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OX F OR D MONO G R APHS IN INTE RNATIONA L L AW General Editors

P R O F E S S O R C AT H E R I N E R E D G W E L L Chichele Professor of Public International Law at the University of Oxford and Fellow of All Souls College, Oxford

PROFESSOR ROGER O’KEEFE Professor of International Law at Bocconi University, Milan

The Concept of an International Organization in International Law

OX F O R D M O N O G R A P H S I N I N T E R NAT IO NA L L AW The aim of this series is to publish important and original pieces of research on all aspects of international law. Topics that are given particular prominence are those which, while of interest to the academic lawyer, also have important bearing on issues which touch the actual conduct of international relations. Nonetheless the series is wide in scope and includes monographs on the history and philosophical foundations of international law. RECENT TITLES IN THE SERIES Neutrality in Contemporary International Law James Upcher Geographical Change and the Law of the Sea Kate Purcell Statehood and the State-Like in International Law Rowan Nicholson Confronting the Shadow State: An International Law Perspective on State Organized Crime Henri Decoeur Necessity and Proportionality and the Right of Self-Defence in International Law Chris O’Meara

The Concept of an International Organization in International Law L O R E N Z O G A SBA R R I

1

3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Lorenzo Gasbarri 2021 The moral rights of the author have been asserted First Edition published in 2021 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2020951498 ISBN 978–0–19–289579–0 DOI: 10.1093/oso/9780192895790.001.0001 Printed and bound in the UK by TJ Books Limited Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

General Editors’ Preface It is one of the paradoxes in which law, including international law, abounds that it is often the most fundamental problems that are the least studied. As in life, it seems that we can get by with the day-to-day business of a legal system without answering many of the big questions, focusing instead on specific rules and their application to the facts before us. This may explain in part why, despite their existence for over two hundred years, their significance for international relations for over a hundred, and their overwhelming numerical predominance today relative to states, we still lack an agreed understanding of what international organizations are, even when we confine ourselves to intergovernmental organizations. Various definitions exist, but Lorenzo Gasbarri’s concern is less the definition of an international organization than how we conceive of such organizations as phenomena. His implicit point, moreover, is that we cannot in fact get by, at least coherently, with the day-to-day business of the law of international organizations, applying specific rules to the facts before us, without an adequate common conception of an international organization. Dr Gasbarri’s study, as rigorous as it is original and wide-ranging, treats as central to the concept of an international organization the capacity of the entity to create a legal system. He examines four competing conceptions of an international organization and their respective implications for the character as international or internal of the law produced by such organizations. He argues that these four conceptions, when viewed as mutually exclusive, each has its explanatory limitations and does so because it embodies a false dichotomy in which the law produced by an international organization is either international or internal. Embracing instead legal pluralism and the importance of considering the internal point of view of each legal system, he proposes a conception of an international organization as an institution established by treaty or other instrument governed by international law ‘and capable of creating a legal system that derives from international law and that produces law which is at the same time internal and international’. It is an appreciation of the dual legal character, both internal and international, of the law produced by an international organization which, in Dr Gasbarri’s thesis, is the key to resolving a range of controversies in the law of international organizations, from questions of the law of treaties as applied to international organizations to the validity of the acts and the responsibility of such organizations. The Concept of An International Organization is ambitious and creative scholarship. While in essence theoretical, it analyses with insight and a keen eye to practical relevance the concrete legal implications, as evident in, inter alia,

vi General Editors’ Preface international jurisprudence and the work of the International Law Commission, of the theoretical positions under study. It will be of interest to scholars, students, and practitioners not only of the law of international organizations but also of public international law more generally. RO’K, CR Milan and Oxford January 2021

Table of Cases PERMANENT COURT OF INTERNATIONAL JUSTICE PCIJ, Competence of the ILO in regard to International Regulation of the Conditions of the Labour of Persons Employed in Agriculture (PCIJ Series B 1922)�� 35, 163 PCIJ, Competence of the ILO to Examine Proposal for the Organization and Development of the Methods of Agricultural Production (PCIJ Series B No 3 1922)�� 35 PCIJ, Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employer (PCIJ Series B 1926)�� 35, 163 PCIJ, Employment of Women during the Night Case (PCIJ Series A/B No 50 1932)�� 35, 163 PCIJ, Jurisdiction of the European Commission of the Danube between Galatz and Braila (PCIJ Series B, 1927) �� 21 PCIJ, Case Concerning the Factory at Chorzów (Claim for Indemnity) (PCIJ Series A, 1927)�� 75 PCIJ, Interpretation of the Greco-Turkish Agreement of December 1st, 1926 (PCIJ, Series B, 1928)�� 21 INTERNATIONAL COURT OF JUSTICE ICJ, Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (ICJ Rep 1948)�� 36, 135–36, 161 ICJ, Reparation for Injuries Suffered in the Service of the United Nations (ICJ Rep 1949)�� 22, 35–36, 45–46, 117, 125, 131, 134, 136 ICJ, Competence of Assembly regarding admission to the United Nations (ICJ Rep 1950)��36–37, 163 ICJ, International status of South-West Africa (ICJ Rep 1950)�� 120 ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (ICJ Rep 1951)��111, 161 ICJ, Effect of Awards of Compensation made by the United Nations Administrative Tribunal (ICJ Rep 1954)��27, 54, 56, 60–61 ICJ, Monetary gold removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America) (ICJ Rep 1954)�� 189 ICJ, Treatment in Hungary of Aircraft and Crew of United States of America (United States v. Hungarian People’s Republic; United States v. Ussr) (ICJ Pleadings 1954)�� 188 ICJ, Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco (ICJ Rep 1956)�� 56 ICJ, Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (ICJ Rep 1960)�� 161 ICJ, Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter) (ICJ Rep 1962)��36–37, 108, 135–36 ICJ, South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (ICJ Rep 1962)�� 120

xii Table of Cases ICJ, South West Africa Cases—Second phase (Ethiopia v. South Africa; Liberia v. South Africa) (ICJ Rep 1966)�� 121 ICJ, North Sea Continental Shelf (ICJ Rep 1969)��111–12 ICJ, Legal Consequences for States of the Contitiued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (ICJ Rep 1971)��37, 163–64 ICJ, Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal (ICJ Rep 1973)�� 111 ICJ, Western Sahara (ICJ Rep 1975)�� 111–12, 169 ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (ICJ Rep 1980)��27–28, 169 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (ICJ Rep 1986)��188–89, 195–96 ICJ, Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (ICJ Rep 1988)�� 136 ICJ, Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (ICJ Rep 1989)�� 118 ICJ, Public sitting held on Tuesday 12 November 1991, in the case concerning Certain Phosphate Lands in Nauru (Nauru v Australia) (1991)�� 191 ICJ, Public sitting held on Tuesday 19 November 1991, in the case concerning Certain Phosphate Lands in Nauru (Nauru v Australia) (1991)�� 191 ICJ, Certain Phosphate Lands in Nauru (Nauru v Australia) (ICJ Rep 1992)�� 188–89, 191, 205 ICJ, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) (ICJ Rep 1992)�� 122 ICJ, Legality of the Threat or Use of Nuclear Weapons (ICJ Rep 1996)�� 108 ICJ, Legality of the Use by a State of Nuclear Weapons in Armed Conflict (ICJ Rep 1996)��23–24, 104, 108, 118, 161–62 ICJ, Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom) (ICJ Rep 1998) �� 23–24, 122, 125 ICJ, Legality of Use of Force (Yugoslavia v. Spain, USA; Serbia and Montenegro v. Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, United Kingdom) (ICJ Rep 1999)��118–19, 197–98 ICJ, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (ICJ Rep 1999)�� 111, 118–19 ICJ, Land and Maritime Boundary between Cameroon and Nigeria (ICJ Rep 2002)��167–68 ICJ, Oil Platforms (Islamic Republic of Iran v United States of America) (ICJ Rep 2003)��188–89 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ Rep 2004)�� 164 ICJ, Legality of Use of Force (Serbia and Montenegro v. United Kingdom) (ICJ Rep 2004)��118–19 ICJ, Public sitting held on Tuesday 1 December 2009, at 10 a.m., at the Peace Palace, President Owada, presiding, on the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self- Government of Kosovo (Request for advisory opinion submitted by the General Assembly of the United Nations) (Verbatim Record 2009/24 2009)�� 123 ICJ, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (ICJ Rep 2010)��122, 123 ICJ, Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece) (ICJ Rep 2011)�� 24

Table of Cases xiii INTERNATIONAL CRIMINAL COURT ICC, Prosecution Response to the Observations of the African Union and the League of Arab States (the Prosecutor v Omar Hassan Ahmad Al Bashir) (ICC-02/05-01/09 2018)�� 12–13, 45–46 ICC, The Hashemite Kingdom of Jordan’s submissions following the hearing of 10, 11, 12, 13 and 14 September 2018 (the Prosecutor v Omar Hassan Ahmad Al Bashir) (ICC-02/05-Dl/09 2018)��12–13 ICC, The Prosecutor v Omar Hassan Ahmad Al Bashir (ICC-02/05-01/09-T-4-ENG 2018)��12–13 ICC, The Prosecutor v Omar Hassan Ahmad Al Bashir (ICC-02/05-01/09-T-5-ENG 2018)��12–13 ICC, The Prosecutor v Omar Hassan Ahmad Al Bashir (ICC-02/05-01/09-T-8-ENG 2018)��12–13 ICC, The Prosecutor v Omar Hassan Ahmad Al Bashir (ICC-02/05-01/09-T-4-ENG 2018)��12–13 ICC, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (ICC-02/05-01/09-3 2018)��45–46 INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (ITLOS Report No. 21 2015)�� 45–46, 70, 71–72, 154–55 CENTRAL AMERICAN COURT OF JUSTICE Honduras v El Salvador and Guatemala (American Journal of International Law 1908)�� 188 EUROPEAN COURT OF HUMAN RIGHTS ECtHR, Lawless v Ireland (App no 332/57 1961) �� 127 ECtHR, Handyside v United Kingdom (App no 5493/72 1976)�� 126 ECtHR, The Sunday Times v United Kingdom (App no 6538/74 1979) �� 126 Commission Decision, M and Co v Germany (App no 13258/87 1990)��84, 186–87, 198–99 ECtHR, Waite and Kennedy v Germany (App no 26083/94 1999) ��85–86, 203 ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret AS v Irelan (App no 45036/98 2001)��84, 85–86 ECtHR Grand Chamber, Banković and ors v Belgium and ors (App no 52207/99 2001)��197–98 ECtHR Grand Chamber, Christine Goodwin v United Kingdom (App no 28957/95 2002)�� 126 ECtHR Grand Chamber, Kasumaj v Greece (App No 6974/05 2007)��192–93 ECtHR Grand Chamber, Gaji v Germany (App No 31446/02 2007) ��192–93 ECtHR, Behrami v France and Saramati v France, Germany and Norway (App nos 71412/01 and 78166/01 2007)��45, 82–83, 84, 192–93, 195, 199–200, 201–2 ECtHR, Galic v the Netherlands and Blagojevic v the Netherlands (App Nos 22617/07 and 49032/07 2009)��201–2 ECtHR Grand Chamber, Al-Jedda v the United Kingdom (App no 27021/08 2011)�� 82–83, 85, 86, 192–93, 201–2 ECtHR Grand Chamber, Nada v Switzerland (App no 10593/08 2012)��82–83, 85, 203

xiv Table of Cases ECtHR, Al-Dulimi v Switzerland (App no 5809/08 2013)��80–81, 82–84, 85–86, 88, 185–86, 203–4 ECtHR Grand Chamber, Jaloud v the Netherlands (App No 47708/08 2014)��192–93 ECtHR Grand Chamber, Al-Dulimi and Montana Management Inc. v Switzerland (App no 5809/08 2016)�� 80–81, 82–84, 85–86, 88, 185–86, 203–4 COURT OF JUSTICE OF THE EUROPEAN UNION Court of Justice of the European Union, van Gend & Loos v Nederlandse Administratie der Belastingen (Case 26/62 1963)�� 37, 88, 130 Court of Justice of the European Union, Flaminio Costa v E.N.E.L. (Case 6/64 1964) �� 8–9, 37–38 Court of Justice of the European Union, Commission v Council (European Road Transport Agreement) (Case 22/70 1971)��37–38 Court of Justice of the European Union, International Fruit Company v Produktschap voor Siergewassen (Case 21-24/72 1972)�� 155 Court of Justice of the European Union, AM and S (Case 155/79 1982)��110–11 Court of Justice of the European Union, Demirel (Case 12/86 (1987) 1987)��110–11 Court of Justice of the European Union, Krucken (Case 316/86 1988) ��110–11 Court of Justice of the European Union, Opinion 1/75 (1994) ��136–37 Court of Justice of the European Union, France v Commission (Case C-327/91 1994) �� 137 Court of Justice of the European Union, European Parliament v Council of the European Union (Case C-316/91 1994)�� 205 Court of Justice of the European Union, Opinion 2/92 (1995) �� 137 Court of Justice of the European Union, Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities (Case T-315/01 2005) ��11–12 Court of Justice of the European Union, Mangold (Case C-144/04 2005)��110–11 Court of Justice of the European Union, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities (Joined Cases C-402-05 P and C-415/05 P 2008)�� 60 Court of Justice of the European Union, Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) v Council of the European Union (Case No. T-512/12 2015)�� 169 Court of Justice of the European Union, Council of the European Union v Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) (Case No C-104/16 P 2016)�� 169 Court of Justice of the European Union, Case T‑192/16 (NF v European Council 2017) ��137–38 Court of Justice of the European Union, Slowakische Republik (Slovak Republic) v Achmea BV (Case C‑284/16 2018)��129–30 WORLD TRADE ORGANIZATION Protection of Trademarks and Geographical Indications for Agricultural Products and Food-stuffs (United States v European Communities) (20 April 2005)��43–44 Measures Affecting the Approval and Marketing of Biotech Products (United States v European Communities) (29 September 2006)��43–44 EC—Selected Customs Matters (12 June 2006) �� 44

Table of Cases xv ARBITRAL AWARDS Arbitral Tribunal, Samoan Claim (RIAA 1902) �� 188 LEAGUE OF NATIONS ADMINISTRATIVE TRIBUNAL League of Nations Administrative Tribunal, Di Palma Castiglione v International Labour Organization (League of Nations Administrative Tribunal, Judgment No 1 1929)�� 56 WORLD BANK ADMINISTRATIVE TRIBUNAL World Bank Administrative Tribunal, de Merode (World Bank Administrative Tribunal 1981)�� 111 NATIONAL JURISDICTIONS United States US court of claims, Anglo-Chinese Shipping Co. v United States (349 U.S. 938 1955) ��188–89 Netherlands Dutch Supreme Court, Nuhanović and Mustafić and others v The Netherlands (Dutch Supreme Court 2013)�� 199 Dutch Supreme Court, Netherlands v Stichting Mothers of Srebrenica (Dutch Supreme Court 2013)�� 199–200 United Kingdom EWCA, In Re International Tin Council (ILR 1988)�� 178 EWHC, J. H. Rayner (Mincing Lane) Ltd. v. Department of Trade and Industry and Others (ILR 1987)�� 178 EWHC, Maclaine Watson & Company Limited v Department of Trade and Industry (ILR 1987)�� 178 UKHL, JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry and Others and Related Appeals, and Maclaine Watson & Co Ltd v Department of Trade and Industry, and Maclaine Watson & Co Ltd v International Tin Council (ILR 1989)�� 178 UKHL, Australia & New Zealand Banking Group Ltd and others v Australia and others (ILM 1989)�� 178

List of Abbreviations ARIO ARSIWA BIT ECHR ECJ ECtHR GATT ICAO ICC ICTY IDI ILC ILO IMF ITLOS IUU OSCE PCIJ SRFC TFEU UNCLOS UNGA UNMIK UNTWO WHO WTO

draft articles on the responsibility of international organizations articles on responsibility of states for internationally wrongful acts bilateral investments treaty European Convention on Human Rights European Court of Justice European Court of Human Rights General Agreement on Tariffs and Trade International Civil Aviation Organization International Criminal Court International Criminal Tribunal for the Former Yugoslavia Institut de Droit International International Law Commission International Labour Organization International Monetary Fund International Tribunal for the Law of the Sea illegal, unreported, and unregulated Organization for Security and Cooperation in Europe Permanent Court of International Justice Sub-Regional Fisheries Commission Treaty on the Functioning of the European Union UN Convention on the Law of the Sea United Nations General Assembly United Nations Mission in Kosovo World Tourism Organization World Health Organization World Trade Organization

1

Introduction The 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character was the first formal product of a historical process in which the law of international organizations achieved the dignity of a discrete area of international law.1 Until the 1960s, only disparate studies of international organizations, focusing on specific issues relating to particular institutions, had appeared. No general classification was attempted. International organizations themselves were a fragmented phenomenon, ranging from administrative unions and international commissions to conferences where states debated international politics. It was only in the decade preceding the 1975 Vienna Convention that the law of international organizations became an autonomous field of study, relying on a comparative methodology to address common issues such as attribution of competences, legal personality, and immunities.2 With the Convention, different institutions were subjected for the first time to the same regulatory framework, in this case in the field of diplomatic law. The 1975 Vienna Convention evidenced of a new era in the study of a discrete phenomenon with common roots and common aims. At the same time, the story of the 1975 Vienna Convention is the story of a failure. The Convention represents the failure of the comparative methodology that sought to develop a general legal framework applicable to a large category of international organizations. Indeed, the comprehensive scope of the 1975 Vienna Convention is founded on the absence of any critical discussion of what international organizations are. Earlier debates on the structural differences among international organizations were downplayed in order to achieve the circumscribed aim of a technical instrument delineating the legal framework governing member states’ permanent missions. In the work that led to the 1975 Vienna Convention, the International Law Commission (ILC) adopted a model of reasoning, since applied in its other projects on international organizations, according to which the aim of a particular project, be it diplomatic relations, the law of treaties, or the law of international responsibility, is not to define what international organizations are, but to provide

1 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character (opened for signature 14 March 1975, not yet in force) UN Doc A/CONF.67/16 (hereafter VCRS). 2 Jan Klabbers, ‘The Life and Times of the Law of International Organizations’ (2001) 70 NJIL 287.

The Concept of an International Organization in International Law. Lorenzo Gasbarri, Oxford University Press (2021). © Lorenzo Gasbarri. DOI: 10.1093/oso/9780192895790.003.0001

2 Introduction a set of rules applicable to the particular, limited circumstance on which the project focuses. For instance, the aim of the 1986 Vienna Convention is not to define from where the legal personality of international organizations comes; rather, the project presumes the existence of such personality, since this enables the conclusion of treaties.3 Similarly, the aim of the project on responsibility is not to determine whether the law produced by international organizations is international law; rather, the project starts from the premise of the existence of an international obligation.4 In short, the few legal instruments that should identify a comprehensive legal framework applicable to international organizations are based on a lack of theoretical analysis of what international organizations are. This is one of the reasons why the law of international organizations does not meet the expectations of a world in which these institutions have a preeminent role. Several ILC Special Rapporteurs attempted in fact to stimulate debate on how to conceptualize international organizations, but they never succeeded in achieving consensus. As early as in 1958, while discussing the codification of the law of treaties, the United Nations General Assembly (UNGA) Sixth Committee invited the Commission to redouble its efforts on the law of international organizations and to begin studying on the vast topic of the ‘Relations between States and International Organizations’.5 Abdullah El-Erian was appointed as Special Rapporteur and he submitted his first report in 1963.6 El-Erian began by conducting a study of the evolution of the definitions of an international organization, identifying three ‘categories’ of definitions. The first category sought to integrate international organizations into the classical paradigm of the international law of its time. Anzilotti and his theory of international organizations as collective organs of their member states was the paradigmatic example.7 According to this conceptualization, international organizations were not independent entities but merely represented the collective will of their member states. Under the same rubric, El-Erian identified another definition, provided by Kelsen: An organized international community is constituted by a treaty which institutes special organs of the international community for the pursuance of the purposes for which the community has been established. This community is an ‘international’ community; it has not the character of a State . . . [it] is an

3 See Chapter 9. 4 See Chapter 11. 5 Relations Between States and International Organizations, UNGA Res 1289 (XIII) (5 December 1958). 6 ILC, ‘First report on relations between States and inter-governmental organizations by Abdullah El-Erian’ (1963) UN Doc A/CN.4/161 and Add.1 (hereafter El-Erian, ‘First Report’) 164. 7 Dionisio Anzilotti, Cours de Droit International (Gilbert Gidel ed, Receuil Sirey 1929) 283.

Introduction 3 international organization. In contradistinction to a federal State, it is a confederation of States.8

The second category was obscurely defined by El-Erian as any definition that ‘project[s]‌our present understanding of the phenomenon retrospectively to cover certain earlier experiences, thus explaining the past by the present’.9 He cited the work of Stanley Hoffman, who defined international organizations as ‘toutes les formes de la coopération entre les états, tentant à faire régner par leur association un certain ordre dans le milieu international, crées par leur volonté et fonctionnant dans un milieu dont les états sont les personnes juridiques majeures.’10 Between the lines, this definition sought to combine the existence of a separate order with its derivation from international law. The third category of definitions was based on an attempt to isolate and emphasize certain elements considered essential for defining an international organization.11 Different authors relied on different fundamental elements, but in general they considered the purpose, the conventional basis, the permanent character, the possession of organs separate from those of member states, and the possession of legal personality. Under this heading El-Erian quoted several authors, focusing in particular on the work of the ILC on the law of treaties.12 The broad understanding of the topic led El-Erian to formulate an impressive agenda for the future work of the Commission. In his preliminary intentions, this is the mandate he received: I. First group—the general principles of international personality, which would include: 1. Definition of the concept of the international personality of international organizations; 2. Legal capacity; 3. Treaty-making capacity; 4. Capacity to espouse international claims. II. Second group—international immunities and privileges, which would include: 1. Privileges and immunities of international organizations; 2. Related questions of the institution of legation in respect to international organizations; 3. Diplomatic conferences. III. Third group— special questions: 1. The law of treaties in respect to international organizations; 2. Responsibility of international organizations; 3. Succession between international organizations.13 8 Hans Kelsen, Principles of International Law (Rinehart & Co 1952) 172; Jochen von Bernstorff, ‘Autorité oblige: The Rise and Fall of Hans Kelsen’s Legal Concept of International Institutions’ (2020) 31 EJIL 497. 9 El-Erian, ‘First Report’ (n 6) 164. 10 Stanley Hoffmann, Organisations internationales et pouvoirs politiques des Etats (Armand Colin 1954) 12. 11 El-Erian, ‘First Report’ (n 6) 166. 12 See Chapter 9. 13 El-Erian, ‘First Report’ (n 6) 184.

