiming to realize the supranational model are also involved in the initial stage of the decision-making process. In particular, it is possible to distinguish a pre-initiative power from a real right of legislative initiative. In the first hypothesis, parliamentary institutions are just empowered to urge the body which is formally entitled to initiate the decision-making process to submit a proposal regulating a specific issue. Thus, for instance, currently the ep as well as the uemoa, cemac Parliaments have a right to ask the Commission – which is the sole institution empowered to initiate legislation – to submit a proposal.265 Similarly, both the eala and the ecowas Parliament may by majority vote request the Council to submit any appropriate proposals on matters they consider necessary for the purpose

263 In this regard, it is worth noting that sometimes functions assigned to parliamentary ­institutions – particularly the advisory power – are regulated in general terms. So it is not easy to understand if and how their exercise is inserted into the decision-making process. 264 It is worth noting that even if the statutory act does not prescribe expressly that consultation is realized within the decision-making process, it cannot be excluded that the parliamentary institution may be required to express its opinion on a draft normative act insofar as it is provided, in general terms, that it may exercise its advisory function on any matter falling within the scope of the regional organization. 265 See art. 225 tfeu. Similarly art. 27 cemac Parliament Convention and art. 27 uemoa Parliament Treaty provide that the parliamentary institution may invite the Commission to develop or modify existing community policies or initiate new ones.

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of implementing the Treaty.266 It is worth noting that the organ entitled to initiate the decision-making process may agree or refuse to submit the proposal requested. In the second hypothesis, parliamentary institutions exercise a real power of legislative initiative. In other words, they are empowered to submit draft normative acts to intergovernmental bodies of the regional organization for consideration and final approval. This power is typical of Latin American parliamentary institutions (e.g. Parlacen, Parlandino and Parlasur).267 However, it is worth noting that the exercise of this power is just optional and, concretely, it is rarely practiced;268 this means that the decision-making procedure can be initiated even without any parliamentary proposal. Furthermore, the intergovernmental body the parliamentary proposal is submitted to is not under the obligation to legislate according to it.269 This dismisses the role played by parliamentary institutions in decision-making which is still a prerogative of intergovernmental bodies. However, the possibility to be involved in the early stage of the decision-making process makes the aforementioned African and Latin American parliamentary institutions more advanced than the ep in its original configuration. Indeed, the latter was granted a pre-initiative power only under the Maastricht Treaty. 266 See art. 59, para. 3, lett. (b) eac Treaty; art. 37 ecowas Parliament Supplementary Act. 267 See art. 5, lett. (a) and lett. (c) Parlacen Protocol; art. 12, lett. (e) Parlandino Treaty; art. 4, para. 13, Montevideo Protocol. It is worth noting that the Parlacen’s right to submit proposals also concerns draft treaties (art. 5, lett. g Parlacen Protocol). A similar right of legislative initiative is expected to be also exercised by the pap when the new the Protocol to the Constitutive Act of the African Union relating to the Pan-African Parliament will enter into force (art. 8, para. 1, lett. a) and b). 268 In light of available information, it seems that the Parlasur has submitted to the intergovernmental body only six draft normative acts concerning heterogeneous issues. See MERCOSUR/PM/S EXT/PROJ NORMA/01/09, Creación del Grupo de Trabajo Interinstitutional entre il Consejo Mercado Común y el Parlamento para implementar la profundización de las dimensiones judicial y parlamentaria del Mercosur, 30 November 2009; MERCOSUR/PM/ SEXT./PROYECTO DE NORMA N°02/2009, Publicación del estado de incorporación de las normas del Mercosur y comienzo de su vigencia, 30 November 2009; MERCOSUR/PM/SO/ PROY NORMA 03/2009, Estructuras curriculares de los sistemas educativos de los Países miembros del Mercosur, 30 November 2009; MERCOSUR/PM/SO/PROY NORMA 04/2009, Régimen Laboral del Personal de Servicio Doméstico, 30 November 2009; MERCOSUR/PM/ SO/PROY. NORMA 01/2010, Adoptar todas las medidas necesarias para garantizar la utilización de la bandera del Mercosur, 10 May 2010; MERCOSUR/PM/PN 02/2010, Protocolo constitutivo de la Corte de Justicia del Mercosur, 10 May 2010. 269 However it is provided that the Parlasur is kept informed by the Common Market Council about its proposals processing.

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Finally, parliamentary institutions may be fully associated with the legislative procedure on an equal (or quasi-equal) basis as the intergovernmental bodies. In this regard, the example of the ep is illustrative; indeed, as is known, the introduction of the co-decision procedure (now called ordinary legislative procedure) has conferred on it the role of co-legislator with the Council (art. 14, para. 1, teu); this means that they have the same weight in the decisionmaking and currently the vast majority of eu secondary law is adopted jointly by them.270 In reality, this form of participation in the decision-making process is very rare; apart from the ep, it characterizes only the eala, the ecowas Parliament and, to some extent, the Arab Parliament.271 The eala is regarded to be a legislative body, insofar as it is empowered to discuss and pass bills on all matters relating to the operationalisation of the eac Treaty. These bills can be submitted to it by one of its members or by the Council of Ministers and are adopted as Acts of the Community if they are also assented by eac Heads of State. However, unlike the ep, the eala does not have the same weight of the intergovernmental body in the decision-making. Indeed, it is only after the bills are accepted by the Heads of State that they become officially eac acts; evidently this puts limits to the eala powers. A bill which has not received assent within three months from the date on which it was passed by the eala, it is referred back to the latter with the request to reconsider it (art. 63 eac Treaty).272 If the bill is not accepted a second time by the Summit, then it lapses. A stronger power compared to that of eala has been recently conferred on the ecowas Parliament, insofar as the views on a proposal that it expresses in second reading bind the decision-making body which has to adopt them or to draw up a new proposal. In other words, the adoption of decisions by the ecowas intergovernmental body is subordinated to the mandatory assent of the Parliament (art. 14 ecowas Parliament Supplementary Act).273 270 The co-decision procedure was introduced by the Maastricht Treaty on European Union (1992); then, it was extended and made more effective by the Amsterdam Treaty (1999). With the Lisbon Treaty the renamed ordinary legislative procedure became the main legislative procedure of the eu decision-making system. 271 In light of available information there is no news about the practice of the Arab Parliament in this regard. 272 The Summit has to provide reasons for withholding assent on a bill. 273 In particular, it is provided that a draft proposal is submitted to the ecowas Parliament in order that it can express its view and/or propose amendments. If the decision-making body accepts this view and/or amendments, the act is adopted. If not, it may return the proposal to the Parliament for a second reading explaining why its previous view has not been taken into account. When the Parliament approves the proposal following a

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­ lthough this power does not have a general range, as the mandatory assent A of the ecowas Parliament is required only in areas prescribed normatively,274 it is more advanced than the merely advisory function which was originally conferred on the ep. Furthermore, similarly to the eu co-decision procedure, the provision of the mandatory assent results from a long process towards the enhancement of the ecowas Parliament’s powers which is part of a gradual evolution of interstate institutionalized cooperation towards the supranational model. A sort of legislative power seems to be conferred even on the Arab Parliament, insofar as it is empowered to express its approval on unified draft laws and on the Arab collective agreements before their endorsement from the Arab League’s Council (art. 5, lett. e Arab Parliament Statute). However due to lacking activities carried out by the las, as well as limited available information, it is not possible to make any judgment about the real exercise of this power. Finally, it is worth noting that apart from participating in the d­ ecision-making of the regional organization through the exercise of aforementioned powers, some parliamentary institutions are also significantly involved in the procedure for the conclusion of international agreements regulating specific issues. Even in this regard the experience of the ep is illustrative and it has influenced positively parliamentary institutions established in regional organizations realizing the supranational model. Thus, the statutory acts of cemac and uemoa Parliaments provide in similar terms that the adoption by the intergovernmental body of the decision concluding certain types of agreements (i.e. accession agreements and association agreements) is subordinated to the assent of the parliamentary institution. In other words, the parliamentary institution enjoys a veto, as if it rejects the draft decision, the latter is not adopted and the related agreement is not concluded. Evidently, in relation to this procedure the parliamentary institution has the same weight of the intergovernmental organ in so far the decision-making is exercised jointly by the two institutions. Generally, the assent procedure – as it is usually called – is applied only for the conclusion of international agreement covering certain specified matters.275 s­ econd reading, the draft is said to have obtained the assent of the Parliament. If – after the second reading – the Parliament maintains its position, the proposal is returned to the decision-making body which adopts the view of the Parliament or draws up a new draft. 274 Pursuant to art. 12 of the ecowas Parliament Supplementary Act, the mandatory assent of the Parliament is required in the following areas: revision of the Treaty; promotion and protection of human rights and fundamental freedoms; adoption and review of all community acts relating to ecowas economic and monetary integration policies. 275 In the eu the assent procedure is applied to: agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms;

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Even the CoE pa exercises a relevant role in the conclusion of international agreements, particularly those regulating the accession of new members. Indeed, the Committee of Ministers, before inviting a State to become a CoE member or associate member or inviting a member to withdraw has first to consult the CoE pa.276 Formally the latter is just empowered to express an opinion, which is not binding, but if it is negative, it prevents de facto the ammission of the new State. Indeed, although the Committee of Ministers could de jure make a decision contradicting the CoE pa’s opinion, experience shows that this is a purely formal possibility. In the practice since 1990 the great ­number of membership applications and the thorough monitoring procedure before and after the accession of the new member States have underlined the CoE pa’s important role in this regard.277 2.1.6 Other Tasks As mentioned in previous Chapters, within the phenomenon of institutional multipolarism some regional organizations – particularly those realizing the supranational model or aiming at its realization – are endowed with a judicial system charged with the task to ensure the respect for the regional organization law. In addition to functions described previously, parliamentary institutions established in some of these organizations (i.e. ep, Parlacen, Parlasur, cemac Parliament) have also the right to resort to the regional Court;278 even in this regard, the experience of the eu is illustrative. Indeed, in imitation of the right granted to the ep pursuant to art. 218 tfeu,279 parliamentary institutions

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agreements establishing a specific institutional framework by organising cooperation procedures; agreements with important budgetary implications for the Union; agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required. Furthermore it is used in the cases of serious breach of fundamental rights under art. 7 teu and for the accession of new members (art. 49 teu) or arrangements for the withdrawal from the eu (art. 50, para. 2, teu). Differently, the application of the assent procedure is limited to a smaller number of matters within uemoa and cemac; see art. 25 cemac Parliament Convention; art. 25 uemoa Parliament Treaty. See Statutory Resolution (51) 30 A, adopted by the Committee of Ministers on 3 May 1951. In this sense, see Beat Habegger, “Democratic accountability of international organizations: Parliamentary control within the Council of Europe and the osce and the prospects for the United Nations, Cooperation and Conflict 45 (2010): 193. This prerogative may be expressly conferred by the statutory act of the parliamentary institution and/or by the protocol establishing the court or it can be inferred by joint interpretation of various provisions. About the ep’s role in eu external relations and treaty-making, in literature see Andrea Ott, “The European Parliament’s role in eu Treaty-Making”, mj 23 (2016): 1009.

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­ nder consideration have the power to request the judicial organ to express u an opinion. However, there are differences regarding the object of this opinion. In particular, the ep may ask for the ecj’s view only on the compatibility of an international agreement with the Treaty; in this case, the ecj’s opinion is binding. Differently, the Parlacen may request the regional Court to interpret provisions of the constituent treaty and of any other source of primary and secondary law of the regional organization,280 while the Parlasur and the cemac Parliament may consult the judicial organ on any legal question falling within the regional organization law.281 As it is evident, the scope of opinions delivered by regional courts upon request of aforementioned parliamentary institutions is broader than that of ecj’s opinions under art. 218 tfeu. Maybe, such a different discipline answers the willingness to compensate the lack of locus standi in contentious cases which characterizes these parliamentary institutions and differentiates them from the ep. Indeed, the latter and – to some extent – the cemac Parliament are also empowered to initiate contentious cases before regional courts. In particular, they both have the power to bring an action to challenge the legality of a normative act of the regional organization282 and to institute proceedings against another institution for violation of treaty obligations in an action for failure to act.283 Moreover the ep may be the defending party in an action against an act adopted under the codecision procedure or when one of its acts is intended to produce legal effects vis-à-vis third parties. The empirical study of parliamentary institutions under consideration reveals that the right to resort to the regional court has been exercised rarely except for the ep and the Parlacen. However, in general terms, it can be asserted that the conferral of the aforementioned right is indicative of the growing weight that parliamentary institutions have acquired within the regional organization in view of a gradual tendency to balance the role played by intergovernmental organs. Furthermore, it is somehow justified by the cooperation model embodied or aimed for by the regional organization. 280 See art. 22, lett. (e) Central American Court Convention; art. 87 ecowas Parliament Rules of procedure. 281 See art. 13 mercosur Montevideo Protocol and art. 3, para. 1, mercosur Dispute Settlement Rules of Procedure; art. 34 cemac Court of Justice Convention. 282 See art. 263 tfeu; arts. 23–25 cemac Court of Justice Convention. It is worth bearing in mind that since the Nice Treaty the ep has no longer to demonstrate a specific interest in initiating an annulment action and it is therefore now able to institute proceedings in the same way as the Council, the European Commission and the member States. 283 See art. 265 tfeu; arts. 23–24 cemac Court of Justice Convention.

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2.1.7

The Real Impact of Activities Performed by Parliamentary Institutions Available information about the practice of parliamentary institutions under consideration284 reveals that their concrete contribution to the development of interstate institutionalized cooperation is rather heterogeneous and is strictly conditioned by the operationality of the organization itself. Thus, for instance, the substantial ineffectiveness of uma, oic and las in the ArabIslamic World, of eco in Asia-Pacific and of eccas determines the lack or low level of activities of their respective parliamentary institutions. Sometimes, provided that the regional organization is somehow o­ perational (e.g. oecs and caricom285 in Latin America and the Caribbean), the limited impact of these institutions to interstate institutionalized cooperation depends on the widespread reluctance of intergovernmental bodies to address them, above all when their consultation is optional. Thus, for instance, since its establishment the sadc pf has neven been consulted by the decision-making organs of the sadc and in light of available information there is as yet no evidence that its resolutions have influenced regional policymaking in sadc.286 Similarly, in Latin America since 2006 the mercosur decision-making body has never consulted the Parlasur on its draft normative acts, even if it was obliged to do so (art. 4, para. 12, Montevideo Protocol).287 Still, from January 2012 to December 2015 the Parlacen delivered just one illustrative opinion concerning the association agreement between the eu and the Central America pursuant to art. 5, lett. (q) of its Protocol.288 284 As regards the ecowas Parliament and the pap official information about their activities – and particularly about opinions delivered upon request of decision-making organs – are not accessible at present. Still, no consideration may be expressed on the exercise of the advisory function by the cemac Parliament as it is a young parliamentary institution; indeed it is operational since March 2014. 285 Thus, for example, the accp held its last general conference in 2000. 286 Furthermore, an analysis of sadc Summit Communiqué shows that opportunities for the sadc pf to address or to present formally recommendations to the Summit have been very few and far between. In this regards see Takawira Musavengana, The proposed sadc Parliament. Old wine in new bottles or an ideal whose time has come? (Pretoria: Institute for Security Studies, 2011), 19. 287 In this regard, it is worth noting that, due to the arbitral nature of mecosur disputes settlement mechanism, there is no legal remedy to challenge noncompliance of statutory obligation. 288 See Parlacen, Opinión consultiva previa AP/l-CCXLIV-2012 sobre el Acuerdo por el que se establece una Asociación entre la Unión Europea y Sus Estados miembros, por un lado, y Centroamérica, por otro, Guatemala, 29 November 2012. The positive view expressed by the Parlacen about the conclusion of this agreement had a significant impact on its

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Differently, parliamentary institutions tend to be more active when their regional organization is operational and concretely oriented to the attainment of statutory goals. In this sense, the experience of the ep is illustrative. Indeed, over the years its activity has assumed a great importance in some circumstances, favouring a certain stance by the Council or the European ­Commission or being the basis for the coordination of eu policies.289 Then, as regards its advisory function, it was widely exercised due to the fact that over the years the mandatory consultation of the ep by the Council was extended to a large number of matters.290 Then, a relevant contribution was offered by the ecj ruling that if the Council failed to consult the parliamentary institution when it was obliged to do so or if its decision was taken before the parliamentary institution delivered its opinion, the decision was void.291 However, it is worth noting that even if the advisory function is performed on a regular and systematic basis, it is difficult to assess how meaningful and influencial consultations are in practice.292 First of all, it is to be borne in mind that, as previously stated, opinions are not usually binding and the consulting organ is under no obligation whatsoever either to examine or to account for not giving effect to them. Thus, in order to assess their impact not only originally draft normative acts should be compared with the adopted ones, but the wording changes should be precisely attributed to the parliamentary institution. This is not an easy task because any other advisory organ or different actor may be involved in the decision-making and may contribute to change the original draft proposal. Therefore, the more complex the decision-making procedure is, the more the impact assessment is difficult. However, as regards the ep, it can be asserted that its opinions were used to be taken into ­consideration

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­ratification by member States. Indeed, for instance, this opinion served as a frame of reference for the National Assembly of Panama to pass through the law authorizing the ratification of the association agreement. In this regard, see Pocar, Lezioni, 76. Thus, before the entry into force of the Lisbon Treaty the Council was not under obligation to consult the ep when taking decisions under: art. 14, para. 3; art. 26; art. 45, para. 2; art. 49, para. 2; art. 57, para. 2; art. 80, para. 2; art. 87, para. 3; lett. e); art. 92; arts. 99–100 of the eec Treaty. ecj Judgments of 29 October 1980, case C- 138/79, sa Roquette Frères vs. Council of the European Communities, and case C-139/79, Maizena GmbH vs. Council of the European Communities. In this regard, Arndt, “Parliamentary Assemblies”, 16 argued that “[…] influence is exerted indirectly, if the parliamentarians use information gained during a consultation process to hold their government at home accountable for its actions in the decision-making body of the international organization”. This assumption can be shared.

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by the European Commission which aimed at saving good relationships in order to strengthen its position in front of the Council of Ministers.293 In addition to the ep, even the eala in the Sub-Saharan Africa and the Parlasur and Parlacen in Latin America have proved to be particularly active. In particular, at December 2015 the eala passed over 69 pieces of legislation and almost 44 were assented to by the Summit. In this regard, in order to limit the number of bills remained unassented, recently the Summit has significantly decided to assent to the bills passed by the eala and to which Heads of State had given no objection.294 In Latin America the exercise of the deliberative function has been almost fruitful. Indeed, since its establishment the Parlacen has approved a ­considerable number of resolutions concerning diverse issues related to Central American questions.295 Similarly since 2007 more than 70% of normative acts adopted by Parlasur are declarations and resolutions, which have been assessed by the mercosur decision-making bodies.296 Then, significantly, in the exercise of its power of legislative initiative the Parlasur prepared two relevant draft normative acts concerning respectively the distribution of seats among parliamentarians and the establishment of a court of justice;297 they both seem to have been duly evaluated by the intergovernmental body even if – at present – no final decisions have been taken in this regard. Regarding the European parliamentary institutions other than the ep, even the deliberative activity carried out by the CoE pa has a significant impact. Indeed, about one-fifth of acts approved by the Committee of Ministers refers to recommendations initially adopted by the CoE pa and almost 36% of all CoE ­conventions have been initiated by the CoE pa. Differently, the assessment of osce pa deliberative function is only partially positive. Indeed, sometimes its 293 In this sense see Fausto Pocar, Lezioni di diritto delle comunità europee (3rd edn Milano: Giuffrè, 1986), 87. 294 See Joint Communiqué: 17th Ordinary Summit of the East African Community Heads of State, Arusha, 2 March 2016. 295 Indeed, in light of information published on the Parlacen official website, from 2011 to 2016 it seems to have adopted more than 120 resolutions and almost 50 declarations. 296 In particular, resolutions adopted by the Parlasur over the years concerned diverse questions, from negotiations with the wto to Argentine sovereignty over the Falklands, from environmental and health issues to the establishment of new bodies or the participation of Parlasur in the negotiations with the eu. In this regard in literature see Dri and Ventura, “The Mercosur Parliament”, 79. 297 See Acuerdo Político para la consolidación del Mercosur y Proposiciones correspondientes, Asunción, 28 April 2009; Mercosur/PM/PN 02/2010, Proyecto de norma – Protocolo constitutivo del la Corte de Justicia del Mercosur.