4 Introduction However, the Commission drastically narrowed down the scope of the project and prioritized diplomatic law in its application to relations between states and inter- governmental organizations.14 In his second report of 1967, the Special Rapporteur concluded that his discussion of ‘general principles of juridical personality of international organizations’ generated great controversy within the Commission.15 In his third report of 1968, he proposed defining an international organization as ‘an association of States established by treaty, possessing a constitution and common organs, and having a legal personality distinct from that of the member States’.16 As already mentioned, the Commission rejected the need to define international organizations and it refused to include this definition. It ‘thought, however, that such an elaborate definition was not necessary for the time being since it was not dealing at the present stage of its work with the status of the international organizations themselves, but only with the legal position of representatives of States to the organizations’.17 Eventually, the Commission dealt with the topic of diplomatic law by avoiding any theoretical issue and focusing on practical questions concerning the permanent missions of member states. The contemporary work of the ILC on the law of treaties showed that there was disagreement between scholars on fundamental issues such as the nature of legal personality, the capacity to develop an internal order, and the nature of the law produced by international organizations.18 The 1986 Vienna Convention on the Law of Treaties proved unsuccessful in solving the dilemma of the transparent institutional veil, which makes organizations neither self-contained in the way that states are, nor perfectly open to international law as are the conferences of the parties to a treaty.19 At the historical moment when international organizations were proliferating, their normative foundation had already started to manifest its pitfalls. The comparatist method revealed itself to be sufficient to provide a description of common features, but completely inadequate to solve the fundamental legal dilemmas which characterize the law of international organizations. Consequently, agreement was only to be found in general provisions, too general to be useful. Lawyers lacked an

14 ILC, ‘Relations between States and inter-governmental organizations: suggested list of questions as basis of discussion for the definition of the scope and mode of treatement: working paper prepared by Mr. Abdullah El-Erian, Special Rapporteur—contained in A/5809, para. 41’ (1964) UN Doc A/CN.4/ L.104. 15 ILC, ‘Second report on relations between States and inter-governmental organizations by Abdullah El-Erian’ (1967) UN Doc A/CN.4/195 and Add.1, 137. 16 ILC, ‘Third report on relations between States and inter-governmental organizations by Abdullah El-Erian’ (1968) UN Doc A/CN.4/203 and Add.1-5, 124. 17 ILC, ‘Report of the Commission on the Work of its 20th Session’ (27 May–2 August 1968) UN Doc A/7209/REV.1, 196. See also, ILC, ‘Sixth report on relations between States and inter-governmental organizations by Abdullah El-Erian’ (1971) UN Doc A/CN.4/241 and Add.1-6, 17, para 43. 18 See Chapter 9. 19 Catherine Brölmann, The Institutional Veil in Public International Law: International Organisations and the Law of Treaties (Hart 2007) 11.

Conceptualizing versus Defining 5 agreed definition of international organizations, except for the brief ‘international organizations are intergovernmental organizations’.20 In sum, the international legal framework of international organizations remains limited to a set of rules that do not have a clear object of application. Scholarship and practice do not share a common understanding of international organizations and different approaches are confusingly assembled. In short, we do not know what international organizations are. In particular, the 1975 Vienna Convention started a process of crystallization of what I will define in this book as a ‘false dichotomy’, under which organizations are either perceived from a state-centric perspective or an organization-centric perspective. The aim of the following pages is to analyse different conceptualizations, to assess the existence of a general regulatory framework, and to provide a definition of the concept of an international organization in international law.

1.1 Conceptualizing versus Defining International organizations are usually defined on the basis of certain characteristics they should possess. For instance, the ILC stressed their intergovernmental nature in the context of the law of treaties and the possession of separate legal personality for their international responsibility.21 Virally considered the relevance of five elements, including the ‘inter-State basis, their voluntaristic basis, their possession of a permanent system of organs, their autonomy and their cooperative function’.22 Schermers and Blokker preferred to rely on three fundamental elements and defined international organizations as ‘forms of cooperation (1) founded on an international agreement; (2) having at least one organ with a will of its own; and (3) established under international law’.23 Other scholars have proposed different variations of the same theme, which have been aptly described by Alvarez in International Organizations as Law-Makers, in which he concludes that ‘[e]‌laborate definitions of IOs raise more problems than they are worth’.24 Indeed, defining international organizations on the basis of descriptive elements is a limited approach which does not solve the problems raised in this book. Similarly to the approach described above adopted by Special Rapporteur El-Erian, the term ‘concept’ is employed in this book differently from ‘definition’.

20 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 2(i). 21 See Chapters 9 and 11. 22 Michel Virally, ‘Deﬁnition and Classiﬁcation of International Organizations: a Legal Approach’ in George Abi-Saab (ed), The Concept of International Organizations (UNESCO 1981) 50. 23 Henry G Schermers and Niels M Blokker, Institutional Law: Unity within Diversity (Nijhoff 2011) para 33. 24 José E Alvarez, International Organizations as Law-makers (OUP 2005) 4.

6 Introduction Scholars do not agree on the essential elements because they start from different premises on what international organizations are. The aim of this book is to identify the legal conceptualizations under which international organizations are perceived. For instance, I will not focus on whether legal personality is a fundamental element, but on the consequences of the different conceptualizations under which legal personality is conferred by member states or is inherent to the creation of an organization. I will compare the idea that international organizations are created by states and endowed with essential elements to perform specific tasks with the attempt to consider them as autonomous subjects that do not derive from acts of states but from the inherent possession of elements that are required to achieve ‘organizationhood’.25 I do not intend to build a constraining framework to delineate the boundaries of a social phenomenon. The aim of this book is not to define international organizations and describe their essential characteristics, but to identify the concept of an international organization in international law. Even if I do not exclusively focus on defining international organizations as a sum of structural elements, as article 2(a) of the Articles on the Responsibility of International Organizations (ARIO)26 does, there are two starting points that delimit my research. First, the book is limited to institutions that are created on the basis of a norm of international law. I will later describe the implication of this premise, but for the moment it is useful to stress that I do not focus on other non- state actors such as non-governmental organizations and multinational corporations. However, I do focus on controversial entities, such as organizations that are arguably based on parallel acts of domestic laws or on political and not legal agreements. Second, and more importantly, I contend that the absence of an agreed concept of an international organization is due to the nature of their legal system. The complexity that arises in applying the concept of a legal system to international organizations is the reason for the lack of clarity in the relationship between organizations and their member states, which remains the unresolved problem of the institutional architecture of international organizations.27 This book seeks to define international organizations on the basis of the legal nature of the legal systems they develop. In particular, I give fundamental importance to the nature of the law produced by international organizations in order to distinguish four main conceptualizations.

25 On the relevance of this approach, also see Jan Klabbers and Guy Fiti Sinclair, ‘On Theorizing International Organizations Law: Editors’ Introduction’ (2020) 31 EJIL 489. 26 ILC, ‘Draft articles on the responsibility of international organizations, with commentaries’ (2011) UN Doc A/66/10 (hereafter ARIO). 27 Jan Klabbers, An Introduction to International Organizations Law (3rd edn, CUP 2015) 2.

Four Concepts of an International Organization 7

1.2 Four Concepts of an International Organization General regulatory instruments such as the 1975 Vienna Convention and the 2011 project on international responsibility contain clauses that give relevance to the particular rules that govern each organization. The notion of ‘rules of international organizations’ appeared for the first time in article 1(34) of the 1975 Vienna Convention, which defines them as meaning ‘in particular, the constituent instruments, relevant decisions and resolutions, and established practice of the Organization’.28 This definition emerged during the conference negotiations on the 1975 Vienna Convention and was not included in the draft articles prepared by the ILC.29 The Commission could not agree on the nature of these rules, which in some respects are international law and in others are laws internal to each institution. The decision to avoid controversial questions introduced the definition of ‘rules of international organizations’ into the vocabulary of the ILC with no controversial debate and some years prior to its work on the law of treaties. However, this comprehensive definition which includes every normative act of international organizations was neither based on scholarship nor practice. Before the 1975 Vienna Conference, scholarship had identified the rules of international organizations, moving from employment relationships to internal administrative regulations, but there was not a comprehensive framework.30 Contemporary scholarship often lacks a historical perspective and applies a comprehensive definition of the law of international organizations to analyse the work of authors who only had a specific category in mind.31 The 1975 Vienna Convention employs the definition of rules of international organizations in a general clause and in many specific provisions. In general, article 3 states that ‘The application of the present articles is without prejudice to any relevant rules of the Organization or to any relevant rules of procedure of the conference.’32 Then, the rules are used to give relevance to the lex specialis provided by each organization in terms of establishment of permanent missions (article 5) and issue of credentials (article 10). In sum, ‘the rules of international organizations’ are employed as a saving clause, under which the general regulatory framework applicable to every international organization is relevant only if there are no specific rules applicable to the circumstance. The lex specialis principle is a well-established feature of international law, enshrined in several instruments, such as the ILC project on international

28 VCRS (n 1) art 1(34). 29 ILC, ‘Draft articles on the representation of States in their relations with international organizations’ (1971) UN Doc A/26/10. However, a similar definition was included in para 5 of the commentary to art 3. 30 Suzanne Basdevant, Les fonctionnaires internationaux (Sirey 1931); Andrea Rapisardi-Mirabelli, ‘La Théorie Générale des Unions Internationales’ (1925) 7 RCADI 345. 31 For instance, see ARIO (n 26) commentary to art 10. 32 VCRS (n 1) 287.

8 Introduction responsibility.33 However, in the context of international organizations, it is not triggered only by the regime under which the organization acts, for instance after concluding a headquarter agreement which includes specific rules that derogate from the 1975 Vienna Convention. The rules that constitute organizations themselves can derogate from international law, establishing normative systems that are peculiar to each institution. Consequently, I believe that in order to analyse the concept of an international organization in international law, it is relevant to start by categorizing how the lex specialis established by institutional rules has been defined. In particular, the ILC identified four theories on the nature of the law produced by international organizations.34 First, it identified a mainstreaming approach which considers that the rules of treaty-based organizations are part of international law.35 Secondly, it recognized that this theory is contested by those scholars who argue that the internal law of the organization, once it has come into existence, does not form part of international law.36 Thirdly, it contended that another view is that international organizations that have achieved a high degree of integration are a special case.37 Finally, it considered the possibility of a distinction according to the source and subject matter of the rules, and excluded, for instance, certain administrative regulations from the domain of international law.38 The commentary to article 10 of ARIO stressed that the violation of a rule of an organization generates international responsibility only if this rule is part of international law. This book is based on the hypothesis that these four theories on the nature of the rules reflect the absence of an agreed concept of an international organization and the existence of four conceptualizations that have emerged in literature and practice. First, organizations have been perceived as functional entities. According to this theory, the relationship between member states and the organization is governed by international law as established in the constitutive treaty.39 Second, 33 ILC, ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ (2001) UN Doc A/56/10, art 64: ‘These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.’ 34 ARIO (n 26) commentary to art 10. 35 Under this theory, the ILC quoted Matteo Decleva, Il diritto interno delle unioni internazionali (Cedam 1962); Giorgio Balladore Pallieri, ‘Le droit interne des organisations internationales’ (1967) 127 RCADI 1; Alain Pellet and Patrick Daillier, Droit international public (7th edn, LGDJ 2002) 576–77. 36 Under this theory the ILC quoted Lazar Focsaneanu, ‘Le droit interne de l’Organisation des Nations Unies’ (1957) 3 AFDI 315; Philippe Cahier, ‘Le droit interne des organisations internationales’ (1963) 67 RGDIP 563; Julio A Barberis, ‘Nouvelles questions concernant la personalité juridique internationale’ (1983) 179 RCADI 147; Christiane Ahlborn, ‘The Rules of International Organizations and the Law of International Responsibility’ (2011) 8 IOLR 397; Rudolf Bernhardt, ‘Qualifikation und Anwendungsbereich des internen Rechts internationaler Organisationen’ (1973) 12 Berichte der Deutschen Gesellschaft für Völkerrecht 7. 37 The ILC mentioned the European Community as a paradigmatic example, and quoted Case 6/64 Flaminio Costa v ENEL [1964] ECR 585. 38 The ILC did not cite scholarship nor case law for the last theory. 39 See Chapter 2.

Terminology 9 organizations have been perceived as constitutional entities under which the relationship between member states and the organizations is governed by the internal law developed on the basis of a constitution.40 Third, organizations cannot be analysed under one legal framework only, because part of the law they produce is governed by their internal legal system while the rest is governed by international law.41 Fourth, organizations cannot be analysed under one legal framework only, because some organizations possess an internal legal system, while other remain functional entities.42 There are several advantages to identifying different conceptualizations on the basis of how the nature of the law produced by international organizations is perceived. The most important is the immediate normative relevance, under which functionalism is clearly defined as a theory that considers the rules as purely international law, while constitutionalism is based on their purely internal nature. Similarly, the absence of a clear legal system which could distinguish between international and internal law is based on those theories that focus on the informal quality of institutional law-making. Finally, the idea that each organization developed differently from the other led to the development of ‘exceptional’ institutions which contest the possibility of identifying a general framework. As is the case for any classificatory attempt, there are differences within the same category, which are often due to the use of the same terminology to refer to wide concepts. However, the normative relevance of my approach is that it seeks to reduce incongruences within categories even when different terminology is employed. One of the main theses of this book is that the four alternatives introduced above are nothing more than false dichotomies. The following pages will rebut limited perspectives in order to define international organizations as dual entities.43 The notion of ‘dual legal character’ describes how international organizations create particular legal systems that derive from international law. This peculiar condition affects the law they produce, which is international and internal at the same time. The effect of the dual nature is discussed by analysing the law of treaties, the legal validity of the rules, and international responsibility.44

1.3 Terminology The employment of terms such as functionalism, constitutionalism, exceptionalism, and informalism is rather difficult. Some of them already have their 40 See Chapter 3. 41 See Chapter 4. 42 See Chapter 5. 43 In Chapter 7. This argument was already sketched in Lorenzo Gasbarri, ‘The Dual Legality of the Rules of International Organizations’ (2017) 14 IOLR 87. 44 Respectively in Chapters 9, 10, 11.

10 Introduction connotation in international law, while others are employed here for the first time, or have never been used for the purposes to which I have put them. For instance, a recent book by Fernando Lusa Bordin employs the terms ‘treaty conception’ and ‘subject conception’ to refer to what I will call here functionalism and constitutionalism.45 I use these terms similarly to Anne Peters,46 even if I add the fundamental normative statement under which different conceptualizations affect the nature of the law produced by international organizations. I understand that there are no clear-cut definitions and that criticisms can be directed at every attempt at classification, especially in highly fragmented fields such as the law of international organizations. However, I would like to preliminarily point out that the conceptualizations I sketched above will be clarified in the next chapters. One of the main purposes of this book is to show how it is possible to agree on a unified conceptualization of an international organization. In sum, I will stress how the normative differences between the various conceptualizations, essentially based on the different ideas on the nature of the law produced by international organizations, are straw man arguments employed for specific argumentative purposes. Indeed, the four conceptualizations are not mutually exclusive. I will present several examples in which they coexist to reach specific outcomes. In fact, an organization acting within one specific regime and under fixed circumstances can simultaneously be characterized as a constitutional, a functional, an informal, and an exceptional entity.

1.4 Why it Matters The legal framework that applies to the actions of international organizations is critically dependent on the four conceptualizations. It is not unusual to find cases that lead to the adoption of a concept of an international organization that better suits the argumentative interest of the circumstance. International organizations are indiscriminately perceived as: agents of member states (functionalism) when the criticism is against state sovereignty and its limits in globalization; autonomous powerful entities (constitutionalism) when the criticism is against the lack of democratic legitimacy; administrative entities (informalism) when the criticism is against the lack of transparency; ‘supranational’ or ‘soft law’ institutions (exceptionalism) when the criticism is either against or in favour of integration. The list could go on, and it evidences the urgent need for an innovative analysis that debates the virtues and flaws of different approaches. Though this book is essentially

45 Fernando Lusa Bordin, The Analogy between States and International Organizations (CUP 2018) 53. 46 Anne Peters, ‘International Organizations and International Law’ in Jacob Katz Cogan, Ian Hurd, and Ian Johnstone (eds), The Oxford Handbook of International Organizations (OUP 2017) 34.

Why it Matters 11 theoretical, several examples will describe the outstanding implications that derive from the application of one or another concept of an international organization for international responsibility, the law of treaties, and validity of ultra vires acts. For introductive purposes, it is useful to present some situations in which the different conceptualizations play a fundamental role: United Nations (UN) sanctions, International Criminal Court (ICC) arrest warrants, and World Health Organization (WHO) regulations. The validity of UN sanctions depends on at least two subjects: the organization issuing the sanction and the entity that transposes the sanction in its own order. The different points of view adopted by each subject affect the legality of sanctions. In the 2005 and the 2008 judgments in the Kadi case, the European Court of Justice (ECJ) adopted an internal EU perspective and looked at Security Council resolutions as international law. It did not take into consideration the internal UN perspective, according to which resolutions may well be internal UN law. Concerning the human rights obligations of international organizations in their activities across legal systems, to adopt an internal perspective means to apply its own system of reference without taking into consideration the point of view of the system that created the rule. This happened in 2005, when the ECJ relied on a functionalist conceptualization of its legal system to claim that the international obligations concluded before the establishment of the communities prevailed over the European Community legal system. Indeed, the functional quality of the EC legal system is implied when the Court used treaty law to defuse the conflict between UN and EC obligations, explicitly stating that UN obligations ‘clearly prevail over every other obligation of domestic law or of international treaty law including, for those of them that are members of the Council of Europe, their obligations under the ECHR and, for those that are also members of the Community, their obligations under the EC Treaty’.47 Conversely, in 2008, the constitutional (and thus closed character) of the EC legal system prevailed over the UN legal system. Indeed, the constitutional quality of the EC legal system is implied when the Court stated that ‘the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement’.48 Despite the different outcomes, in both cases the judges did not pose the question of the UN perspective. Hypothetically, from the internal UN perspective, EU law could be considered as international law and the primacy of UN obligations enshrined in article 103

47 Case T-315/01 Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities [2005] ECR II 3649, para 181. 48 Joined Cases C-402-05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I 6351, para 316.

12 Introduction would prevail.49 It can be contended that, eventually, the relationship between legal systems is heterarchical and dominated by the most powerful legal system that imposes its relative perspective.50 Another relevant example concerns the attribution of conduct in the context of international responsibility. The Appeal Chamber of the ICC recently rendered its judgment on the Al-Bashir case, which was based on what I will soon define as a constitutional conceptualization of the ICC. The concept of an international organization as a constitutional entity is particularly relevant to an argument made by the ICC Prosecutor before the Appeal Chamber. On 14 August 2018, the ICC Office of the Prosecutor elaborated a novel theory to corroborate the existence of an obligation binding ICC member states to arrest the sitting Sudanese President.51 In paragraph 11, it claimed that a request to execute an ICC arrest warrant does not amount to a request to exercise state jurisdiction: ‘the requested State is nothing more than the Court’s agent in executing the Court’s arrest warrant—and, consequently, the enforcement jurisdiction being exercised is that of the Court, and not that of the requested State’. From the Jordanian point of view, the underlying reason for the Prosecutor’s argument is that if states are considered as agents, or proxy, they are not breaching their customary obligations when implementing an arrest warrant issued against a current head of state of a non-member state.52 The idea that states can be agents of the ICC was extensively discussed during the hearings before the Appeal Chamber. The Office of the Prosecutor expanded on the nature of ICC jurisdiction, relying on the legal basis of the arrest warrant, which is not considered as an instrument of national law or international law, but of ICC law. The Prosecutor contended that ‘this Court is not the jurisdiction of another State; it is supra-national both institutionally and in its application of relevant norms’.53 Professor Roger O’Keefe, amicus curiae, replied contending that ‘[t]‌o say that in surrendering the official to the ICC the requested State is acting as the ICC’s agent or jurisdictional proxy is, with respect, legally meaningless. It is also, I would point out, an inaccurate metaphor since it is the States Parties which have conferred jurisdiction on the Court, not the other way around.’54 Indeed, from a purely functionalist perspective, it is meaningless to say that member states are agents of the ICC, because they do maintain their international obligations as sovereign subjects. He rightly asked ‘how can the 49 UN Charter, art 103: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ 50 Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (OUP 2010) 370. 51 ICC, ‘Prosecution Response to the Observations of the African Union and the League of Arab States (the Prosecutor v Omar Hassan Ahmad Al Bashir)’ (2018) ICC-02/05-01/09. 52 ICC, ‘The Hashemite Kingdom of Jordan’s submissions following the hearing of 10, 11, 12, 13 and 14 September 2018 (the Prosecutor v Omar Hassan Ahmad Al Bashir)’ (2018) ICC-02/05-Dl/09, 4, 5. 53 ICC, Appeals Chamber, Transcript, ‘The Prosecutor v Omar Hassan Ahmad Al Bashir’ (10 September 2018) ICC-02/05-01/09-T-4-ENG, 72. 54 Ibid (11 September 2018) ICC-02/05-01/09-T-5-ENG, 4.

The Structure of the Book 13 arrest of a person by a State Party’s own police and surrender proceedings against that person by a State Party’s own courts not amount to the exercise by that State Party of its [own] criminal jurisdiction?’55 The only possible reply is that if one sustains the argument that the relation between the member states and the organization is governed by the internal (and not international) law of the organization, the ICC and its member states are a single self-contained entity for a third party. Lastly, another relevant example concerns the application of the lex specialis argument. International Health Regulations (IHR) are a peculiar source of law arising from articles 21 and 22 of the World Health Organization Constitution with a rare binding force in order to tackle a sanitary crisis.56 The WHO Assembly adopts them with simple majority and they come into force for all member states after due notice and with the possibility of opting out within a short period.57 The Health Regulations can be framed as international or internal instruments merely depending on the perspective. This ambiguity has relevant consequences because if the Health Regulations are purely internal law, their implementation by member states can be submitted to the dispute settlement mechanism envisaged in article 56 IHR but not to the general rules of the responsibility of international organizations. The legal counsel of the WHO has affirmed that internal rules allow the development of a ‘customized internal legal order that could avoid legal controversies about rather minor issues’.58 However, the WHO stated that the obligations arising directly from its constituent instrument are necessarily international obligations, only excluding staff regulations.59 The legal issue is exemplified in the term ‘customized’, used by the WHO legal counsel. He stressed that the internal life of an organization cannot always generate international disputes, because it would irremediably impair the functioning of the organization. However, ‘customization’ means that an organization would be free to determine which legal issues are worthy to put in the international sphere and which legal issues should be maintained within institutional boundaries.

1.5 The Structure of the Book The book is divided into two parts. The first part contains five chapters, which discuss the origins and the main characteristics of each of the four concepts of an 55 Ibid (18 September 2018) ICC-02/05-01/09-T-8-ENG, 52. 56 David P Fidler, ‘From International Sanitary Conventions to Global Health Security: The New International Health Regulations’ (2005) 4 CJIL 325; Benton J Heath, ‘SARS, the “Swine Flu” Crisis and Emergency Procedures in the WHO’ in Sabino Cassese and others (eds), Global Administrative Law: The Casebook (IRPA 2012) I.B.10. 57 Bruce Plotkin, ‘Human Rights and other Provisions in the Revised International Health Regulations (2005)’ (2007) 121 Public Health 840. 58 Gian Luca Burci and Clemens A Feinäugle, ‘The ILC’s Articles Seen from a WHO Perspective’ in Maurizio Ragazzi (ed), Responsibility of International Organizations (Brill 2013) 186. 59 ILC, ‘Comments and Observations Received from International Organizations’ (2006) UN Doc A/ CN.4/568, 4.

14 Introduction international organization briefly described above, and wrap up the arguments describing how they interact with issues of international responsibility. In these chapters, I will focus on the limits of adopting only one perspective on the capacity of international organizations to create legal systems. The existence of analytical fallacies in the use of limited perspectives will be proved on the basis of examples taken from different legal scenarios. For instance, under functionalism I will discuss the capacity of international organizations to adopt countermeasures, while, under exceptionalism I will discuss EU external relations. The choice of the topic aims to ensure a sufficient level of variety and to allow me to make my argument as efficiently as possible. In the second part of the book, I will first delve into a theoretical discussion on the capacity of international organizations to develop legal systems and on what I call the dual legal character of the law they produce. Afterwards, I will apply the theoretical insights to describe the normative category of the rules of international organizations, describing constitutive instruments, general principles, customary law, subsequent practice, secondary norms, judicial decisions, and treaties both with members and third parties. The second part will move to confront the dual nature of international organizations in the context of the law of treaties, the validity of acts, and international responsibility.

PART I

T HE F OU R C ONC E P T S OF A N INT ER NAT IONA L ORG A NI Z AT ION Part I focuses on the four concepts of an international organization distinguishing on the basis of the nature of the law they produce: functionalism, constitutionalism, informalism, and exceptionalism. The first four chapters of this part are divided in two sections. The first section describes the historical origin of the theory and its normative consequences on the nature of the legal systems developed by international organizations. The second section criticizes the theory, describing its shortcomings with examples. Under functionalism, it focuses on the breach of institutional rules and on countermeasures; under constitutionalism, it focuses on the lex specialis principle and the attribution of conduct; under informalism, it focuses on employment relationships and Global Administrative Law; and, finally, under exceptionalism, it focuses on the EU and the Organization for Security and Cooperation in Europe. In general, I contend that existing theories are affected by a limited perspective, which is able to explain only limited aspects of the institutional life of an organization. The last chapter of this part (Chapter 6) provides some interim conclusions, exposing the false dichotomies that led to the proliferation of the different perspectives. I apply the four conceptualizations to a legal dispute concerning the responsibility of international organizations to conclude that the adoption of an international legal framework applicable to all international organizations is subjected to the possibility to rebut limited perspectives and to adopt an ‘absolute point of view’.

2

Functionalism Functionalism is conventionally considered the mainstream paradigm of the law of international organizations. This is a state-centric conceptualization, in which the contractual relationship between member states and organizations is privileged over the institutional relationship. Organizations are agents of their member states and the attribution of competences is privileged over the possession of a general capacity to perform any relevant act. The treaty-based relationship between member states and their organizations is considered exclusively as a matter of international law. The transparency of the institutional veil makes the internal legal relations between members and organizations appear as purely international law. International law and the particular legal systems developed by international organizations are not separate. The main tenets of a purely functionalist conceptualization are: • Organizations are agents of their member states by the means of a contractual relationship; • The law created by international organizations is purely international law; • The institutional veil is characterized by a crystalline transparency; • The autonomy of the organization is minimal and only granted by a rigid conferral of competences and few implied powers; • The conduct of member states acting in the institutional forum is relevant as a matter of international law. In this chapter, I will first introduce the historical origin of this conceptualization and detail the reasons for which the rules of the organizations are conceptualized as purely international law. Afterwards, I will discuss the flaws of this theory, describing the difficulties arising from the breach of the institutional rules by the organization, as well as the problems arising from the adoption of countermeasures against a wrongful act committed by a member state.

2.1 The Rules of International Organizations as International Law The attempt to reconcile the development of new subjects of international law with classical voluntarist approaches fostered the first theoretical studies on the concept The Concept of an International Organization in International Law. Lorenzo Gasbarri, Oxford University Press (2021). © Lorenzo Gasbarri. DOI: 10.1093/oso/9780192895790.003.0002

18 Functionalism of an international organization. One of the most interesting examples of this academic era is hosted by the Italian ‘Rivista di Diritto Internazionale’, which in 1914 published a debate between Dionisio Anzilotti and Guido Fusinato on the legal nature of the International Institute of Agriculture (IIA).1 The IIA was the first organization to focus on inter-state cooperation in the field of international food management. It was founded in 1905 by fifty-one states and established in Rome, where it worked until it was replaced by the ‘Food and Agriculture Organization of the United Nations’.2 The original mandate of the Institute was limited to publishing market prices and statistical accounts of agriculture production of its members states, but its structure reflected modern international organizations constituted by a general assembly of member states, a permanent committee with limited membership, and a secretariat.3 Legal scholars were specifically interested in the ambiguous legal status of the Institute as an international legal subject, and, consequently, whether it possessed privileges and immunity. In a doctrinal context in which only states were considered to possess international legal personality, Fusinato contended that the Institute was a fully-fledged international subject and that it was time for international law to recognize new non-state entities as its subjects.4 Nevertheless, he recognized the peculiar qualities of the new legal subject, which was created on the basis of international law and of the internal law of its hosting state. In particular, for Fusinato the Institute was subjected to Italian jurisdiction and Italian law applied to fill in the gaps of its constitutive instrument. Anzilotti contested this theory, affirming that subjectivity is linked to the capacity to create a separate legal order, which cannot be developed by an international treaty.5 He reaffirmed his voluntarist perspective contending that only states are subjects of international law and the IIA is an organ that its members are merely sharing. He described this concept of an international organization as follows: ‘Sont organes collectifs ceux qui sont institués par plusieurs États ensemble et dont la déclaration de volonté est rapportée par le droit international à une

1 Dionisio Anzilotti, ‘Gli organi comuni nelle società di Stati’ (1914) RDI 156 (hereafter Anzilotti, ‘Gli organi comuni’); Guido Fusinato, ‘La personalità giuridica dell’istituto internazionale di agricultura’ (1914) RDI 149 (hereafter Fusinato, ‘La personalità giuridica’). 2 Asher Hobson, The International Institute of Agriculture: An Historical and Critical Analysis of its Organization, Activities and Policies of Administration (University of California Press 1931). 3 Luigi Luzzatti, ‘The International Institute of Agriculture’ (1906) 182 The North American Review 651; Vittorio Racca, ‘Della utilità sociale di un istituto internazionale di agricoltura’ (1905) 30 Giornale degli Economisti 490; Maffeo Pantaleoni and John H Hubback, ‘Parere di un “pratico” sull’instituto internazionale di agricoltura’ (1908) 36 Giornale degli Economisti 109; Carlo Dragoni, ‘Il programma di statistica agraria all’istiuto internazionale di agricultura’ (1909) 39 Giornale degli Economisti 115; Umberto Ricci, ‘L’ufficio di statistica dell’Istituto internazionale di agricoltura’ (1913) 46 Giornale degli Economisti e Rivista di Statistica 157. 4 Fusinato, ‘La personalità giuridica’ (n 1) 150. 5 Anzilotti, ‘Gli organi comuni’ (n 1) 157.

Rules of Organizations as International Law 19 collectivité de sujets et, comme telle, rendue la présupposition de conséquences juridiquement déterminés.’6 The organization is nothing but the collective will of its member states. He emphasized the contractual rather than the institutional nature. This introductory debate exposes a primordial distinction between functionalism and constitutionalism. Early scholarship contended that international organizations possess legal personality only if they develop internal legal orders. Otherwise, they are nothing but organs shared by their member states. A first concept of an international organization is identifiable in Anzilotti’s theory based on the relevance of the will of member states, which will develop under the name of functionalism. A second concept is identifiable in Fusinato’s theory based on the autonomy of the International Institute of Agriculture. This theory will later develop under the name of constitutionalism as a reaction to the mainstreaming functionalist paradigm. Under the first conceptualization, Anzilotti considered international organizations as organs shared by states to perform joint functions. This theory was useful to harness the emergence of new actors and reaffirm the dogma under which only states enjoy legal personality under international law. It is characterized by the absence of an institutional focus, at a time in which it was not even clear if organs in common were actually developing as institutions.7 Of course, this theory was set aside by the expansions of international organizations in the post-war international community. Once the debate on the possession of legal personality was settled, the controversy between the two conceptualizations moved on whether legal personality is conferred by member states (functionalism), or whether it is inherent in the creation of an organization (constitutionalism). The functionalist paradigm gained increasing support by balancing the emergence of new institutions with the state-centric international community. In the early twentieth century, Paul Samuel Reinsch published the works that would set the basis of functionalism.8 Reinsch’s contribution to the conceptualization of an international organization in international law is well documented.9 As Jan Klabbers contended, Reinsch’s major success was to develop a theory that could address the perplexities of his contemporary audience. Primarily, his theory proved that the new ‘unions’ do not threaten national sovereignty. First, because they are created to perform specific functions. Second, because they are technical administrative agencies which are not involved in politics, addressing the need for 6 Dionisio Anzilotti, Cours de Droit International (Gilbert Gidel ed, Receuil Sirey 1929) (hereafter Anzilotti, Cours) 283. 7 Jan Klabbers, ‘The Emergence of Functionalism in International Institutional Law: Colonial Inspirations’ (2014) 25 EJIL 645, 653 (hereafter Klabbers, ‘The Emergence of Functionalism’). 8 Paul S Reinsch, ‘International Unions and their Administration’ (1907) 1 AJIL 579; Paul S Reinsch, ‘International Administrative Law and National Sovereignty’ (1909) 3 AJIL 1. 9 Jan Klabbers, ‘The EJIL Foreword: The Transformation of International Organizations Law’ (2015) 26 EJIL 9 (hereafter Klabbers, ‘The EJIL Foreword’).

20 Functionalism technical cooperation in a world that was transformed by the industrial revolution. Third, because the risk of creating subjects which would circumvent the will of member states was eliminated by a comparatist approach which limited the differences among institutions and produced a general regulatory framework applicable to all. In sum, functionalism portrays organizations as agents of their masters, and organizations can be perceived either as a forum where states meet to discuss and conclude agreements, or as independent offices where action takes place.10 The scope of Reinsch’s analysis is narrowed by the small number of organizations active in his time, but functionalism managed to become the mainstream paradigm which would regulate the future development of international organizations. In particular, the creation of the League of Nations and the International Labour Organization (ILO) stirred the debates on the conceptualization of an international organization. The legal nature of the ILO was discussed in the Labour Commission set up by the 1919 peace conference. One of the main issues faced by the Commission was to reconcile state sovereignty with the powers attributed to the organization.11 While a merely advisory competence would not fulfil its aims, binding laws would require an enforcing mechanism to deal with non-compliance. Part XIII of the Treaty of Versailles did not resolve this dilemma. It did not make any reference to the international legal personality of the organization nor did it define the constitutive instrument as a constitution. The document remained silent on the autonomy of the administrative body, nor did it grant privileges and immunity. In the inter-war years, the ILO grew into a powerful entity and shaped its internal and external features. Internally, the organization expanded its competences, while its external autonomy was established by practice in relation to member states and the League of Nations. The Permanent Court of International Justice (PCIJ) did not take a position on the existence of legal personality, even if it would be difficult to support the thesis that the ILO was not acting as a legal person and member states were exercising powers in their individual capacities through the organization.12 The ILO was transformed from an ‘international standard setting body’ similar to the IIA to a provider of technical assistance.13 The range of its competences exponentially grew, and, consequently, legal theory evolved to meet new expectations. Initially, the absence of clarity on the legal nature of the organization limited its activities. The issue arose already in 1922, when the nature of the League of Nations and its relation with the ILO became the subject of controversy at the XIV session of the ILO governing body. The debate concerned whether the building 10 Klabbers, ‘The Emergence of Functionalism’ (n 7) 656. 11 Antony Evelyn Alcock, History of the International Labour Organisation (Springer 1971). 12 Chittharanjan Felix Amerasinghe, Principles of the Institutional Law of International Organizations (CUP 2005) (hereafter Amerasinghe, Principles) 77. 13 Guy Fiti Sinclair, To Reform the World: International Organizations and the Making of Modern States (OUP 2017) Chapter 1.

Rules of Organizations as International Law 21 constituting the headquarters of the organization should be owned by the League or by the ILO. Comments stressed that the League ‘possessed personality in public and in international law’.14 The issue was discussed in detail in the Official Bulletin of 1931, discussing the membership of the free city of Danzig, in which the ILO was depicted as a peculiar entity, different from pre-existing international unions.15 The debates referred to the work of Ernest Mahaim, who affirmed that the ILO possessed the same juridical nature as the League of Nations.16 The ILO was accordingly a permanent league of states based on an international convention. However he sustained that ‘the conception representing the organization as a legal person with respect to which the states assume obligations in the labour convention is an entirely fictitious conception’. The institutional growth was not without backward steps and different theories crystallized on the basis of a main distinction between a constitutional entity and a functional entity. In 1926, the League of Nations signed its first headquarter agreement with Switzerland, which Negulesco described as evidence of a limited sovereignty concerning an internal order immune from state jurisdiction.17 In the inter-war years, there was no field of study comparable to what is today considered the law of international organizations. The notion of international organization was used either to define general cooperation between states or specific institutions such as the ILO. The analysis compared different institutions, but it was limited to solving the problem at hand without reference to a general framework. The notion of international institution coalesced around a functionalist definition with the 1927 PCIJ Advisory Opinion on the European Commission of the Danube: [a]‌s the European Commission is not a State, but an international institution with a special purpose, it only has the functions bestowed upon it by the Definitive Statute with a view to the fulfillment of that purpose, but it has power to exercise these functions to their full extent, in so far as the Statute does not impose restrictions upon it.18

One year later, another PCIJ Advisory Opinion discussed the concept of an international organization in a decision concerning the powers of the Greek-Turkey Commission.19 After the First World War, Turkey and Greece signed an agreement 14 ILO, ‘Minutes of the XIV Session of the Governing Body of the International Labour Office’ (1922) 09601(1922-14) 402. 15 ILO, ‘Official Bullettin’ (1931) Volume XVI, 184. 16 Ernest Mahaim, ‘L’Organisation permanente du travail’ (1924) 4 RCADI 69, 99. 17 Paul Nêgulesco, ‘Principes du droit international administratif ’ (1935) 51 RCADI 581 643. 18 Jurisdiction of the European Commission of the Danube between Galatz and Braila (Advisory Opinion) [1927] PCIJ Series B, No 14, 64. 19 Interpretation of the Greco-Turkish Agreement of December 1st, 1926 (Advisory Opinion) [1928] PCIJ Series B, No 16.

22 Functionalism to create a mixed Commission to settle legal issues relating to the exchange of populations between the two countries. The Court described the Commission as an administrative body and it referred to the theory of implied powers for the first time.20 Elihu Lauterpacht identified three fundamental outcomes of this decision. First, the Commission was an organization with ‘corporate personality’, as its member states did not have a joint competence to refer the question to arbitration, which rests with the Commission itself. Second, he interpreted the decision so as to read that the absence of internal regulations should be covered by way of analogy with national legal systems. Third, the fulfillment of the aims of the Commission would be upon the organization, and not on its member states.21 This conceptualization of an international organization on the basis of three elements is a clear evolution compared to the theory of the organs in common originally sustained by Anzilotti. It should be stressed that Anzilotti was the President of the PCIJ bench that issued the opinion. The conceptualization merges some of the considerations included in Fusinato’s opinion to radically rebut the thesis that organs in common might be constituted by hybrid systems, under which parts of their laws are internal and other parts international. The analogy with national laws is only useful insofar as it is based on similar treatment of private corporations, yet it does not determine the content of the international organization’s legal system. This decision is the first attempt to reconcile the functional nature of international organizations with their constitutional growth. After the Second World War, the ILO itself faced the issue of legal personality and demanded a revision of its constitutive instrument. Indeed, the ILO insisted on the adoption of a constitutional charter which would enhance its autonomy from member states and from other international organizations.22 The Committee on Constitutional Questions recommended the inclusion of two new articles in the Constitution, which would specifically deal with the legal status and immunity of the organization.23 The creation of the United Nations (UN) caused a breakthrough in debates on the existence of subjects of international law other than states, and the Advisory Opinion of the International Court of Justice (ICJ) on Reparation is commonly considered as the leading decision on the matter.24 It concluded that the UN is independent from its member states but it did not clearly identify the nature of an international organization.

20 Negar Mansouri, ‘Analysis OXIO 357 “Interpretation of the Greco-Turkish Agreement of 1 Decembre 1926” ’ (2018) Oxford Report on International Law: International Organizations. 21 Elihu Lauterpacht, ‘The Development of the Law of International Organization by the Decisions of International Tribunals’ (1976) 152 RCADI 383, 404. 22 ILO, ‘Official Bullettin’ (1945) Volume XVII, 199. 23 ILO, ‘Official Bullettin’ (1946) Volume XVII, 921. 24 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174.

Rules of Organizations as International Law 23 Following a functionalist paradigm, the ICJ conceptualized the UN as an agent of member states, implying that the possession of legal personality cannot be inherent to the creation of the organization but must find its origins in the will of the founding states. If the member states did not explicitly grant legal personality to the institution in the constitutive treaty, then legal personality must be implied if such personality is required for the fulfilment of the institutional aims. Following this conceptualization, the Court argued that ‘[u]‌nder international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.’25 This Advisory Opinion became the corner stone of the rising functionalist paradigm. Today, Jan Klabbers defines functionalism as ‘essentially a principal–agent theory, with a collective principal (the member states) assigning one or more specific tasks—functions—to their agent’.26 He considers Virally’s work as the functionalist manifesto, in which he identified a three-fold definition.27 First, functions constitute the authorization to act given by member states. Second, the functions determine the limitations of organizations’ actions. Third, institutional organs are bound to act in a certain way by an obligation established by the member states. The ICJ has consolidated the functionalist perspective in its case law.28 The most recent decisions have revealed that the nature of the rules of international organizations affects every aspect of their activities, from concluding an agreement with third parties to determining the effects of an ultra vires activity. In Legality of the Use by a State of Nuclear Weapons in Armed Conflict the ICJ relied on the international nature of the World Health Organization (WHO) Constitution to affirm that the WHO did not have the competence to submit the request for the Advisory Opinion.29 Applying a functionalist conceptualization, it contended that ‘international organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are governed by the “principle of speciality”, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.’30 The functionalist perspective also prevailed in the Lockerbie case, in which the Court did not consider the argument that Libya’s complaint ought to have been directed to the UN Security

25 Ibid 182. 26 Klabbers, ‘The EJIL Foreword’ (n 9) 10. 27 Ibid 22. 28 Eyal Benvenisti, ‘Upholding Democracy Amid the Challenges of New Technology: What Role for the Law of Global Governance?’ (2018) 29 EJIL 9, 16. 29 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66. 30 Ibid para 25.

24 Functionalism Council rather than at the United Kingdom and the United States.31 Similarly, in Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v Greece) the Court relied on the bilateral nature of the controversy and did not discuss that the case concerned activities which took place within the North-Atlantic Treaty Organization. It implicitly relied on the transparent quality of these entities.32 Evidently, the predominance of a functionalist concept is due to the state-centric characteristics of the regime in which the Court operates. The general endorsement of functionalism by legal scholars contributes to the acritical acknowledgment of the international nature of the rules of international organizations. Indeed, the roots of the international nature of the law that regulate the relationship between members and organizations can be found in Anzilotti’s theory of the organ in common.33 In the same period, Basdevant contended that international law also covers the law governing employment relations within international organizations.34 Jessup believed in the international nature of the rules of international organizations in relation to what he called ‘international parliamentary law’.35 In one of the few monographs devoted to the topic, Matteo Decleva contested the ‘original’ character of the legal system developed by an organization, describing it as a derivation of international law.36 In his opinion, the derivative character of the system is based on the attribution of competences by member states, the primary subjects of international law. Taking a functionalist approach, Wilfred Jenks analysed the law of international organizations distinguishing between private, administrative, and public law.37 Jenks circumscribed the internal plane of the organizations to employment relationships, but he contended that ‘internal’ is an adjective that does not affect the international nature of individual contracts. The source of employment relationships is not the constitutional nature of the organization, but the constitutive treaty, perceived as a contract: ‘if a body has the character of an international body corporate the law governing its corporate life must necessarily be international in character’.38 This quote shows how the international nature and the functional conceptualization are strictly connected to the idea of organizations as corporations 31 Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v United Kingdom) (Provisional Measures) [1998] ICJ Rep 9. 32 Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v Greece) [2011] ICJ Rep 644. 33 Anzilotti, Cours (n 6) 295, 296. 34 Suzanne Basdevant, Les fonctionnaires internationaux (Sirey 1931). 35 Philip C Jessup, ‘Parliamentary Diplomacy: An Examination of the Legal Quality of the Rules of Procedure of Organs of the United Nations’ (1956) 89 RCADI 183, 204; Philip C Jessup, ‘International Parliamentary Law’ (1957) 51 AJIL 396. 36 Matteo Decleva, Il diritto interno delle unioni internazionali (CEDAM 1962). 37 Clarence Wilfred Jenks, The Proper Law of International Organisations (Stevens & Sons 1962). 38 Ibid 68.

Rules of Organizations as International Law 25 created by states to fulfil specific tasks.39 Similarly, Seidl-Hohenveldern identified the origins of international organizations in the notion of corporation, as borrowed from civil law.40 When organizations are perceived as a contractual form of cooperation, with clear functions attributed by its members, the law produced by the organization maintains the nature of the contract, which is international law. More recently, Joost Pauwelyn adopted a functionalist concept of an international organization in the context of the World Trade Organization (WTO).41 He distinguished between what he called the ‘reciprocal’ and the ‘integral’ nature of the WTO obligations. In Pauwelyn’s view, ‘reciprocal’ obligations have a synallagmatic nature and under this approach the WTO obligations can be reduced to a compilation of bilateral treaty relations. Conversely, ‘integral’ obligations have a multilateral connotation with collective binding effects. He sustained that most WTO obligations must be qualified as reciprocal in nature, underlining the contractual basis of WTO law. Under this theory, organizations do not develop particular legal systems and the nature of their law is explained within the realm of international law. In comparison with other international organizations, the differences between the WTO law, the UN law, or the WHO law is simply a matter of different branches of public international law. Categories are used to describe different areas of international law in the absence of boundaries that separate self- contained legal systems. If the rules of the organizations are international law, they hold a special place among the traditional sources, even if not mentioned in article 38 of the ICJ Statute.42 With few exceptions, textbooks of international law generally consider the law produced by international organizations as a source of international law without debating it, or, at the most, using it as an example of the evolution of the international community under globalization.43 In conclusion, the international nature of the rules of international organizations is strictly related to functionalism. The organization exercises its functions in the framework of the same legal system in which the member states attribute its competences.44 However, as Klabbers contests, this is not compatible with empirical phenomena that underline the wide autonomy of international organizations. 39 Amerasinghe, Principles (n 12) 15. 40 Ignaz Seidl-Hohenveldern, Corporations in and under International Law (CUP 1987) 69. 41 Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to other Rules of International Law (CUP 2003) 52. 42 For instance, Marcelo Gustavo Kohen, ‘La pratique et la théorie des sources du droit international’ Société française pour le droit international, La pratique et le droit international Colloque de Genève 2003 (Pedone 2004) 105. 43 For example, Alain Pellet and Patrick Daillier, Droit international public (7th edn, LGDJ 2009); Malcolm N Shaw, International Law (8th edn, CUP 2017); Evelyne Lagrange and Jean Marc Sorel, Traité du droit des organisations internationales (LGDJ 2013); Amerasinghe, Principles (n 12). 44 See the meaning of ‘delegation’ employed by Dan Sarooshi, ‘International Organizations: Personality, Immunity and Responsibility’ in Dan Sarooshi (ed), Remedies and Responsibility for the Actions of International Organizations (Nijhoff 2014) 20.

26 Functionalism Functionalism cannot explain the development of an autonomous legal system. As early as 1969, Balladore Pallieri found that an internal system of rules cannot exist without its own legal system.45 In his view, if an organization is unable to produce a legal system, its rules are not law at all.

2.2 The Limits of Functionalism This section focuses on the limits of the functionalist conceptualization using two examples. The first example concerns the breach of institutional rules by the organization, while the second concerns the complex relationship between countermeasures and sanctions. In general, functionalism suffers from a limited international/ state-centric point of view, which does not admit the existence of an internal/institutional perspective.

2.2.1 The breach of institutional rules under functionalism In a nutshell, functionalism does not explain how an organization can breach internal rules if the same majority that adopted these rules can modify them.46 If the organization does not constitute an internal legal system and the law produced maintains an international nature that derives from the will of member states, any breaches can be justified by the same will that decided to set aside that rule. Two main cases have been decided by the ICJ in which this limit of functionalism has been at stake. The first case concerns the effects of awards of the UN Administrative Tribunals.47 In 1953 the General Assembly requested the ICJ to render an Advisory Opinion on whether the Assembly has an obligation to give effect to the decisions of the Administrative Tribunal. Under a purely functionalist logic, the same majority that created the Tribunal would have the power to set aside its judgments. Obviously, this reasoning would go against any relevant argument made on the basis of justice and fairness towards employment relationships. In order to reject this purely functionalist argument, the ICJ relied on the development of an internal constitutional order by the UN that is binding on its organs and staff members.48

45 Giorgio Balladore Pallieri, ‘Le droit interne des organisations internationales’ (1967) 127 RCADI 1, 22. 46 Benedetto Conforti, ‘The Legal Effect of Non-Compliance with Rules of Procedure in the UN General Assembly and Security Council’ (1969) 63 AJIL 479. 47 Effect of Awards of Compensation made by the United Nations Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 47. 48 Ibid 56.