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r­ esolutions have been taken into consideration; thus, for example, they have lead to the establishment of the Representative on Freedom of the Media and have increased attention to gender issues in the osce; more often osce intergovermental organs do not make direct reference to the osce pa documents. Regarding connected parliamentary institutions empirical studies reveal that the deliberative function has been carried out intensively by the aipa, the pabsec and the sadc pf. Indeed, since the first general conference in 1978 the aipa has passed more than 750 resolutions on issues ranging from global politics to virtually all policy fields in which asean countries engage. A closer scrutiny of these resolutions brings to the fore that, as much as they are intended to serve as policy inputs to asean, they are very general and lacking precise guidelines and technical specifications on how recognized problems could be addressed and remedied. This vagueness leaves national parliaments – to whom they are addressed – much room for interpretation on how to translate them into national law.298 However, in light of reports published by the aipa itself, the number of its resolutions implemented by national parliaments is quite high.299 So, in general terms, aipa has shown its potential to contribute significantly in the work of the three community pillars of asean contributing to speed up ratification of asean agreements and to indentify priority areas for legal harmonization.300 As regards the pabsec, since its establishment it has elaborated and passed around 145 recommendations and several declarations covering priority areas which have been usually taken into account by the obsec Council of Ministers of foreign affairs as reported in the final communiqués of their meetings.301 298 It is worth noting that aipa resolutions are often of a merely reactive nature by responding to decisions and declarations made earlier by asean bodies. 299 In this regard see among others, the 6th asean Inter-Parliamentary Assembly (aipa) Caucus – Summary Report on the Status of Implementation of the 34th aipa ­Resolution – , Bandar Seri Begawan, 17–20 June 2014; 7th aipa Caucus – Summary Report –, Siem Reap, 26–30 July 2015; 8th aipa Caucus – Summary Report -, Luang Prabang, 8–12 August 2016. 300 In this sense, see Imelda Deinla, Giving the asean Inter-Parliamentary Assembly a Voice in the asean Community, (Stockolm: international idea, 2013), 27. See also http:// en.vietnamplus.vn/aipa-contributes-to-building-asean-community/84882.vnp. 301 In particular, recommendations passed by the pabsec concerned legislative harmonisation, customs regulations, visa facilities, trade and business, avoidance of double taxation, transportation, environmental protection, refugees and displaced persons, cultural heritage, response to natural calamities and technological disasters, organized crime and terrorism, youth cooperation. In this regard see lastly BS/FM/R(2016)1, Report of the 34th meeting of the Council of Ministers of Foreign Affairs of the bsec Member States, Sochi, 1 July 2016, 11; BS/FM/R(2015)2, Report of the 33rd meeting of the Council of Ministers of

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Such an intense deliberative activity has been also carried out by the nato pa, but its impact on nato’s work is difficult to assess. 2.2 Functions of Socio-economic Institutions and Territorial Institutions For the purpose of contributing to the real achievement of goals pursued by interstate institutionalized cooperation socio-economic and territorial ­institutions are endowed with specific powers which are however limited in  comparison with those conferred on parliamentary institutions and analyzed in the p ­ revious paragraph. Indeed, as we will see below in details, they ­usually perform only advisory and deliberative functions and they often lack any expressed and formal involvement in the decision-making process. Furthermore, if some form of participation is bestowed upon them, they do not have a formal vote; therefore they may assert their ideas and exert influence in the ­decision-making via arguing rather than bargaining. As the following analysis will highlight, differences between integrated ­socio-economic and territorial institutions and connected ones are relevant in relation to functions performed. 2.2.1 Advisory Function Since the origins of the European integration process its socio-economic institutions have been endowed with an advisory function. Indeed, both the Consultative Committee under the ecsc Treaty (art. 19) and the eesc under the Rome Treaty (art. 198) had a consultative role which is now played more or less invariably by the eesc and the CoR under the Lisbon Treaty (art. 304 and art. 307 tfeu).302 Foreign Affairs of the bsec Member States, Bucarest, 11 December 2015, paras. 78–80; BS/ FM/R(2015)1, Report of the 32nd meeting of the Council of Ministers of Foreign Affairs of the bsec Member States, Chisinau, 18 June 2015, paras. 90–91; BS/FM/R(2014)1, Report of the 32nd meeting of the Council of Ministers of Foreign Affairs of the bsec Member States, Varna, 19 June 2014, paras. 80–82, etc. 302 About the eesc and the CoR in literature see, among others, Christoph Hönnige and Diana Panke, “The Committee of the Regions and the European Economic and Social Committee: How Influencial are Consultative Committees in the European Union?” jcms 51(2013): 452; Charlie Jeffery and Carolyn Rowe, “Social and Regional Interests: The Economic and Social Committee and the Committee of the Regions”, in The Institutions of the European Union, eds. John Peterson and Michael Shackleton (3 edn. Oxford: Oxford University Press, 2012), 378–380; Silvia Ricci, “The Committee of the Regions and the Challenge of European Governance”, in The Role of the Regions in eu Governance, eds. Carlo Panara and Alexander De Becker (Berlin/Heidelberg: Springer, 2011), 109; Tony Cole, “The Committee of the Regions and Subnational Representation to the European Union”, mj

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In imitation of the European experience, integrated socio-economic and territorial institutions under consideration are endowed with advisory function.303 On the contrary, this is not performed by connected ones; this data is in line with the experience of parliamentary institutions and is somehow attributable to the fact that these institutions are formally stand-alone. In exercising the advisory function socio-economic and territorial institutions are expected to deliver their own opinion upon request of other organs of the regional organization. This opinion may usually concern any issue falling within the scope of the organization and which is likely to affect essential interests of national economic, social and cultural stakeholders and/or responsibilities of local and regional authorities of member States. More generally – as prescribed, for instance, by the tfeu – socio-economic and territorial institutions may be consulted by organs entitled to do it in all cases in which they consider it appropriate.304 Obviously, in assessing this “pertinence”, they enjoy great discretion. However, some statutory acts restrict the possibility to seek advice in relation to certain matters which are expressly specified.305 12 (2005); 49; Stijn Smismans, “The European Economic and Social Committee: towards deliberative democracy via a functional assembly”, European Integration online Papers 4 (2000): 1. 303 As regards integrated socio-economic and territorial institutions in European organizations other than the eu see art. 1 efta Consultative Committee Terms of Reference; art. 2, paras. 1 and 2, CoE Congress of Local and Regional Authorities Charter. In Latin America and the Caribbean see art. 5, lett. (a) mercosur fccr Rules of Procedure; art. 2, lett. (i) mercosur fces Rules of procedure; art. 3 aladi Business Council Rules of procedure; art. 2, lett. (a) and (b) aladi Labour Council Rules of procedure; art. 11, lett. (b), cc-sica Statute; art. 16 San Salvador Treaty; art. 49, paras. 1–2, sieca Guatemala Protocol; art. 3, lett. (a) Dec. 674/07-Andean Advisory Council of Indigenous People; art. 3, lett. (a) Dec. 441/98-Andean Advisory Labour Council; art. 3, lett. (a), Dec. 442/98-Andean Advisory Business Council; art. 4, lett. (a) Dec. 585/04-Andean Advisory Council of Municipal Authorities. Regarding Sub-Saharan African socio-economic and territorial institutions see art. 7, paras. 1–2, au ecosocc Statute; art. 37, para. 1, cen-sad Revised Treaty; art. 4 Additional Act 02/2009/CCEG/UEMOA-Labour and Social Dialogue Council; art. 4 Additional Act 02/97/UEMOA-Regional Chamber of Commerce; art. 2 Regulation 12/2007/ CM/UEMOA-Regional Advisory Committee of Agricultural Field. The advisory function is also performed by the gcc Consultative Committee and the uemoa Council of Regional Authorities, while the apec-bac and the comesa Business Council do not seem to be formally endowed with it. 304 In this regard, see particularly art. 304 and art. 307 tfeu. 305 In this regard, see particularly art. 3 Regulation 12/2007/UEMOA-Regional Advisory Committee of Agricultural Field; art. 4 Additional Act 02/97/UEMOA-Regional Chamber of Commerce.

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Opinions are usually requested by intergovernmental decision-making organs of the regional organization. However some socio-economic and territorial institutions may be also consulted by other organs, such as the executive body (e.g. the European Commission,306 the uemoa Commision), the Secretary General and/or the parliamentary institution.307 In this regard, it is worth noting that strangely the uemoa Regional Chamber of Commerce and the Regional Advisory Committee of Agricultural Field may be consulted only by the uemoa Commission.308 Furthermore, it can be provided that opinions are not submitted directly to the organ requiring it, but they are delivered to it through another body which is usually the Secretary-General of the regional organization.309 This provision emphasized the subordination of the socio-economic or territorial institution to the consulting body. As is known, pursuant to the tfeu the eesc and the CoR can be ­consulted by the Council, the ep and the European Commission on voluntary basis, namely whenever they deem it appropriate. Additionally, mandatory consultation is prescribed in certain specified areas.310 A similar regulation is rare in 306 Pursuant to art. 304 and art. 307 of the tfeu, both the eesc and the CoR may be consulted by the Council, the European Commission and the ep. In this regard, it is worth noting that originally the 1957 Rome Treaty conferred the right to consult the eesc only on the Council and the Commission. Then, the Amsterdam Treaty opened up the possibility also for the eesc to be consulted by the ep. 307 In this regard, both mercosur fccr and fces Rules of procedure provide generically that opinions may be requested by the Common Market Group and the other organs of the organization. A similar wording characterizes also art. 11, lett. (b) cc-sica Statute. As regards the CAn the Andean Advisory Business Council and the Andean Advisory Labour Council may be also consulted by the Secretary General. Within the uemoa the right to seek advice of the Labour and Social Dialogue Council is conferred on the Council, the Commission and the member States, while the Council of Regional Authorities, may be also consulted by the uemoa Parliament. Finally, as regards the CoE Congress of Local and Regional Authorities, even the CoE pa may consult it (art. 2, para. 2, CoE Congress of Local and Regional Authorities Charter). 308 This might suggest that both socio-economic institutions are auxiliary bodies of the uemoa Commission. 309 In this regard see particularly art. 13 aladi Labour Council Rules of procedure; art. 12, lett. (d) aladi Business Council Rules of procedure; art. 5 Dec.585/04-Andean Advisory Council of Municipal Authorities. 310 In particular, a joint reading of Lisbon Treaty provisions reveals that decisions concerning following fields may be taken only after the Council, the Commission or the ep have consulted the eesc: agriculture, free movement of persons and services; transport, harmonisation of indirect taxation, approximation of laws for the internal market, employment, social policy, education, vocational training and youth, public health, consumer ­protection, trans-European networks, industrial policy, economic and social cohesion; research and technological development and environment. As regards the CoR the

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other socio-economic and territorial institutions under consideration; indeed it c­ haracterizes only the uemoa Regional Advisory Committee of A ­ gricultural Field in Western Africa and the ccie in the Central American integration process. In particular, the obligation for the uemoa Commission to consult the Regional Advisory Committee of Agricultural Field is limited to issues concerning the development of the agricultural field and the improvement of the production environment (art. 3 Regulation 12/2007/CM/UEMOA). A similar obligation seems to fall on the sieca Council of Ministers, insofar as it is ­provided that the ccie shall be consulted whenever a regulation is to be adopted (art. 5, para. 3, sieca Guatemala Protocol); in this case consultation concerns exclusively economic and trade issues consistent with the mandate of sieca. Unlike the eu experience, statutory acts of most socio-economic and territorial institutions under consideration provide for optional consultation. This means that intergovernmental organs and any other body entitled to consult them are free to decide if requesting their view on a specific issue or not. As regards procedural aspects, generally statutory acts and/or rules of procedure usually lack any provision prescribing expressly a time within which opinions have to be delivered. Even in this regard the eu experience constitutes an exception insofar as art. 304, para. 2, and art. 307, para. 2, of the tfeu provide that when the ep, the Council or the Commission consult the eesc or the CoR, they may set a time limit (of at least one month), after which the absence of an opinion cannot prevent them from taking further action. Finally, it is worth noting that, whether on a mandatory or voluntary basis, opinions delivered by socio-economic and territorial institutions are not binding; this means that bodies requiring them are not under the obligation to take them into consideration. Moreover, they are not even obliged to give any feedback on them. In essence, the ability of these bodies to effectively influence the development of the regional organization depends on the willingness of the decision-making bodies to conform to their opinions. 2.2.2 Deliberative Function The comparative analysis reveals that, except for a few cases,311 socio-­ economic and territorial institutions are usually endowed with the d­ eliberative c­ onsultation is mandatory on matters related to employment, environment, education, vocational training, culture, public health, European networks, structural funds and social policy. 311 In particular, it seems that neither the gcc Consultative Committee nor the uemoa Regional Advisory Committee of Agricultural Field may express their opinion on a specific question at their own initiative.

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function,312 thus confirming the analogous trend observed in the study of parliamentary institutions. As previously stated, this function consists in ­expressing – at their own initiative – their view about issues related to the integration process and affecting interests of social, economic, cultural categories of member States or responsibilities of local authorities they represent at the regional level. In this regard, it is worth noting that institutions under consideration can be regarded as more advanced than the socio-economic bodies operating within the European integration process at its inception. Indeed, neither the ecsc Treaty nor the 1957 Rome Treaty endowed respectively the Consultative Committee and the eesc with the deliberative function. Therefore, the current right conferred on the eesc to draft own initiative opinions in areas of concern that are not covered by the list of policy fields for mandatory consultation (art. 304 tfeu) results from the gradual enhancement of its powers; it proves the eu member States’ stronger awareness of its functional role to attain effectively statutory goals.313 Currently, around a third of opinions that the eesc and the CoR produce a year are own-initiative opinions. Generally, deliberations rendered in the exercise of this function take the form of recommendations suggesting priority areas for interstate institutionalized cooperation and they are usually addressed to the decision-making bodies of the regional organization for consideration. As regards this relationship between the intergovernmental body on the one hand, and the socio-­economic 312 Apart from the CoR and the eesc, see CoE Congress of Local and Regional Authorities (art. 2, paras. 4–5, CoE Congress Charter); efta Consultative Committee (art. 1 Terms of Reference) in Europe. In Sub-Saharan Africa see au ecosocc (art. 7, para. 3, Statute); comesa Business Council (art. 3, lett. c) and (e) and art. 7, para. 4, lett. (c) Constitution); uemoa Labour and Social Dialogue Council (art. 4 Additional Act 02/2009/CCEG/­UEMOA) and Regional Chamber of Commerce (art. 4 Additional Act 02/97/UEMOA). In ­Latin America and the Caribbean see Andean Advisory Labour Council (art. 2, lett. a Rules of procedure), Andean Advisory Business Council (art. 2, lett. a Rules of procedure), A ­ ndean Advisory Council of Indigenous People (art. 3 lett. a Dec. 674/07) and Andean Advisory Council of Municipal Authorities (art. 4, lett. a Dec. 585/04); mercosur fces (art. 2, lett. I Rules of procedure) and mercosur fccr (art. 5, lett. a and b Rules of procedure); ccie (art. 49, para. 2, sieca Guatemala Protocol) and cc-sica (art. 11, lett. a, Statute). As regards connected socio-economic institutions see art. 2, lett. (c) saarc cci Amended Constitution. The deliberative power is also exercised by: apec-bac aseanbac, bsec Business Council, guam Business Council, sco Business Council, eco-cci, iccia, as well as by the uemoa Council of Regional Authorities. 313 In particular, this right was granted to the CoR on its establishment (art. 307, para. 4, TFEU, while the eesc obtained the power to draft own-initiative opinions informally since the 1972 Paris Summit and formally since the Maastricht Treaty.

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or territorial institution on the other hand, it is possible to distinguish two hypotheses. The first one is realized when there is not a face-to-face dialogue, but the relationship between two institutions – which is duly regulated – consists in a formal documents-exchange (e.g. opinions, etc.). This inter-organic relation is typical of the eu, as well as most integrated socio-economic and territorial institutions due to their being formally part of the institutional structure of the regional organization.314 On the contrary, connected institutions under consideration tends to realize a different relationship with the intergovernmental branch. Indeed, it is based on a face-to-face dialogue taking place regularly in occasion of ad hoc meetings. In this regard the practices of asean-bac and apec-bac are illustrative, insofar as in occasion of annual dialogue meetings they submit to the Leaders of their regional organizations one or more documents gathering several recommendations in order to advise them on business sector priorities and concern. Unlike the general trend to imitate more or less accurately the eu model, the deliberative power has assumed autonomous connotations as regards ­socio-economic and territorial institutions operating outside Europe. This proves that their establishment is not merely the result of an imitative approach, but it reflects the real awareness of member States about their functionality to the effective achievement of the regional organization’s goals. Thus, some socio-economic and territorial institutions are endowed with the power to adopt also own-initiative recommendations addressed to the regional organization’s member States aiming at the approximation of national legislations in certain matters. Thus, for example, it is provided that the Andean Advisory Labour Council may “proponer la adopción de disposiciones sobre la armonización de las políticas socio-laborales en los Países miembros de la Comunidad Andino” (art. 2, lett. d, Rules of procedure), as well as the m ­ ercosur fccr may “proponer medidas destinadas a la coordinación de políticas para promover el bienestar y mejorar la calidad de vida de los habitantes de los Municipios, ­Estados Federados, Provincias y Departamentos de la región” (art. 5, lett. d, Rules of procedure). Sometimes, recommendations may be addressed directly to national parliaments; in this regard, the experience of the sco Business Council is illustrative, insofar as it has the power to prepare new draft laws at its own initiative to be proposed to national legislatures for examination. Moreover, distancing from the eu model, many socio-economic and territorial institutions have the power to formulate proposals or suggest initiatives 314 Sometimes the chairperson of the socio-economic institution and/or the one of the territorial institution are invited to take part in meetings of the intergovernmental bodies.

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and projects at their own initiative for the development of interstate cooperation in specific fields within their competences.315 Thus, for instance, the guam Business Council may elaborate proposals on development of cooperation in the fields of transportation and energy, on activation of new economic ties or intesification of already existing ones among guam member States, on improvement of national legislation of guam member States in the economic field, while the eco cci is entitled to propose due initiatives and projects for development of trade and industrial relations among eco member States. Still, consistent with the pragmatic approach underlying the iora interstate cooperation, the iorbf and the iorag have the power to formulate policy and project recommendations to intergovernmental bodies (art. 5, lett. c, (ii) (iii) iora Revised Charter). Similarly, it is provided that the CoE Congress of local and regional authorities may submit proposals to the Committee of Ministers in order to promote local and regional democracy (art. 2, para. 1, lett. b Congress Charter). It is worth noting that socio-economic and territorial institutions do not submit to intergovernmental organs a formal draft normative act but, rather, an informal document containing detailed recommendations on specific initiatives, projects, etc. Therefore, although it cannot be stated that they have a real power of legislative initiative, they carry out a “stimulus” towards decisionmaking bodies. Furthermore, they may exercise this activity at their initiative – whenever they deem it appropriate – and the addressees of their proposals and suggestions are not under the obligation to take them into consideration. It is here worth noting that – independently of their nomen iuris – any act adopted in the exercise of deliberative powers have no binding nature. In this regard, they are similar to opinions delivered in the performance of the advisory function. Finally, acts adopted by socio-economic and territorial institutions in the exercise of their deliberative function may also have no specified addressees. These statements – which can be called variously (e.g. declarations, resolutions, etc.) – usually express the position of the institution in relation to a certain issue or an event concerning interstate institutionalized cooperation. In essence, they have simply a declaratory nature. Sometimes, they may also take 315 See particularly art. 11, lett. (a) cc-sica Statute; art. 4, lett. (b) Dec. 585/04- Andean Advisory Council of Municipal Authorities; art. 3, lett. (b) Res. 97/88-aladi Business Council; art. 2, lett. (f) Andean Advisory Business Council Rules of procedure; art. 5, lett. d) mercosur fccr Rules of procedure; art. 2, lett. iv) mercosur fces Rules of procedure. As regards connected socio-economic institutions see art. 7, paras. 1–3, guam Business Council Agreement.

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the form of illustrative reports of a specific issue or a given situation. Thus, for instance, the sco Business Council provides regularly experts’ evaluations of the most promising activities that could promote closer involvement of the business communities in trade, economic and investment cooperation within the sco. Consistent with the CoE’s scope, the Congress of Local and Regional Authorities prepares on a regular basis country-by-country reports on the situation of local and regional democracy in all CoE member States and in States which have applied to join the organization (art. 2, para. 3, Congress Charter). 2.2.3 Participation in the Decision-making Process Unlike the eu Treaties, statutory acts of regional organizations usually lack provisions governing in detail the decision-making process; rather, they define merely which organ is charged with the task to adopt the final act. Additionally, as previously stated, statutory acts of socio-economic and territorial institutions under consideration usually regulate functions conferred upon them in general terms. Particularly they do not explain how and to what extent these institutions take part in the decision-making and, if so, in which phase they can intervene. Thus, for instance, art. 7, para. 1, of the au ecosocc Statute provides enigmatically that the ecosocc shall “contribute, through advice, to the effective translation of the objectives, principles and policies of the Union into concrete programmes, as well as the evaluation of these programmes”.316 However it is not clear if it may express only an exploratory opinion on an issue (namely before the draft programme is prepared), thus simply contributing to define a basic policy choice, or if it may also be consulted on a draft normative act before its final adoption, thus contributing to the definition of its content. In light of these considerations and taking into account the analysis carried out in previous sub-paragraphs, it can be assumed that most socio-economic and territorial institutions endowed with advisory powers may participate in the decision-making process in exercising this function. Indeed, insofar as it is provided generically that they may give opinions on any issues related to the regional integration process and falling within their areas of competence, one can abstractly think that they can be requested to express their view even about a draft normative act. Obviously, this form of participation is never systematic nor mandatory and it depends on the willingness of the intergovernmental decision-making body requiring the opinion. 316 For an analytical description of the au ecosocc in literature see Mohamed Sameh Amr, “The Economic, Social and Cultural Council of the African Union”, in The African Union: legal and institutional framework, eds. Abdulqawi Yusuf and Fasah Ouguergouz (Leiden/ Boston: Martinus Nijhoff, 2012), 159.