The Limits of Functionalism 27 Member states further contended that the General Assembly did not have the power to establish a Tribunal with authority to bind the Assembly itself.49 Under the terms of the UN Charter the Assembly should have rather created an organ with advisory jurisdiction only. States contended that the creation of a Tribunal with the power to impose the payment of compensation violates the UN Charter, under which the General Assembly shall approve the budget of the organization. The ICJ discarded this argument, contending that the Assembly has no absolute power over expenditures, which may also arise from obligations already incurred and which the organization cannot refuse to pay. The last relevant functionalist argument stated that the General Assembly had delegated its own functions by creating a subsidiary organ.50 Here the Court rejected the argument by affirming that the General Assembly was rather exercising a power conferred on it by the Charter. The General Assembly could abolish or amend the statute of the Administrative Tribunal, but, insofar as it had created an organ which is part of the internal legal system of the UN, it was bound to give effect to its decisions. The second case concerns the WHO and the decision to relocate its Regional Office for the Eastern Mediterranean Region.51 During the 1970s the Egyptian city of Alexandria hosted the regional office of the WHO, and, before that, the sanitary council that preceded the organization. Political reasons forced a request to relocate the office to Amman, Jordan, but the legal framework was far from clear. Two agreements were potentially applicable to the relocation of the regional office. The host agreement, concluded in 1951, had imposed a period of notice of no less than two years. However, before the conclusion of the host agreement, the Alexandria office was already working under an informal agreement concluded in 1949, which did not envisage a period of notice. In order to relocate the office as soon as possible, the argument was that the 1951 agreement only concerned immunities, privileges, and facilities of the regional office, which was already established under the 1949 agreement. The ICJ started its analysis by describing the ‘constitutional framework’ within which the WHO established its regional offices.52 It then moved on to reformulate the legal question put forth by the request: ‘What are the legal principles and rules applicable to the question under what conditions and in accordance with what modalities a transfer of the Regional Office from Egypt may be effected?’53 The ICJ struggled to reconcile the different point of views, under which Egypt was, at the same time, an internal subject of the WHO legal system and its counterparty 49 Ibid 59. 50 Ibid 61. 51 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 73. 52 Ibid 77; see Klabbers, ‘The EJIL Foreword’ (n 9) for a similar analysis. 53 WHO–Egypt Agreement (n 51) para 36.

28 Functionalism in an international agreement. On the one hand, the World Health Assembly had an absolute power to determine the location of its regional offices. In the internal relationship between the organization and its member states, the agreement with Egypt could be modified by a ‘sovereign’ decision of the organization. On the other hand, member states possess a ‘sovereign’ power with respect to their acceptance of the headquarters of a regional office. In sum, ‘an organization’s power of decision is no more absolute in this respect than is that of a State’.54 From a functionalist perspective, the Court reaffirmed that organizations are not a form of ‘super-state’, and, from a constitutional perspective, that they are bound by: any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties. Accordingly, it provides no answer to the questions submitted to the Court simply to refer to the right of an international organization to determine the location of the seat of its regional offices.55

Functionalism is unable to solve the dilemma arising from the existence of a contractual relationship based on international law within a constitutional framework based on the internal law of the organization. In conclusion, the Court relied on the principles of good faith to impose an obligation on the WHO and Egypt to consult each other, negotiate the transfer, and agree on a reasonable period of notice.56

2.2.2 Countermeasures and sanctions under functionalism Under article 22 of the International Law Commission (ILC) project on states’ responsibility (ARSIWA), countermeasures are circumstances precluding wrongfulness in which an act of a state not in conformity with international law does not trigger its international responsibility when the conditions contained in articles 49–54 ARSIWA are met.57 In particular, the act must be performed by an injured party to induce compliance with an obligation, it must be directed towards the violation of a limited number of obligations binding the acting state, and it must respect several conditions, among which is proportionality with the wrongful act suffered by the injured party. Countermeasures are breaches of international law in response to a previous breach by another subject, and aimed to induce

54 Ibid para 37. 55 Ibid. 56 Ibid para. 49. 57 ILC, ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ (2001) UN Doc A/56/10.

The Limits of Functionalism 29 compliance.58 They are classic mechanisms for the decentralized enforcement of international law. International organizations enjoy the capacity to pursue countermeasures and they can be subject to them.59 However, in comparison with states, their active and passive capacity is more complex, due to internal and external dynamics: 1. Countermeasures in relation to member states or non-member states; 2. Countermeasures in response to a violation of any international obligation or of an obligation coming from a rule of the organization. These distinctions are symptomatic of the difficulties in determining whether organizations possess a legal system that produces internal law and how they are permeable to international law. A recent example of the importance of internal and external countermeasures in the law of international organizations concerns the response by the WHO to epidemic outbreaks.60 In 2015, the Ebola Interim Assessment Panel noted the pathologic violation of the International Health Regulations by WHO member states.61 It recommended the creation of an internal mechanism to sanction violations of the health regulations by member states. In particular, states tend to violate health regulations by imposing discriminatory measures against the states that are concerned with the proclamation of a Public Health Emergency of International Concern. In the absence of an internal WHO mechanism of sanctions to enforce the obligations deriving from the constitutive treaty, the question is whether the organization can resort to international countermeasures against its members. The possibility to resort to international countermeasures implies that the institutional relationship between international organizations and their members is grounded in international law. The fallback on international law in the absence of institutional rules reflects a relationship based on the dynamic between lex specialis and lex generalis. In order to disentangle this issue, the ILC Special Rapporteur Gaja based his sixth report on countermeasures on the practice developed within the WTO in relation with the European Communities, claiming that there was no reason to distinguish between countermeasures adopted against a state and those adopted against an international organization.62 The consequence of this approach is an unclear distinction between internal sanctions and international countermeasures when an international organization is acting in response to a violation of 58 Ibid. See the definitions of countermeasures and reprisals at the commentary to art 22. 59 See, in general, Frédéric Dopagne, Les contre- mesures des organisations internationales (Anthemis 2010). 60 Andrea Spagnolo, ‘(Non) Compliance with the International Health Regulations of the WHO from the Perspective of the Law of International Responsibility’ (2018) 18 Global Jurist 1; Andrea Spagnolo, ‘Contromisure dell’organizzazione mondiale della sanità come conseguenza di violazioni dei regolamenti sanitari internazionali in contesti epidemici’ in Laura Pineschi (ed), La tutela della salute nel diritto internazionale ed europeo tra interessi globali e interessi particolari (Eidtoriale scientifica 2017). 61 WHO, ‘Report of the Ebola Interim Assessment Panel’ (2015). 62 ILC, ‘Sixth report on responsibility of international organizations by Giorgio Gaja’ (2008) UN Doc A/CN.4/597.

30 Functionalism an internal rule by a member state.63 The ILC rejected the approach taken by the Special Rapporteur to rely on the practice of the WTO, founded on the distinction between countermeasures adopted as internal sanctions and countermeasures adopted as the implementation of international responsibility.64 In general, the debates within the ILC show the risks deriving from conflating international countermeasures and internal sanctions.65 The difference lies in the authorization issued by a ‘competent social organ’,66 able to distinguish between an institutional collective logic and a private contractual logic.67 The consequence of the international nature of the law produced by international organizations is that sanctions and countermeasures would be subjected to the same regulatory framework.68 Moreover, under a purely functionalist conceptualization, there should be no need to distinguish between the countermeasures adopted against members or against non-members. They both assume the characteristics of a collective international action against a state to induce compliance. However, in the institutional dynamic, when the state that resorts to countermeasures is also a member of the organization, the rules of the organization may impose further restrictions or even forbid their use. This could result in the adoption of countermeasures as an answer to internationally unlawful but internally lawful sanctions.69 This is not a mere theoretical possibility. The main examples are UN Security Council’s sanctions that in some cases do not respect all the requirements of countermeasures, in particular in relation to the lack of proportionality and the prohibition of the use of force.70 Sanctions are not countermeasures.71 Therefore, the legal systems of international organizations cannot have a purely international law nature. The international nature of the rules on which functionalism relies cannot reconcile the internal nature of such sanctions. Indeed, the autonomy of international

63 Simone Vezzani, ‘Countermeasures by Member States against International Organizations’ in Maurizio Ragazzi (ed), Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie (Nijhoff 2013) 373. 64 See in particular, the discussion at ILC, ‘Summary record of the 2963rd meeting’ (2008) UN Doc A/CN.4/SR.2963. 65 ILC, ‘Report of the International Law Commission on the work of its 60th Session’ (5 May–8 August 2008) UN Doc A/63/10, para 148 ss. 66 Georges Abi-Saab, ‘The Concept of Sanction in International Law’ in Vera Gowlland-Debbas (ed), United Nations Sanctions and International Law (Kluwer 2001) 29. 67 Mariano J Aznar, ‘La distinction entre sanctions et contre-mesures’ (2013) RBDI 111. 68 Yann Kerbrat, ‘Sanctions et Contre-Mesures: Risques de Confusion dans les Articles de la CDI sur la Responsabilite des Organisations Internationales’ (2013) 46 RBDI 103 (hereafter Kerbrat, ‘Sanctions’). 69 Tom Ruys, ‘Research Handbook on UN Sanctions and International Law’ in Larissa van den Herik (ed), Sanctions, Retortions and Countermeasures: Concepts and International Legal Framework (Elgar 2017). 70 Kerbrat, ‘Sanctions’ (n 68) 108. 71 James Crawford, ‘The Relationship between Sanctions and Countermeasures’ in Vera Gowlland- Debbas (ed), United Nations Sanctions and International Law (Kluwer 2001) 57.

The Limits of Functionalism 31 organizations is affected by the internal or international nature of their rules.72 Sanctions have a priority over countermeasures and they should be more effective, allowing the fallback on countermeasures only in the event of their failure. They are ‘the most salient feature’ of the ‘sophisticated legal order’ that ‘differentiates itself from general international law’.73 The ILC Special Rapporteur Gaja acknowledged the distinction stating: ‘While countermeasures are acts that would per se be unlawful, sanctions are lawful measures that an international organization may take against its members according to the rules of the organization. Sanctions are therefore not considered in the chapter on countermeasures.’74 Consequently, the ILC drafted two different standards for countermeasures in response to a violation of international law or of an organization’s rules. Article 52 of the Articles on the Responsibility of International Organizations (ARIO) states in general that the countermeasures taken by members against the organization must be consistent with the rules (paragraph 1b) with the exception of paragraph 2, where a countermeasure against ‘a breach of an international obligation under the rules of the organization’ must be provided for by those rules.75 From an international perspective, this double standard has been criticized, contesting the absence of an effective remedy against a breach of a rule.76 But, the double standard reflects the difficulty of considering a rule international law, which affects the criticism itself. The issue involves the international response to invalid rules.77 The debate is affected by the lack of agreement as to the premise that invalidity is generally an internal concept, while countermeasures are based on international law. Therefore, in order to apply international countermeasures against invalid rules, a system of fallback to international law is needed.78 72 Frédéric Dopagne, ‘Sanctions and Countermeasures by International Organizations: Diverging Lessons for the Idea of Autonomy’ in Richard Collins and Nigel D White (eds), International Organizations and the Idea of Autonomy (Routledge 2011). 73 Ibid 188. 74 ILC, ‘Seventh report on responsibility of international organizations by Giorgio Gaja’ (2009) UN Doc A/CN.4/610, para 111. 75 ILC, ‘Draft articles on the responsibility of international organizations, with commentaries’ (2011) UN Doc A/66/10 (hereafter ARIO), Article 52: ‘1. Subject to paragraph 2, an injured State or international organization which is a member of a responsible international organization may not take countermeasures against that organization unless: (a) the conditions referred to in article 51 are met; (b) the countermeasures are not inconsistent with the rules of the organization; and (c) no appropriate means are available for otherwise inducing compliance with the obligations of the responsible international organization concerning cessation of the breach and reparation. 2. Countermeasures may not be taken by an injured State or international organization which is a member of a responsible international organization against that organization in response to a breach of an international obligation under the rules of the organization unless such countermeasures are provided for by those rules.’ 76 Antonios Tzanakopoulos, ‘L’Invocation de la Theorie des Contre-Mesures en Tant Que Justification de la Desobeissance au Conseil de Securite’ (2013) 46 RBDI 78, 97. 77 See, in general, Antonios Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (OUP 2013). 78 See, in general, Lorenzo Gradoni, ‘Regime failure’ nel diritto internazionale (CEDAM 2009).

32 Functionalism

2.3 Concluding Remarks There is no doubt that functionalist theories had a foundational role in developing the law of international organizations. Jan Klabbers defined it as one of the few true Kuhn’s paradigms of international law.79 Indeed, the aim of this chapter was to shed light on how the functionalist mindset is embedded in the historical development of international law to the extent that its effects on our understanding of international organizations go unnoticed. I believe that the normative consequence of this conceptualization is to assume that the rules of international organizations are purely international law. This is its essential feature. All in all, it cannot be sustained because international organizations are much more than treaty relationships between their members. Conceptualizing the rules of international organizations as purely international bears theoretical and practical malfunctions. The functionalist theory is useful for describing certain characteristics of international organizations, yet it falls short of capturing others.

79

Klabbers, ‘The EJIL Foreword’ (n 9) 10.

3

Constitutionalism In this book, the term ‘constitutionalism’ refers to all the theories that have emerged as a reaction to functionalism, rebutting the international nature of the relationships between organizations and their member states. This concept is the mirror image of functionalism. Where functionalists see an attribution of powers, constitutionalists see an irreversible delegation granting total autonomy. Where functionalists see an attribution of legal personality, constitutionalists see inherent personality emerging with the creation of the organization. Where functionalists consider the organization as an agent of its member states to perform specific tasks, constitutionalists consider member states as the agents of the organization to perform tasks necessary to fulfil the constitutional aims. In sum, functionalists’ and constitutionalists’ theories are two faces of the same phenomenon: ‘le positif et le négatif sur la même feuille’.1 The main tenets of a purely constitutionalist conceptualization are: • Member states are agents or organs of the organizations when they act in the fulfilment of their purposes; • The law created by international organizations is purely internal institutional law; • The institutional veil is characterized by an impermeable opacity; • The autonomy of the organization is maximal and based on the general capacity to perform any act on the basis of its constitution and powers that are inherent to organizationhood; • The conduct of a member state acting in the institutional forum is not relevant as a matter of international law, under which they can be considered as organs of the organization. Similar to the previous chapter, the following sections will discuss the historical origins of the constitutional conceptualization and elaborate why, under this perspective, the rules of the organizations are internal law of each particular organization’s legal system. Then, the chapter will move on to explore the flaws of this theory. In particular, it will focus on the difficulties of reconciling the theory

1 Michel Virally, L’organisation mondiale (Armand Colin 1972) (hereafter Virally, organisation mondiale) 30.

The Concept of an International Organization in International Law. Lorenzo Gasbarri, Oxford University Press (2021). © Lorenzo Gasbarri. DOI: 10.1093/oso/9780192895790.003.0003

34 Constitutionalism with the principle lex specialis derogat legi generali and with the application of the rules on the attribution of conduct to an international organization.

3.1 The Rules of International Organizations as Internal Law Every constitutional conceptualization is based on an anti-functionalist spirit. For instance, one of the most convincing theories was developed by Finn Seyersted, who advocated for the idea that organizations transform into independent institutions and not as agents of their member states.2 Once the competences have been transferred, organizations are no longer tied to their member states and they take control of their functions, expanding them when necessary. Consequently, Seyersted claimed that institutional rules do not derive from the international treaty that founded them, rather they have a purely internal, institutional, nature.3 He analogized international organizations’ normative order to states’ legal orders. Seyersted’s anti-functionalist view is grounded on the inherent powers possessed by international organizations, which are not conferred by member states but find their legal basis in general international law.4 In historical progression, Seyersted’s theory and similar constitutionalist approaches emerged only when the phenomenon of international organizations was already well developed, and mainly as a reaction to the functionalism’s mainstreaming paradigm, whose limitations were becoming apparent. Indeed, an anti-functionalist history has recently been narrated, under which international organizations have evolved from collective organs to autonomous institutions and where they are represented as competitors to their member states rather than as their instruments.5 Sinclair’s historical analysis revealed that at the time when legal scholarship lacked a theory to sustain constitutional growth, professional practice within international organizations, in fact, revolved around constitutional idealism rather than a functionalist spirit. Institutions were actually performing their own mission in a way analogous to the functions and general competences of states. For instance, Albert Thomas, the International Labour Organization (ILO) Office Director, appointed in 1920, often referred to the ILO as a ‘really living organization’.6 The same year, Quincy Wright’s article in the American Journal of 2 On the particular issue of the master– agent relationship, see Finn Seyersted, ‘Objective International Personality of Intergovernmental Organizations—Do their Capacities Really Depend upon the Conventions Establishing them’ (1964) 34 Nordisk Tidsskrift Internationall Ret 3. 3 Finn Seyersted, Common Law of International Organizations (Nijhoff 2008). 4 Ibid 24. 5 Guy Fiti Sinclair, To Reform the World: International Organizations and the Making of Modern States (OUP 2017) (hereafter Fiti Sinclair, To Reform the World). 6 Albert Thomas, ‘The International Labour Organisation—Its Origins, Development and Future’ (1921) 1 International Labor Review 5, 5–7.

Rules of Organizations as Internal Law 35 International Law referred to the constitutional growth of international organizations, comparing it to national legal systems.7 International organizations framed their constitutional growth in terms of popular mandates deriving from social solidarity which conferred moral authority on their activities.8 The Permanent Court of International Justice (PCIJ) Advisory Opinions in the early twentieth century, which expanded the competences of the ILO, can also be read from a constitutional perspective. In particular, the Court often relied on an analogy between constitutive treaties and domestic constitutions: ‘It is not an unusual thing, in countries in which legislative power is limited by a fundamental charter, for the Courts, in deciding whether certain legislation is constitutional, or intra vires, to resort to practice, national or international, for the determination of the extent of a particular governmental power.’9 Indeed, the rise of the constitutional imagery in international law was fostered by the development of a particular conceptualization of an international organization.10 Further in time, the emerging acknowledgement of legal personality for international organizations in the 1950s can be read from a constitutional perspective. Besides functionalism, a second theory emerged from the Reparation Advisory Opinion.11 The International Court of Justice (ICJ) perceived the United Nations as an ‘objective’ entity whose international legal personality did not derive from the will of member states but was inherent in international law. Under this conception: ‘fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims’.12 This conception of an international organization is founded on its capacity to grow as a living entity on the basis of a constitution and, consequently, legal personality is inherent to the creation of a new constitutional body. Contrary to early functionalists theories, the view that international legal personality is something different from the development of a legal system was acknowledged as early as 1938, when Riccardo Monaco sustained that the internal functioning of an organization did not depend on its possession of a plurality of 7 Quincy Wright, ‘The Understandings of International Law’ (1920) 14 AJIL 565, 579–580. 8 Fiti Sinclair, To Reform the World (n 5) 45. 9 Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employer (Advisory Opinion) [1926] PCIJ Series B No 13, 20. The other Advisory Opinions are Employment of Women during the Night Case [1932] PCIJ Series A/B No 50; Competence of the ILO in regard to International Regulation of the Conditions of the Labour of Persons Employed in Agriculture (Advisory Opinion) [1922] PCIJ Series B No 2; Competence of the ILO to Examine Proposal for the Organization and Development of the Methods of Agricultural Production [1922] PCIJ Series B No 3. 10 Fiti Sinclair, To Reform the World (n 5) 69. 11 Jan Klabbers, An Introduction to International Organizations Law (3rd edn, CUP 2015) (hereafter Klabbers, Introduction) 46. 12 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174 (hereafter Reparation for Injuries) 185.

36 Constitutionalism legal personalities within multiple national or international regimes.13 Legal personality, the capacity to hold rights and obligations under a given legal system, is conferred by the legal system in which an entity performs its actions.14 The internal constitutional growth of international organizations emerged in the practice and in the case law of the ICJ without sufficient theoretical basis.15 The lack of a concept of an international organization is evident in the cases decided by the ICJ. Since its inception, the ICJ did for the UN what the PCIJ did for the ILO and refined the theory of implied powers setting the theoretical grounds for the development of the new institutions. However, the Court remained ambivalent as to the relationship between the organization and its member states. In the First Admissions case, the Court had to decide whether the criteria contained in article 4(1) of the UN Charter were exhaustive or if member states could impose new criteria to admit states into the UN.16 It defined the Charter as a multilateral treaty and affirmed that article 4 was exhaustive. However, it shied away from elaborating whether article 4 imposed obligations on the member states acting within the organization or on the organization itself. The Second Admissions case reiterated this reasoning, when discussing the relationship between the General Assembly (UNGA) and the Security Council.17 The Court affirmed that the UNGA cannot admit new members without the recommendation of the Security Council, but it did not analyse the role of member states within the organization. Thus, under these early decisions, organizations can be perceived either as autonomous actors or as agents of their member states. At the same time, the UN was experiencing a visible constitutional growth specifically through its early peacekeeping missions.18 The Secretary General Dag Hammarskjöld embodied the constitutional spirit of the organization, which required the elaboration of new competences and legal techniques. The autonomy of the UN from its member states was recognized by the ICJ in its Advisory Opinion on Certain Expenses.19 This Opinion adopts an evident organization- centric

13 Riccardo Monaco, ‘I regolamenti interni delle organizzazioni internazionali’ (1938) Jus Gentium 52: ‘sia che gli enti di cui si tratta si evolvano tanto da abbandonare la loro qualità di organi o di istituti per diventare persone giuridiche internazionali, sia che invece si muovano nell’ordinamento giuridico di più Stati senza divenire soggetti dell’ordinamento internazionale, la loro situazione nei confronti del loro funzionamento interno non muta’. More recently, a similar reasoning is considered in Chittharanjan Felix Amerasinghe, Principles of the Institutional Law of International Organizations (CUP 2005) 67. 14 Klabbers, Introduction (n 11) 43. 15 Seventh Commission, ‘Are there Limits to the Dynamic Interpretation of the Constitution and Statutes of International Organizations by the Internal Organs of such Organizations (with Particular Reference to the UN System)?’ (Institut de Droit International 2019). 16 Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion) [1948] ICJ Rep 57. 17 Competence of Assembly regarding admission to the United Nations (Advisory Opinion) [1950] ICJ Rep 4. 18 Fiti Sinclair, To Reform the World (n 5) 161. 19 Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter) (Advisory Opinion) [1962] ICJ Rep 151.