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In contrast with the aforementioned general trend but in imitation of the eu experience,317 a few statutory acts regulate expressly the participation of socioeconomic and territorial institutions in the decision-making process through the exercise of the advisory function. Thus, for example, the Guatemala Protocol regulates expressly the direct participation of the ccie in the d­ ecision-making process providing that regulations shall have general application, be binding in their entirety and directly applicable in all member States and that in the process of their adoption the ccie shall be consulted (art. 55, para. 3).318 It is worth noting that, unlike the European experience, within the sieca the mandatory consultation of its socio-economic institution is limited to a specific kind of secondary act, namely regulations. This is particularly ­significant, insofar as the involvement of representatives of civil society is prescribed for the adoption of sole normative acts which are immediate applicable in domestic law systems and, therefore, which address directly to the individuals of member States. The possibility to take part directly in the decision-making process is also expressly provided for by the Andean Advisory Business Council Rules of procedure (art. 3, para. 2) which explain that opinions delivered by the Council consist in its views on activities and programs of the integration process or on draft decisions.319 Finally, it can be asserted that even the advisory function of the aladi Business Council is performed within the decision-making process, insofar as it is provided that it has to advise the aladi Committee of Representatives in 317 As is known, pursuant to the Lisbon Treaty both the eesc and the CoR may or must be required to express their own opinion on a proposal drafted by the European Commission before the ep and the Council decide on its adoption. Furthermore, both the eesc and the CoR may be also consulted on an exploratory basis before the Commission has even drafted its proposals; this enables various components of organized civil society and/or local and regional authorities to express their expectations, concerns and needs in the very early stage of the decision-making process. About the contribution of the eesc and the CoR to the eu decision-making from a politological perspective see Diana Panke, Christoph Hönnige and Julia Gollub, Consultative Committees in the European Union. No vote – No Influence? (Colchester: ecpr Press, 2015); Gloria Pirzio Ammassari, “The role of local government bodies in European policy-making”, irs 20(2010): 445. 318 An equal wording characterizes art. 31, para. 2, of the Rules on sieca Ministerial Councils. Differently, a similar provision is contained neither in Rules governing the adoption of sica normative acts approved in 2005 and in 2013. 319 Even if a similar provision is not contained in statutory acts either of the Andean Advisory Labour Council or of Andean Advisory Council of Municipal Authorities, as well as of Andean Advisory Council of Indigenous People, it can be supposed that they all are able to participate in the decision-making in similar capacity, due to strict analogy of their functions and functioning.

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formulating policies to enhance the integration process (art. 2, lett. c Rules of procedure). Even if the direct involvement in the decision-making procedure of the regional organization is not expressly provided for or it cannot be deduced by a broad interpretation of provisions regulating the advisory function, the possibility for socio-economic and territorial institutions to influence positively the decision-making is not excluded at all. Rather, it can be realized in an indirect way. Indeed, in the exercise of their deliberative power they may submit to the decision-making bodies own-initiative recommendations, proposals, etc. on how to regulate a specific issue. In this case, they do not prepare a formal draft normative act to be considered and possibly adopted by intergovernmental organ. Rather, the involvement in the decision-making process consists merely in informal suggestions which, if taken duly into account, can influence the drafting of normative acts. In this regard, there is the positive example of the apecbac whose recommendations have been essential tools for the advancement of many key apec initiatives, such as the apec Business Travel Card, the Free trade area of the Asia-Pacific, the Supply connectivity framework, the Policy partnership on food security, the Asia-Pacific Infrastructure Partnership, etc.320 Furthermore, it is worth noting that socio-economic and territorial institutions may also contribute indirectly to the decision-making through ­information and expertise exchange during dialogue meetings or through the participation of their representatives in summits of intergovernmental ­organs.321 In this regard, the experience of oecd tuac is illustrative.322 ­Indeed the nuts and bolts of oecd policy-making work take place in specialized committees or working groups, in which experts from the secretariat and member governments discuss policy issues. tuac works with those c­ ommittees or working groups dealing with i­ssues that are relevant to trade unions; in 320 In this sense see abac Annual Reports to apec Leaders published on the official website of apec bac accessed December 15, 2016. http://apec.org/Groups/Other-Groups/APEC -Business-Advisory-Council.aspx. 321 In this regard see particularly art. 2, lett. (b) and (c) Andean Advisory Labour Council Rules of procedure; art. 2, lett. (b) and (c) Andean Advisory Business Council Rules of procedure; art. 3, lett. (b) and (c) Dec.674/07-Andean Advisory Council of Indigenous People. 322 For interesting consideration about the participation of socio-economic institutions in the oecd decision-making, in literature see particularly Hervé Ascensio, “Les normes produites à l’OCDE et les formes de normativité”, in Le pouvoir normatif de l’OCDE, ed. Societé Française de Droit International (Paris: Pedone, 2014), 7. See also Richard Woodward, “Towards Complex Multilateralism? Civil Society and the Organization for Economic Cooperation and Development”, in The oecd and Transnational Governance, eds. Rianne Mahon and Stephen McBride (Vancouver: ubc Press, 2008), 91.

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e­ ssence, it either participates directly as an observer or alternatively provides inputs through regular ­consultations. When the oecd holds ministerial level meetins on specific policy topics, consultations with tuac are built into the process. tuac submits a statement to the ministers and is invited to discuss issues on the ministerial agenda. 2.2.4 Other Tasks In addition to functions described in previous sub-paragraphs, socio-­economic and territorial institutions under consideration may also have other significant tasks. Thus, some of them are involved somehow in the descendant phase of the decision-making process. In particular, they have the task to promote and/or to monitor the implementation of programmes and decisions adopted at the regional level in member States’ law systems.323 Even if this task is not ­expressly conferred on socio-economic and territorial institutions, they may contribute de facto to the implementation of the regional organization’s ­legislation insofar as they provide an extended information mechanism which ­promotes not only the dialogue between governments and business ­stakeholders/local authorities, but also a greater awareness of the integration process and reasons underlying its actions at the national level. Moreover, many socio-economic and territorial institutions are usually ­engaged in organizing seminars or conferences in order to attract the interest of decision-making organs on certain issues and even to contribute to the formation of common ideas among economic and social stakeholders or local and regional authorities coming from diverse member States. Still, they often conduct studies and researches on certain topics and relevant phenomena which can be used by intergovernmental decision-making bodies of the regional ­organization as technical basis to prepare draft normative acts aswering the real need of member States. Finally, it is worth noting that in cases where the regional organization has its own judicial system, socio-economic and territorial institutions may also have the right to resort to regional judges. In reality, the conferral of such a prerogative is almost rare and currently it characterizes only the CoR and socio-economic institutions established within the Central American integration process (cc-sica, ccie, ccis). As regards the CoR, the Lisbon Treaty has 323 Apart from the CoR which has to monitor the implementation of new eu legislation at regional and local level, a similar power is expressly conferred on the guam Business Council, the sco Business Council and the iorbf. In this regard see also art. 3, lett. b), comesa Business Council Constitution; art. 2, lett. iii) mercosur fces Rules of procedure; art. 5, lett. (c) mercosur fccr Rules of procedure.

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given it the right to challenge eu legislative acts in the ecj if it deems that the eu institutions have not respected its right to consultation (art. 263, para. 3, tfeu)324 or if it believes that these acts infringe the principle of subsidiarity (art. 8 Protocol n. 2 to the Lisbon Treaty).325 Obviously the first condition to be fulfilled for the CoR to bring an action for annulment against an eu legislative act is that the latter must fall within an area in which the CoR’s consultation is mandatory. Furthermore, the action must be instituted within two months of the publication of act to be challenged, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. Unlike the CoR, the cc-sica, ccie and ccis cannot bring contentious action before the Central American Court of Justice; rather, they may request it to rule – in its advisory capacity – on the interpretation and application of the sica Tegucigalpa Protocol and of any other source of primary and secondary law of sica (art. 22, lett. e, Central American Court of Justice Convention). Opinions delivered by the Court are binding (art. 24 Central American Court of Justice Convention). 2.2.5

The Real Impact of Activities Performed by Socio-economic Institutions and Territorial Ones The assessment of the real exercise of aforementioned functions by socioeconomic and territorial institutions under consideration runs into the same difficulties discussed for parliamentary institutions with reference to finding official documents about their work. However, empirical studies based on available information reveal the existence of a heterogeneous practice and, as previously stated, activities really performed by each institution is strictly dependent on the effective operativeness of its regional organization.

324 Pursuant to art. 263 tfeu the CoR can challenge legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the ep and of the European Council intended to produce legal effects vis-à-vis third parties. However – unlike the eu member States, the ep, the Council and the European Commission – the CoR is one of the so-called “semiprivileged” applicants insofar as it may challenge an eu normative act only for the purpose of protecting its prerogatives. 325 It is worth noting that even though Protocol n. 2 to the Lisbon Treaty concerns the application of both the principles of subsidiarity and proportionality, the right to bring an action for annulment enshrined in art. 8 of that protocol only refers explicitly to the principle of subsidiarity (and not that of proportionality).

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In particular, regarding the advisory power consultation of socio-economic and territorial institutions does not seem to be very frequent.326 This results from the joint verification that neither the preamble of normative acts adopted by the regional organization usually make reference to the consultation of socio-economic and territorial institutions, nor the latter’s opinions or recommendations usually indicate that they are delivered upon request of another organ. In contrast with this general trend, both the eesc and the CoR have proved to be very active. Indeed, over the years the number of opinions they have produced according to mandatory and optional consultation procedures has substantially increased.327 In particular, from 2010 to 2015 most of the eesc opinions were adopted on referral of the ep.328 Similarly, in Central America – pursuant to art. 55, para. 3, of the Guatemala Protocol providing for mandatory consultation of the ccie – resolutions adopting regulations in commercial field have been regularly approved by the sieca Council of Ministers following the opinion of the committee.329 This proves the strong confidence of the intergovernmental body in the functional role of the socio-economic institution to the attainment of statutory goals. The deliberative function is certainly exercised more widely than the advisory one. However, even in this regard it is very difficult to assess the real 326 According to information published on its official website, it seems that since its establishment the cc-sica has delivered only one opinion upon request of the Executive Committee. See Dictamen del cc-sica, Pronunciamiento acerca de la Reforma institicional del sica, 1 February 2014. 327 Empirical studies reveal that from 1994 at present the number of the opinions the CoR has produced according to the optional consultation procedure has increased. In this regard, in literature see Ekaterina Domorenok, “The Committee of the Regions: in Search of Identity”, Regional and Federal Studies 19 (2009): 143. 328 In particular, from 2010 to 2012 the number of opinions delivered on referall of the ep was increasing, then it started to decrease. See The eesc from the Inside Out – 2015 Annual activity report. Accessed January 23, 2017. http://www.eesc.europa.eu/?i=portal .en.publications.40141. 329 In particular, only 7 out of 45 normative acts approved over the 2014–2016 period required the consultation of the ccie. See Resolución N. 368–2015 (comieco–lxxiii); ­Resolución N. 366–2015 (comieco–lxxiii); Resolución N. 365–2015 (comieco–lxxiii); Resolución N. 363–2015 (comieco–lxxiii); Resolución N. 353–2014 (comieco–lxix); Resolución N. 346–2014 (comieco–lxviii); Resolución N. 339–2014 (comieco–lxvii). In literature, about the socio-economic institutions operating within the Central American integration process see Francisco Santos Carrillo, “De la legitimación a la participación. El Comité Consutivo del Sistema de Integración Regional Centroamericano (cc-sica)”, Pensamiento Proprio 29 (2009): 55; Francisco Santos Carrillo, “El rol”.

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contribution of own-initiative recommendations or opinions on the development of interstate institutionalized cooperation, namely their ability to shape intergovernmental decision-making organs’ positions, insofar as they are not compulsory for their addressees. Frequently in the final statements of their meetings decision-making bodies express their satisfaction for and support to deliberations held by socio-economic and/or territorial institutions. Thus, for example, the iora Council of Ministers usually welcomes recommendations by the iorbf and the iorag and thanks for them.330 Similar expressions of satisfaction are also usually present in reports of the bsec Council of Ministers meetings in relation to the Business Council’s recommendations about simplification customs procedures and visa formalities,331 as well as in asean Leaders’ declarations332 and in the final communiqués of comesa Authority with reference to the Business Council.333 In reality, these are merely rhetorical declarations proving that the decision-making bodies are aware of the work done by socio-economic and territorial institutions, but they do not mean that their content is really taken into account. Thus, for example, according to the annual reports to asean Leaders, the latter have considered and implemented only partially the wide range of policy and practical recommendations formulated by the asean-bac in last years.334 Differently, according to documents published on the gcc’s website, since 1998 all recommendations on different topics (e.g. employement of national labor force and facilitation of their ­intra-GCC movement; energy and environment, water strategies, scientific and tecnica reserach, etc.) delivered by the gcc Consultative Committee have 330 In this regard, see lastly 16th iora Council of Ministers Meeting – Bali Communiqué, 27 Octover 2016; 15th iora Council of Ministers Meeting – Pandang Communiqué, 23 October 2015; 14th iora Council of Ministers Meeting, Perth Communiqué, 9 October 2014; etc. 331 In statements adopted until 2012, at the conclusion of their meeting, the bsec Council of Ministers usually asserted to have taken note of the bsec Business Council’s recommendations and expressed its appreciation for the its contribution in creating a favorable business environment in the bsec region. However it seems that in recent years the bsec Business Council has not been operative due to the lack of financial contribution by member States. In this regard, see BS/FM/R(2015)1, paras. 92–93. 332 See, for instance, 28th and 29th asean Summit – Chairman’s Statement, Vientiane, 6–7 August 2016, para. 57; 27th asean Summit – Chairman’s Statement, Kuala Lumpur, 21 November 2015, para. 55; 22nd asean Summit – Chairman’s Statement, Bandar Seri Begawan, 24–25 April 2013, para. 34. 333 In this regard, see lastly Communiqué of the 19th Summit of the comesa Authority of Heads of State and Government (Antananarivo, 18–19 October 2016), 8. 334 See particularly, asean-bac Report to asean Leaders, April 2015, 19; asean-bac Report to asean Leaders, November 2015.

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been adopted by the Supreme Council.335 This seems to prove the positive impact of the socio-economic institution on the development of the regional organization. In general terms, as previously stated in regard of parliamentary institutions, it is not easy to evaluate the impact of the work carried out by socio-economic and territorial institutions within the decision-making process. Aside from the aforementioned rhetorical expressions of appreciation for their activities performed or the formal indication – if any – that they have been duly consulted, it is extremely complex to assess the ability of socio-­economic and territorial institutions to shape effectively the content of a positions or a policy outcome in line with their own opinions. First of all, this depends on the aforementioned difficulty in finding official information about activities really performed by these institutions and/or their related organizations.336 ­Secondly, even when this information is available, assessing the impact of opinions delivered is rather problematic, because not only original proposals must be compared with the adopted ones, but the wording changes must be precisely attributed to the socio-economic or the territorial institution.337 So, the more the decision-making procedure is complex, the more the impact assessment is difficult. Thus, for instance, given that during the decision-making process the European Commission usually consults a multitude of actors, inputs provided by the CoR and the EESC cannot always be clearly traced. Instead, a more promising way to evaluate the impact of socio-economic and territorial institutions may be an assessment of a long-term effect of their presence within the regional organization and an appraisal of their general influence, going beyond single decisions, in their priority areas. In this sense, the analysis carried out in previous sub-paragraphs provide a heterogeneous framework. In general, the impact of some socio-economic and territorial institutions is uncertain and little evident. However, some other institutions (e.g. for example, apec-bac, asean-bac, gcc Consultative Committee, as well as eesc and CoR) have proved to contribute positively to the development of interstate institutionalized cooperation. In particular, regarding the eesc and the CoR, empirical studies – also based on their annual impact ­reports – show 335 In this sense see gcc Secretariat-General (Division of Information Affairs), gcc Process and Achievements, 2014, 8th Edition, 277–281. 336 This is particularly the case of socio-economic and territorial institutions operating within some regional organizations in Sub-Saharan Africa and the Arab-Islamic World, as well as in Asia-Pacific and Eurasia. 337 In this sense, see Thomas Christiansen and Pamela Lintner, “The Committee of the Regions after 10 years: Lessons from the Past and Challenges for the Future”, eipascope 1 (2005): 10.

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that both consultative committees have an increasing influence on decisionmaking, both on the position of the European Commission, the ep and the Council and on the final policy outcome.338 In particular, in 2014 and 2015 many of the points put forward by the CoR were taken up by the eu decisionmaking bodies339 and it contributed above all to budgetary issues, rebuilding citizen’s trust in the European integration project, the fourth railway package, the process of modernising the state aid mechanism for rescuing and restructuring firms in difficulty, the circular economy package, information provision and promotion measures for agriculture products on the internal market and in third countries and enhanced cooperation between public employement services.340 However, almost 40% of their opinions is still ignored. As regards the eesc a report on the impact of its work over the 2002–2006 period makes clear that it added substantial and wide ranging value both to the decisionmaking process within the European institutions and to organized civil society for which it provides an institutional framework. In 2005 over 80% of its opinions submitted to the Commission contained at least one comment that was taken up and which may be considered to have brought about specific changes to the eu activity.341 In light of data reported in the eesc’s annual activity

338 In particular, it seems that opinions are taken into account more often if the EESC and the CoR deliver them early in the formal decision-making process, as well as if the addressee believes that the committee has high expertise on a certain suject matter. Likewise, their influence is limited if they delay their recommendation. In this sense, in literature see Hönnige and Panke, “The Committee of the Regions”, 452. 339 In general, according to empirical studies, the European Commission seemed to follow the CoR particularly in areas where one could expect it to actually possess additional and substantive expertise, as is the case with structural funds, small and medium-sized undertakings and transport affecting local and regional authorities. In this regard, see Christiansen and Lintner, “The Committee of the Regions”, 10. For an assessment of the impact of the CoR’s opinions in the first years of its activity see Martyn Farrows and Rosarie McCarthy, “Opinions formulation and impact in the committee of the regions”, Regional and Federal Studies 7 (1997): 26; Naomi Roht-Arriaza, “The Committee of the Regions and the Role of Regional Governments in the European Union”, Hastings iclr 20 (1997): 413. 340 Obviously, sometimes the CoR’s opinion has an important impact as several points are incorporated into the final text of normative acts. In other cases, merely the message conveyed by the opinion is taken up by the European Commission. For a general overview see Annual Impact Report 2014, CoR-2015-03204-03-00-NB-REF; Annual Impact Report 2013, CoR-02183-03-00-NB-REF; Annual Impact Report 2012, CoR3842-2013_00_00_REF_NB; Annual Impact Report 2011, CoR 778/2012. 341 About the impact of the eesc, see http://www.eesc.europa.eu/resources/docs/eesc -2008-002-en.pdf (accessed February 1, 2017). In this sense see also Jeffery and Rowe, ­“Social and Regional Interests”, 378–380.

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­reports similar percentages of success are also confirmed in recent years,342 thus proving to be an active and committed partner of the other eu ­institutions in rebuilding bridges between citizens and the E ­ uropean integration process, as well as in translating eu policy objectives into specific ­measures that serve the general interest. 3

Normative Acts of Institutions Representing Non-governmental Interests

The empirical analysis of functions has revealed the existence of a significant variety of normative acts that non-governmental institutions under consideration can adopt in the exercise of their own powers (e.g. resolutions, recommendations, opinions, declarations, etc.). However, despite this nominal difference, these normative acts have common features. Before analyzing them in detail, two preliminary considerations can be significantly expressed. First of all, as previously stated, irrespective of their nomen iuris, there are no substantial differences between acts adopted by integrated institutions and those by connected ones. This means that their legal nature does not depend on the different legal nature of constituent instruments of institutions under consideration. Still, acts adopted by parliamentary institutions do not differ substantially from those of socio-economic and territorial ones; this means that independently from the fact that the former are usually regarded as “principal organs” while the second may be qualified as “subdisiary organs”, they are able to equally influence interstate institutionalized cooperation in relation to normative instruments at their disposal. Furthermore, there is no correlation between legal features of these acts and the cooperation model embodied by the regional organization the institution is integrated in or affiliated with, and generally normative acts adopted by non-governmental institutions are characterized by non-bindingness. In reality, this peculiarity is not surprising, rather it is absolutely consistent with the general practice of international organizations. Indeed, as noted by scholars, the recommendation – which is not binding – is the classical normative tool of ­international organizations.343 Secondly, according to the 342 See particularly eesc from the Inside out – Annual Activity Report – 2015, June 2016; eesc from the Inside out – Annual Activity Report – 2014, June 2015; eesc Annual Activity Report 2013, Final – June 2013. 343 In this sense, see particularly Klabbers, An introduction, 201; Lagrange and Sorel (eds.), Droit, 749; Schermers and Blokker, International, 766; Draetta, Principi, 164. In the same

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­traditional o­ rientation, normative acts adopted by institutions representing non-governmental interests form part of the normative production of the regional organization, whether they are autonomous or instrumental in approving final acts by intergovernmental bodies. In other words, they are regarded as normative acts of the organization. However, in light of studies carried out in previous paragraphs, this assertion can be shared only partially. In particular, it is real if we refer to normative acts adopted by integrated institutions, insofar as the latter are formally part of the institutional structure of the regional organization; so normative acts attributed to them integrate the secondary sources of the law of regional organization. On the contrary, a similar assertion cannot be valid for normative acts of connected institutions due to the latter’s legal nature. Indeed, as previously stated, even if they are affiliated with the regional organization, they are formally stand-alone and alien to its institutional structure. So, it can be assumed that the autonomy of connected institutions is also reflected on their normative production which, therefore, lies outside the legal order of the regional organization, although it can be addressed to its organs. However, an in-depth study both of basic legal instruments and the practice reveals that normative acts adopted by institutions representing non-­ governmental interests can be classified according to general categories ­traditionally elaborated by scholars with reference to the acts of international organizations.344 In particular, they can be categorized on the basis of their addressees and, consequently, of the legal scope they deploy their effect in. Thus, they can be distinguished in: (1) internal normative acts which produce their legal effects within the institution adopting it or – more in general – ­within the internal sphere of the regional organization itself;345 and (2) external acts sense see also Markus Benzing, “International Organizations or Institutions, Secondary Law”, mpepil (2007): 4. 344 About the traditional theory concerning normative acts of international organizations, in literature see Klabbers, An Introduction, 154–188; Roberto Virzo, “The Proliferation of Institutional Acts of International Organizations”, in Evolutions, eds. Virzo and Ingravallo, 293–323; Diez de Velasco, Las Organizaciones, 135–145; Zanghì, Diritto, 256–275; Draetta, Principi, 155–169; Benzing, “International Organizations”, 1; Schermers and Blokker, International, 755–792; Philippe Cahier, “L’order juridique interne des organisations internationales”, in Manuel, eds. Dupuy, 387–341; Sorel, Droit, 74–84. 345 The normative acts of international organizations belonging to this category of secondary law are called variously by scholars (e.g. internal secondary law or internal acts); in this sense, see among others Virzo, “The Proliferation”, 298–303; Benzing, “International Organizations”, 2; Diez de Velasco, Las Organizaciones, 137–140; Draetta, Principi, 157–160; Schermers and Blokker, International, 755–766; Cahier, “L’order juridique”, 388–394). Klabbers uses the expression “acts of a household nature” (see Klabbers, An introduction, 156).

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which produce their legal effects outside the institutional structure of the ­regional organization, being addressed primarily to member States or even to third subjects.346 In turn, on the basis of their recipients internal normative acts can be distinguished in: self-regulation acts; inter-organic acts; interinstitutional agreements. 3.1 Self-regulation Acts First of all, the category of internal normative acts includes self-regulation acts, whose norms have been analyzed in detail in Chapter 2 in order to retrace legal institutional features of non-governmental institutions under consideration. They are normative acts which are addressed to the members of the institution itself setting out organizational and procedural rules governing its internal functioning, as well as the exercise of specific functions vested in it. Due to their intrinsic independent nature, all connected parliamentary and socio-­ economic institutions enjoy organizational autonomy, so they are e­ ndowed with the power to prepare and approve their own rules of procedure. A similar prerogative is also conferred on most integrated institutions; in particular almost all parliamentary institutions under consideration have the power to approve their own rules of procedure.347 In this regard, the sole exception is constituted by the uma Consultative Council which prepares its rules of procedure and submits them to the Council of Presidence for their approval (art. 12, para. 4, uma Treaty). A similar organizational autonomy is also granted to most integrated socioeconomic and territorial institutions, which are frequently endowed with the power to adopt their own rules of procedure.348 Only in a few cases it is 346 In literature, see among others Virzo, “The Proliferation”, 303–323; Benzing, “International Organizations”; Diez de Velasco, Las Organizaciones, 140–143; Zanghì, Diritto, 268–273; Draetta, Principi, 160–168; Schermers and Blokker, International, 766–792; Cahier, “L’ordre juridique”, 394–397. 347 In this sense, see art. 232 tfeu; art. 12, para. 1, pap Protocol; art. 9 Benelux Parliament Convention; art. 15 Parlandino Treaty, art. 5, para. 5, accp Agreement; art. 9, para. 1, cis ipa Convention; cei Parliamentary Dimension; art. 28, lett. (a) CoE Statute; art. 42 ecowas Parliament Supplementary Act; art. 31 cemac Parliament Treaty; art. 49, lett. (g) eac Treaty; art. 6, para. 2, lett. (e) igad ipu Protocol; art. 5, lett. k), Arab Parliament Statute; art. 10.14 oecs Revised Treaty; art. 4, para. 21, Montevideo Protocol; art. 6 osce pa Madrid Declaration; art. 14 Parlacen Protocol; art. 33 uemoa Parliament Treaty. 348 In this sense, see for instance art. 303 and art. 306 tfeu; art. 17 au ecosocc Statute; art. 4, lett. (c) Dec. 585/04-Andean Advisory Council of Municipal Authorities; art. 3 Dec. 188/83 of the Andean Commission; art. 3 Dec. 187/83-Andean Advisory Business Council; art. 40, para. 2, cen-sad Revised Treaty; art. 5 efta Consultative Committee Terms of ­Reference;

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­ rovided that the latter are prepared and approved by an intergovernmental p organ that is usually the one adopting the statutory act of the institution.349 Rarely, the socio-economic or territorial institution is empowered to elabore its own rules of procedure which are then submitted to a specific intergovernmental organ for their approval.350 In reality, the latter two practices are not surprising and they might be considered consistent with the trend to qualify socio-economic and territorial institutions as subsidiary organs (Chapter 2 para. 1.2.2). It is worth noting that rules of procedure adopted by non-governmental institutions are usually binding and they are required to be in compliance with provisions contained in the statutory act of the institution itself, as well as in the constitutive act of the regional organization (with reference to integrated institutions). 3.2 Inter-organic Acts As previously stated, in addition to the aforementioned self-regulation acts, non-governmental institutions under consideration usually adopt also inter-organic acts. They are legal instruments which are addressed by nongovernmental institutions to another organ of the regional organization. ­Traditionally, scholars have distinguished these acts into two categories: ­inter-organic opinions and inter-organic recommendations.351 The former are usually defined as acts issued by an organ of an international organization to provide guidance or warnings to another organ with regard to specific matters or procedure. Differently, inter-organic recommendations are qualified as normative acts made by the organ of an international organization to urge another organ to take a certain course of action.

art. 5 cc-sica Statute; art. 6, para. 5, Regulation 12/2007/UEMOA-Regional Advisory Committee of Agricultural Field; art. 11 Additional Act 02/2009/CCEG/UEMOA-Labour and Social Dialogue Council; art. 5 Additional Act 02/9/UEMOA-Regional Chamber of Commerce. Organizational autonomy is also granted to the comesa Business Council and the CoE Congress of Local and Regional Authorities. 349 In this regard, see for example aladi Business Council and Labour Council, gcc Consultative Committee, etc. 350 This is the case of the mercosur fccr and fces Rules of procedure which were elaborated by the two non-governmental institutions and approved by the Common Market Group (art. 5 MERCOSUR/CMC/DEC. No. 41/04 and art. 14, para. xiv, mercosur Ouro Preto Protocol). 351 In this sense, see particularly Virzo, “The Proliferation”, 301; Schermers and Blokker, International, 780–782; Diez de Velasco, Las organizaciones, 138–139; Draetta, Principi, 158–160.

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Moving from this traditional distinction, our study of non-governmental institutions allows to integrate above definitions proposed by the classical doctrine, thus contributing to a better qualification of inter-organic opinions and inter-organic recommendations. Before outlining their peculiarities it is worth briefly highlighting their common features. First of all, generally they both are not definitive acts, that is, they are instrumental in adopting a final organic act or in making a policy decision by intergovernmental organs. Moreover, both inter-organic opinions and inter-organic recommendations are usually non-binding, so – except for few cases mentioned below – they are not able to reduce the discretionary decision-making power of intergovernmental organs. Therefore, their compliance depends on their recipients’ confidence in the expertise of the non-­ governmental institution delivering them and, consequently, in the pertinence and efficiency of these acts. Finally, both inter-organic opinions and inter-organic recommendations can be further classified in own-initiative acts and requested acts. In the first case, they are delivered by non-governmental institutions at their own initiative, that is, they do not follow a formal request by another organ. Differently, the adoption of inter-organic requested opinions or recommendations by nongovernmental institutions is subordinated to an expressed request by another organ of the organization. Bearing in mind these similarities, the main element distinguishing interorganic opinions from inter-organic recommendations concerns their diverse inclusion in the decision-making process. 3.2.1 Inter-organic Opinions When dealing with an inter-organic opinion we refer to a normative act addressed by a non-governmental institution to the intergovernmental body (or to any other organ of the organization), which inserts itself directly and ­formally in the decision-making process pursuant to statutory provisions. Therefore, it contributes to technically define the substantive content of a draft normative act to be adopted by the intergovernmental body. In other words, ­inter-organic opinions dictate a specific legal discipline in relation to a certain issue and their approval constitutes a phase of the decision-making process. It may take place at the initial stage of the process, thus taking on the characteristics of a legislative proposal; more often, it takes place during the decision-making process, that is, after the legislative proposal has been submitted by a specific organ and before the draft normative act is definitively adopted by the intergovernmental body.

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Inter-organic opinions can be classified into three sub-categories. First of all, there are inter-organic opinions whose approval by non-governmental institutions is mandatory and which bind their own addressees. Therefore, they are able to significantly influence the decision-making process insofar as the draft normative act can be definitively adopted only after it has been approved by the non-governmental institution. Consequently, such an inter-organic opinion is able to reduce the discretionary decision-making power of intergovernmental bodies. In reality, the provision of such a sub-category of interorganic opinion is infrequent; as seen in paragraph 2.1.4., typical examples are only the assent expressed by the ep, the eala and the ecowas Parliament in relation to the adoption of organic acts in certain matters expressly prescribed, as well as the assent of uemoa and cemac Parliaments for the adoption of specific categories of international agreements. The second sub-category includes inter-organic opinions whose approval is mandatory but which are not binding on their recipients. This means that, since the draft normative act is definitively adopted, the inter-organic opinion has to be delivered by the non-governmental institution; in other words, the approval of the inter-organic opinion constitutes a necessary element for the adoption of the final normative act. Its lack may invalidate the final normative act which can be the subject of an annulment action before the regional judicial system (if any). However, the decision-making body is not under obligation to take such an inter-organic opinion into account, therefore the content of the final normative act may legitimately deviate from its provisions. In concrete terms, this sub-category includes, for example, mandatory opinions delivered by the oecs Assembly, the Parlasur, the ccie of sieca, as well as by the uemoa and cemac Parliaments and the eu eesc and CoR in relation to certain matters. The last sub-category includes inter-organic opinions whose approval by nongovernmental institutions is optional (or voluntary) and which are not binding on their addressees. This means that the involvement of non-­governmental institutions in the decision-making process is merely potential and the effective adoption of such an inter-organic opinion usually depends on the discretion of the decision-making body to request it or – sometimes – on the will of the nongovernmental institution to act at its own initiative pursuant to statutory provisions. In the event that the inter-organic opinion is delivered, its recipients are not bound by it and – once again – the c­ ontent of the final normative act may legitimately deviate from its provisions. As our ­investigation has revealed, frequently statutory acts confer on non-­governmental institutions under consideration the power to adopt this sub-category of ­inter-organic acts.

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3.2.2 Inter-organic Recommendations As previously stated, non-governmental institutions may also adopt inter-­ organic recommendations. They differ from aforementioned inter-organic opinions because they do not insert themselves either directly or formally in the decision-making process. Indeed, they do not dictate a clear legal discipline in relation to a specific matter and, therefore, their approval does not ­constitute a phase of the decision-making process. Rather, inter-organic recommendations suggest their addressees (usually, intergovernmental bodies) a certain action to be undertaken or a given position to be taken in relation to a specific issue; in essence, they have an exhortative political character. ­However, in the practice this kind of inter-organic acts is often instrumental in the definition of basic policy decisions by the regional organization. In other words inter-organic recommendations provide qualified guidance to intergovernmental bodies. Our investigation has revealed that the adoption of these acts is quite ­common.352 As previously stated, they may be delivered by non-governmental institutions at their own-initiative or upon request of another organ of the organization (e.g. intergovernmental bodies). In this regard, recommendations of gcc Consultative Committee are typical examples. In any case, it is worth remembering that inter-organic recommendations are non-binding, that is, their recipients are not under obligation to comply with them. 3.3 Interinstitutional Agreements Within the category of internal acts there are also interinstitutional agreements. They aim at establishing institutional arrangements between the organs of the organization; therefore, they contribute to increase efficiency and clarify procedures in order to prevent or limit conflicts amongst them. In light of their features it can be assumed that they are halfway between selfregulation acts and inter-organic acts. Indeed, they share with the former the procedural character of their content, insofar as they provide for rules governing relationships among organs and institutions of the organization. As a consequence, similarly to inter-organic acts, they are not addressed to member States but to organs and/or institutions of the organization. However, whereas inter-organic acts have unilateral nature, interinstitutional agreements have multilateral character.

352 The adoption of inter-organic recommendations is typical of connected institutions (e.g. apec-bac, asean-bac, bsec Business Council, puic, etc.), but sometimes it also characterizes integrated ones (e.g. aladi Business Council and Labour Council, etc.).

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Interinstitutional agreements are typical of the eu experience where their adoption is limited to administrative and institutional affairs concerning legal, procedural and financial aspects. In particular, to the purpose of this investigation we can significantly refer to interinstitutional agreements concluded by the European Commission with the eesc and the CoR,353 as well as to those governing the relationship between Council, European Commission and ep regarding the budgetary matter or the decision-making process in general.354 A similar practice has been developed even outside the eu. Thus, for example, an interinstitutional agreement between the Common Market ­ ­Council (CMC) and the Joint Parliamentary Commission of the Mercosur was concluded in 2003; it provided the consultation of the parliamentary institution in relation to draft normative acts to be adopted by the cmc. 3.4 External Normative Acts As previously stated, in addition to internal normative acts, in exercising their deliberative function institutions representing non-governmental interests may also exert a normative power going beyond the inner sphere of the regional organization. In other words, they may adopt normative acts addressing to member States of the regional organization or – rarely – to third subjects. As regards external normative acts affecting member States, they usually take the form of recommendations addressed to national parliaments and/or governments. They can aim at different goals. They often suggest to their addressees certain actions to be undertaken in order to promote the implementation of organic acts, policies or agreeements adopted within the regional organization. Frequently they are aimed at promoting the harmonization of national legislations. In this case, external normative acts may take the form of model laws (e.g. in cis-ipa, sadc pf, sco Business Council) or of anteproyecto de normas (e.g. in Parlasur);355 they are draft normative instruments regulating

353 See, for example, Protocol on the cooperation arrangements between the European Commission and the Committee of the Regions, Brussels, 17 November 2005; Protocol on cooperation between the European Commission and the European Economic and Social Committee, Brussels, 22 February 2012. 354 See, for instance, Interinstitutional Agreement between the European Parliament, the Council and the Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management, Brussels, 2 December 2013; Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on better law-making, Strasbourg, 13 April 2016. 355 In light of available information, it seems that the Parlasur has adopted a limited number of draft bills addressed to national parliaments. In particular see MERCOSUR/PM/SO/

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a certain matter which are submitted to national legislators as matrixes for harmonization. Their implementation is on voluntary basis (Chapter 2, para. 2.1.3). Sometimes external normative acts addressed to member States may be aimed at expressing an evalution on a certain issue and suggesting a possible position to be taken. In this regard, typical examples are reports that the CoE Congress of Local and Regional Authorities addresses to member States following the observation of local and regional elections. Independently from the goal they pursue, external normative acts have non-binding nature too. So, even in this case, their compliance depends on the confidence in the expertise of the non-governmental institution adopting it and in their pertinence and efficiency. Rarely, external normative acts adopted by non-governmental institutions may address directly to individuals. Currently the unique case is that of eu secondary law (especially, regulations and decisions) adopted jointly by the ep and the Council according to the ordinary legislative procedure. As is known, unlike the aforementioned general trend, this kind of external normative acts are binding, that is, their recipients are under the obligation to comply with their norms. Finally, it is worth noting that some non-governmental institutions are also endowed with the power to conclude cooperation agreements with national and/or international organizations.356 However, the lacking practice in this regard does not allow to express further considerations about the legal nature and effects of norms contained in these agreements.

ANT.NORMA 01/2009, Estatuto de las cooperativas, Asunción, 28 April 2009; MERCOSUR/ PM/SO/APN. 02/2009, Puntos de Cultura del mercosur, Montevideo, 30 November 2009. 356 This power is typical of connected institutions due to their intrinsic autonomy. On the contrary, only few integrated institutions seem to be vested in it. See particularly the example of the Parlasur (art. 4, para. 17, mercosur Montevideo Protocol).

chapter 3

The Contribution of Institutions Representing Non-governmental Interests to Strengthening Interstate Institutionalized Cooperation 1

Contribution to Enhancing the Functionality of Regional Organizations

The comparative analysis of legal institutional features carried out in the previous Chapter allows us to express some considerations about the role played by non-governmental institutions within interstate institutionalized cooperation. In particular, in light of functions formally conferred upon them, it can be asserted that parliamentary, socio-economic and territorial institutions tend to contribute positively to an efficient performance of functions conferred on the regional organization by its member States. Indeed, on the one hand, getting the organization closer to political and/or socio-economic national circles, non-governmental institutions can keep intergovernmental decision-making organs better informed about their needs and views. Consequently, they can facilitate the adoption of basic policy choices and/or normative acts which are pragmatically instrumental to the realization of statutory goals of the regional organization by reflecting a fair balance of various interests ­concerned. On the other hand, non-governmental institutions can keep p ­ olitical and/ or socio-economic national circles they represent duly informed about the ­developments of the regional organization. Thus, they can contribute to foster their awareness about the activities of the interstate institutionalized cooperation and to strengthen their confidence and approval for it. Therefore, in this sense, non-governmental institutions tend to provide their contribution to enhance the functionality of the regional organization they are integrated in or affiliated with. It is worth noting that the contribution offered by parliamentary, socioeconomic and territorial institutions is the same: they all aim at contributing to enhance the functionality of the organization. Rather, differences concern the intensity of this contribution stemming from the degree of incidence of each institution on the decision-making process. Thus, non-governmental institutions empowered to adopt inter-organic opinions are able to contribute significantly to the functional realization of statutory goals of the organization, insofar as they can (or – even – must) take directly part in the decision-making

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process. Obviously, the more their participation is relevant, the more their contribution to the functionality of the regional organization is meaningful. Differently, non-governmental institutions which are merely empowered to adopt inter-organic recommendations can contribute less significantly, inasmuch as they take part neither directly nor formally in the decision-making process. In this regard, there are not relevant differences among parliamentary, socio-economic and territorial institutions. Rather, the degree of incidence of a non-governmental institution on the decision-making is conditioned by the degree of maturity reached by interstate institutionalized cooperation and, consequently, by the aforementioned trend to emulate the eu model. On the contrary, the contribution offered by parliamentary, socio-­economic and territorial institutions is different in terms of its material content due to different kinds of interests each category of non-governmental institution represents. Thus, the content of an inter-organic opinion or recommendation delivered by a parliamentary institution is expected to be different from that of analogous acts adopted by a socio-economic institution on the same issue, because they answer diverse interests and needs. 2

Contribution to Enhancing the Legitimacy of Regional Organizations

The outcomes of the empirical investigation also provide significant food for thought to approach the doctrinal debate on the legitimacy of international organizations and to express some considerations about the positive contribution that institutions representing non-governmental interests can provide for its possible enhancement. The concept of legitimacy usually refers to the justification of authority1 and concerns the hierarchical relationship between rulers and ruled.2 More clearly, it has been defined as the “property of a rule or rule-making institution which itself exerts a pull towards compliance on those addressed normatively because those addressed believe that the rule or institution has come into being and operates in accordance with generally accepted principles of right process”.3 1 In this sense, see Wolfrum, “Legitimacy”, 6. 2 In this sense, Mervyn Frost, “Legitimacy and International Organizations: The Changing Ethical Context”, in Legitiming, ed. Zaum, 26. 3 See Thomas Franck, “Legitimacy in the International System”, ajil 82 (1988): 706. In reality, the legitimacy is a difficult concept to define. In this regard Gerd C.A. Junne, “International Organizations in a period of globalization: New (problems of) legitimacy”, in The Legitimacy, eds. Coicaud and Heiskanen, 190–191 talks about “volatility of legitimacy”.