Rules of Organizations as Internal Law 37 perspective. The Court recognized the special characteristics of the treaty establishing the UN, giving relevance to the ‘practice of the Organization throughout its history’. It established that ‘each organ must, in the first place at least, determine its own jurisdiction’. It also introduced a presumption of the validity of the acts of international organizations in the absence of a specific attribution by member states. It contended that the Charter is a multilateral treaty, albeit of a special characteristic.20 A similar organization-centric perspective was also employed in the 1971 Namibia Advisory Opinion, in which the Court explicitly combined the practice of member states with the practice of the UN in order to rebut the thesis that the abstention by a permanent member of the Security Council impedes the adoption of a resolution: ‘This procedure followed by the Security Council, which has continued unchanged after the amendment in 1965 of Article 27 of the Charter, has been generally accepted by Members of the United Nations and evidences a general practice of that Organization.’21 Around the same period, the development of the European Communities stirred the debate on the characteristics of the internal legal system developed by international organizations and their relationship with international law. In the early 1960s, the Court of Justice of the European Communities affirmed that ‘the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals’.22 The judgment defined the boundaries of its legal system, noting that ‘[b]‌y contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply.’23 The constitutional framework of the European Communities was also fostered at the external level. The judges of Luxemburg developed an ‘almost unlimited power’ to act in the international community regardless of the absence of attributed competences and pre-empting member states from taking actions.24 The scholarship tackled the issue of the creation of legal systems by international organizations discussing whether they derive from international law or if they are

20 Ibid 10. 21 Legal Consequences for States of the Contitiued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, 22. 22 Case 26/62 van Gend & Loos v Nederlandse Administratie der Belastingen [1963] ECR 1. 23 Case 6/64 Flaminio Costa v ENEL [1964] ECR 585. 24 Case 22/70 Commission v Council (European Road Transport Agreement) [1971] ECR 263; Jan Klabbers, ‘Case 22/70, Commission v Council (European Road Transport Agreement), Court of Justice of the EC, [1971] ECR 263’ in Cedric Ryngaert and others (eds), Judicial Decisions on the Law of International Organizations (OUP 2016) 19.

38 Constitutionalism ‘original’ orders, similar to states.25 On the one hand, scholars such as Focsaneanu and Cahier contended that international organizations constituted legal systems that are separate from international law and constitute ‘original’ orders.26 On the other hand, scholars such as Decleva and Balladore Pallieri contended that international organizations derive from international law and, therefore, they do not constitute separate legal systems.27 The concept of an international organization as an original entity developed into the constitutional conceptualization. Conversely, the concept of an international organization as a derived entity evolved into the mainstream functionalist theories. On the one hand, organizations were perceived as having ‘original’ legal systems, under which their norms do not belong to international law.28 On the other hand, organizations were perceived as entities derived from international law, under which the international nature of their legal systems is based on the will of member states, the primary subjects of international law.29 The two faces of international organizations have long been discussed,30 particularly in terms of the transparent quality of their institutional veil.31 The expression ‘transparency’ was first used by René-Jean Dupuy in the context of the law of treaties.32 Dupuy considered that ‘à l’ordre juridique unique et “intégré” de l’Etat s’oppose également l’opacité ou la transparence, selon le cas, des ordres juridiques propres à chaque Organisation international’.33 The debates on the position of member states in the treaty concluded by the organization reflect that they are neither parties nor third parties to the organization, and the institutional veil of the organization can be considered as either ‘transparent’ or ‘opaque’ in the following way: if conceived as original legal entities, organizations possess a closed (‘opaque’) structure in the same way in which states are opaque. If conceived as derivative legal entities, organizations possess an open (‘transparent’) structure based on the functionalist conceptualization, under which the conduct of member states remains visible. From this distinction sprouts the academic debate about the

25 See, for instance, Angelo Piero Sereni, Le organizzazioni internazionali (Giuffrè 1959) (hereafter Sereni, organizzazioni). Original and derivative legal systems will be discussed in Chapter 7. 26 Lazar Focsaneanu, ‘Le droit interne de l’Organisation des Nations Unies’ (1957) 3 AFDI 315 (hereafter Focsaneanu, ‘droit interne’); Philippe Cahier, ‘Le droit interne des organisations internationales’ (1963) 67 RGDIP 563 (hereafter Cahier, ‘droit interne’). 27 See Chapter 2. Matteo Decleva, Il diritto interno delle unioni internazionali (CEDAM 1962) (hereafter Decleva, diritto interno) Giorgio Balladore Pallieri, ‘Le droit interne des organisations internationales’ (1967) 127 RCADI 1. 28 Sereni, organizzazioni (n 25). 29 Decleva, diritto interno (n 27). 30 Virally, organisation mondiale (n 1). 31 Catherine Brölmann, The Institutional Veil in Public International Law: International Organisations and the Law of Treaties (Hart 2007). 32 See Chapter 9. 33 Fourteenth Commission, ‘L’application des règles du droit international général des traités aux accords conclus par les Organisations internationales’ (Annuaire de l’Institut de Droit International 1973) 221.

Rules of Organizations as Internal Law 39 existence of either separate legal systems (original and opaque) or the presence of constant permeability (derivative and transparent). However, it is quite difficult to locate scholarly views in support of the internal nature of all the rules of every international organization. Advocates of the internal nature often focus on a few organizations or a few categories of rules within organizations. Indeed, the scholars that argue for a clear separation between international law and the rules of international organizations often focus on the internal administrative functions of the organization. For instance, Lazar Focsaneanu is one of the scholars frequently cited as supporting the internal nature of the law produced by international organizations.34 However, he authored his works before the International Law Commission (ILC) debates on the comprehensive definition of rules of international organizations and it is not correct to compare his research with a definition that did not exist in his time.35 Even if he supported the development of an autonomous legal system not based on international law, he restricted such a system to a limited group of norms concerning internal administrative functions. Among the few authors, Sereni contended that the ‘original’ character of the legal system developed by international organizations covered all rules.36 Under his theory, ‘originality’ refers to a legal system that does not derive from international law, under which the efficacy of the internal rules is based on the de facto existence of the organization. Probably, Philippe Cahier is the most well-known scholar among contemporary supporters of constitutionalist theories. Writing two different pieces in 1963 and in 1998, he proposed two different ideas. In 1963, he distinguished between the law concerning the internal functioning and the law ‘directement obligatoire pour les Etats membres’.37 Even if it is not entirely clear as to the meaning of institutional rules that are directly binding on member states, he claims that only the European Communities developed these rules as internal EU law. In 1998, Cahier defined an original legal system as a legal regime that does not derive from a pre-existing system.38 He claimed that international organizations are original legal systems, covering every rule, not just administrative functions. Julio Barberis is also frequently cited by the contemporary scholarship on the nature of the rules of organizations.39 He did not recognize the purely internal character explicitly and was more interested in describing the autonomous 34 Focsaneanu, ‘droit interne’ (n 26). 35 As in Christiane Ahlborn, ‘The Rules of International Organizations and the Law of International Responsibility’ (2011) 8 IOLR 397 (hereafter Ahlborn, ‘The Rules’). 36 Sereni, organizzazioni (n 25). 37 Cahier, ‘droit interne’ (n 26). 38 Philippe Cahier, ‘L’ordre juridique interne des organisations internationales’ in René-Jean Dupuy (ed), Manuel sur les organisations internationales (Nijhoff 1998). 39 Julio A Barberis, ‘Nouvelles questions concernant la personalité juridique internationale’ (1983) 179 RCADI 147.

40 Constitutionalism legal personality of international organizations. Similar to Cahier, he distinguished between internal and international rules within the legal system of the organization. It is also worth mentioning that Morgenstern discussed the limits of the internal perspective focusing on the value of the analogy with state law, the power to make reservations to treaties, the power to create rights and impose obligations on member states, and the nature of subsidiary bodies created by the organization.40

3.2 The Limits of Constitutionalism The limits of constitutionalism have been the subject of a recent study by Fernando Lusa Bordin.41 He referred to the ‘subject conceptualization’, but, despite terminological differences, his thesis is no different from what I explore under the name of constitutionalism. Indeed, he claims that under this view ‘international organizations are legal persons under a rule of general international law’ and that ‘the internal law of an international organization is analytically separate from international law’.42 Consequently, he considered that the ‘subject conceptualization’ is the basis of the analogy between organizations and states. Bordin contended that international organizations should be understood through the ‘subject conception’ and the analogy between international organizations and states can be used to develop their legal framework. However, he also described a number of analytical flows affecting the state analogy. In general, the state analogy is not applicable to all those cases in which international organizations cannot be viewed as what I refer to here as constitutional entities. In particular, Bordin contended that the limits of the analogy are evident in the application of the principle of speciality, under which organizations are a diverse group of entities with limited competences that cannot be compared with states. Moreover, the state analogy is incompatible with the fact that organizations are layered subjects that cannot be viewed as unitary entities in the same way as states. Similarly to Bordin, I believe that structural differences between states and international organizations do not allow for the application of the state analogy in every circumstance. It is only from an internal institutional perspective that international organizations can be seen as ‘subjects’ analogous to states and the constitutional conceptualizations can be used to develop a legal framework. The next section will critically look into the limits of the constitutional conceptualization of an international organization on the basis of its implications for the principle lex

40 Felice Morgenstern, Legal Problems of International Organizations (CUP 1986). 41 Fernando Lusa Bordin, The Analogy between States and International Organizations (CUP 2018) (hereafter Bordin, The Analogy). 42 Ibid 52, 54.

The Limits of Constitutionalism 41 specialis derogat legi generali and concerning the attribution of conduct to an international organization.

3.2.1 Lex specialis derogat legi generali The complex relationship between the institutional lex specialis and the international lex generalis exposes the limits of constitutionalist conceptualizing of an international organization. My argument is grounded on a finding clearly formulated in 2011 by Christiane Ahlborn, another scholar who supported the internal nature of the rules of organizations.43 She claimed that if the rules belong to a different legal system, they cannot be considered lex specialis in relation to international law. Article 64 of the Articles on the Responsibility of International Organizations (ARIO) concerns the derogation of the ILC project by special rules of international law: ‘These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of an international organization, or a State in connection with the conduct of an international organization, are governed by special rules of international law.’44 In analogy with the project on states’ responsibility, special norms may arise from primary obligations contracted with third parties. The same principle applies both to states and to international organizations. However, article 64 ARIO adds that ‘Such special rules of international law may be contained in the rules of the organization applicable to the relations between an international organization and its members’ (emphasis added). By stressing ‘may be’, the article contends that not every rule may be international law, and that not every organization may have rules that belong to international law. This uncertainty is problematic because the relationship lex specialis derogat legi generali makes sense only within the same legal system. A particular norm is not special in relation to a general norm that belongs to a different legal system. The nature of ARIO as a framework that triggers the lex specialis principle is controversial.45 On the one hand, lex specialis reflects the need to guarantee the specificity of each organization; on the other hand, it paves the way for an easy way- out from international responsibility. The risk of abuses of the lex specialis clause has been discussed at length by the ILC, showing the difficult balance between the need to avoid the use of the rules as a justification for a breach (article 32 ARIO in

43 Ahlborn, ‘The Rules’ (n 35). 44 ILC, ‘Draft articles on the responsibility of international organizations, with commentaries’ (2011) UN Doc A/66/10 (hereafter ARIO). 45 Mathias Forteau, ‘Regime General de Responsabilite ou Lex Specialis’ (2013) 46 RBDI 147 (hereafter Forteau, ‘Regime General’).

42 Constitutionalism parallel with article 32 of the Articles on the Responsibility of States (ARSIWA)46 and the need to acknowledge different regimes of responsibility (article 64 ARIO and article 55 ARSIWA).47 In order to avoid abuses, the rules need to be considered as internal law, in analogy with states’ domestic law. Conversely, in order to allow the application of different regimes of responsibility between members and organizations, the rules need to be considered as international law. The internal nature of the rules is based on a conceptualization of an international organization that distinguishes between its international life regulated by international law and its internal life regulated by the internal legal system.48 This theory is unable to acknowledge the fallback to international law when the internal legal system is affected by a lacuna. It is grounded in a particular understanding of the lex specialis principle, under which the speciality of the regime is a way-out from the general regulatory framework.49 However, there are also applications of the lex specialis principle that maintain the relevance of the general framework, under which the system is not completely isolated from its environment.50 The different applications of the lex specialis principle fall under the traditional debate on the fragmentation of international law.51 In the context of state responsibility, Simma and Pulkowski recognized that the application of the principle is controversial in cases where the special regime is highly autonomous.52 However, even if self-contained regimes were to imply a total separation from international law, Simma and Pulkowski acknowledged that complete isolation is not possible. For example, the compensation mechanism envisaged by the UNGA in resolution 52/247 has been described as a failed attempt to derogate from international law which provides for a mechanism of third-party liability against the United Nations resulting from peacekeeping operations, including temporal and financial limitations.53 The creation of rules with the purpose of derogating from general international law in the context of responsibility does not allow the creation of a self-contained regime without external influences. The ILC’s conclusions on the fragmentation of international law rejected the existence of self-contained regimes detached from international law and stressed the 46 ILC, ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ (2001) UN Doc A/56/10. 47 See, for instance, ILC, ‘Responsibility of international organizations—Statement of the Chairman of the Drafting Committee Mr. Marcelo Vázquez-Bermúdez’ (6 July 2009). 48 Pierre Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Bruylant 1998). 49 Kristen Boon, ‘The Role of Lex Specialis in the Articles on the Responsibility of International Organizations’ in Maurizio Ragazzi (ed), Responsibility of International Organizations (Brill 2013). 50 Forteau, ‘Regime General’ (n 45). 51 Bruno Simma and Dirk Pulkowski, ‘Of Planets and the Universe: Self-contained Regimes in International Law’ (2006) 17 EJIL 483. 52 Ibid 152. 53 Pierre Bodeau-Livinec, ‘Les Faux-Semblants de la Lex Specialis: L’Exemple de la Resolution 52/ 247 de l’Assemblee Generale des Nations Unies sur les Limitations Temporelles et Financieres de la Responsabilite de l’Onu’ (2013) 46 RBDI 117

The Limits of Constitutionalism 43 systematicity of the international legal order.54 Every specialized regime remains embedded in the general law, and allows fallback whenever the special law is silent or fails.55 During the ILC debates, Koskenniemi rejected arguments supporting the internal nature of the rules of international organizations, pointing out that ‘it would forcefully reintroduce the notion of self-contained regime’.56 The exclusive internal nature of the rules of international organizations which characterizes constitutionalism is unable to acknowledge the international face of the legal systems of international organizations.57 As mentioned in the previous chapter, this limit has been perfectly described in the context of the World Trade Organization (WTO) by Joost Pauwelyn.58 His book is devoted to demonstrating the belonging of the WTO to international law. He specifically looks into the conflicts of norms as an inherent feature of a legal system. He describes the relationship between the internal and the international dimensions of the organization using the tools provided by the law of treaties and stressing the existence of two inherent tensions between the fallback and the contract out to/from international law. These are two fundamental dynamics between lex specialis and lex generalis that show how a simple derogation is not foreseeable. The purely internal nature of the rules does not reflect the degree of permeability between the two systems. He describes this permeability with the term ‘sub-system’.59 This term (also sub- order)60 has been used by several authors to describe internal legal systems,61 and it comes from Riphagen’s work as ILC Special Rapporteur on state responsibility.62 However, the WTO itself contests the international nature of the rules when looking at a different international organization, the European Union.63 If the WTO seeks to ensure compliance with its international rules it must consider the EU as the sole responsible entity.64 Consequently, WTO panels consider EU member states as organs of the organization and not as independent subjects of 54 ILC, ‘Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law’ (2006) UN Doc A/61/10. 55 Bordin, The Analogy (n 41) 29. 56 ILC, ‘Summary record of the 2841th meeting’ UN Doc A/CN.4/SR.2841, para 34. 57 See the debate at Study Group on the Responsibility of International Organisations, ‘Trascript of Working Session’ (International Law Association, Sofia conference, 2012) 880. 58 Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to other Rules of International Law (CUP 2003). 59 Ibid 9. 60 Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (OUP 2010) 91. 61 Klabbers, Introduction (n 11) 12. 62 ILC, ‘Fourth report on the content, forms and degrees of international responsibility (Part 2 of the draft articles) by Willem Riphagen’ UN Doc A/CN.4/366 and Add.1 & Add.1/Corr.1, 202. 63 For example: WTO, Protection of Trademarks and Geographical Indications for Agricultural Products and Food-stuffs (United States v European Communities) (20 April 2005) WT/DS174/R, para 7.725. The same view was taken in a panel in WTO, Measures Affecting the Approval and Marketing of Biotech Products (United States v European Communities) (29 September 2006) WT/DS291/R, WT/ DS292/R and WT/DS293/R, para 7.101. 64 Pieter Jan Kuijper, ‘Attribution-Responsibility-Remedy: Some Comments on the EU in Different International Regimes’ (2013) 46 RBDI 57.

44 Constitutionalism international law.65 The fact that the WTO considers an international organization as a self-contained entity (where member states are merely organs) implies an internal nature of the EU law which regulates internal relations with its member states.66 To conclude, constitutionalism derives from an internal perspective of international organizations and it is related to the intention to allow derogations from the international regime. The evident risk is to ignore the role of international subjects within the organization. The internal nature is useful to minimize the responsibility of states acting within the organization, and to maximize the power of the organization vis-à-vis members.

3.2.2 The attribution of conduct The attribution of conduct to an international organization in the context of its international responsibility is the second example I will employ to show the limits of a purely constitutional conception. The Al-Bashir case before the International Criminal Court (ICC) provides the ideal situation to describe how the internal nature of the ICC rules can be explained only on the basis of a limited perspective that does not take into consideration the role of member states within an international organization. In 2005, the Security Council, acting under Chapter VII, referred the situation in Darfur to the Prosecutor of the ICC.67 Sudan is not a party to the Rome Statute and, under article 98, paragraph 1, the Court cannot request the assistance of a member state to act inconsistently with its own obligations towards third parties.68 Consequently, several arguments have been put forth in support of imposing an obligation to cooperate upon member states to arrest Al-Bashir: the obligation arises from the Security Council referral, and not from the ICC statute; as a matter of customary international law, the immunity of heads of states does not bar prosecution for an international crime before an international criminal court; the Security Council referral, requiring states to ‘cooperate fully’, constitutes an implicit waiver of Al-Bashir’s immunity; the ICC statute is applicable ‘as a whole’, including article 27 of the Rome Statute and the irrelevance of official capacity of sitting heads of states.69 65 WTO, EC—Selected Customs Matters (12 June 2006) WT/DS315/R, para 7553. 66 Ahlborn, ‘The Rules’ (n 35). 67 UNSC Resolution 1593, UN Doc S/RES/1593(2005) (31 March 2005). 68 Rome Statute of the International Criminal Court (opened for signature 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, art 98(1): ‘The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.’ 69 Ibid art 27: ‘1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government

The Limits of Constitutionalism 45 As already mentioned in the introduction, the concept of an international organization as a constitutional entity is relevant to an argument made by the ICC Prosecutor before the Appeal Chamber. The ICC Prosecutor claimed that a request to execute an ICC arrest warrant does not amount to a request to exercise state jurisdiction: ‘the requested State is nothing more than the Court’s agent in executing the Court’s arrest warrant—and, consequently, the enforcement jurisdiction being exercised is that of the Court, and not that of the requested State’.70 This theory is frequently employed in the context of the responsibility of international organizations to avoid attribution of conduct to member states. The European Court of Human Rights affirmed in the Behrami and Saramati case that member states hide behind the UN institutional veil when they act as the quasi-organs of the UN.71 A similar argument was put forth in the 2015 Advisory Opinion of the International Tribunal for the Law of the Sea (ITLOS) that claimed that the conduct of member states of the European Union is the conduct of the organization itself when member states act under its exclusive competence.72 All in all, this theory is based on a particular concept of international organizations, under which they are so-called supranational entities. Under this concept, the relation between member states and organizations is not based on international law but on the internal law of the particular legal system of the organization. Actually, the theory goes against the mainstream functionalist theory and overturns the conventional dynamic under which organizations are created to perform specific duties and are agents of their member states. This constitutional theory has found little support in practice and scholarship, especially when it is applied to organizations that are not aimed at regional integration. However, it has the descriptive capacity to explain phenomena that do not clearly fit within the functionalist paradigm. For instance, constitutionalism can shed light on the ‘objective’ existence of the organization in relation to third parties. According to the Prosecutor’s thesis, the ICC would be an institution that possesses ‘objective international personality’, as defined by the ICJ in the Reparation Advisory Opinion.73 Thus, third parties to the treaty establishing the organization cannot deny its existence, for the organization is not only based on the will or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.’ 70 ICC, ‘Prosecution Response to the Observations of the African Union and the League of Arab States (the Prosecutor v Omar Hassan Ahmad Al Bashir)’ (2018) ICC-02/05-01/09. 71 Behrami v France and Saramati v France, Germany and Norway App nos 71412/01 and 78166/01 (ECtHR, 5 May 2007). 72 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (Advisory Opinion) [2015] ITLOS Report No 21. 73 Reparation for Injuries (n 12).

46 Constitutionalism of member states but also on the fact that it develops a constitutional framework. In a nutshell, while organizations are agents of their member states under a functionalist paradigm, they are state-like institutions in relation to non-state parties under constitutionalism. In the Al-Bashir case, this theory is connected with the claim that the ICC’s ‘statutory framework’ should be applied ‘as a whole’ to Sudan, a non-state party.74 Under the law of international organizations, there are no reasons to exclude the ability of a state to act as an agent of an international organization in certain circumstances. A literal reading of ARIO does not eliminate this possibility.75 Article 2(c) defines ‘Agent’ as including ‘officials and other persons or entities through whom the organization acts’. Moreover, article 6(2) states that ‘[t]‌he rules of the organization shall apply in the determination of the functions of its organs and agents’. During the Al-Bashir hearings, the President of the Court asked whether article 59, together with article 4(2) of the Rome Statute have the effect of turning member states into ICC agents.76 However, the fact that states can act as agents of an organization as a matter of attribution of conduct does not automatically imply that they lose their independent personality as sovereign subjects of international law. For instance, it is not far-fetched to argue that ‘when an organ of a State is placed at the disposal of an international organization, the organ may be fully seconded to that organization. In this case the organ’s conduct would clearly be attributable only to the receiving organization’,77 but this is limited to particular circumstances that definitely do not concern the case at hand. In sum, being an agent is not enough to consider that member states are ‘surrogates’ of the ICC when giving effect to an arrest warrant. The only direct consequence of considering member states as agents is that their conduct would also be attributable to the ICC and would trigger its international responsibility in case of the violation of an international obligation. In this context, Professor Robinson, amicus curiae, suggested examining the notion of ‘dédoublement fonctionnel’: ‘Sometimes State agents are doing things, and that’s attributable both to their State, but they are also acting on behalf of an international organisation.’78 Sir Michael Wood rejected the proposition on the ground that the effects on immunity are not clear: ‘Would the Head of State be perhaps half immune in such circumstances?’79 What he perhaps meant was that a state would be obliged to respect the immunity as an international actor and, at the same time, obliged to waive the immunity as an institutional agent. However, the execution by 74 Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (Pre-trial Chamber) [2018] ICC-02/05-01/09-3, para 45. 75 ARIO (n 44). 76 ICC, Appeals Chamber, Transcript, ‘The Prosecutor v Omar Hassan Ahmad Al Bashir’ (14 September 2018) ICC-02/05-01/09-T-8-ENG, 43. 77 ARIO (n 44) 56. 78 ICC, The Prosecutor v Omar Hassan Ahmad Al Bashir, 59. 79 Ibid 91.

Concluding Remarks 47 member states of the arrest warrant as dual actors is not directly concerned with the primary obligation concerning Al-Bashir immunity, but only with the secondary rules on the attribution of conduct.80 In order to trigger the effects intended by the Prosecutor, member states need to be considered as organs of the ICC, under which their international personality ‘disappears’ under the ICC institutional veil. This theory is based on a particular concept of international organizations, under which they are constitutional entities and the relationship between member states and organizations is not based on international law but on the internal law of the particular legal system of the organization. The rules of the organization are the key concept that can turn an independent state into an organ. Indeed, the core of the controversy concerns the nature of the arrest warrant as a rule of an international organization. If the arrest warrant is international law, the ICC is a functional entity of which member states are independent sovereign entities. They remain responsible for the action taken while implementing ICC law. Conversely, if the arrest warrant is internal law, the ICC is a supranational, constitutional entity under which member states appear as organs. They would not be responsible for their conduct which merely implements an ICC obligation. From the Prosecutor’s point of view, the internal nature defuses the conflict between the rules of customary international law obliging member states to respect the immunity of sitting heads of state and the internal ICC obligation binding member states to execute the arrest warrant. From Jordan’s point of view, it is the international nature that is relevant to stress the existence of the conflict. Neither idea exposes the full picture, but the law of international organizations does not have a clear answer.