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The issue of the legitimacy has been traditionally studied by political scientists who originally focused above all on State authority. Indeed, until the 1990s they rarely addressed the issue of legitimacy of international organizations. To the extent that it was discussed at the level beyond the State, it mainly concerned the eu because of: the relative autonomy of its law system; the primacy of the eu law over national legislations and the provision of directly applicable regulations; the presence of the ecj acting as law-maker.4 So, until the 1990s, except for the eu, the issue of legitimacy did not concern other international organizations5 insofar as their activities were not able to significantly affect individuals’ rights and interests. This depended on matters falling within the competence6 of existing international organizations 4 In this regard, it is worth noting that political science scholars have adopted a plethora of different yardsticks to assess the legitimacy of the eu. In particular, they have taken frequent recourse to democratic benchmarks, namely respect for human rights and rule of law, as well as representative quality, inclusiveness, accountability, transparency in the decisionmaking. In literature see, among others, David Beetham and Christopher Lord, Legitimacy and the eu (London: Longman, 1998). See also Carol Harlow, “The Limping Legitimacy of eu Lawmaking: A Barrier to Integration”, European Papers 1 (2016): 29–54; Vivien Schmidt, “Democracy and Legitimacy in the European Union”, in The Oxford Handbook of the European Union, eds. Erik Jones, Anand Menon and Stephen Weatherill (Oxford: oup, 2012): 661–675; Andrew Moravcsik, “Reassessing Legitimacy in the European Union”, jcms 40 (2002): 603–624; Giandomenico Majone, “Europe’s Democratic Deficit”, elj (1998): 5–28. 5 In this sense, see Daniel Bodansky, “The Legitimacy of International Governance: A coming challenge for International Environmental Law”, ajil 93 (1999): 597. Similarly, see Sato, “Legitimacy”, 13. According to Hitomi Takemura, “Reconsidering the Meaning and Actuality of the Legitimacy of the International Criminal Court”, Amsterdam Law Forum (2012): 4 “The reasons for the long indifference to legitimacy in the contexts of international society and international law may be attributed to a number of factors. In the first place, the structure of international ­society might not provide individuals with the sense of a direct chain of authority or legal constraints, as opposed to that of nation states. […] On the other hand, people do not feel strong ties to the international or global community, which lacks both an explicit ­government and a house of parliament, i.e. a legislature. Under these circumstances, people are not compelled to discuss the legitimacy of either international society or international law. Secondly, traditional international law consists mainly of consensual obligations, principally bilateral treaties, and such a “consensualist basis of obligation has tended to moot the issue of legitimacy”. To the extent that the structure of international law depends on consensual agreements among sovereign states by their own free will, this second reason relates to the first reason. Finally, international institutions have been thought not to be very influential, and they are regarded as exercising little authority […]”. It is worth noting that Takemura’s reasoning moves from the perspective of individuals. 6 Indeed, Krajewski, “International Organizations”, 4, stated that not all acts of international organizations need the same level of legitimacy depending on the matter they regulate. Thus,

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and on the legal nature of their normative acts. Indeed, international organizations were used to adopt non-binding acts7 which – by definition – do not create legal obligations for their recipients (i.e. their member States) and, consequently, which were not able to affect individuals’ rights. Then, in the event that member States had decided to cooperate through binding acts, their adoption would have been subordinated to the consent of all members or of those who wanted to bind themselves according to the principle of ­variable geometry. Moreover, these acts would have been able to product legal effects within ­domestic law systems just following an internal incorporation ­procedure under the jurisdiction of national parliaments or legislative bodies. These e­ lements (namely, State consent and dualism between the domestic law system and the ­organization law system) were sufficient legitimacy tests to justify the ­activities of international organizations. However, over the last two decades the growing and concrete intrusiveness of activities of international organizations into areas traditionally belonging to State sovereignty (Chapter 1, para. 3.1.) has resulted in a greater interest in the issue of the legitimacy at the international level. In particular, the fact that ­international organizations are increasingly empowered to exert r­egulatory functions in relation to sensitive matters (e.g. trade, economy, t­ransport, education, etc.) and, consequently, to take binding decisions addressed ­ to States but also affecting individuals’ rights has induced to question their ­legitimacy and, sometimes, to argue its deficit.8 According to the political scientists who – as stated – were pioneers in the study of this topic, whether refering to a national authority or to an for instance, normative acts governing issues which do not affect deeply individuals’ everyday life (e.g. technical matters) do not usually require further legitimacy instruments than the consent expressed by each member State. 7 As seen in Chapter 2, para. 3, currently the adoption of non-binding acts continues to be the rule in international organizations. 8 Indeed, unlike in the domestic sphere where there is a set of generally accepted legitimacy criteria (most fundamentally democratic and constitutional legitimacy), in the international level – where these criteria are not directly applicable – there is considerable normative disagreement regarding how to evaluate the legitimacy of international organizations. About the literature concerning the legitimacy of international law and international organizations from political science perspective see authors listed in General Introduction, note 83. It is worth noting that literature debating the legitimacy of regional organizations other than the eu is lacking. See Berthold Rittberger and Philipp Schroede, “The Legitimacy of Regional Institutions”, in The Oxford Handbook of Comparative Regionalism, eds. Tanja Börzel and Thomas Risse (Oxford: oup, 2016), 579–599; Bob Reinalda, “The Question of Input, Control and Output Legitimacy in Economic rios”, in Closing or Widening the Gap?, eds. RibeiroHoffmann and Van der Vleuter, 49–82.

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i­nternational organization, legitimacy has both a normative and a sociological ­meaning.9 In particular, “[…] an institution is legitimate in the normative sense […]” when “it has the right to rule […]”.10 Differently, “an institution is legitimate in the sociological sense when it is widely believed to have the right to rule”.11 In essence, “normative legitimacy depends on whether an institution objectively has a right to rule […]”, while sociological legitimacy “concerns whether actors subjectively believe that an institution has a right to rule”.12 In addition to pioneering theories proposed by political scientists, in r­ ecent years the debate about the legitimacy of international organizations has been enriched with legal studies. In particular, this issue has been approached by some international law scholars whose analysis is distant from theories e­ laborated by political scientists, insofar as it moves from a d­ ifferent ­perspective, namely the legal one.13 Furthermore, international law s­ cholars have not ­expressed a 9

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About the distinction between normative legitimacy and sociological (or descriptive) legitimacy, see mainly Daniel Bodansky, “Legitimacy in International Law and International Relations” in Interdisciplinary perspectives on international law and international relations. The State of Art, eds. Jeffrey Dunoff and Mark Pollack (Cambridge: cup, 2013), 321; Dominik Zaum, “International Organizations, Legitimacy, and Legitimation”, in Legitimating, ed. Zaum, 3; Buchanan and Keohane, “The Legitimacy”, 25–26; Richard H. Fallon, “Legitimacy and the Constitution”, Harvard Law Review 118 (2005): 1787. See Buchanan and Keohane, “The Legitimacy”, 25. See Buchanan and Keohane, “The Legitimacy”, 25. Furthermore, the belief underlying the sociological legitimacy may be based on decision-making processes used by the institution (i.e. input legitimacy) or on the results achieved (i.e. output legitimacy). The distinction between input legitimacy and output legitimacy was coined by Fritz Scharpf, ­Governing in Europe: Effective and Democratic? (Oxford: oup, 1999). Then, it has been largely accepted by the vast majority of political science scholars. In this regard see also Jens Steffek, “The democratic output legitimacy of international organization”, wzb Discussion Paper, No. sp iv 2014–101. See Bodansky, “Legitimacy”, 327. About the legitimacy of international organizations from a traditional State-centred perspective see particularly Eric De Brabandere, “The Impact of «Supranationalism»”, 450; Pellet, “Legitimacy”, 63–82. For a clear description of the consent-based legitimacy of international law, as well as of international organizations and its problematic profiles see Rüdiger Wolfrum “Legitimacy of International Law and the Exercise of Administrative Functions: The Example of the International Seabed Authority, the International Maritime Organization (imo) and International Fisheries Organizations”, in The Exercise of Public Authority by ­International Institutions, eds. Armin von Bogdandy et al. (Leiden: Springer, 2010), 917; Wolfrum, ­“Legitimacy”, 1; Krajewski, “Democratic Governance”. For critical considerations about Westphalian-based approach to legitimacy, see Peters, “Dual Democracy”; Michael Zürn, “Global Governance and Legitimacy Problems”, ­Government and Opposition 39 (2004): 260; Joseph Weiler, “The Geology of International

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common view on the legitimacy of international ­organizations; in particular, as we will see in following paragraphs, different considerations have been maintained by functionalism supporters and by constitutionalism theorists due to diverse legal perspectives from which they analyze this issue. The Functionalist Approach and the Role of Non-governmental Institutions in Enhancing Functional Legitimacy As stated, the functionalist theory focuses on the relationship between the international organization and its member States and qualifies the organization as a functional entity which is established to reach goals defined by its members. Moving from the traditional Westphalian-inspired view of international relations,14 it asserts that the legitimacy of international organizations consists of two elements: legitimacy of origin and legitimacy of exercise (or procedural legitimacy).15 First of all, according to the functionalist approach international organizations derive their legitimacy from the powers that member States have ­conferred upon them. In other words, their legitimacy originates from the ­consent that States express at the time of the establishment of the ­international ­organization16 (i.e. legitimacy of origin), thus agreeing and accepting rules governing its functioning (above all, those regulating the decision-making). This view is based upon the classical assumption that States have the power to negotiate and to adhere to international agreements. In particular, by signing and (if necessary) ratifying the constitutive act of an international o­ rganization States accept to “delegate” to it the exercise of sovereign powers in certain ­matters (i.e. principle of conferral). Thus, they regulate their relationship with its institutional apparatus. It is worth here noting that the legitimacy of the consent expressed by States – on which the legitimacy of origin of international organizations is 2.1

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Law – Governance, Democracy and Legitimacy”, ZaöRV 64 (2004): 547; Cutler, “Critical reflections”, 133; Bodansky, “The Legitimacy of International Governance”, 596. As stated, the classical Westphalian-inspired approach considers States as the main – and almost sole – subjects of international law. This means that by embracing this approach the functionalist theory moves from a State-centred perspective. About the distinction between legitimacy of origin and legitimacy of exercise with reference to international organizations compared to national systems see particularly d’Aspremont and De Brabandere, “The Complementary Face”, 190. Specifically, the legitimacy of origin of a hard organization derives from the consent that States express by signing its statutory treaty and then ratifying it. In the case of a soft organization the State consent is expressed by the signature of its constitutive act which has political-diplomatic nature.

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based – depends neither on their form of State nor on their form of Government, which are irrelevant according to international law.17 Rather, since the consent is legitimate, it is just required that persons expressing it are endowed with full powers to act on behalf of their own State and to bind it in accordance with constitutional rules.18 In essence, according to the functionalist approach State sovereignty, which is expressed through the formal consent to the founding act of the international organization, is the source of origin of legitimacy. Secondly, according to the State-centred perspective an international organization can be regarded as legitimate if it enjoys not only the aforementioned legitimacy of origin but also the legitimacy of exercise (or procedural legitimacy). The latter presumes that the way an international organization exercises its powers is assessed according to the benchmark of the respect for the rule of law. This means that since an international organization is regarded as legitimate, during its life it has to exert its own functions in conformity with legal restraints stemming from the application both of international law and of norms agreed by its member States in its constitutive act.19 In this regard, it is usually provided that the State consent is reiterated in relation to each normative act to be adopted within the organization. In light of above reasoning, for example, the application of the variable ­geometry principle in relation to certain normative acts is legitimate if it ­complies with rules agreed in this regard by all member States within the international organization. Similarly, the legitimacy of a binding decision taken by majority vote rests, on the one hand, on the consent to the application of this voting criterion expressed by all member States by signing and ratifying the founding treaty of the organization (legitimacy of origin). On the other hand, it rests on the respect for rules concerning its application agreed by members (legitimacy of exercise).20 17

18

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However, it is not excluded that rules governing the international organization can subordinate the admission of a new member to the respect for the democratic model. In this regard, for instance, see art. 49 teu. Pursuant to art. 46, para. 1, of the Vienna Convention on the Law of Treaties “[a] State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance [Italic added]”. See Cafaro, “Elementi”, 296; d’Aspremont and De Brabandere, “The Complementary Face”, 215–219. It is worth here bearing in mind that the adoption of binding normative acts by majority vote is absolutely exceptional. Currently, very few international organizations, namely those realizing the supranational model (i.e. eu, uemoa, cemac, CAn), are endowed

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In sum, according to the functionalist approach moving from the Westphalianinspired perspective, the consent of States coupled with the exercise of institutional functions in conformity with internal procedures agreed by their members, as well as with the rules of international law are sufficient elements to make international organizations legitimate. On this premise and bearing in mind that international organizations are functional entities, according to the functionalist view their legitimacy is further strengthened if they are believed to be really able to reach their statutory goals.21 Non-governmental institutions can play a significant role in reinforcing such a functional legitimacy, namely the legitimacy stemming from ability of the organizations to effectively pursue goals underlying their establishment, to the extent that, as previously stated, they contribute to the functionality of regional organizations.22 In order that international organizations are able to pursue their statutory goals, two essential conditions have to be satisfied: (1) decisions adopted by their organs have to abide by the principle of conferral, that is, they have to be pragmatically responsive to the needs of interstate institutionalized cooperation; (2) these decisions have to be implemented within the domestic law systems of each member State.23 In light of powers conferred upon them and particularly of their formal or indirect involvement in the decision-making process (Chapter 2, para. 2), parliamentary, socio-economic and territorial institutions may contribute or aim at contributing to the satisfaction of the aforementioned conditions. Indeed, first of all, acting as transmission belts between the ­organization on the one hand, and national circles concerned by its activities on the

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23

with this power. Furthermore, in the practice the application of this voting criterion is even more exceptional. Thus, significantly, from 2015 to 2017 only 33% of the eu Council’s decisions was adopted by majority vote. About the application of majority vote in the eu see Stephen Sieberson, “Inching Toward eu Supranationalism? Qualified Majority Voting and Unanimity Under the Treaty of Lisbon”, Virginia jil (2010): 921. In this regard, d’Aspremont and De Brabandere, “The Complementary Face”, 190–191, maintained that “the legitimacy of global actors is primarily a question about how, when exercising public authority, this act is perceived as having a right to rule. In this sense, there is no doubt that the question of legitimacy of global actors exercising public authority is, to large extent, a moral question”. In this perspective see Antonello Tancredi, “L’ibridazione pubblico-privata di alcune organizzazioni internazionali”, in Il futuro delle organizzazioni internazionali, ed. Vellano, 331. It is worth noting that from the international law perspective the implementation of decisions adopted by the organization must abide by rules provided for by its constitutive act. From the domestic perspective it must comply with constitutional provisions.

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other hand, they can keep decision-making bodies better informed about ­domestic political and/or socio-economic interests and needs. Thus, they can contribute to the adoption of basic policy decisions and/or normative acts which reflect a fair balance of various interests concerned. In such a way, ­non-­governmental institutions are able to provide their contribution indirectly or – sometimes  – directly to a more pragmatic attainment of the organization’s aims and purposes. At the same time, they also fulfill the task to keep political and/or socioeconomic national circles they represent duly informed about the regional integration process and its development. Thus, they can contribute to strengthen their awareness of activities performed by the organization and, consequently, to increase their approval for interstate institutionalized cooperation. Furthermore, in order that an international organization reaches effectively its goals and, therefore, it is deemed to enjoy functional legitimacy, normative acts adopted by its organs have to be incorporated into the domestic law system of each member State pursuant to rules provided for by the constitutive act of the organization on the one hand, and by the national constitution on the other hand. Even in this regard, it is significant the role played by non-­ governmental institutions, above all by parliamentary institutions due to the direct and special relationship they have with national parliaments or legislative bodies. Indeed, the fact that, as stated, the members of parliamentary institutions usually have dual mandate can facilitate the familiarization of national parliaments or legislative bodies with regional policies and allows to keep them more easily informed about policies and normative acts adopted by the organization.24 This form of political-institutional relationship together with the involvement of parliamentary institutions in the regional decisionmaking process directly and systematically (adopting inter-organic opinions) or – more frequently – indirectly (submitting to decision-making bodies interorganic ­recommendations) can contribute to strengthen the confidence of national parliaments in the wisdom and convenience of the normative acts adopted at the regional level. As a consequence, this can tend to accelerate the process of their incorporation into national law systems and to create a favourable climate to the domestic compliance of regional normative production.25 In 24 25

This function is particularly significant as far as parliamentary institutions are not endowed with legislative powers. Still, in view of pursuit of the organization’s statutory objectives it should not be underestimated the contribution of non-governmental bodies to harmonize national laws. Indeed, as seen, the adoption of external normative acts (i.e. recommendations, model laws, etc.) addressed to national parliaments aims at the approximation of domestic legislations of the organization’s member States in order to promote a common regulation of specific matters.

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this regard, it is shareable the idea expressed by some scholars stating that “[…] However good decisions may be, they will not be followed unless they are supported either by an enforcement mechanism or by confidence. […] Confidence in the political desirability of decisions will be strengthened if these decisions are supported by an organ made up of whom the decisions will apply. Confidence in the legality and fairness of decisions will be propagated by the possibility of uniform judicial control by a court”.26 In sum, on the premise that a regional organization enjoys normative legitimacy according to the classical Westphalian-inspired approach, institutions representing non-governmental interests can be regarded as useful tools to enhance its functional legitimacy, insofar as they can contribute positively to the realization of its statutory goals. Indeed, they allow the collective interest to be pursued in a more effective, informed and balanced way. In this regard, it can be shared the opinion expressed in Italian literature in the 1980s regarding non-governmental institutions established in the European Communities. It was argued that these institutions were ideally placed upstream both the collective will of member States and the particular will of each of them and they were supposed to move them both closer to aspirations of member States’ peoples considered in their political and/or social articulations (e.g. parties, trade unions, etc.).27 The Constitutionalist Perspective and the Role of Non-governmental Institutions in Enhancing Democratic Legitimacy As mentioned, different considerations about the issue of the legitimacy of international organizations have been expressed by constitutionalism theorists.28 Although, as stated, their approach is not fully shareable, mainly because it is based on a partial assessment of the international associative p ­ henomenon (Chapter 1, para. 3.1.2.), it is significant for the purpose of this investigation. Indeed, it supports our thesis about the contribution of non-governmental institutions to enhance the legitimacy of organizations they are established in or affiliated with.

2.2

26 Schermers and Blokker, International, 407. 27 Biscottini, Il diritto, 88. 28 See considerations expressed by Peters, “Dual Democracy”; Buchanan and Keohane, “The Legitimacy”, 25; Michael Zürn, “Global Governance and Legitimacy Problems”, Government and Opposition 39 (2004): 260–287; Joseph Weiler, “The Geology of International Law – Governance, Democracy and Legitimacy”, ZaöRV 64 (2004): 547–562; Cutler, “Critical reflections”, 133; Bodansky, “The Legitimacy of International Governance”, 596. See also Wolfrum “Legitimacy of International Law and the Exercise of Administrative Functions”, 922–924; Wolfrum, “Legitimacy”, 10–21; Krajewski, “Democratic Governance”, 2–4.

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Constitutionalists think that the original consent expressed by governmental delegates at the time of the establishment of an international organization coupled with parliamentary scrutiny for incorporation are not fully appropriate instruments to legitimize specific and dynamic commitments deriving from participation in it.29 Especially, these two elements are not deemed to “[…] secure democratic legitimacy, because the States’ approval of these treaties is a too-general blanket-permission to constitute informed consent in a meaningful sense. The international bodies are so far away and independent from the governments and citizens that they are de facto autonomous”.30 Insofar as individuals are increasingly affected by binding norms adopted by international organizations and/or by decisions delivered by their judicial bodies, legitimacy cannot be based interely on State consent.31 In particular, on the premise that – according to the constitutionalist approach – legitimacy is synonymous of democracy,32 international organizations are deemed to be legitimate if they meet democratic standards,33 that is, if they guarantee the respect for the rule 29

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31 32

33

In this regard, see particularly Peters, “Dual Democracy”, 293; Bodansky, “The Legitimacy of International Governance”, 604. Bodansky,’s thought has been clearly illustrated also by Wolfrum, “Legitimacy”, 9. Peters, “Dual Democracy”, 293. In this regard, Wolfrum, “Legitimacy of International Law and the Exercise of Administrative Functions”, 922 referred to the broad interpretation of their mandate realized by some international organizations, which is not deemed to be covered by the original State consent. In particular, he argued that “making use of its powers under Chapter vii of the un Charter [the un Security Council] has acted as an international legislator in the areas of the fight against terrorism and the prevention in the proliferation of weapons of mass destruction”, thus assuming de facto new functions. Similarly, he asserted that the new security strategy of nato was the result of a broad reinterpretation of its mandate. See Wolfrum, “Legitimacy of International Law”, 15. In this regard, see Wolfrum “Legitimacy of International Law and the Exercise of Administrative Functions”, 923; Wolfrum, “Legitimacy of International Law”, 10–11. In this regard, it has been stated that “[t]he democratic deficit of international law and global governance has been called «one of the central questions – perhaps the central question – in contemporary world politics». The deficit is crucial because it delegitimizes international law and offers a reason for States not to apply and observe international law”. See Peters, “Dual Democracy”, 263. In particular, moving from the considerations that: 1) activities of international organizations are becoming more and more similar to – and, to some extent, substitute – the activities of governments and domestic law in certain matters; and 2) the transfer of public authority from the State level to the international or regional ones should not lead to a lowering of the overall level of democratic legitimacy of public authority, constitutionalists believe that international organizations and their activities should comply with the same democratic parameters on which the legitimacy of national authority is based. In this sense, see Krajewski, “International Organizations”, 2.

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of law and human rights and grant individuals the access to justice. Moreover, on the premise that the core idea of democracy is “the consent of governed” (i.e. individuals), the latter should be directly and ­significantly involved in ­decision-making process of the international organization, as it can be regarded as legitimate.34 Therefore, according to the constitutionalists its legitimacy rests also on the presence of mechanisms ensuring effective representation and participation of all interests concerned in the decision-making.35 Moving from these considerations it is evident that the establishment of institutions representing non-governmental interests is significant in order to enhance the democratic legitimacy of international organizations.36 Precisely, they are regarded as relevant instrument for their ­democratization because, first of all, they are able to ensure the representation of interests of political and/or socio-economic national circles concerned by their ­activities beyond domestic boundaries. Then, their supposed involvement in the ­decision-­making process is believed to reduce the discretionary power of intergovernmental organs and to allow that rules adopted by the organization enjoy even the consent of those affected by them, thus being perceived as more democratic and satisfactory. Thirdly, as already stated, operating as transmission belt between the international organization on the one hand, and political and/or socio-economic national interest groups on the other hand, non-governmental institutions are expected to make individuals concerned more aware about the regional integration process and to keep them informed about its evolution. In such a way non-governmental institutions are deemed able to increase the transparency of organizations they operate within. 34

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According to constitutionalists, the alleged lack of legitimacy of international organizations results from the fact that the original consent by States, including the involvement of the legislature, is conceived so as to endorse nationally concrete and static rather that general and dynamic commitments. In this sense, see Wolfrum, “Legitimacy of International Law”, 20–21. See, among others, Peters, “International Organizations”; Wheatly, The Democratic Legitimacy; Krajewski, “International Organizations”. Scholars have identified different options to enhance the democratic legitimacy of international organizations both at national and international level. On the national plane, for instance, a strengthening of the control by parliaments over the conduct of foreign affairs has been proposed. At the international level, in addition to the contribution of non-governmental institutions, the provision of mechanisms for judicial review has been debated. In literature, see particularly Peters, “International Organization”, 6–19; Sato, “Legitimacy”, 26; Peters, “Dual Democracy”; Krajewski, “International Organizations”, 4–7; Krajewski, “Democratic Governance”, 7–10, Wolfrum, “Legitimacy”, 21–23.

Concluding remarks

The Contribution of Institutions Representing Non-governmental Interests to the Study of International Organizations The analysis carried out in previous Chapters has revealed that the phenomenon of institutional multipolarism of regional organizations has reached an undeniable and growing diffusion, even if it has developed differently in various geographic areas. The current presence of more than 70 non-governmental institutions disseminated in around 40 regional organizations leads us to reason about some typical features of the law of international organizations. In particular, assumptions that States are the sole subjects of international organizations and, consequently, that individuals’ interests may be just mediated by them,1 as well as that international organizations are endowed with a bipolar institutional structure can no longer be considered valid in absolute terms. Indeed, first of all, the decision to establish non-governmental institutions within regional organizations seems to be proof that individuals are implicitly recognized as de facto subjects of the law of the organization and that, rather than being only mediated by governmental delegates, the representation of their political, socio-economic and territoral interests can be also realized directly through ad hoc bodies. Thus, acting as transmission belts between the regional organization on the one hand, and national circles concerned by its activities on the other hand, non-governmental institutions contribute to the realization of a multipolar institutional structure; this comes up beside and integrates the traditional bipolar structure without overcoming it. Indeed, the latter is still typical of many international organizations. In essence, it can be assumed that, although the phenomenon of institutional multipolarism has developed with different intensity from a regional organization to another, as well as in various geographic areas, it tends to reflect a progressive – albeit cautious – shift of interstate institutionalized cooperation (at least at the regional level) from a traditional purely intergovernmental logic to new associative approach. Obviously, this does not mean that the traditional intergovernmental model of international organization can be regarded as 1 It is worth remembering that very few international organizations confer on individuals subjective rights to be protected before the judicial body of the organization itself. The eu model is illustrative in this regard.

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overrun. Indeed, on the one hand it is still typical of many international associative forms. On the other hand, even in regional organizations endowed with non-governmental institutions, the decision-making power remains ultimately in the hands of intergovernmental bodies, although their basic policy decisions and, sometimes, their normative production result from a better and more aware balance of different interests. In essence, intergovernmental organs still save the last word and States remain the “masters of the treaty”. Therefore, if regional organizations experiencing the phenomenon of institutional multipolarism are still formally intergovernmental, the establishment of non-governmental institutions can contribute to mitigate this nature emancipating them from a purely government-oriented model and moving their focal point towards a more people-centred model. These reasonings confirm the assumption concerning the European Communities expressed by an eminent international law scholar in the 1980s and ­extend it to a broader number of regional organizations. He stated that, in light of the establishment of non-governmental institutions and of functions assigned to them, international organizations could no longer be considered as mere associations of States.2 On this premise it might be supposed a progressive – albeit very cautious – evolution of regional organizations experiencing the phenomenon of institutional multipolarism towards “communities of States and their peoples”. The fact that, as stated, the establishment of non-governmental institutions integrates the traditional exclusively intergovernmental model of interstate institutionalized cooperation without determining its final overcoming lets us express another significant consideration: the functionalist theory explaining the relationship between the international organization and its members is still suitable to interpret the international associative phenomenon. This means that – in spite of the increasing diffusion of the phenomenon of institutional multipolarism at the regional level – international organizations can be still interpreted as the result of a dialectical relationship between State sovereignty on the one hand, and functions conferred upon the organization itself on the other hand. Rather, the phenomenon of institutional multipolarism tends not only to confirm but also to strengthen this traditional interpretation. Indeed, inasmuch non-governmental institutions tend to contribute to a more pragmatic realization of the organization’s statutory goals which results from the meeting and balancing of various interests concerned, it can be assumed that they come out unquestionably on the site of functions. 2 Biscottini, Il diritto, 89.

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It is worth remembering that – according to the functionalist view – the dialectical tension between the need to jointly pursue common goals on one hand, and the will to preserve State sovereignty and autonomy on the other hand, reverberates in the institutional structure and translates into the traditional juxtaposition between organs of States and organs of Individuals. As is known, organs of States are composed of persons charged with the task to represent national interests receiving instructions from and being responsible to the government of the State they belong to. As regards the category of organs of Individuals, according to the general approach prevailing in literature it includes bodies composed of persons appointed in their own personal capacity and empowered to represent and protect the general interest of the international organization as such.3 Bearing in mind these definitions, I am inclined to exclude that the aforementioned traditional bipolar classification is fully suitable to frame nongovernmental institutions in light of their peculiarities, above all the status of their members and the task they are charged with. First of all, it is to be excluded that parliamentary, socio-economic and territorial institutions can be qualified as organs of States because their members enjoy free mandate from their home State and, consequently, they cannot receive instructions from the government or any other authority of their own country.4 Certainly, the empirical analysis of legal institutional features has revealed the persistence of a link between non-governmental institutions and member States of the organization which is expressed by: the frequent application of the principle of equality between States in the distribution of seats; the participation of national governments in the appointment procedure of their members, particularly those of socio-economic and territorial institutions; the trend of their members to organize internal groups according to nationality. However, these elements cannot be regarded as a sufficient proof to classify non-governmental institutions as organs of States lacking any hierarchical subordination of their members to governments In this regard, it seems that an opposite position was expressed by some scholars. They stated that “[…] insofar as they are composed of members of national parliaments, par3 This definition is widely agreed in literature. See authors indicated in Chapter 1, note 1. 4 Furthermore, this assumption is confirmed by the fact that the position as member of these institutions is usually incompatible with that of member of the national executive or judiciaries. Additionally, regarding integrated non-governmental institutions their exclusion from the category of organs of States is corroborated by the verification that their members usually enjoy immunities and privileges even in respect of their home State. In this sense, see Lagrange, La répresentation, 182.

196

Concluding remarks

liamentary organs represent – similar to plenary organs – the interests of the Member States. In contrast to plenary organs, however, parliamentary organs do not represent governments positions, but the respective national electorate, i.e. the people in the Member State concerned”.5 However, this consideration cannot be fully shared, because it is based on a broader concept of “State” than that traditionally accepted by public international law. Furthermore, this assumption does not take into account the possibility that institutions under consideration are composed of persons directly elected by citizens (as in the case of the ep and few others) and it only concerns parliamentary institutions, thus ignoring socio-economic and territorial ones. The element of free mandate of their members from their home State seems to approach non-governmental institutions to the category of organs of Individuals. Indeed, similarly their members cannot receive instructions from their governments and are not accountable or responsible to any national authority for their activities. However, as previously stated, scholars agree in b­ elieving that the category of organs of Individuals includes bodies whose members act individually in the general interest of the international organization as such. Differently, whether they enjoy an absolute free mandate (e.g. parliamentary institutions and many socio-economic and territorial institutions) or they have a partial free mandate (e.g. socio-economic institutions whose membership belongs to legal persons), the members of non-governmental institutions are charged with the task to represent and to be spokepersons of political and/ or socio-economic national categories and interest groups. They have to act in such a way as to protect them. Therefore, it can be stated that the status of the members of non-governmental institutions differs from that of the officials of organs of Individuals in the degree of representativeness and independence of their opinions. Indeed, inasmuch as the latter have full freedom of opinion by expressing their personal view with the aim to defend the general interest  of the organization as such, the members of parliamentary, socio-economic and territorial institutions have to represent – in spite of their formal independence – interests and views of political and/or socio-economic national categories and interest groups concerned by the activities of the organization.6 Such a significant difference ensues from the origin and functions of ­non-­governmental institutions and justifies their exclusion even from the ­category of organs of Individuals.

5 Ruffert and Walter, Institutionalised, 144. The expression “plenary organs” means intergovernmental bodies composed of delegates from each member State. 6 In this regard see particularly Klepacki, The Organs, 62.

Contribution to international organizations

197

As a consequence, the result of our investigation allows us to share and support considerations expressed by some scholars in the 1970s in relation to the European experience and recently reiterated.7 That is to say, I believe that it is conceivable the creation of a third category of organs which integrates the aforementioned traditional juxtaposition between organs of States and organs of Individuals. In particular, borrowing an expression coined by Italian literature it could be dealt with the category of organs of peoples,8 including institutions whose members are formally independent from their home States and, in the meantime, who have to represent and protect interests and views of political national circles and/or specific civil society categories significantly affected by the activities of the organization.

7 See Conforti, “Organizzazione internazionale”, 18; Klepacki, The Organs, 9–10. Recently, see Diez de Velasco, Las Organizaciones, 104. 8 Conforti, “Organizzazione internazionale”, 18.

List of Normative Acts aec/au

African Economic Community/African Union

aec Treaty

Treaty establishing the African Economic ­Community, Abuja, 3 June 1991 Constitutive Act of the African Union, Lome, 11 July 2000 Protocol to the Treaty establishing the ­African Economic Community relating to the ­Pan-­African Parliament, Sirte, 2 March 2001 Statute of the Economic Social and Cultural Council of the African Union, Assembly/AU/ Dec.42 (iii), 8 July 2004 Protocol to the Constitutive Act of the African Union relating to the Pan-African Parliament, Malabo, 27 June 2014

au Constitutive Act pap Protocol au ecosocc Statute New pap Protocol

acs

Association of Caribbean States

acs Convention

Convention Establishing the Association of Caribbean States, Cartagena de Indias, 24 July 1994 acs Agreement n. 5/95 Agreement n. 5/95, adoption of the Terms and Conditions for the Participation of ­Social ­Partners in the Meetings of the M ­ inisterial ­Council and the Special C ­ ommittees of the Association of Caribbean States, Guatemala, 1 December 1995 ACS/2013/TRADE.XXVIII/ ACS/2013/TRADE.XXVIII/INF.007, ­Guidelines INF.007 for the celebration of ­Business Forum aladi

Latin American Association of Integration

aladi Treaty

Tratado de Montevideo institutivo de la ­ sociación Latino-Americana de Integración, A Montevideo, 12 August 1980 ALADI/CR/Resolución n. 97, Creación del ­Consejo Asesor Empresarial, 22.12.1988

Res. 97/88-ALADI Business Council

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004344440_007

199

List of Normative Acts

aladi

Latin American Association of Integration

aladi Business Council Rules of Procedure

ALADI/CR/Acuerdo n. 145, Reglamento de ­Funcionamiento del Consejo Asesor ­Empresarial, 11 March 1992 Resolución n. 55 del Consejo de Ministros de aladi, Creación del Consejo Asesor Laboral, 2 June 1993 ALADI/CR/Acuerdo n. 156, Reglamento para el funcionamiento del Consejo Asesor Laboral, 2 June 1993

Res. 55/93-ALADI Consejo Laboral aladi Labour Council Rules of Procedure alba-tcp

Bolivarian Alliance for the Peoples of Our America – Peoples’ Trade Treaty

alba-tcp Havana Declaration alba-tcp Constitutive Act

Declaración Conjunta, Havana, 14 December 2004 Alternativa Bolivariana para los Pueblos de Nuestra América – Tratado de Comercio de los Pueblos, Havana, 29 April 2006

ap

Pacific Alliance

ap Presidential Declaration

Declaración Presidencial de los Gobiernos de Chile, Colombia, México y Perú, Lima, 28 April 2011 Acuerdo Marco de la Alianza del Pacífico, ­Antofagasta, 6 June 2012 Constitución del Consejo Empresarial de la Alianza del Pacífico, Ciudad de México, 29 August 2012

ap Framework Agreement ap Business Council Constitution apec

Asia-Pacific Economic Cooperation

1989 apec Joint Statement

Asia-Pacific Economic Cooperation Ministerial Meeting Joint Statement, Canberra, 7 ­November 1989 Chairman’s Summary Statement, Canberra, 7 November 1989

200 apec

List of Normative Acts

Asia-Pacific Economic Cooperation

Seoul apec Declaration Seoul apec Declaration, Seul, 14 November 1989 Osaka apec Declaration apec Economic Leaders’ Declaration for ­Action, Osaka, 19 November 1995 asean

Association of South-East Asian Nations

Bangkok Declaration asean Charter aipa Statute

Asean Declaration, Bangkok, 8 August 1967 asean Charter, Singapore, 20 November 2007 Statutes of asean Inter-Parliamentary ­Organization (aipo/aipa), Manila, 2 September 1977 (as ­amended, Cebu City, 14 September 2006)

Benelux Benelux Treaty

Traité instituant l’Union économique Benelux, The Hague, 3 February 1958 Benelux Revised Treaty Traité portant la revision du traité instituant l’Union économique Benelux, The Hague, 17 June 2008 Benelux Parliament Convention instituant un Conseil consultatif interConvention parlementaire de Benelux, Bruxelles, 5 November 1955 New Benelux Convention concernant l’Assemblé Interparlemen­Parliament Convention taire du Benelux, Bruxelles, 20 January 2015 Benelux Parliament Reglèment d’ordre interieur du Conseil ­consultatif Rules of procedure interparlementaire de Benelux bimstec bimstec Bangkok Declaration

Bay of Bengal Initiative for Multi-Sectoral ­Technical and Economic Cooperation

Declaration on establishment of Bangladesh India Sri Lanka Thailand Economic Cooperation, ­Bangkok, 6 June 1997 BIMSTEC/I/MM Joint Joint Statement of the bimst-ec ­Ministerial Statement ­Meeting – BIMSTEC/I/MM – Bangkok, 22 ­December 1997 BIMSTEC/II/MM Joint BIMSTEC/II/MM, Dhaka, 18 December 1998 Statement

201

List of Normative Acts

can Cartagena Agreement

Andean Community

Acuerdo de integración subregional andina, ­Cartagena de Indias, 26.5.1969 as modified and consolidated in Decisión 563, 26 May 2003 Andean Tribunal Treaty Decisión 472, Codificación del Tratado de creación del Tribunal de Justicia de la Comunidad Andina, Cochabamba, 28 May 1996 Parlandino Treaty Tratado Constitutivo del Parlamento Andino, La Paz, 25 October 1979 (as amended in 1996) Additional ­Protocol to Protocolo adicional al Tratado Constitutivo del ­Parlandino Treaty ­Parlamento andino sobre elecciones directas y universales de sus representantes, Sucre, 23 April 1997 Dec. 187/83-Andean Decisión 187 de la Comisión Andina sobre Advisory Business ­Consejo Consultivo Empresarial Andino, Lima, Council 30 September 1983 Dec. 188/83-Andean Decisión 188 de la Comisión Andina sobre Consejo Advisory Labour Consultivo Laboral Andino, Lima, 30 September Council 1983 Dec.438/1998-Andean Decisión 438 de la Comisión Andina sobre Consejo Advisory Business Consultivo Empresarial Andino, Lima, 11 June 1998 Council Dec. 441/98-Andean Decisión 441 de la Comisión Andina, Consejo Advisory Labour ­Consultivo Laboral Andino, Cartagena de Indias, Council 26 July1998 Dec. 442/98-Andean Decisión 442 de la Comisión Andina, Consejo Advisory Business ­Consultivo Empresarial Andino, Cartagena de Council Indias, 26 July1998 Andean Advisory Reglamento Interno del Consejo Consultivo Laboral Labour Council Rules Andino – Acuerdo ccla 02/98, Texto modificado of procedure por el Acuerdo CCLA-27/2002, Lima, 16 March 2002 Andean Advisory Reglamento Interno del Consejo Consultivo Business Council Rules Empresarial Andino – Acuerdo ccea 01/98, Lima, of procedure 11 June 1998 can Dec. 539/2003 Decisión camre n° 539, Mesa Andina de Participación de la Sociedad Civil para la Defensa de los Derechos del Consumidor, Bogotá, 11 March 2003 Dec. 585/04-Andean Decisión camre 585, Creación del Consejo ­Advisory Council of ­Consultivo Andino de Autoridades Municipales, Municipal Authorities Guayaquil, 7 May 2004

202

List of Normative Acts

can

Andean Community

Dec. 674/07-Andean Advisory Council of ­Indigenous People can Dec. 711/2009

Parlandino Rules of procedure

Decisión camre 674, Creación del Consejo Consultivo de los Pueblos Indígenas de la Comunidad Andina, New York, 27 September 2007 Decisión camre 711, Creación del Consejo Andino Asesor de Altas Autoridades de la Mujer e Igualdad de Oportunidades, Lima, 19 August 2009 Decisión camre 758, Mesa del Pueblo Afrodescendiente de la Comunidad Andina, Lima, 22 August 2011 Decisión 1320, Reestructura Parlamento andino para la coexistencia CAN-Mercosur y convergencia hacia el Parlamento Suramericano, La Paz, 27 February 2014 Decisión 1346, Reglamento General del ­Parlamento Andino, Bogotà, 21 July 2015

caricom

Caribbean Community

caricom Treaty

Treaty establishing the Caribbean Community, ­Chaguaramas, 4 July 1973 Revised Treaty of Chaguaramas establishing the ­Caribbean Community including the caricom single market and economy, Nassau, 5 July 2001 Agreement for the establishment of an Assembly of Caribbean Community Parliamentarians, Kingston, 31 July 1992

can Dec. 758/2011 can Dec. 1320/2014

caricom Revised Treaty accp Agreement

carifta

Caribbean Free Trade Association

carifta Treaty

Treaty Establishing the Caribbean Free Trade Association, Dickenson Bay, 15 December 1965

cbss

Council of the Black Sea States Declaration of the Conference of Foreign Ministers of the Baltic Sea States, Copenhagen, 6 March 1992 Declaration on the reform of the Council of the Baltic Sea States, Riga, 3 June 2008

List of Normative Acts

203

CdE

Conseil de l’Entente

CdE Charter

Charte du Conseil de l’Entente, Cotonou, 5 December 2011

cei

Central European Initiative

cei Guidelines

cei Guidelines and rules of procedure, Sofia, 20.11.2007 (as amended in 2008) Rules of procedure of the cei Parliamentary ­Dimension, 27.4.2010

cei Parliamentary Dimension Rules of procedure celac

Community of Latin American and Caribbean States Declaración de Caracas “En el Bicentenario de la Lucha por la ­Independencia Hacia el Camino de Nuestros ­Libertadores”, ­Caracas, 3 December 2011 Procedimientos para el funzionamento orgánico de la celac e Plan de Acción de Caracas Comunidad des ­Estados ­LatinoAmericanos y Caribeños, Caracas, 3 December 2011

cemac cemac Treaty

Economic and Monetary Community of Central Africa

Traité instituant la Communauté économique et ­monètaire de l’Afrique Centrale, N’Djaména, 16 March 1994 cemac Revised Traité revisé de la Communauté économique et moTreaty nètaire de l’Afrique Centrale, Yaoundé, 25 June 2008 cemac Parliament Convention régissant le Parlement ­Communautaire, Convention Yaounde, 25 June 2008 cemac Cour of Convention régissant la cour de justice cemac, J­ ustice Convention ­Libreville, 30 January 2009 cemac Règlement intereur de la Commission interparlemenI­ nterparliamentary taire de la cemac, Malabo, 21 June 2000 ­Commission Rules of procedure