3.3 Concluding Remarks In this chapter, I have described how the mainstream functionalist paradigm was criticized by contending constitutional theories. These two concepts promote opposing perspectives and reach conflicting conclusions. It is worth stressing that they are the mirror images of the same entity. To rebut the functionalist conceptualization, it is enough to adopt a constitutional perspective; and in order to rebut the constitutional conceptualization it is enough to adopt a functionalist perspective. In sum, the one does not prevail over the other and both of them should be rejected by their counteracting arguments. In the description of the two main conceptualizations I have found many attempts to claim that the fully coherent theory is however subjected to relevant

80

This argument will be developed in Part II Chapter 5.

48 Constitutionalism exceptions. For instance, functionalists tend to accept that certain international organizations have developed under a constitutional mindset, or constitutionalists claim that the internal nature of the rules only applies to certain administrative functions. In the next two chapters, I am going to rebut these exceptions, based on what I will call hybrid legal systems.

4

Informalism Informalism (or IN-LAW) comprises all the theories that frame the law produced by international organizations in shades of normativity, under which the neat divide between law and non-law blurs in the proliferation of soft norms. While functionalism and constitutionalism are limited by a binary mind set, according to which the rules of international organizations are either international or internal, informalism underlines the hybrid nature of regulatory regimes that cannot be clearly understood in terms of legal systems. Domestic regimes overlap with international and transnational regulatory frameworks in which international organizations take a fundamental role among other non-state actors. Informalism rejects a formal theory of sources and the production of law is not regulated by formal procedures. The frictions with the traditional theory of sources is evident and recent studies on the so-called IN-LAW are obsessed by the question of whether it is international law or not.1 In the following pages I contend that IN-LAW theories are based on the concept of a hybrid legal system. Hybridity means that not every norm in the same legal system possesses the same characteristics. Some of the rules of the organizations are part of international law as functionalism would require. The other norms created by the same institution are part of a different legal system, internal to each institution. Different IN-LAW theories differ on how to distinguish between the two realms, some using administrative principles, others an idea of ‘publicness’.2 The main tenets of informalist conceptualizations are: • Member states and international organizations are integrated in heterarchical relationships primarily governed by politics and not by legal norms that would essentially require an agent-master relationship; • The law created by international organizations belongs to hybrid legal systems. Some of their norms are international and the rest belong to separate legal systems in which soft norms proliferate (informal law-making);

1 Joost Pauwelyn, ‘Is it International Law or Not, and Does it Even Matter?’ in Joost Pauwelyn, Ramses Wessel, and Jan Wouters (eds), Informal International Lawmaking (OUP 2012) (hereafter Pauwelyn, ‘Is it International Law or Not’). 2 Philipp Dann and Marie V Engelhardt, ‘Legal Approaches to Global Governance and Accountability: Informal Lawmaking, International Public Authority, and Global Administrative Law Compared’ in Joost Pauwelyn, Ramses Wessel, and Jan Wouters (eds), Informal International Lawmaking (OUP 2012).

The Concept of an International Organization in International Law. Lorenzo Gasbarri, Oxford University Press (2021). © Lorenzo Gasbarri. DOI: 10.1093/oso/9780192895790.003.0004

50 Informalism • The institutional veil is characterized by degrees of crystalline transparency or impermeable opacity depending on the internal relation of power between organizations and member states; • The conduct of a member state acting in the institutional forum is alternatively relevant or not relevant as a matter of international law, depending on the internal relation of power. The next section will first discuss the historical origins of this conceptualization and then move on to elaborate why under this perspective the rules of the organizations are considered as a matter of degrees of legality. Lastly, I will describe the flaws of this theory, focusing on the law of the international civil service and on global administrative law (GAL).

4.1 The Rules of International Organizations as Informal Law IN-LAW is a phenomenon of all times, whose main characteristic is the ‘effectiveness of political action’, which is based on the necessity to adopt so-called informal rules.3 The informal quality of law produced by international organizations is constructed in opposition to traditional international law-making.4 The production of norms is informal because the rules of international organizations do not neatly fit within the sources of international law established in article 38 of the International Court of Justice (ICJ) Statute. These are norms that are produced by an informal process and it does not really matter whether they are produced by international organizations or by other transnational actors. The effort to define international organizations is not seen as particularly useful. The focus on the norms rather than on the subjects that produce them reflects the loose connection between the centres of norms production and the centres of norms application. In other words, the core elements of informalism are the variety of actors involved and the absence of an identifiable legal system. In sum, informal international law-making has been defined as: Cross-border cooperation between public authorities, with or without the participation of private actors and/or international organizations, in a forum other than a traditional international organization (process informality), and/or as between actors other than traditional diplomatic actors (such as regulators or 3 Jan Klabbers, ‘International Courts and Informal International Law’ in Joost Pauwelyn, Ramses Wessel, and Jan Wouters (eds), Informal International Lawmaking (OUP 2012) 223. 4 Joost Pauwelyn, ‘Informal International Lawmaking: Framing the Concept and Research Questions’ in Joost Pauwelyn, Ramses Wessel, and Jan Wouters (eds), Informal International Lawmaking (OUP 2012) 15.

Rules of Organizations as Informal Law 51 agencies) (actor informality) and/or which does not result in a formal treaty or other traditional source of international law (output informality).5

As developed throughout this volume, the four concepts of an international organization revolve around disagreements on the nature of their legal systems. These four conceptualizations also reflect two different theories about the nature of law, which informal law-making calls ‘bright line’ and ‘grey zone’ schools.6 The bright line school is followed by those conceptualizations on the nature of the rules of international organizations that are based on comprehensive legal systems (every rule of every institution is either international or internal—functionalism or constitutionalism). The grey zone school embraces those conceptualizations that are based on the ‘hybridity’ of legal systems (only few rules or only few institutions are not international—informalism or exceptionalism). The distinction is made between a concept of legal system as a comprehensive unit or as a fragmented reality. For instance, in the development of the constitutional conceptualization it is possible to recognize a slow descent towards the extreme consequences of this theory. The early authors did not discuss the nature of the rules, nor their definition, focusing more on the autonomy and legal personality of international organizations.7 Following the adoption of the comprehensive category included in the 1975 Vienna Convention, a distinction between internal and external functions began to emerge in scholarly thinking about international organizations, reliant or not on the internal nature of the external functions. Here the path diverged towards, on the one hand, the bright line school by those who considered the internal–external distinction to be descriptive and not normative and, on the other hand, the grey zone school, privileged by those who believed in the normative distinction between an internal order devoted to internal functions and the international order concerned with the external functions of the organizations. The ‘bright line school’ contends that the law is an ‘either-or’ phenomenon. A rule is either a legal rule, or not. Shades of legality do not exist and for the same reason the concept of soft law is not a reliable analytical tool. The first two concepts of international organizations belong to the bright line school and contend that either organizations do not develop legal systems and the law they produce is international, or they do develop legal systems and their law is internal. Under a functionalist concept of an international organization, every rule of every institution is derived from international law. Under a constitutional concept, every rule of every international organization is not derived from international law and they produce separate legal systems.

5

Ibid 22. Pauwelyn, ‘Is it International Law or Not’ (n 1) 128. 7 See Chapter 3. 6

52 Informalism The ‘grey zone school’ contends that the law has various degrees of normativity, and that many rules fall into grey zones separating law from non-law.8 The grey zone school would essentially cover the last two concepts of an international organization. One is informalism, that rejects the comprehensive legal system of international organizations and sustains that they produce two kinds of laws: those rules that govern the internal life of the institution, and those rules that are concerned with the external plane. The other is exceptionalism, that distinguishes between institutions and contends that only a few organizations develop internal orders separate from international law. Consequently, informalist theories prevent us from coming up with an over-encompassing theory on the law of international organizations. I contend that in the context of international organizations the distinction between the bright line and grey zone schools is not particularly relevant, because the issue is not whether the rules are hard or soft, but rather in their categorization as internal or international law. Similarly, Nigel White noted that the hard/soft law distinction ‘fails to recognize the full normative value of institutional lawmaking, besides which the “soft” and “hard” law divide is not as theoretically clear as the legal doctrinal debates suggest’.9 For instance, the long-standing debate on the nature of UN General Assembly and Security Council resolutions is an example of the correlation between soft law and the hybrid nature of the rules of international organizations.10 However, a more pertinent question is whether they are sources of law of international law or of UN law. Once the concept of an international organization based on the nature of its legal system is clarified, there would be no need to rely on the bright line/grey zone divide . Indeed, there is a clear correlation between the soft law thesis and the belonging of law to different legal systems. As Jan Klabbers has contended, the soft law thesis is based on the presumption that actors can use legal systems at will.11 States can either create hard law or soft law, deciding whether to apply the international legal system or not. Once the soft norm ends up being considered within the ‘hard’ system of international law, it will be treated exactly as a hard norm. Similarly, the grey zone school treats the rules of international organizations as norms that fall within the international or the internal legal system depending on the will of the actors involved. Klabbers contests IN-LAW on the ground that there cannot be two categories of international organizations subjected to two regulative regimes,

8 Oscar Schachter, ‘The Twilight Existence of Nonbinding International Agreements’ (1977) 71 AJIL 296. 9 Nigel D White, ‘Lawmaking’ in Jacob Katz Cogan, Ian Hurd, and Ian Johnstone (eds), The Oxford Handbook of International Organizations (OUP 2017) 576. 10 Marko Divac Öberg, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’ (2005) 16 EJIL 879. 11 Jan Klabbers, ‘The Redundancy of Soft Law’ (1996) 65 NJIL 167.

Rules of Organizations as Informal Law 53 but only one and it is based on international law. In sum, IN-LAW is a descriptive quality that does not affect the normative nature of the rules of international organizations. He contended that ‘[t]‌he beauty of law is, that it is able to capture all those different moods and sentiments, and is able to translate them into a workable mode of analysis: it can translate all the various political or moral subtleties and nuances in simple dichotomies such as binding/non-binding, legal/illegal, and do justice to those subtleties and nuances by determining exactly what it is that is binding, or legal.’12 The difference between formal and informal international organizations is a matter of degrees of institutionalization.13 However, the majority of scholars do not subscribe to the thesis that international organizations develop a comprehensive body of law, either belonging to the international or to their internal legal systems. Often, those who believe in the existence of an internal legal system have in mind a limited set of norms governing the administrative functions of the organizations. A distinction is usually drawn between internal and external rules.14 Also the International Law Commission (ILC) Special Rapporteur on the responsibility of international organizations adopted this distinction in relation to internal/international obligations.15 In his seventh report, he underlined the difference between administrative and international rules. However, there is not a clear-cut differentiation. Every author almost arbitrarily determines the boundary between internal and external rules. The boundary ranges from the minimum internal core of employment relations to the maximum of GAL. I contend that these distinctions do not have a normative value and are mainly used for descriptive purposes. The arbitrary separation is caused by the absence of agreement on what the category of the rules of international organizations should include. Time-wise, the theory highlighting the purely internal administrative character of employment relations was the first to emerge.16 It came from the theoretical necessity to reconcile the creation of new international law subjects with voluntarism. Since individuals were not considered to be subjects of international law, scholars framed employment relations within international organizations as being subject to the internal institutional law. Later, different theories on the nature of law governing the international civil service were developed, each adopting either purely internal or purely international perspectives.17

12 Ibid 182. 13 Jan Klabbers, ‘Formal Intergovernmental Organizations’ in Jacob Katz Cogan, Ian Hurd, and Ian Johnstone (eds), The Oxford Handbook of International Organizations (OUP 2017). 14 Henry G Schermers and Niels M Blokker, Institutional Law: Unity within Diversity (Nijhoff 2011) (hereafter Schermers and Blokker, Institutional Law) paras 1196, 1216. 15 ILC, ‘Seventh report on responsibility of international organizations by Giorgio Gaja’ (2009) UN Doc A/CN.4/610, paras 39–44. 16 Umberto Borsi, ‘II rapporto di impiego nella Società delle Nazioni’ (1923) RDI 283. 17 See below, section 4.2.1.

54 Informalism The ICJ distinguished the administrative character of certain rules of the organizations when dealing with the effects of the decisions of the UN Administrative Tribunal.18 As discussed before, the General Assembly argued that it had the discretion to refuse the payment of compensation that the Administrative Tribunal awarded to a staff member, because it could not be bound by a decision of an organ that was created by the Assembly itself. Under a purely functionalist concept, member states would have the power to prevent the General Assembly from giving effect to a judicial decision adopted by an organ the Assembly itself created. Under a purely constitutional concept, the General Assembly would be a UN organ bounded by the employment contract signed by the UN Secretariat. Adopting a hybrid form of constitutionalism, the Court contended that: This problem would not, as has been suggested, raise the question of the nullity of arbitral awards made in the ordinary course of arbitration between States. The present Advisory Opinion deals with a different legal situation. It concerns judgments pronounced by a permanent judicial tribunal established by the General Assembly, functioning under a special statute and within the organized legal system of the United Nations, and dealing exclusively with internal disputes between the members of the staff and the United Nations represented by the Secretary-General.19

The boundaries of an ‘organized legal system’ of an organization remains limited to its internal administration and does not capture the external functions of the UN. Consequently, the Court distinguished between internal and international law on the basis of the administrative nature of certain rules. This concept of the law produced by international organizations rapidly evolved under the name of ‘international administrative law’, covering a broader understanding of the internal domain of the organization. The term was initially meant to capture the law governing employment relationships, yet at a later stage it was used to also refer to internal procedures and the bureaucratic machinery of international organizations.20 The adjective ‘Administrative’ recalls the internal structure of the organization as well as a body of legal principles ensuring good governance. 18 Effect of Awards of Compensation made by the United Nations Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 47 (hereafter Effect of Awards). 19 Ibid 12, 13. 20 Andrea Rapisardi-Mirabelli, ‘La Théorie Générale des Unions Internationales’ (1925) 7 RCADI 345; Francis Bowes Sayre, Experiments in International Administration (Harper 1919); C Delisle Burns, ‘International Administration’ (1926) 7 BYBIL 54; Norman L Hill, International Administration (McGraw-Hill 1931); SD Myres, ‘The Role of International Administration’ (1937) 1 International Law Institutions and World Peace 59; EF Rabshofen-Wertheimer, The International Secretariat (Carnegie 1945); Josef L Kunz, ‘Experience and Techniques in International Administration’ (1945) 31 Iowa Law Review 40.

The Limits of Informalism 55 International administrative law as a sub-field of international law emerged at the end of the nineteenth century and quickly gained identity as a particular field of studies.21 The ‘Théorie de l’administration internationale’ by Pierre Kazansky was one of the earliest works, in which he defined what he called a new concept of ‘droit des gens’.22 Since its inception, international administrative law responded to the need to differentiate the law produced by international organizations from international law. It reflects the development of theories on the capacity of international organizations to create law common to the ‘entire civilized world’.23 At the beginning of the twentieth century, international administrative law became one of the main fields of analysis.24 Today, scholars of GAL explicitly recognize Paul Négulesco as their ancestor.25 They refer to his research in order to describe their broad understanding of GAL, covering all the rules and procedures that enhance accountability in global administration.26 The theories that fall under the broad umbrella of GAL and international public authority are grounded in the idea that certain rules cannot be neatly identified as law, simply because they do not belong to an identifiable legal system. Examples vary from regulatory mechanisms such as the Basel Committee and the G20 to formal international organizations such as the World Health Organization. The need to define international organizations loses importance. These theories focus mostly on the description of the informal character of certain norms that are identifiable as rules of international organizations, be it international or internal. The pitfalls of conceptualizing international organizations as informal lawmakers in the absence of a concrete accountability framework persists. The risk of informalism is to allow political effectiveness to take precedence over the rule of law. In light of such risks, several models of accountability have been envisaged, ranging from the application of administrative principles to public law principles.

4.2 The Limits of Informalism First and foremost, it should be stressed that informalism does not provide us with a definition of an international organization. In fact, one of the main tenets of this conceptualization is that international organizations are not discernible from 21 Klaus Vogel, ‘Administrative Law, International Aspects’’ (1992) 1 Encyclopedia of Public International Law 22, 23. 22 Pierre Kazansky, ‘Théorie de l’administration internationale’ (1902) RGDIP 353. 23 Paul S Reinsch, ‘International Administrative Law and National Sovereignty’ (1909) 3 AJIL 1, 1. 24 See, for instance, José Gascon y Marin, ‘Les transformations du droit administratif international’ (1930) 34 RCADI 3. 25 Paul Nêgulesco, ‘Principes du droit international administratif ’ (1935) 51 RCADI 581 (hereafter Nêgulesco, ‘Principes du droit international administratif ’). 26 Benedict Kingsbury, Nico Krisch, and Richard B Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68 LCP 15 (hereafter Kingsbury, Krisch, and Stewart, ‘Global Administrative Law’) 28.

56 Informalism other transnational institutions. IN-LAW does not intend to find a formal definition of an international organization. Actually, IN-LAW rejects the possibility of identifying an international common regulatory framework that would apply to every international institution and to every norm within them. This section will discuss some of the blind spots of informalism, pointing out the importance of conceptualizing international organizations. It will first question the normative distinction between employment laws and other rules of international organizations. Then, it will zoom in on GAL as an offspring of IN-LAW theories. Their informal nature will be criticized, affirming that when a legal system is created it cannot produce two different kinds of laws belonging to two different legal systems.

4.2.1 Employment relationships Several hundred international organizations actively perform a growing number of activities, ranging from protecting world peace to promoting coffee quality. These functions reflect the external faces of international institutions and the main reason for their creation. Under this surface lies the bureaucratic machinery governed by the law of the international civil service, which is one of the most elaborate and legalized aspects of the life of international institutions. The core of internal institutional rules concerns the international civil service. The autonomy of the organizations from their member states is the primary reason to consider that employment relationships are not governed by international law. I already mentioned the work of Borsi and Basdevant, going back to the first half of the nineteenth century. They distinguished between the international and the internal life of the organization on the basis of the international status of individuals. If individuals are not subject of international law, the contractual relationship with an international organization cannot be based on international law. An early judgment of the Administrative Tribunal of the League of Nations dated 1929, determined that the law governing employment relationships developed as an internal law of a particular legal system.27 The ICJ defined international administrative tribunals as international tribunals,28 but employment relationships as internal institutional law.29 In the 1960s, Wilfred Jenks argued in support of the international nature of employment contracts.30 He supported the international nature of such contracts drawing a clear line between international civil service and internal national law. 27 Di Palma Castiglione v International Labour Organization [1929] League of Nations Administrative Tribunal, Judgment No 1. 28 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco (Advisory Opinion) [1956] ICJ Rep 77 (hereafter Judgment of ILOAT) 97. 29 Effect of Awards (n 18). 30 Clarence Wilfred Jenks, The Proper Law of International Organisations (Stevens & Sons 1962).

The Limits of Informalism 57 Amerasinghe rejected the theory under which the employment relationship is a status conferred by the organization and not a contract and affirmed that it is the particular order of the organization that governs employment relationships.31 He described the boundaries of the institutional legal system as including only employment, limited by the jurisdiction of international administrative tribunals. Concerning the legal nature, he proposed a solution that involves international law: ‘the most practical and viable solution to the problem of classification would seem to be to regard such internal law as being situated in and derived from the system of public international law and therefore being a part of public international law, while at the same time having a special character as a system akin to municipal law, particularly because it operates in an area in which municipal law has been traditionally known to operate.’32 A more recent contribution to the topic recognized the existence of a body of law belonging to different international organizations in the form of general principles of international law.33 In the earlier stage of the ILC work on responsibility of international organizations, Alain Pellet suggested that the Commission should specify that the articles were not to cover questions of responsibility related to civil service, since it is a different, internal, ‘legal sphere’.34 In the same vein, the World Health Organization (WHO) contended that no international obligations arise from employment contracts.35 Lastly, employment relationships are relevant as the internal law of the organization, in analogy with national public employment, to attribute the conduct of an individual to the international organization.36 In sum, different theories were developed to balance the autonomy of international organizations and their derivation from international law. Employment rules have been described as international law,37 internal law,38 international law in a ‘general sense’,39 some type of international law with national characteristics.40 31 Chittharanjan Felix Amerasinghe, The Law of the International Civil Service: As Applied by International Administrative Tribunals (OUP 1994) (hereafter Amerasinghe, The Law of International Civil Service) 25. 32 Ibid. 33 Renuka Dhinakaran, ‘Law of the International Civil Service: A Venture into Legal Theory’ (2011) 8 IOLR 137. 34 ILC, ‘Summary record of the 2740th meeting’ (2002) UN Doc A/CN.4/SR.2740, para 25. 35 ILC, ‘Comments and observations received from international organizations’ (2008) UN Doc A/ CN.4/593 and Add.1, 5, 6. 36 ILC, ‘Draft articles on the responsibility of international organizations, with commentaries’ (2011) UN Doc A/66/10, art 6. 37 Suzanne Bastid, ‘Have the United Nation Administrative Tribunals Contributed to the Development of International Law?’ in Wolfgang Friedmann, Louis Henkin, and Oliver Lissitzyn (eds), Transnational Law in a Changing Society: Essays in Honor of Philip C Jessup (Columbia University Press 1972). 38 Alain Plantey, The International Civil Service: Law and Management (Masson 1981). 39 Kenneth S Carlston, ‘International Administrative Law: A Venture in Legal Theory’ (1959) 8 JPL 329. 40 Amerasinghe, The Law of International Civil Service (n 31).

58 Informalism The origin of the complexity is that international organizations seem to act as a ‘substitute state’ in the relation with their employees, providing a welfare system and a human rights protection system similar to those available in domestic systems, even if they derive from international law.41 As mentioned, even the ICJ ‘does not deny that the Administrative Tribunal is an international tribunal’.42 A recent monograph by Gerhard Ullrich manifested the difficulties of theorizing the law of the international civil service.43 He defined his approach as ‘legal- dogmatic’, which is used as an umbrella term to cover three fundamental legal theories: unity within diversity, functionalism, and state analogy. The ‘unity within diversity’ approach views international organizations as an archipelago of isolated entities, each one with its own internal set of rules and, at the same time, connected by common principles.44 This approach creates a space for the development of an academic field of generalist international organizations lawyers who do not focus on the specificities of the legal regime (i.e. environmental law, trade law, jus ad bellum . . . ) but on the characteristics that makes international organizations a contained phenomenon in their own rights. Ullrich contends that the law of international civil service is one of the most advanced sets of principles that enables us to speak of a common law of international organizations. In particular, the development of administrative tribunals enhanced cross-fertilization and the insular nature of organizations is no longer an obstacle to the development of a consolidated field of research. He calls this approach ‘pars pro toto’, allowing him to reach a comprehensive presentation of the law governing employment relationships moving from one organization to the other with a selection of examples. For Ullrich, the second approach that characterizes the law of international civil service is functionalism. As already discussed, under this traditional concept of an international organization, these entities are nothing but instruments of member states created to perform specific tasks.45 The attribution of powers is limited to what member states agreed when founding the institution, except for those limited implied competences that are necessary to fulfil their functions. One of the consequences of functionalism is that organizations are not able to develop legal systems that are separate from international law, because the constitutive instrument is seen as a contract that attributes competences and not as a constitution that does not require delegation of functions. Indeed, at the outset Ullrich defines the internal law of an international organization as ‘particular international public law since it is restricted in its effects to member states’.46 This is a peculiar characterization for a 41 Gerhard Ullrich, The Law of the International Civil Service (Duncker and Humblot 2018) (hereafter Ullrich, International Civil Service) 48. 42 Judgment of ILOAT (n 28) 97. 43 Ullrich, International Civil Service (n 41). For my review of this book see Lorenzo Gasbarri, ‘Gerhard Ullrich. The Law of the International Civil Service Berlin: Duncker & Humblot, 2018. Pp 538. € 89,90. ISBN: 978-3-428-14914-8’ (2020) 31(2) EJIL 781. 44 Schermers and Blokker, Institutional Law (n 14) para 22. 45 See Chapter 2. 46 Ullrich, International Civil Service (n 41) 31.