204

List of Normative Acts

cen-sad

Community of Sahelo-Saharan States

cen-sad Treaty

Traité portant la création de la Communauté des Etats sahélo-sahariéns, Tripoli, 4 February 1998 Traité revisé cen-sad, N’Djamena, 16 February 2013

cen-sad Revised Treaty cepgl

Economic Community of Big Lakes Countries

cepgl Convention

Convention portant la création de la Communauté Economique des Pays des Grands Lacs, Gisenyi, 20 September 1976 (as amended)

cis

Commonwealth of Independent States

cis Agreement

Agreement on the establishment of the Commonwealth of Independent States, Minsk, 9 December 1991 Charter of the Commonwealth of Independent States, Minsk, 22 January 1993 Agreement establishing the cis Inter-Parliamentary ­Assembly, Alma-Aty, 27 March 1992 Convention on the Inter-Parliamentary Assembly of the Member Nations of the Commonwealth of ­Independent States, Minsk, 26 March 1995

cis Charter cis ipa Agreement cis ipa Convention

CoE

Council of Europe

CoE Statute CoE pa Rules of procedure

Statute of the Council of Europe, London, 5 May1949 Règlement de l’Assemblée parlementaire du Conseil de l’Europe. Résolution 1202, 4 November 1999, amendé par Résolution 1234 (2000) et Résolution 1266 (2001) Statutory Resolution (94)3 relating to the setting up of the Congress of Local and Regional Authorities of Europe, 14 January 1994 Statutory Resolution CM/Res(2015)9 relating to the Congress of Local and Regional Authorities of the Council of Europe, 8 July 2015

CoE Statutory ­Resolution (94)3 CoE Statutory ­Resolution CM/ Res(2015)9

List of Normative Acts

205

CoE

Council of Europe

CoE Congress of Local and Regional Authorities Charter CoE Congress of Local and Regional Authorities Rules of procedure

Charter of the Congress of Local and Regional Authorities of the Council of Europe, 8 July 2015 (as amended)

coi

Indian Ocean Commission

coi Agreement

Accord Général de coopération entre les etats membres de la Commission de l’Océan Indien, Port Louis, 21 December 1982 (as amended in Victoria, 10 January1984)

comesa

Common Market of Eastern and Southern Africa

Résolution 337 (2012), New Rules of Procedure of the Congress of Local and Regional Authorities of the Council of Europe and its Chambers Résolution Res(2003)8, Statut ­participatif des organisatios internationales non ­gouvernamentales auprès du Conseil de l’Europe, 19 November 2003 Rules of Procedure of the Conference of ­International Non-Governmental ­Organizations (ingos) of the Council of ­Europe, OING/Conf/2013/Rules, 24 January 2013

comesa Treaty

Treaty establishing the Common Market for Eastern and Southern Africa, Kampala, 5 November 1993 comesa Business Constitution of the comesa Business Council, Council Constitution ­Nairobi, 20 May 2007 (as amended) comesa Business Rules of procedure of the comesa Business Council, Council Rules of Kigali, 2 June 2005 procedure csto

Collective Security Treaty Organization

csto Charter

Charter of the Collective Security Treaty Organization (as amended by the Protocol on amendments signed on December 10, 2010), Chisinau, 7 October 2002

206

List of Normative Acts

eac

East African Community

eac Treaty

Treaty for the establishment of the East African ­Community (as amended on 14th December, 2006 and 20th August, 2007), Arusha, 30 November 1999 eala Rules of procedure, Arusha, 2001

eala Rules of procedure eaeu

Eurasian Economic Union

eaeu Treaty

Treaty on the Eurasian Economic Union, Astana, 29 May 2014

eccas

Economic Community of Central African States

eccas Treaty repac Protocol

Treaty establishing the Economic Community of ­Central ­African States, Libreville, 18 October 1983 Protocole instituant le Réseau des Parlementaires de la ­Communauté Economique des Etats de l’Afrique ­Centrale (­r epac), Malabo, 17 June 2002

eco

Economic Cooperation Organization

eco Charter paeco Charter

Charter of the Economic Cooperation Organization, Izmir, 4 September 1996 Charter of the Parliamentary Assembly of the Economic ­Cooperation Organization (paeco), Islamabad, 11 ­February 2013

ecowas

Economic Community of West African States

ecowas Treaty

Treaty of the Economic Community of West African States, Lagos, 28 May 1975 ecowas Revised Treaty, Cotonou, 24 July 1993

ecowas Revised Treaty ecowas Parliament Protocol ecowas Parliament Supplementary Protocol

Protocol A/P2/8/94 relating to the Community ­Parliament, Abuja, 6 August 1994 Supplementary Protocol A/SP/3/06/06 ­amending Protocol A/P2/8/94 relating to the Community ­Parliament, Abuja, 14 June 2006

List of Normative Acts

ecowas

207

Economic Community of West African States

Decision A/DEC.6/01/06 relating to modalities for the effective implementation of Article 6 of Protocol A/P.2/8/94 relating to the Community Parliament, Niamey, 12 January 2006 ecowas Parliament ecowas Parliament Rules of procedure, 16 August Rules of Procedure 2011 ecowas Parliament Supplementary Act A/SA.1/12/16 relating to Supplementary Act the ­enhancement of the powers of the ecowas ­Parliament, Abuja, 17 December 2016 efta

European Free Trade Association

efta Convention

Convention establishing the European Free Trade ­Association, Stockolm, 4 January 1960 efta Revised Revised Convention establishing the European Free Convention Trade Association, Vaduz, 21 June 2001 Decision of the efta Council No. 11, on the establishment of a Committee of Members of Parliament of the efta Countries, 13–14 October 1977 efta Consultative Council Decision No. 5/1961, as ­amended by Committee Terms of ­Council Decision No. 10/1968, Council Decision Reference No. 11/1988, Council Decision No. 1/1994, Council ­Report EFTA/C.SR 9/95 efta Consultative Ref. 1077142, Consultative Committee Rules of Committee Rules of ­procedure, 14 March 2007 procedure efta Parliamentary Decision of the Council No. 01/2009 on revised Committee Term of terms of reference for the ­Committee of Members of Reference ­Parliament of the efta Countries, 23 March 2009 efta Parliamentary Ref. 1090902, Committee of members of Parliaments Committee Rules of of the efta Counties Rules of Procedure, Brussels, 23 Procedure June 2009 eu

European Union

teu tfeu

Treaty on European Union, Lisbon, 13 December 2007 Treaty on Functioning of the European Union, Lisbon, 13 December 2007

208 eu

List of Normative Acts

European Union

European Election Act

Act concerning the election of the Members of the European Parliament by direct universal suffrage, ­Brussels, 20 September 1976 eu Council Council Decision 2004/585/EC, establishing Regional Decision 2004/585/ Advisory Councils under the Common Fisheries Policy, EC Bruxelles, 19 April 2004 eesc Rules of Rules of procedure of the European Economic and procedure Social Committee, Brussels, 14 July 2010 eesc Members’ Members’ Statute of the European Economic and Statute ­Social Committee, Brussels, 19 January 2012 CoR Rules of Rules of procedure of the Committee of the Regions, procedure Brussels, 31 January 2014 Council Decision Council Decision 2014/930/EU, determining the 2014/930/EU ­composition of the Committee of the Regions, 16 December 2014 Council Decision Council Decision 2015/1157/EU, determining the 2015/1157/EU composition of the European Economic and Social Committee, 14 July 2015 EurAsEc

Eurasian Economic Community

EurAsEc Treaty

Treaty establishing the Eurasian Economic Community (as amended in 2006 and 2007) Astana, 10 October 2000 Regulations on the Inter-Parliamentary Assembly of ­Eurasian Economic Community, Resolution of the EurAsEc Interstate Council No. 52, 13 May 2002 Rules of procedure the Inter-parliamentary ­Assembly of Eurasian Economic Community (approved by ­Resolution of the EurAsEC Inter-parliamentary ­Assembly 2 November 2002, No. 3–7)

EurAsEc ipa Regulation EurAsEc ipa Rules of procedure

G5 Sahel

Group of 5 Sahel Countries

G5 Sahel Convention

Convention portant la création du G5 Sahel, ­Nouackhott, 19 December 2014

List of Normative Acts

209

gcc

Gulf Cooperation Council

gcc Charter

Charter of the Cooperation Council for Arab States of the Gulf, Abu-Dhabi, 25 May 1981 Closing Statement of the 18th Session of the gcc Supreme Council, Kuwait City, 22 December 1997

iai

Ionian-Adriatic Initiative

iai Ancona Declaration

iai Guidelines and Rules of procedure

Ancona Declaration (Adopted at the Conference on ­Development and Security in the Adriatic and Ionian), ­Ancona, 20 May 2000 Rules of procedures of the Adriatic and Ionian Council (aic), Zagreb, 24 November 2000 (as amended in ­Brussels, 23 May 2011) Guidelines and Rules of procedure of the Adriatic and ­Ionian Initiative Permanent Secretariat, Zagreb, 27 May 2008 (as amended in Ancora, 5 May 2010);

igad

Inter-Governmental Authority on Development

aic Rules of Procedure

igad Agreement Agreement Establishing the Inter-Governmental Authority on Development (igad), Nairobi, 21 March 1996 igad ipu The Protocol establishing igad Inter -Parliamentary Protocol Union, Addis Abeba, 22 February 2005 iora

Indian Ocean Rim Association

ior-arc Charter Charter of the Indian Ocean Rim Association for Regional Cooperation, 3 March 1997 iora Charter Charter of the Indian Ocean Rim Association, Sana’a, 5 August 2010 Revised Charter of the Indian Ocean Rim Association, iora Revised Charter Perth, 9 October 2014 iorbf Charter Charter of the Indian Ocean Rim Business Forum, ­Mauritius, 17 August 1995 las

League of Arab States

las Charter

Charter of the League of Arab States, Il Cairo, 25 March 1945

210

List of Normative Acts

las

League of Arab States

Arab League Resolution No. 290 and 292 Arab Parliament Statute

Arab League Resolution No. 290 and 292 on the establishment of Transitional Arab Parliament, Algeri, 23 March 2005 las Council Resolution n. 559 on the approval of the Statute of the Arab Parliament, 23rd Summit, Bagdad, 29 March 2012

mercosur

Common Market of the Southern Cone

mercosur Treaty

Tratado para la constitutión de un mercato común entre la República Argentina, la República Federativa del Brasil, la República del Paraguay y la República Oriental de ­Uruguay, Asunción, 26 March 1991 mercosur Ouro Protocolo Adicional al Tratado de Asunción sobre la Preto Protocol estructura institucional del mercosur, Ouro Preto, 17 December 1994 mercosur Protocolo de Olivos para la solución de controversias en el ­ livos Protocol mercosur, Olivos, 18 February 2002 O mercosur Protocolo costitutivo del Parlamento del mercosur, Montevideo Montevideo, 8 December 2005 Protocol Acuerdo interinstitucional Consejo Mercado Comùn – Comisión Parlamentaria Conjunta, Montevideo, 6 October 2003 mercosur MERCOSUR/CMC/DEC. N° 37/03, Reglamento del Dispute Settle- ­Protocolo de Olivos para la solución de controversias en el ment Rules of mercosur, Montevideo, 15 December 2003 procedure MERCOSUR/ MERCOSUR/CMC/DEC. No. 41/04, Foro Consultivo de CMC/DEC. No. Municipios, Estados Federados, Provincias y Departamen41/04 tos del Mercosur, Belo Horizonte, 16 December 2004 Parlasur Rules of Reglamento interno del Parlamento del mercosur, procedure ­Montevideo, 6 August 2007 fccr Rules of MERCOSUR/GMC/RES. No. 26/07, Reglamento interno procedure del Foro Consultivo de Municipios, Estados Federados, Provincias y Departamentos del Mercosur, Montevideo, 27 September 2007

List of Normative Acts

mercosur

Common Market of the Southern Cone

MERCOSUR/ CMC/DEC. No. 61/12 fces Rules of procedure

MERCOSUR/CMC/DEC. No. 61/12, Foro Empresarial del Mercosur, Brasilia, 6 December 2012

mru

Mano River Union

211

MERCOSUR/GMC/RES. No. 38/15, Reglamento interno del Foro Consultivo Económico-Social del Mercosur, Asunción, 23 September 2015

mru Declaration Mano River Declaration establishing the Mano River Union between Liberia and Sierra Leone, Malema, 3 October 1973 (as amended) nato

North Atlantic Treaty Organization

nato Treaty nato pa Rules of procedure

North Atlantic Treaty, Washington, 4 April 1949 nato Parliamentary Assembly Rules of Procedure, 121 gen 14 E, Vilnius, 8 May 2014

obsec

Organization of Black Sea Economic Cooperation

bsec Summit Declaration obsec Charter

Summit Declaration on Black Sea Economic Cooperation, Istanbul, 25 June 1992 Charter of the Organization of Black Sea Economic ­Cooperation, Yalta, 5 June 1998 pabsec Declaration on the establishment of the Parliamentary Declaration ­Assembly of the Black Sea Economic Cooperation, Istanbul, 26 February 1993 pabsec Rules of Rules of Procedure of the Parliamentary Assembly of the procedure Black Sea Economic Cooperation, Istanbul, 17 June 1993 as amended Protocol concerning the privileges and immunities of the Parliamentary Assembly of the Black Sea Economic ­Cooperation, Baky, 31 October 2003

212

List of Normative Acts

odeca/sica/sieca Organization of Central American States/ Central American Integration System/ Central American Economic Integration System odeca Charter

Charter of the Organization of Central American States, San Salvador, 14 October 1951(as amended, Panama City, 12 December 1962) sica Tegucigalpa Protocolo de Tegucigalpa a la Carta de la Organización Protocol de Estados Centroamericanos (odeca), Tegucigalpa, 13 December 1991 Central American Convenio Estatuto Corte Centro Americana de Court Convention ­Justicia, Panama City, 10 December 1992 sieca Guatemala Protocolo al Tratado General de Integración EconómiProtocol ca Centroamericana, Guatemala, 29 October 1993 sica San Salvador Tratado de la Integración Social Centroamericana, San Treaty Salvador, 30 March 1995 Tratado Marco de Seguridad Democrática en ­Centroamérica, San Pedro Sula, 1 November 1995 Rules on sieca Reglamento de organización y funcionamiento de ­Ministerial Councils los Consejos: de Ministros de integración económica, intersectorial de Ministros de integración económica y sectorial de Ministros de integración económica, 19 January 1998, as amended Parlacen Protocol Protocolo de reformas al Tratado Constitutivo del Parlamento Centroamericano y otras Instancias Politicas (as amended), San Salvador, 20 February 2008 cc-sica Statute Estatuto Consultivo del Comité Consultivo del Sistema de Integración Centroamericana cc-sica, San Salvador, 8 December 2011 Reglamento de los actos normativos del sica, Managua, 1 December 2005 Reglamento para la adopción de decisiones del sica, San José, 24 June 2013 Parlacen Rules of Reglamento interno del Parlamento Centroamericano, procedure 2014 oded/guam guuam Yalta Charter guuam Yalta Charter, Yalta, 7 June 2001 oded-guam Charter Charter of the Organization for Democracy and ­Economic Development – guam, Kiev, 23 May 2006

List of Normative Acts

213

oded/guam Agreement on establishment of the Business Council guam Business of guam participating States, Yalta, 20 July 2002 ­Council Agreement guam pa Declaration Declaration on establishing the guam Parliamentary Assembly, Kiev, 23 September 2004 guam pa Rules of Rules of Procedure of guam Parliamentary procedure ­Assembly, Kiev, 23 September 2004 oecs

Organization of Eastern Caribbean States

oecs Treaty oecs Revised Treaty

Treaty establishing the Organization of Eastern ­ aribbean States, Basseterre, 18 June 1981 C Revised Treaty of Basseterre establishing the ­Organization of Eastern Caribbean States – ­Economic Union, St. Lucia, 18 June 2010

oic

Organization of Islamic Cooperation

oic Charter

Charter of the Organization of Islamic Cooperation, Dakar, 14 March 2008 Statute of the Parliamentary Union of the oic ­Member States (as amended in 2011), Teheran, 17 June 1997 Rules of Procedure of the Conference of the puic, 2011 Rules of procedure of the General Committee ­(Council) of puic, 2011 Rules of procedure of the Executive Committee of puic, 2011

puic Statute

onu

Organization of United Nations

un Charter

Charter of the United Nations, San Francisco, 26 June 1945 ecosoc Resolution 1296 (xliv), 23 May 1968 ecosoc Resolution 1996/31, Consultative ­relationship between the United Nations and non-­ governmental organizations, 25 July 1996

214

List of Normative Acts

osce

Organization for Security and Cooperation in Europe

Helsinki Final Act Charter of Paris osce pa Madrid Document osce pa Rules of procedure

Conference on Security and Cooperation in Europe Final Act, Helsinki, 1 August 1975 Charter of Paris for a New Europe, Paris, 21 November 1990 Final Resolution concerning the establishment of the csce Parliamentary Assembly, Madrid, 2–3 May 1991 osce Parliamentary Assembly Rules of Procedure, 29 July 2013

pc

Pacific Community

pc Agreement

Agreement establishing the South Pacific Commission, Canberra, 6 February 1947 (as amended in 1976, 1980, 1984)

pif

Pacific Island Forum

pif Agreement Agreement establishing the Pacific Islands Forum, Apia, 17 April 1973 (as amended in Port Moresby, 27 October 2005) pif Secretariat Agreement establishing the Pacific Islands Forum SecreAgreement tariat, Tarawa, 30 October 2000 rcc

Regional Cooperation Council

rcc Sofia Declaration

Declaration on Regional Cooperation Council establishing its membership and statute, Sofia, 27 February 2008 Memorandum of Understanding on Inter-Parliamentary Cooperation in South-East Europe, Sofia, 14 April 2008

saarc

Southern Asian Association for Regional Cooperation

saarc Charter

Charter of the Southern Asian Association for Regional Cooperation, Dhaka, 8 December 1985 Charter of the SAARCLaw, Colombo, 24 October 1991

SAARCLaw Charter saarc-cci Constitution saarc-cci Amended Constitution

Constitution of the saarc Chamber of Commerce and Industry, Kathmandu, 12 December 1992 Amended Constitution of the saarc Chamber of Commerce and Industry, Kathmandu, 23 September 2011

List of Normative Acts

sacu

Southern African Customs Union

sacu Agreement

Southern African Customs Union Agreement, ­Gaborone, 21 October 2002

sadc

Southern African Development Community

215

sadc Treaty

Treaty of the Southern African Development ­ ommunity, Windhoek, 17 August 1992 C sadc pf Constitution Constitution of the sadc Parliamentary Forum, ­Windhoek, 15 July 1996 sco

Shanghai Cooperation Organization

sco Declaration

Declaration on the Establishment of the Shanghai ­Cooperation Organization, Shanghai, 15 June 2001 Charter of the Shanghai Cooperation Organization, San Pietroburgo, 7 June 2002

sco Charter sela

Latin American Economic System

sela Convention

Convenio de Panamá constitutivo del Sistema Económico Latino Americano, Panama City, 2 August 1975

uemoa

Economic and Monetary Union of West Africa

Traité de l’Union Economique et Monétaire Ouest-­ Africaine (uemoa), Dakar, 1 January 1994 uemoa Modified Traité modifié de la Union Economique et Monètaire Treaty de l’Ouest Africain, Dakar, 29 January 2003 uemoa Parliament Traité portant la création du Parlement de l’UEMOA, Treaty Dakar, 29 January 2003 Additional Act Acte additionnel n° 02/97 fixant les attributions, 02/97-UEMOA la composition et les principes d’organisation et de Regional Chamber of ­fonctionnement de la Chambre Consulaire Régionale Commerce de l’UEMOA, 23 June 1997 Acte additionnel n° 04/2009/CCEG/UEMOA portant modification de l’acte additionnel n° 02/97, ­Ouagadougou, 17 March 2009 uemoa Treaty

216

List of Normative Acts

uemoa

Economic and Monetary Union of West Africa

Regulation 12/2007/ UEMOA-Regional Advisory Committee of Agricultural Field Additional Act 02/2009/CCEG/ UEMOA-Labour and Social Dialogue Council Additional Act 02/ CCEG/UEMOA/2011Council of Regional Authorities

Règlement n° 12/2007/UEMOA, instituant le ­Comité consultatif régional des filières agricoles, 17 ­September 2007

uma

Union of Arab Maghreb

uma Treaty

Traité constitutif de l’Union du Maghreb Arabe, ­ arrakech, 17 February 1989 M

unasur

Union of South-American Nations

unasur Treaty

Tradado constitutivo de la Unión de Naciones ­Suramericanas, Brasilia, 23 May 2008; Protocolo Adicional al Tratado constitutivo de ­u nasur sobre Compromiso con la Democracia, Georgetown, 26 November 2010 UNASUR/CJEG/PDECISIÓN/N° 7/2012, por la cual el Consejo de Jefas y Jefes de Estado y de Gobierno de la Unión de Naciones Suramericanas, decide crear un Foro de participación ciudadana de unasur, Lima, 30 November 2012

Acte Additionnel n° 02/2009/CCEG/UEMOA instituant le Conseil du Travail et du Dialogue Social, 17 March 2009 Acte Additionnel n° 02/CCEG/UEMOA/2011 instituant le Conseil des Collectivités Territoriales, 30 May 2011

VISEGRAD GROUP VISEGRAD GROUP Declaration

Declaration on Cooperation between the Czech and Slovak Federal Republic, the Republic of Poland and the Republic of Hungary in Striving for European Integration, Visegrad, 15 Feburary 1991

217

List of Normative Acts

weu weu Treaty

West European Union

Treaty establishing the West European Union (as amended in 1954), Brussels, 17 March 1948 weu Assembly Charter Charter of the Assembly (adopted by Resolution of the Assembly at its third sitting), 20 October1955 weu Assembly Rules of Rules of procedure of the Assembly (adopted by procedure Resolution at 3rd sitting), 24 October 1955

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Index ACS 11, 13, 14n3, 32n4, 34, 64n5, 72n2 Advisory Function 64n1, 130–133, 141, 146, 149, 153, 156–159, 162, 164–165 Advisory opinion 131n4, 133 AIPA 40n2 and n4, 49, 49n4, 50n4, 59n2, 60n4, 67n1, 78n3 and n4, 96, 99, 100n6, 108n5, 145, 155 ALADI 25n1, 30n1, 50, 65, 72 ALADI Business Council 65n2, 110n1, 114n2, 121n1, 126n2, 128n3, 164, 175n2, 178n1 ALADI Labour Council 65n2, 110n1, 114n2, 121n1, 126n2, 157n1, 175n2, 178n1 Andean Advisory Business Council 50n5, 52n2, 64n1, 110n1, 114n1, 126n2, 158n2, 164 Andean Advisory Council of Indigenous People 38n2, 64n2, 72n3, 110n1, 114n1,   119n3, 126n2, 164n3 Andean Advisory Council of Municipal Authorities 50n6, 64n3, 110n1, 114n1,   119n2, 121n4, 157n2, 162n1, 164n3 Andean Advisory Labour Council 64n1, 72n3, 110n1, 114n1, 123, 126n2, 158n2, 160n1, 161 Andean Pact 32, 34n4, 71 APEC 34n3, 74, 165 APEC Business Advisory Council (APEC-BAC)  69n1, 74n1, 110n1, 114, 119n3, 121n2, 126n2, 128n2, 157n2, 165, 170, 178n1 ASEAN 10, 30n5–6, 33n2, 34n5, 36n1, 67, 69, 74, 115, 155 ASEAN Business Advisory Council (ASEAN-BAC) 67n1, 74n1, 77n1, 110n2,  115n1, 119n3, 121n2, 160n1, 161, 169–170, 178n1 Assembly of Caribbean Community Parliamentarians (ACCP) 50n4, 78n2, 80,   83n1, 87n3, 88n1, 92n4, 97n3, 99n2,   100n4, 102n5, 103n1, 135n3, 140n5,   152n2, 174n2 Assent 138n2, 148–149, 154, 177 AU 13n6, 14, 18n3, 33n4 See also Organization of African Unity (OAU) 30n3, 82n1

AU ECOSOC 61n3, 110n1, 113n1, 117n1–2, 119n4, 120n3, 127n1 e n3, 157n2, 160n1, 163, 174n3 Benelux 31, 64n4, 70, 89 Benelux Parliament 31n5, 78n2, 81, 89n1, 91n1, 92n4, 96, 97n3, 101n1, 106n1, 107, 109, 142n3, 143n5 BIMSTEC 13, 34n3 BIMSTEC Business Forum 13n4 BIMSTEC Economic Forum 13n4 Bipolar Institutional Structure See Institutional structure Bureau 106–107 CAn 34n4–5, 37n1, 44n2, 60, 63, 71–72, 88, 94, 121n1, 129n1 CARICOM 30n2, 33n3, 65, 72, 88n4, 129n1, 152 CEAO 30n3 CEI 33, 34n3, 68, 71, 89, 112 CEI Business Dimension 68n4, 110n1, 112n5, 114, 126n2 CEI Parliamentary Dimension 68n4, 69n1, 78n2, 84, 89n1, 92n4, 96, 97n3, 101n1, 102n5, 108n2–3, 131n2, 140n5, 174n2 CELAC 32n4, 34n1 and n3, 67, 72n2 CEMAC 25n3, 34, 44n2, 60, 63–64, 87–88, 92n4, 94, 129n1, 131, 134, 149, 187n4 CEMAC Parliament 63n1, 73n1, 78n2, 87n1, 97n2, 101n2, 108, 132n1, 134n3, 136–137, 146, 150–151 CEN-SAD 34n2 e n5, 64n5, 73 CEN-SAD Economic Social and Cultural Council 110n1 Central American Court of Justice 84n1, 102n3, 126n1, 167 CEPGL 30n3 CIS 34n2, 65n4, 75, 139, 144 CIS Inter-Parliamentary Assembly (CIS IPA)  25n3, 78n2, 83n1, 89, 92n4, 96, 98, 100n4, 101n1, 105n3, 109n2, 132n3, 133n4, 139n2, 143n5, 144, 179

Index CoE 11, 14, 18, 31, 51, 62, 65, 71, 89, 139 CoE Congress of Local and Regional ­Authorities 39, 110n1, 113n2, 118, 121n4,   124, 127, 157n2, 158n2, 162, 163, 175n1, 180 CoE Parliamentary Assembly (CoE PA)  19n2, 20, 31n5, 38, 78n2, 83, 87n3, 89, 97n3, 102n7, 106–107, 109, 138–139, 142n1, 145n2, 150, 154 COI 30n3, 32n4, 64n5 Cold War 4, 32, 33n1, 52, 61n2, 91n1 COMESA 33n3, 44n2, 65, 73, 112, 129n1 COMESA Business Council 110n1, 117n2, 120n3, 128n2, 157n2, 160n1, 166n1, 169, 175n1 Comité Consultivo de Integración Económica (CCIE) 61n3, 72n3, 110n1, 112n3, 159,    160n1, 164, 166–168, 177 Comité Consultivo de Integración Social (CCIS) 72n3, 110n1, 112n3, 126, 166–167 Comité Consultivo SICA (CC-SICA)  61n3, 65n1, 72n3, 112n3, 118, 120n2–3, 126, 127n3, 128n2, 158n2, 160n1, 166–167, 168n1 Committee of Regions (CoR) 16, 18n1, 26, 31n6, 33, 39, 64n3, 110n1, 111, 112n1, 113– 114, 117–118, 120–125, 127–128, 158–160, 166–168, 170–171, 179 Commodity Organization 10, 16–17, 29, 32 Commonwealth Parliamentary Association  3 Constitutionalism 24n1, 53, 186, 190 See also Constitutionalist approach/­ theory 24, 26, 42, 52–58, 190–192 Connected Institutions 23, 39–41, 62, 66–69, 83–86, 111, 161, 173, 180n2 Conseil de l’Entente (CdE) 30n3, 33n2–3, 44n2, 64n5 Cooperation Organization 23, 33–34, 63–67, 74, 88, 121, 134 CSTO 34n2, 38, 65n4, 75, 89 CSTO Parliamentary Assembly (CSTO PA)  25n2, 39, 75n1, 77n1, 78n3, 89, 92n3, 98, 101n1 Decision-Making Process 12, 16, 63, 130, 145–150, 156, 163–166, 170–171, 176–179, 182, 188, 192

239 Deliberative Function 16, 129n3, 130, 142–144, 154–156, 159–163, 179 Democracy 30, 34–35, 51, 52n2, 56, 58, 59n2, 61, 74, 139, 162–163, 191–192 EAC 10, 34, 35n6, 44n2, 46n3, 60, 65, 73, 79, 88, 93, 129n1, 137–138, 148 EACJ 91n5, 93n4 EALA 60n3, 73n1, 78n2, 83, 91n4, 93, 96, 98n3, 103n4, 130, 131n2, 136–137, 138–139, 142, 146, 148, 154, 177 EAEU 34n2, 75, 129n1 ECCAS 30n3, 65n4, 73, 80n3, 88n4, 152 ECJ 18, 31, 46n2, 55, 151, 153, 167, 183 ECO 66, 74, 79n1, 85n4 ECO Chamber of Commerce and Industry (ECO CCI) 13n3, 66n5, 74n1, 77n1, 110n2,   115, 119n4, 120n3, 127n2, 128n2, 160n1, 162 ECO Parliamentary Assembly (PAECO)  25n1, 40n2, 66n5, 78n3–4, 79, 85, 88n3, 96, 97n3, 99n2, 100n6, 108n1, 131n3, 134n1, 140n4 ECOSOC 9 ECOWAS 10, 30n3, 33n3, 44n2, 60, 65, 73, 94, 129n1, 134 ECOWAS Economic and Social Council  110n1 ECOWAS Parliament 25n3, 49, 50n2, 60n3, 73n1, 78n2, 90, 93n3–4, 100n2, 106n1, 107, 109, 130, 132, 134, 136, 139, 146, 148–149, 177 EESC 16, 18, 21, 26, 31, 38, 61n3, 63n2, 110n1, 111, 113–114, 117–118, 119n1, 120–125, 127, 156, 158–160, 164n1, 168, 170–171, 177, 179 EFTA 31, 70 EFTA Consultative Committee 31n6, 110n1,113n2, 119n3, 121n2, 123, 128n3, 160n1 EFTA Parliamentary Committee 31n5, 78n2, 80, 84, 92n4, 100n4, 105n3, 106n1, 108n2–3 Emulation 42, 58–61, 74 Equality (principle of) 1, 30, 56, 88, 90n1, 118, 119, 195 EurAsEc 34n2, 75, 96n1

240 European Commission 31, 49n1, 111, 112n2, 134n2, 137–138, 141, 151n3, 153–154, 158, 164n1, 167n1, 170–171, 179 European Parliament (EP) 12, 90, 129–133, 135–137, 141, 146–148, 150–154, 158, 168, 177, 179 European Union (EU) 10, 109–111, 118–119, 123, 125, 130, 133, 136, 139, 141 External acts 173, 179–180, 189n2 FAO 14, 31n4 FCCR 65n5, 114n1, 119n2, 121n4, 126n2, 127, 157n2, 158n2, 160n1, 161, 175n3 FCES 72n3, 110n1, 112n2, 117n1–2, 119n1, 121n1, 127n3, 128n2, 157n2, 160n1, 162n1, 166n1, 175n3 Functionalism 186 See also Functionalist Approach/Theory  22, 23n4, 24–25, 27, 42, 47–52, 54, 56, 78, 88, 114, 121, 186–190, 194–195 GCC 13, 30n4, 65, 70n1, 76 GCC Consultative Committee 110n1, 113n1, 119n3, 121n2, 127n3, 128n3, 157n2, 159n2, 169–170, 175n2, 178 GUAM Parliamentary Assembly (GUAM PA)  25n1, 49, 66n4, 75n1, 78n3 e n4, 86n4, 88n3, 92n3, 96, 97n3, 98, 100n3 e n6, 108n3, 131n3, 134n1, 140 G5 Sahel 34n2 e n5, 64n5 Human Rights 5, 6n4, 32n1, 34, 35n1, 43, 53–54, 56, 61, 139–140, 149n2, 183n1, 192 IAI 33, 34n3, 68n5, 71 ICCIA 67n4, 76, 110n2, 115n1, 117, 119n4, 120n3, 127n2–3, 128n2, 160n1 ICTY 1n2 IFAD 9n4 IGAD 11, 34n2, 65n4, 73, 88n4 IGAD Inter-Parliamentary Union (IGAD IPU)  73, 78n2, 80, 83n1, 91n2, 96, 100n4, 101n1, 102n5, 107n7, 108n3, 131n2, 140n5, 142, 174n2 ILO 13, 15–16, 82n1 IMF 4, 9–10, 14, 18, 43 IMO 13, 9n4, 82n1 Immunities 97, 101–104, 122, 124–125

Index Incompatibilities 97, 100–101, 122–124 Incorporation 8n1, 44, 46, 55n2, 81, 93, 132, 184, 189, 191 Institutional Multipolarism 25, 36–37, 42, 52, 56, 61n3, 62–64, 67, 70, 71n1, 72–77, 129, 150, 193–194 Institutional Structure 2, 8, 15–16, 19, 27–28, 36, 40–41, 48, 60, 84, 103, 105, 114, 125, 131, 161, 173–174, 195–196 Bipolar Structure 28–29, 32, 56, 67, 72 Multipolar Structure 26, 28, 30–31, 33, 36, 38, 51, 57, 59, 62–76 Tripartite Structure 29 Integrated Institution 23, 39–41, 62–63, 66, 69, 76, 78, 83, 110, 113, 116, 120, 125–126, 172–173, 175, 180n2 Inter-institutional Agreement 178–179 Internal Act 173–174, 178–179 Inter-organic Opinion 175–177, 181–182, 189 Inter-organic Recommendation 175–176, 178, 182 IORA 34n3, 68, 74, 112, 162, 169n1 IORA Academic Group 68, 69n1, 74n1, 110n1, 112n5, 114, 162, 169 IORA Business Forum 68, 69n1, 74n1, 110n1, 112n5, 114, 162, 169 Judicial Organ 28–29, 32, 60, 84n1, 151 LAS 11, 29, 30n4, 38n1, 65n4, 70n1, 76, 80n6, 88n4, 96, 113n4, 136n6, 149, 152 LAS Parliament 91n3, 92n4, 96, 97n3–4, 98n4, 100n2, 101n1, 108n1 and n3 Legitimacy 25, 41, 56, 60n4, 94, 182–192 Mandate 31–32, 37–39, 42–47, 52, 57, 63, 71, 74, 76, 92, 97–109, 122–125, 139, 159, 189, 191n2, 195–196 Mercosur 12, 34n2, 44n2, 46n3, 65, 72, 79–80, 89, 94, 112, 132, 136, 152, 154, 179 MRU 30n3, 32n4, 64n5 NATO 31, 38, 65n4, 66, 71, 86n5, 139–140 NATO Parliamentary Assembly (NATO PA)  31n5, 39, 40, 66n1, 71, 78n3–4, 86,

Index 87n3, 89, 96, 100n6, 107, 134n1, 140n4, 143n1, 145, 156 NGOs 3–4, 5n3, 6n2 and n4, 8–14, 17–18 OAS 4n3, 11, 18n3, 29, 30n1, 32n4, 82n1 OBSEC 34n2–3, 75, 155 ODECA 30n1, 33n3, 71–72, 81n2 ODED-GUAM 34n2–3, 66, 75, 86n4, 116n2 OECD 23n2, 31, 66, 70n3, 71, 165–166 OECS 25n1, 30n2, 33n3, 44n2, 65, 72, 79, 88, 152 OECS Assembly 78n2, 83, 96, 97n3, 101n1, 102n5, 104n4, 131-132, 133n4, 140n5, 177 OIC 30n4, 33n4, 67, 70n1, 76, 79, 85n1, 86, 115, 152 Organ of Individuals 22, 26, 28, 31, 195–197 Organ of People 26, 197 Organ of States 22, 26, 28, 195–197 Organic Method 7–8, 15–18, 19 OSCE 11–12, 33, 71, 89, 134, 139, 155 OSCE Parliamentary Assembly (OSCE PA)  69, 78n2, 95, 80, 101n1, 102n1, 106n2, 107n3, 109, 131n2, 134, 136, 139, 154 Oversight Function 16, 130, 133–142 PABSEC 25n3, 50n4, 75n1, 78n3–4, 89, 96, 97n3, 98, 104n2, 106n1, 134n1, 139, 140n4, 145n1, 155 Pacific Alliance 7n2 Pacific Community (PC) 32n4, 64n5 Pacific Island Forum (PIF) 11, 13, 30n5, 32n4, 64n5 PAECO 25n1, 40n2, 66n5, 78n2–3, 79, 85, 88n3, 92n3, 96, 97n3, 99n2, 100n4–6, 107n7, 131n3, 134n1, 140n4 Pan-African Parliament (PAP) 49–50, 61n3, 73n1, 83n1, 91n2, 97n3, 130, 135n3, 139–140, 147n2, 152n1 Parlacen 61n3, 65n1, 72n3, 78n2, 81, 87n3, 94, 97n3, 101n3, 109, 130, 135n3, 142, 147, 150–152, 154 Parlandino 72n1, 78n2, 80, 87n3, 94n1 e n4, 97, 106n2, 131n2, 135n3, 137–138, 140, 147 Parlasur 135n2, 136–138, 140, 142, 143n5, 144, 147, 150–152, 154, 177, 179, 180n2 Parliamentary Institution 21, 24n2, 38–39, 40n3, 41–42, 63, 65, 71–76, 77–109, 182, 186, 189

241 Principal Organ 29n1, 82–83, 114–115, 172 Proportionality (Principle of) 88–90, 118, 167n2 PUIC 25n3, 67n4, 76, 78n3–4, 79, 85n1, 86, 88n3, 96, 97n3, 99n2, 100n4 e n6, 106, 108n1, 131n3, 134n1, 140n4, 178n1 Regulation 44, 164, 168 REPAC 73, 80, 83n1, 87, 92n4, 97n2, 100n3, 106, 108n1 and n3, 140n5, 142 SAARC 30n5, 67, 74 SAARC Association of Speakers and Parliamentarians (SAARC ASP) 67n2,   74n1, 77n1, 78n3–4, 86 SAARC Chamber of Commerce and Industry (SAARC CCI) 67n2, 74n1, 77n1, 110n2, 115,   117, 119n3–4, 120n1–3, 127n1 and n3 SAARCLaw 67n2, 74n1, 110n2, 115, 119n3, 120n3, 127n1 and n3 SACU 30n3, 32n4, 64n5 SADC 10, 34n2, 40n3, 65n4, 67, 73, 85n2, 152 SADC Parliamentary Forum (SADC PF)  100n6, 104n1, 107n5, 134n5, 139, 140n3, 143n1, 144, 146, 152, 155, 179 SCO 34n2–3, 35n1, 66, 75, 85n3, 120n3, 163 SCO Business Council 66n3, 110n2, 115, 119n3, 127n1–3, 128n2, 160n1, 161, 163, 166n1, 179 SCO Parliamentary Initiative 66n3, 75n1, 77n1, 78n3–4, 85 Secretariat 13, 17n1, 28–29, 31, 36, 107–108, 128, 165 Security Council 43 SEECP 68n5, 86n4, 88n3, 91n1 and n3, 100n6, 131n3, 134n1, 140n4 SELA 30n1, 32n4, 64n5, 72n2 Self-Regulation Act 174–175 SICA 33n3, 34n5, 35n2, 44n2 e n5, 60, 65, 72n3, 84n1, 88n1 e n4, 112, 129n1, 135n3, 138, 164n2, 167 SIECA 159, 164, 168 Socio-Economic Institution 38, 65n2, 66, 71–76, 110, 112–128, 156–172, 182, 196 Soft Organization 23, 30n1, n3 and n5, 33–34, 40, 62, 67–69, 71n5–6, 74, 112, 114, 186n4

242 Specialized Agency 9, 13, 14n5, 17n1, 18, 20, 29, 32, 82n1, 131n4, 136 Subsidiary Organ 29n1, 82–84, 115, 175 Supranational Organization 23, 31, 33n3, 63–64, 66, 88, 137 Territorial Institution 64–65, 71–72, 74–75, 110–111, 114–116, 118, 120–128, 156–172 Trade Union Advisory Committee of OECD (TUAC) 31n6, 66n2, 71n4, 110n2, 165–166 UDEAC 30n3 UEMOA 34, 44n2, 60, 73–74, 87–88, 94, 113n1, 129n1, 132, 134, 150n1, 177, 187n4 UEMOA Council of Regional Authorities  64n3, 74, 110n2, 113n1, 119n2, 121n3, 128n2, 158n2, 160n1 UEMOA Labour and Social Dialogue Council  49, 73n2, 110n1, 113n1, 119n1, 127n2, 128n2, 157n2, 158n2, 160n1, 175n1 UEMOA Parliament 64n4, 73n1, 78n2, 94n3, 97n2, 100n2, 105n3, 108n2, 132n1, 136–137, 139n5, 149 UEMOA Regional Advisory Committee of ­Agricultural Field 64n1, 73n2, 113n2,   119n2, 157n2, 158–159, 175n1 UEMOA Regional Chamber of Commerce  64n1, 73n2, 110n1, 158, 121n3, 125, 127n2, 158, 160n1

Index UMA 25n1, 34n2, 65n4, 70n1, 76, 79, 83, 88n4, 152 UMA Consultative Council 25n1, 76, 78n2, 96, 133n4, 140n5, 174 UN 9, 13, 14n5, 17n2, 18, 20, 29, 32 UNASUR 10, 34n2 e n4, 44n2, 50n1, 51, 65, 72 UNCTAD 9n3 UNESCO 9n4, 13, 31n4 UNIDO 9n4, 82n1 Un-Organic Method 7, 8–14, 17–18, 21, 33, 65n3–4, 73, 76, 111 UNWTO 15 UPU 17 Variable geometry 41, 46, 83–85, 114, 184, 187 Visegrad Group 33, 34n3, 68n5, 71 WEU 31, 71 WEU Assembly 31n5 WHO 2n1, 9n4, 13 WIPO 13 WMO 2n1, 9n4, 13 World Bank 4, 6n4, 9–10, 14, 43 World War II 3, 4, 8, 29–30, 32, 33n1 WTO 9, 12, 14n5, 20, 32, 43, 54n1, 55, 154n4