The Limits of Informalism 59 monograph dedicated to the law of employment relationships, which does not address states but individuals working for the organization. Indeed, this is the most developed self-contained area of institutional law, evolved to guarantee the institutions’ independence from member states. The last characteristic described by Ullrich concerns the analogy to national legal systems. It is based on the thesis that international organizations are not only employers, but they also act as substitute states for their employees.47 They develop a system of human rights protection, social infrastructure, taxation, family-related benefit, and similar welfare measures. Ullrich sustains that organizations assume obligations towards their personnel that are more similar to national social systems than to international law. Such an analogy, of course, breaks away from functionalism, without reconciling the two faces of organizations. In conclusion, the law concerning employment relationships within international organizations is not sustained by a theory that could resolve its status as a rule of the organization. The principles governing the international civil service constitutes part of the comprehensive definition of the rules adopted by the ILC in 1975 and 2011. It could not be otherwise, since these principles are at the core of the bureaucratic machinery of an organization. However, it is more difficult, if not impossible, to separate the internal and the external life of an institutional body.48 It is only a matter of perspective. Currently, there is not a theoretical framework that could explain why employment relationships within international organizations develop an autonomous system of law which is separate from other rules, such as resolutions or budgetary regulations, which are perceived to pertain to international law. Against the lack of understanding of the internal/external dynamic, GAL emerged as a theory to fill the gaps of external responsibility and internal accountability. GAL is premised on the existence of hybrid legal systems under which only a limited group of norms produced by international institutions belong to their ‘global administrative’ sphere.

4.2.2 Global administrative law The link between GAL and the importance of conceptualizing international organizations is the question ‘accountability: to whom?’.49 One of the purposes of GAL is the promotion of accountability mechanisms within global administrative bodies. They pursue the implementation of fundamental principles of administrative law such as transparency, consultation, participation, rationality, and legality.50 For example, in the debate over the ultra vires character of UN Security Council

47 Ibid 48. 48 José E Alvarez, International Organizations as Law-makers (OUP 2005) Chapter 4. 49 Nico Krisch, ‘The Pluralism of Global Administrative Law’ (2006) 17 EJIL 247 (hereafter Krisch, ‘Pluralism’) 249. 50 Kingsbury, Krisch, and Stewart, ‘Global Administrative Law’ (n 26) 17.

60 Informalism sanctions, GAL and the different concepts of an international organization have many questions in common: which is the legal system of reference? Ultra vires in respect to which set of norms? International law or internal law of the UN legal system? Where do GAL mechanisms get their legality from? Which is the legal nature of GAL? Does it belong to international law or to the internal legal system of an international organization? Is GAL different from other rules arising from an international organization? How does the administrative quality of the rules affect their belonging to international law?51 The Security Council resolutions adopted under its counterterrorism agenda have been one of the main targets of the GAL’s reform project.52 On the one hand, if sanctions are considered as belonging to the UN legal system, the Council resolutions are characterized as purely internal law. Following this approach, the UN could affirm that an alleged human rights violation has to be contested within the framework of its own rules and its own parameters. This is what the European Court of Justice did in the Kadi case considering the development of the EU legal order.53 The resolutions may not be legal in a different legal system that has envisaged different human rights standards, yet this does not impair the validity of such resolutions as the UN law. It is an open question whether the internal UN legal system gives direct effect to external international law. Indeed, it is unclear whether the UN bears human rights obligations, or whether UN member states can violate human rights obligations by virtue of article 103 of the UN Charter.54 On the other hand, if resolutions are international law, the very existence of the UN legal system is in trouble. It means that the international source of the rules, the Charter, is not the constitution of a separate legal system. Consequently, the nature of its secondary norms (secondary in the sense that they derive from a primary source, the Charter) comes from the international conduct of member states. This would be contrary to what the ICJ calls an ‘organized legal system of the United Nations’.55 However, as I have already mentioned, the ICJ spoke only in the context of the Administrative Tribunal and employment relations. Perhaps, the UN has established a legal system that includes only administrative rules and excludes the laws that possess an international character. This is the postulate of GAL. The law-making process of international organizations can create rules that are administrative and rules that are international. These issues are connected with the nature of IN-LAW. The premise is that GAL and IN-LAW are mainly produced by international organizations and only within 51 Mario Savino, ‘The War on Terror and the Rule of Law: Kadi II’ in Sabino Cassese and others (eds), Global Administrative Law: The Casebook (IRPA 2012) III.B.1. 52 Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (OUP 2010) (hereafter Krisch, Beyond Constitutionalism). 53 Joined Cases C-402-05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I 6351. 54 See Chapter 10. 55 Effect of Awards (n 18) 55–56.

The Limits of Informalism 61 them can they find the system of reference they are looking for. It is not in domestic analogies that GAL can find accountability, but in the study of its belonging to the plurality of legal systems in which it proliferates.56 Indeed, GAL includes a broad range of legal instruments arising from a plurality of sources. It encompasses the traditional sources of international law as well as domestic law, and it denotes a revival of ius gentium.57 It is a transversal qualitative description of norms that tend to apply administrative principles. It encompasses instruments deriving from hybrid private– private/public–private regulations, network governance, environmental policies, the UN Security Council resolutions, World Bank regulations, among others.58 The analysis of the nature of the legal systems in which GAL proliferates starts where Kingsbury’s ‘The Concept of Law in Global Administrative Law’ ends: ‘there is law in global administrative law . . . including the possibilities of incorporating into Hartian approaches to the concept of law, and even into the rule of recognition, a requirement of publicness’.59 We can understand GAL only by understanding the pluralist nature of its rules of recognition at the sources of GAL. GAL lies between the monist, sometimes fearful, tension towards a universal constitutionalist set of administrative norms60 and the pluralist tension of a fragmented reality.61 Self-contained regimes lead to legal pluralism, disrupting the traditional monist and dualist binary.62 In short, GAL affects the traditional divergence between the Kelsenian unity of the legal system and the theory of Santi Romano based on relations of ‘relevance’.63 One of the theoretical bases of my analysis is that legal positivism can provide a description of the legal architecture of pluralism without reverting to politics when the relation between legal sub-orders is indeterminate. I question the assumption that pluralism ‘is an order in which the relationships of the constituent parts are governed not by an overarching legal framework but primarily by politics, often judicial politics; where we find heterarchy, not hierarchy’.64 Indeed, there is a role for law in the interaction between systems. Starting from the Hartian description of GAL provided by Kingsbury, I focus on the legal systems from which GAL derives. The question is framed in the so-called ‘problem of identity’, concerning the criteria that determine the system to which a given law 56 Richard B Stewart, ‘U.S. Administrative Law: A Model for Global Administrative Law?’ (2005) 68 LCP 63. 57 Benedict Kingsbury and others, ‘Foreword: Global Governance as Administration—National and Transnational Approaches to Global Administrative Law’ (2005) 68 LCP 1 (hereafter, Kingsbury and others, ‘Foreword’) 2. 58 Ibid. 59 Bendict Kingsbury, ‘The Concept of “Law” in Global Administrative Law’ (2009) 20 EJIL 23, 57. 60 Carol Harlow, ‘Global Administrative Law: The Quest for Principles and Values’ (2006) 17 EJIL 187. 61 Krisch, ‘Pluralism’ (n 49). 62 Giorgio Gaja, ‘Dualism: A Review’ in Janne Nijman and André Nolkaemper (eds), New Perspectives on the Divide between National and International Law (OUP 2007). 63 Filippo Fontanelli, ‘Santi Romano and L’ordinamento giuridico: The Relevance of a Forgotten Masterpiece for Contemporary International, Transnational and Global Legal Relations’ (2011) 2 TLT 67. 64 Krisch, Beyond constitutionalism (n 52) 111.

62 Informalism belongs.65 It is therefore an analysis founded in legal positivism, as another attempt to analyse the legal nature of GAL.66 My approach to GAL can be framed in Negulesco’s question: ‘le droit international administrative est-il une science juridique autonome ou une branche du droit international?’.67 The question derives from the intuition that international administrative law is produced by a legal system partially different from the national and the international. The chaotic landscape of accountability mechanisms is framed into different organization-systems adopting different regimes. The question is: are they international law or something else? The answer directly concerns the problem of the structure of GAL and its habitat, which usually involves ‘international institutions and transnational networks involving both governmental and non-governmental actors, as well as domestic administrative bodies that operate within international regimes or cause transboundary regulatory effects’.68 GAL is an assemblage of norms with similar characteristics originating in different legal systems. The question is how a legal system can produce something that is GAL and something that is not, and, therefore, which is the legal nature of GAL. This issue comes from the comparison between GAL and the will to distinguish between the internal and the external core of the rules of international organizations. GAL is the internal law of a plurality of legal systems belonging to different international organizations. In this network, states are seen as mere organs that implement regulations emerging from an outer ‘global layer’, giving rise to a direct relationship between individuals and organizations. This is the ‘publicness’ of the rule of recognition discussed by Kingsbury. The internal relationship between member states and organizations is fundamental in order to push forward the respect for administrative principles such as participation and transparency in the governance functions exercised by international organizations. However, as already discussed, the internal nature does not consider states as autonomous subjects of international law, and it allows them to hide behind the institutional veil of organizations, thus circumventing their responsibilities. The question arises whether GAL is ‘a normative idea or simply a descriptor of various regulatory regimes that jointly manage transboundary governance issues’69. I support the latter and contend that the value of GAL rests on its capacity to describe the network system of global governance. However, it does not produce effects that can be defined as normative, in the sense of creating legal systems that would necessarily depart from national or international. Even if GAL revolves 65 Joseph Raz, The Concept of a Legal System: An Introduction to the Theory of a Legal System (2nd edn, OUP 1980) (hereafter Raz, Concept of a Legal System) 1. 66 Ming-Sung Kuo, ‘Inter-public Legality or Post-public Legitimacy? Global Governance and the Curious Case of Global Administrative Law as a New Paradigm of Law’ (2012) 10 IJCL 1050 (hereafter Kuo, ‘Inter-public Legality’) 1060. 67 Nêgulesco, ‘Principes du droit international administratif ’ (n 25). 68 Kingsbury and others, ‘Foreword’ (n 57) 3. 69 Kuo, ‘Inter-public Legality’ (n 66) 1051.

Concluding Remarks 63 around the need for transformation of the ‘Westphalian world’, it does not go towards a global legal space but towards a pluralist layered community. Therefore, the nature of the rules of GAL cannot be distinguished from the legal nature of other rules of international organizations. If international organizations develop their own legal systems they cannot create, simultaneously, some rules that belong to their own legal system and others that do not. Every rule of international organizations must have the same legal nature. Every law necessarily belongs to a legal system and a legal system cannot produce laws which do not belong to the system.70 Therefore, any distinctions between internal and international rules only have descriptive importance, but not normative effects. The theories based on the informal nature of the rules of international organizations are not acceptable, because every norm that comes from a rule of recognition must belong to the system created by that rule. Within an international organization there is not something internal and something external. Every rule must share the same nature. Such a finding also rebuts the soft law thesis, under which law can have various degrees of normativity. GAL is based on the idea that the relationships amongst legal systems materialize through politics rather than law. On the contrary, I contend that the existence of a legal system is not a matter of degrees, it either exists or not.71 There could be a system more or less clearly legal, but this is a different question from its existence. Indeed, law cannot have a scalar nature and it must belong to a legal system to be called so. The legal system of international organizations could be different from those of states but this does not imply that they are less legal. As a consequence, if a legal system exists, it must have its own laws.

4.3 Concluding Remarks In conclusion, informalism provides us with insights into the shift from a hierarchical pyramid of norms to pluralistic centres of norms production that arose with the proliferation of international organizations. Indeed, its merit lies in its ability to conceptualize global governance as the forum where different interest groups struggle for hegemony and in which legal norms are tools to achieve supremacy. The relevance of politics is well represented by informalist theories, none of which impose any normative quality on the international legal system. Indeed, informal theories do not seek any normative consequence in terms of the belonging of a norm to a legal system. They do not provide a definition and rebut the relevance of an inquiry into the concept of an international organization.

70 Raz, Concept of a Legal System (n 65) 187ff. 71 Thomas Schultz, Transnational Legality: Stateless Law and International Arbitration (OUP 2014) 68.

5

Exceptionalism Exceptionalist conceptualizations rely on the existence of degrees of organiza tionhood to claim that certain institutions develop differently from others, and consequently, the same international regulatory framework cannot apply to all. Under this conceptualization, international organizations are not only different from states, but also heterogeneous in their own category. However, exceptionalist theories do not agree on the essential elements that differentiate organizations. For instance, in the context of the European Union (EU), the process of integration transforms a functional entity into a constitutional entity, while, in the context of the Organization for Security and Cooperation in Europe (OSCE), it is the political rather than legal nature of its obligations that demand a special treatment. Other approaches rely on the technical character, the high level of specialization, or the geographical scope. In sum, the concept of an international organization is fragmented in a plurality of perspectives that underline the limits of the comparatist approach as such. The main tenets of exceptionalist conceptualizations are: • Member states are agents or third parties depending on the organization; • The rules are internal or international depending on the organization; • The institutional veil is characterized either by degrees of crystalline transparency or impermeable opacity depending on the organization; • The autonomy of the organization is a matter of degrees; • The conduct of a member state acting in the institutional forum can be relevant or not relevant as a matter of international law, depending on the organization; • International organizations are very different entities depending on descriptive elements, such as their level of integration, the quality of the functions attributed to them, or their geographical scope.

5.1 The Rules of International Organizations as ‘Exceptions’ The exceptionalist conceptualizations are based on a theoretical framework by which international organizations do not have a common historical origin and each has developed a particular narrative accounting for its peculiar characteristics. For The Concept of an International Organization in International Law. Lorenzo Gasbarri, Oxford University Press (2021). © Lorenzo Gasbarri. DOI: 10.1093/oso/9780192895790.003.0005

Rules of Organizations as ‘Exceptions’ 65 instance, according to this idea the historical process that led to the creation and evolution of the European Communities cannot be compared with the creation of different ‘technical’ organizations. Similar to informalist conceptualizations, the outcome of this theory is that it is simply not possible to theorize and develop a regulatory framework applicable to all international organizations.1 The differences between international organizations were already evident at the end of the nineteenth century. In the international law literature, the 1899 and 1902 Hague Conferences have been conventionally considered as the first step towards the creation of intergovernmental political cooperation, whereas the Rhine Commission established in 1815 has been seen as the first permanent intergovernmental technical cooperation.2 When the debates on the possession of international legal personality arose at the beginning of the twentieth century, practice was already fragmented in a variety of institutions that could not be subsumed under a unitary phenomenon. In particular, organizations aspiring to universality such as the International Institute of Agriculture were a new phenomenon, different from administrative entities.3 Functionalism developed in the early twentieth century to address the necessity of a limited group of institutions. In his study of the genealogy of the functionalist theory in international organizations law, Jan Klabbers names the late nineteenth-century American jurist Frank Sayre as the pioneer of the use of functionalism to encompass all kinds of entities.4 In his Experiments in International Administration, Sayre contended that all organizations are created in a similar way and out of necessity.5 For him, organizations such as the Universal Postal Union or the Cape Spartel lighthouse could all be subjected to the same legal framework. He did not rely on the different functions performed by these entities but on their similar formal structure. Conversely, other scholars took an opposite approach, considering the nature of international organizations as a matter of degree, under which fundamental elements, such as the possession of legal personality, were strictly linked to the characteristics of each organization.6 From this perspective, the functions do not qualify the organization, even if they affect its capacity to act as an independent legal subject. The exceptionalist conceptualization shifts the focus of enquiry from the formal structure of an organization created by states to perform certain functions to the quality of the functions themselves. Consequently, universal organizations 1 Jan Klabbers, ‘Unity, Diversity, Accountability: The Ambivalent Concept of International Organisation’ (2013) 14 MelJIL 149. 2 Georges Abi-Saab, The Concept of International Organization (UNESCO 1981) 9. 3 ILC, ‘First report on relations between States and inter-governmental organizations by Abdullah El-Erian’ (1963) UN Doc A/CN.4/161 and Add.1, 162. 4 Jan Klabbers, ‘The EJIL Foreword: The Transformation of International Organizations Law’ (2015) 26 EJIL 9, 21. 5 Francis Bowes Sayre, Experiments in International Administration (Harper 1919). 6 Andrea Rapisardi-Mirabelli, ‘La Théorie Générale des Unions Internationales’ (1925) 7 RCADI 345.

66 Exceptionalism devoted to the maintenance of peace and security cannot be compared with supranational organizations devoted to regional integration. This conceptualization also considers that in certain circumstances even functional institutions ‘run wild’ and transform into constitutional entities in which the transfer of functions can no longer be explained in terms of agency. Exceptionalism takes different forms, but similarly demands special treatment for entities that are considered to produce law which is particular to their own legal system, because it no longer derives from international law. For instance, certain institutions, such as the European Union, claim a supranational status.7 Others, such as the OSCE, claim a political, and not legal, binding nature.8 The main criterion used to distinguish among different forms of exceptionalism is integration, which is concerned with the quality and quantity of attributed powers to the organization. This theory claims that organizationhood is a matter of degrees, starting with conferences of the parties to environmental treaties and arriving at the EU. The evolutionist spirit of the European project perfectly reflects how certain organizations are developing differently from others.9 In terms of the nature of the legal systems, exceptionalism is characterized by hybridity, not dissimilar from IN-LAW. Again, the norms of the institutional legal system are not of the same nature. For instance, the conferral of ‘exclusive competences’ triggers the internal quality of EU law, while there is no clarity on which theory should apply to describe the activities that the EU and member states carry out under shared competences. Indeed, exceptionalist theories still belong to the broader category of informal law. However, they deserve a separate discussion, due to the relevance of the arguments made by many international organizations.10 The best example of what exceptionalism entails is provided by comments and observations submitted by international organizations to the International Law Commission (ILC) during its work on the Articles on the Responsibility of International Organizations (ARIO).11 All the international organizations that responded to the Commission’s invitation to submit comments and observations relied on their exceptional status to claim that the rules of each organization should take precedence over ARIO.12 In fact, the lex specialis article was the only provision 7 Peter L Lindseth, ‘Supranational Organizations’ in Jacob Katz Cogan, Ian Hurd, and Ian Johnstone (eds), The Oxford Handbook of International Organizations (OUP 2017). 8 Mateja Steinbrück Platise and Anne Peters, ‘Transformation of the OSCE Legal Status’ in Mateja Steinbrück Platise, Carolyn Moser, and Anne Peters (eds), The Legal Framework of the OSCE (CUP 2019). 9 Magdalena Ličková, ‘European Exceptionalism in International Law’ (2008) 19 EJIL 463 (hereafter Ličková, ‘European Exceptionalism’). 10 On the relationship between the exceptional nature of certain international organizations and the informal nature of the law they produce see Leonardo Borlini, ‘Soft law, soft organizations e regolamentazione “tecnica” di problemi di sicurezza pubblica e integrità finanziaria’ (2017) RDI 356. 11 ILC, ‘Draft articles on the responsibility of international organizations, with commentaries’ (2011) UN Doc A/66/10 (hereafter ARIO). 12 ILC, ‘Comments and observations received from international organizations’ (2011) UN Doc A/ CN.4/637 (hereafter Comments 2011) 37 ff.

Rules of Organizations as ‘Exceptions’ 67 that found unanimous support, interpreted as a general derogation in favour of the particular rules of each organization. Moreover, two organizations extensively relied on the differences among organizations to undermine the relevance of a common regulatory framework. The EU reaffirmed its exceptional status in every comment it submitted to the Commission. The 2004 comment highlights the difference between the EU and other organizations, arguing that it is not only a forum of member states, but also an independent actor governed by its own legal system.13 In its view, the supranational status of the EU demanded a rule on attribution that should reflect its peculiarities as established in the rules of the organization.14 The 2005 comment of the EU explicitly affirmed that ‘the International Law Commission should carefully consider the large diversity among international organizations when adapting the articles on State responsibility to the topic of responsibility of international organizations’.15 Finally, the 2011 comment noted that ‘The European Union does not contest that there are international organizations that are undoubtedly more “permeable” to international law than the European Union’, but that its internal rules are not governed by international law, as European law is a distinct source.16 Another international organization which persisted on its entitlement to a special treatment was the International Monetary Fund (IMF). In its 2004 comment to the Commission, the IMF stressed the differences among organizations, arguing that ‘any analysis of the responsibility of international organizations must consider the provisions of the international agreements by which individual organizations were created’.17 The IMF went further and contended that a common regulatory framework cannot be established because common norms ‘do not exist’:18 many of the draft articles do not lend themselves to universal application. There are significant differences between the legal frameworks of different international organizations and it is very difficult to formulate principles that apply to all such organizations. While States all possess the same attributes, international organizations have different purposes, mandates, and powers. The draft articles fail to take these differences into account and, as a result, include provisions that would appear to be of limited relevance for at least some international organizations (e.g., the international financial institutions). We would question whether it is appropriate to include such provisions within the draft.19 13 ILC, ‘Comments and observations received from international organizations’ (2004) UN Doc A/ CN.4/545 (hereafter Comments 2004) 5. 14 Ibid 13, 18. 15 ILC, ‘Comments and observations received from international organizations’ (2005) UN Doc A/ CN.4/556 (hereafter, Comments 2005) 5. 16 Comments 2011 (n 12) 20. 17 Comments 2004 (n 13) 6. 18 Ibid. 19 Comments 2011 (n 12) 10.

68 Exceptionalism The IMF contested the use of the Articles on the responsibility of States (ARSIWA) as the basis of the rules on international organizations.20 It argued ‘while States are functionally and organizationally very similar to each other, there are significant differences among international organizations’.21 Consequently: ‘it should be clear in the draft articles that when an international organization acts pursuant to its charter, it would not be subject to liability for doing so under general international principles (that are implicitly referred to but not set forth in substance in the draft articles), but its liability would be determined under its own charter.’22 Indeed, while the EU relied on the internal nature of its rules to claim exceptional status, the IMF relied on the international nature of its rules to claim it could not be internationally responsible for wrongful acts. It claimed that it is not possible ‘to suggest . . . that in some cases (other than involving obligations of a peremptory nature) general international obligations might prevail over the rules of an organization’.23

5.2 The Limits of Exceptionalism The exceptionalist conceptualization of an international organization has some straightforward limits. The same argumentation set out in previous chapters also applies when certain organizations are perceived as functionalist entities and others as constitutional entities. As I contended previously, the adoption of an either/or paradigm is primarily based on a limited perspective that examines organizations from a purely state-centric or a purely organization-centric point of view. When the focus changes to identifying the particular qualities of a specific organization and the underlying reason for such peculiarity, the simple way to rebut the exception is to show how a purely functional entity also manifests a constitutional character and vice versa. However, this fragmented approach has found considerable support from international organizations and practitioners within them.24 In particular, the high level of specialization within international organizations gave rise to the argument that it is not possible to identify a general regulatory framework. Here, I challenge such a thesis on the basis of the structural similarities of the legal systems produced by international organizations, under which descriptive differences do not affect normative quality. In particular, I will compare two models of exceptionalism, one endorsed in the context of the EU and the other endorsed in the context of the OSCE. 20 ILC, ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ (2001) UN Doc A/56/10 (hereafter ARSIWA). 21 Comments 2004 (n 13) 7. 22 Ibid 9. 23 Comments 2005 (n 15) 38. 24 Comments 2011 (n 12).

The Limits of Exceptionalism 69

5.2.1 The exceptionalism of the EU The ILC discussed the exceptional nature of the EU in the third report of the Special Rapporteur on the responsibility of international organizations, concerning provisional article 8 (article 10 in the final project), ‘existence of a breach of an international obligation’: ‘1. There is a breach of an international obligation by an international organization when an act of that international organization is not in conformity with what is required of it by that obligation, regardless of its origin and character; 2. The preceding paragraph also applies in principle to the breach of an obligation set by a rule of the organization’25 (emphasis added). The first paragraph copied and pasted article 12 ARSIWA.26 The second paragraph reflected the layered structure of international organizations. It is an implicit recognition that the law produced by organizations is only ‘in principle’ international. In fact, as noted by Alain Pellet, the Special Rapporteur wished to allow for exceptions for those organizations whose rules are no longer international law, in particular, the EU.27 The approach of the Special Rapporteur reflects a concept of an international organization that distinguishes between functional and constitutional entities.28 It underlines the capacity of international organizations to develop an ‘original’ legal system, under which only certain organizations can claim to have an internal law detached from international law. Rebutting this approach, Alain Pellet affirmed that it is not correct to preserve the specificity of the EU.29 The Special Rapporteur replied reaffirming that the project should take into consideration that European law is not international law. He distinguished between the lex specialis nature of the rules, which would imply their belonging to international law, and what he called a self-contained regime nature.30 Pellet retorted that every international organization is a self-contained legal order. Abstracting from the context of the EU, Special Rapporteur Gaja proposed: ‘If the words “in principle” were to be replaced, he personally would prefer wording that excluded the rules of regional organizations that had given rise to a form of integration entailing a system of law that could no longer be regarded as part of international law.’ As mentioned before, the ILC shied away from discussing the issue of the legal nature of the law produced by international organizations, and the final version of article 10(2) reads: ‘Paragraph 1 includes the breach of any international obligation 25 ILC, ‘Third report on responsibility of international organizations by Giorgio Gaja’ (2005) UN Doc A/CN.4/553. 26 ARSIWA (n 20) art 12: ‘There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.’ 27 ILC, ‘Summary record of the 2840th meeting’ (2005) UN Doc A/CN.4/SR.2840 (hereafter 2840th meeting) 15. 28 ILC, ‘Draft articles on the responsibility of international organizations, with commentaries’ (2011) UN Doc A/66/10 (hereafter ARIO) commentary to art 10. 29 2840th meeting (n 27) 16. 30 ILC, ‘Summary record of the 2843th meeting’ UN Doc A/CN.4/SR.2843, 19.

70 Exceptionalism that may arise for an international organization towards its members under the rules of the organization.’ Consequently, the Commission did not take a stance on whether international organizations are functional entities that produce international law or whether they are constitutional entities that produce internal law. This debate is particularly interesting because the Special Rapporteur defended the exceptional nature of the EU in the context of the breach of an obligation, whereas the European Commission criticized the project for not taking into consideration a special rule on the attribution of conduct.31 Indeed, an ad hoc article on the attribution of conduct would have underlined the internal nature of EU law.32 Conversely, the ILC preferred to maintain its agnosticism on the nature of the rules and rely on the lex specialis provision, which is applicable to every organization but raises a new set of issues, as I have already discussed.33 The limits of EU exceptionalism are evident in an Advisory Opinion issued by the International Tribunal for the Law of the Sea (ITLOS).34 On 27 March 2013, the Sub-Regional Fisheries Commission (SRFC) requested an Advisory Opinion from ITLOS, asking four questions on the interpretation of obligations binding states and international organizations arising from illegal, unreported, and unregulated (IUU) fishing activities conducted by private vessels.35 The Tribunal contended that flag states are under an obligation of conduct to ensure that vessels flying their flags comply with the laws and regulations concerning conservation measures adopted by the coastal state. The flag state is under an obligation of due diligence to take all necessary measures to ensure compliance and to prevent IUU fishing. Consequently, the Tribunal stated that the responsibility of the flag state arises from the violation of its due diligence obligation concerning IUU activities conducted by vessels flying its flag. Concerning international organizations, the SRFC reported that, in 2010, one of its member states had boarded two vessels which were fishing under a memorandum of understanding signed with an international organization.36 The vessels were in breach of the legislation of the coastal state, leading to an outstanding fine. The owner of the vessel recognized the violation and paid part of the fine on the

31 Comments 2011 (n 12) 37. 32 Frank Hoffmeister, ‘Litigating against the European Union and Its Member States—Who Responds under the ILC’s Draft Articles on International Responsibility of International Organizations?’ (2010) 21 EJIL 723. 33 See Chapter 3, Section 2.1. 34 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (Advisory Opinion) [2015] ITLOS Report No 21 (hereafter SRFC Advisory Opinion). Lorenzo Gasbarri, ‘The European Union is not a State: International Responsibility for Illegal, Unreported and Unregulated Fishing Activities’ (2020) 7 Maritime Safety and Security Law Journal 62. 35 Convention relating to the definition of the minimum conditions of access and exploitation of fisheries resources within the maritime zones under the jurisdiction of SRFC member States (opened for signature 8 June 2012, entered into force 8 November 2012) SRFC Permanent Secretariat, art 2. 36 The circumstance is anonymized in SRFC, ‘Written Statement’ (2013) ITLOS Adivsory Opinion (hereafter SRFC, ‘Written Statement’) 15.

The Limits of Exceptionalism 71 spot. Consequently, the vessels were released, with an assurance that they would pay the entire fine within an agreed timeframe. In fact, the remaining fine was not paid and the SRFC member state asked the international organization to take the appropriate measures to pay the fine. In response, the international organization declared itself incompetent both to impose on the flag state payment of the fine and to pay in lieu of the flag state. Consequently, the SRFC asked the Tribunal: ‘Where a fishing license is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question?’37 As a preliminary, the Tribunal narrowed the scope of the question, contending that it only concerned the organizations referred to in article 305(1)(f) and article 306 of UNCLOS, and its Annex IX, to which their member states have transferred competence on fisheries.38 Therefore, the Tribunal limited its opinion to the EU, the only international organization which is part of UNCLOS, and noted that only the exclusive competence of the EU on fisheries is relevant. This finding is treated as a matter of fact, without explaining the relationship between the obligations contained in UNCLOS and the obligations that the EU assumed with SRFC member states. It then relied on article 6(1) of Annex IX UNCLOS to link the responsibility of the EU to its competences and considered that ‘an international organization which in a matter of its competence undertakes an obligation, in respect of which compliance depends on the conduct of its member States, may be held liable if a member State fails to comply with such obligation and the organization did not meet its obligation of “due diligence” ’.39 In sum, ITLOS applied the so-called ‘state analogy’, arguing that the legal framework applicable to states is also applicable to the EU on the basis of the attribution of exclusive competences.40 Moreover, concerning the flag state which is member of the EU, the Tribunal considered that it is party to the fishing agreement concluded only by the organization and, therefore, it could not be considered responsible for the conduct of the vessels flying its flag. Nevertheless, ITLOS recalled that, under article 6(2) Annex IX UNCLOS, joint and several liability of the EU and the state concerned could arise if they do not provide information on who is competent in a specific matter. This Advisory Opinion raises a number of issues concerning the effective protection of biodiversity where private fishing vessels have access to fishing zones thanks to agreements concluded by the EU and not by their flag states. In particular, the Tribunal extensively relied on the comments made by the European 37 SRFC Advisory Opinion (n 34) para 2. 38 Ibid para 157. 39 Ibid para 168. 40 See, in general, Fernando Lusa Bordin, The Analogy between States and International Organizations (CUP 2018).

72 Exceptionalism Commission, which adopted a clear defensive strategy. On the one hand, the EU claimed to be the sole responsible entity freeing member states from any responsibility, and, on the other hand, it claimed that EU regulations and relevant applicable norms did their utmost to prevent IUU fishing.41 However, the facts of the case told a different story, under which the conferral of competences limited the capacity of the EU to enforce sanctions and give reparation for the wrongful act.42 Indeed, the facts of the case as presented by the SRFC dangerously resemble those circumstances in which member states circumvent their international obligations by conferring on an international organization competences to conclude agreements with third parties.43 The origin of my concern is that the EU and the Tribunal relied on the attribution of exclusive competences on the protection of biodiversity to claim that the EU needs to be treated as a flag state in the law of the sea regime, even if it lacks the general capacity to take all necessary steps, such as instituting criminal proceedings. The Tribunal merely stated that the EU had submitted its declaration of competences under article 5(1) of Annex IX, which distinguishes between exclusive and shared competences, and concluded that in the case at hand only EU exclusive competences were relevant.44 Thus, the Tribunal bypassed the attribution of conduct, stating that responsibility is where competences lie. EU exceptionalism was applied when the Tribunal did not apply the norms on the attribution of conduct contained in ARIO to avoid interfering with the distribution of competences and their complex distinction between those which are shared and those which are exclusive. However, competences are not clear cut and the limits of EU exceptionalism become evident when the prevention of IUU fishing activities involve fundamental competences of member states. For instance, the Tribunal did not accept the proposal put forth by the International Union for the Conservation of Nature and Natural Resources, which underlined the matters outside EU competence, including instituting criminal proceedings against vessels.45 A similar lack of competence was alleged by SRFC in its written statement, regarding the refusal by the EU to pay the fine claimed by a SRFC member state.46 The reasoning adopted by ITLOS ensures a sufficient level of protection of biodiversity only if the EU is considered a purely constitutional entity and the state analogy is applied in full. The reasoning by ITLOS can be rebutted because the EU still relies on the attribution 41 European Union, ‘Second Written Statement’ (2014) ITLOS Advisory Opinion; ITLOS, Public sitting, Verbatim Record, ‘Request for Advisory Opinion submitted by the Sub-regional Fisheries Commission’ (4 September 2014) ITLOS/PV.14/C21/3/Rev.1. 42 See, in particular, SRFC, ‘Written Statement’ (n 36). 43 For an analysis of this circumstance in the EU context, see Esa Passivirta, ‘Responsibility of a Member State of an International Organization: Where Will it End—Comments on Article 60 of the ILC Draft on the Responsibility of International Organizations’ (2010) 7 IOLR 49. 44 SRFC Advisory Opinion (n 34) para 164. 45 International Union for Conservation of Nature and Natural Resources, ‘Written Statement’ (2013) ITLOS SRFC Advisory Opinion, para 78. 46 See n 36.

The Limits of Exceptionalism 73 of competences by member states and does not enjoy a general capacity to perform any relevant action. The Tribunal applied EU exceptionalism by bypassing the attribution of conduct relying on so-called ‘normative control’ as a way to attribute responsibility. Many scholars have commented on the shortcomings of a declaration of competences,47 but I would like to stress their primary obligation nature, which ITLOS mistakenly considered as a means to attribute responsibility. Indeed, the Tribunal modified the nature of UNCLOS, moving from a primary obligation used to define the content of due diligence to prevent IUU activities, to a secondary norm that defines how international responsibility is attributed. Article 305(1)(f), article 306, and Annex IX UNCLOS are not special rules on the attribution of conduct, but primary obligations contracted into by all the parties to UNCLOS. For instance, ITLOS recognized the existence of joint and several obligations relying on the law of the sea regime even where only the EU concluded the agreement breached by vessels flying the flags of its member states.48 In conclusion, the European exceptionalism in the law of international organizations is based on a particular concept of an international organization under which only a few institutions have developed internal legal systems in the areas in which member states have delegated exclusive competences. However, I can put forth at least four counterarguments: 1. competences are not a black or white matter and different shades could affect the responsibility towards third parties; 2. exclusive competences affect the assumption of primary obligations rather than secondary rules; 3. member states could circumvent their responsibility by hiding behind the institutional veil of the organization even if they profit from the fishing licence; 4. it contributes to the fragmentation of the concept of international organizations, which leads to its rhetorical use subject to the circumstances of the case. Indeed, the nature of the legal system developed by international organizations affects their international responsibility. As Kuijper and Paasivirta noted, the rules of the organization ‘are closely linked to the strength and the transparency of the EU institutional veil’.49 I contend that the same applies to every international organization, but what we are lacking is a common concept to subsume the law of international organizations under a common theory. I contend that the degree of integration and autonomy, often referred to with the formula ‘Regional (Economic) Integration Organizations’, has a descriptive character that does not justify a different legal nature. In particular, exceptionalism 47 Joni Heliskoski, ‘EU Declarations of Competence and International Responsibility’ in Malcom Evans and Panos Koutrakos (eds), The International Responsibility of the European Union (Hart 2013); Andrés Delgado Casteleiro, The International Responsibility of the European Union: From Competence to Normative Control (CUP 2016) 110. 48 SRFC Advisory Opinion (n 34) para 174. 49 Pieter-Jan Kuijper and Esa Paasivirta, ‘EU International Responsibility and its Attribution: From the Inside Looking out’ in Panos Koutrakos and Esa Paasivirta (eds), The International Responsibility of the European Union: European and International Perspectives (Hart 2013).

74 Exceptionalism fails because it describes a hybrid legal system under which part of its norms are created as constitutionalism requires, while the rest are still functionalist. Indeed, following this reasoning, EU law is international law for those matters in which member states retain a role and it is internal for those competences that are exclusive. What kind of ‘new legal order of international law’ creates law that is international for some matters and internal for others? A theory of the concept of international organizations must reflect that institutional legal systems are a consistent body of law under which the attribution of competence or the level of integration do not determine their nature. The next section will discuss a different version of the exceptionalist conceptualization of an international organization. In this case, exceptionalism is not based on integration and the delegation of exclusive competences, but on the claim that an institution can be created by non-legal norms.50

5.2.2 The exceptionalism of the OSCE At the beginning of the decade that gave birth to the Articles on the Responsibility of International Organizations,51 the ILC had no doubts that the project would apply also to the OSCE. As early as 2002, the first report of the ILC working group included the OSCE within the definition of international organizations, established by means of a treaty ‘or, in exceptional cases (such as that of OSCE), without a treaty’.52 Stressing this position, the working group noted that ‘[i]‌t is to be assumed that international law endows these international organizations with legal personality, because otherwise their conduct would be attributed to their members and no question of an organization’s responsibility under international law would arise.’53 One year later, the ILC published its report containing article 2 ‘Use of Terms’, in which international organizations were defined as being ‘established by a treaty or other instrument governed by international law’.54 The commentary to the ARIO at that time included a reference to the OSCE which explicitly acknowledged the application of the projected provisions to an implicit international agreement establishing an international organization.55 The 2004 discussion held 50 This section is based on Lorenzo Gasbarri, ‘The International Responsibility of the OSCE’ in Anne Peters, Mateja Platise, and Carolyn Moser (eds), Revisiting the Legal Status of the OSCE (CUP 2019). 51 ARIO (n 28). 52 ILC, ‘Report of the Working Group on the Responsibility of International Organizations’ (2002) UN Doc A/57/10, para 469. 53 Ibid. 54 ILC, ‘Report of the International Law Commission on the work of its 55th Session’ (5 May–8 August 2003) UN Doc A/58/10, 38. 55 Ibid para 4 of the commentary to art 2: ‘although an implicit agreement may be held to exist, member States insisted that there was no treaty concluded to that effect, as for example in respect of OSCE’.

The Limits of Exceptionalism 75 in the Sixth Committee of the General Assembly acknowledged the unresolved issue of the OSCE’s international legal personality. The Committee also took note of the distinction between the European Community and the EU and the Special Rapporteur mentioned that it was something that ‘the members of the two entities would have to solve’.56 This position, with respect to the applicability of ARIO and the unresolved international legal personality of the OSCE, was maintained throughout the work of the ILC, and the commentary to article 2 was left unmodified until the final draft.57 However, in 2011 Austria and the OSCE reacted to the ILC approach by submitting comments and observations. They both maintained that, for the time being, the OSCE is not an international organization under article 2 ARIO, it does not possess legal personality, and it is not governed by international law.58 As a consequence, the final commentary to article 2 ARIO makes no reference to the OSCE. International responsibility and the obligation to make reparations are the consequences that international law attaches to violations of its rules.59 In the context of international organizations, one of the main questions is whether their structure allows for an assumption of responsibility separate from their member states.60 International responsibility is an attribute of autonomy, but the problem is that no organization is truly independent from its member states. In the framework of this debate, the OSCE took an extreme position claiming that it cannot even be considered a proper international organization.61 Too much attention has been dedicated to the importance of the legal personality of international organizations, and too little to the study of their capacity to develop a legal system. One can doubt the presence of legal personality, or whether the OSCE is governed by international law. Yet, we cannot ignore the fact that the OSCE exists, performs its functions, and has developed a normative system. Indeed, the use of the expression ‘normative system’ will not find opposition from those who consider the OSCE a source of political and not legal obligations. Every institution develops a system of norms that governs its internal functioning, regardless of whether we characterize them as legal or political. What is at stake and 56 ILC, ‘Topical summary of the discussion held in the Sixth Committee of the General Assembly during its fifty-eighth session, prepared by the Secretariat’ (21 January 2004) UN Doc A/CN.4/537, para 37; Henry G Schermers and Niels M Blokker, Institutional Law: Unity within Diversity (Nijhoff 2011) para 1569. 57 Without controversy. See ILC, ‘First report on responsibility of international organizations by Giorgio Gaja’ UN Doc A/CN.4/532, A/CN.4/532, 2003, para 14; ILC, ‘Summary record of the 2753rd meeting’ UN Doc A/CN.4/SR.2753, para 27. 58 ILC, ‘Comments and observations received from Governments’ (2011) UN Doc A/CN.4/636, 9; Comments 2011 (n 12) 18. 59 Case Concerning the Factory at Chorzów (Claim for Indemnity) (Jurisdiction) [1927] PCIJ Series A, No 9, 21. 60 Jan Klabbers, An Introduction to International Organizations Law (3rd edn, CUP 2015) 306. 61 Comments 2011 (n 12).

76 Exceptionalism should be the focus of attention is the relation that international organizations have with international law. The nature of the legal system developed by an international organization pivots around a dichotomy between constitutionalism and functionalism.62 For example, the EU can be considered an international organization derived from international law and producing international law, or it can be understood as an institution that is not based on international law and producing norms which are internal in nature.63 The former conceptualization views the emerging legal system of a new institution as ‘original’ and not based on something that existed before. Of course, ‘originality’ may take various forms: in the case of the EU it means ‘exceptional’, whereas in the case of the OSCE, it means ‘political’. In practice, the OSCE has experienced the implication of the dual legal nature of its legal system as any other organization. In terms of international responsibility, the two faces of international organizations bear important implications for the relationship between organizations and their member states. If an organization is considered an original entity, member states become its internal organs; conversely, if an organization is considered an entity derived from international law, member states become third parties. The implications of the double-face nature of international organizations goes beyond theory. Depending on circumstances and argumentative necessities, they oscillate between their two faces on a day-by-day basis.64 For example, the EU is traditionally considered as a closed autonomous entity by the panels of the World Trade Organization, and as a vehicle for member states before the European Court of Human Rights. The nature of the legal systems developed by international organizations is closely relevant to the configuration of the regime of responsibility governing them. It is essential to determine the possibility of establishing a general regime of responsibility, or whether every organization is subject to a sui generis responsibility regime.65 The perception of organizations as having either original or derived legal systems makes general rules difficult to apply. It is not by chance that the OSCE proposed to move article 64 on lex specialis to Part One of the ILC draft in order to reaffirm that exception is the rule.66 According to this perspective, the OSCE’s exceptionalism is no different from the EU’s exceptionalism.67 They both demand special treatment due to the unclear nature of their legal systems. 62 Philippe Cahier, ‘L’ordre juridique interne des organisations internationales’ in René-Jean Dupuy (ed), Manuel sur les organisations internationales (Nijhoff 1998). 63 Compare, for instance, Alain Pellet, ‘Les fondements juridiques internationaux du droit communautaire’ (1994) 5 Collected Courses of the Academy of European Law with Ličková, ‘European Exceptionalism’ (n 9). 64 Giorgio Gaja, ‘Note Introductive de l’Ancien Rapporteur Special’ (2013) 46 RBDI 9. 65 Jan Wouters and Jed Odermatt, ‘Are All International Organizations Created Equal?’ (2012) 9 IOLR 7. 66 Comments 2011 (n 12) 40. 67 Emmanuel Decaux, ‘L’institutionalisation de la CSCE’ in Emmanuel Decaux and Linos-Alexandre Sicilianos (eds), La CSCE: dimension humaine et règlement des différends (Montchrestien 1993).

The Limits of Exceptionalism 77 The EU demands that the conduct of its member states has to be considered as its own when they are performing actions under its exclusive competence.68 It contends that its legal system is autonomous enough for its member states to transform into quasi-organs of the organization, not dissimilar from a federal state. In sum, it ‘demands’ to be treated as an original legal system with international legal personality. Conversely, the OSCE’s ‘request’ for exceptionalism requires it to be treated as an original legal system without international legal personality.69 The relevance of rebutting this conceptualization is evident. Indeed, this scenario renders the implementation of international responsibility, of both the OSCE itself and of its participating states, most difficult. Under this hypothesis, the OSCE would not have the capacity to conclude international agreements, nor to incur international responsibility. It would not be governed by international law. In sum, it would constitute an independent legal system in the way that national legal systems are independent from international law, but without being a subject of international law. In other words, the OSCE’s status under international law would resemble the status of multinational corporations: institutional networks not founded by the law of any individual legal system, but ‘originally’ created by subjects of national law.70 This image of the OSCE is put forth by those who support the distinction between legally binding and politically binding obligations.71 Indeed, the thesis that participating states are politically obliged to respect OSCE commitments finds its origin in the will to disconnect the organization from international law. The 2006 report on strengthening the effectiveness of the OSCE, titled ‘Common Responsibilities’, alluded to this conceptualization by stating that ‘[t]‌he OSCE is referred to as a community of values. These values are expressed in a number of commitments that are not formally legal, but nevertheless binding, obligations.’72 In this model, the activities of the organization are governed only by its internal legal system, providing for a system of compliance, which functions in parallel with international law and quite detached from it. In this context, the distinction between legally binding and politically binding obligations may have a justification, 68 ILC, ‘Comments and observations received from Governments’ (2004) UN Doc A/CN.4/545, 28; ILC, ‘Comments and observations received from Governments’ (2005) UN Doc A/CN.4/556, 31; ILC, ‘Comments and observations received from Governments’ (2006) UN Doc A/CN.4/568, 127; Comments 2011 (n 12). 69 Comments 2011 (n 12). 70 Jean-Philippe Robé, ‘Multinational Enterprises: The Constitution of a Pluralistic Legal Order’ in Gunther Teubner (ed), Global Law Without A State Aldershot: Dartmouth Gower (Dartmouth 1997) (hereafter Robé, ‘Multinational Enterprises’). 71 Peter Van Dijk, ‘The Implementation of the Final Act of Helsinki: The Creation of New Structures or the Involvement of Existing Ones?’ (1989) 10 Michigan Journal of International Law 110. 72 OSCE, ‘Common Responsibility: Commitments and Implementation, Report submitted to the OSCE Ministerial Council in response to MC Decision No. 17/05 on Strengthening the Effectiveness of the OSCE’ (2006) (hereafter OSCE ‘Common Responsibility’) para 1; Alexandra Gheciu, Securing Civilization?: The EU, NATO and the OSCE in the Post-9/11 World (OUP 2008) 118.

78 Exceptionalism reaffirming the fact that the OSCE commitments are not governed by international law at all, but they belong to a different, and rather separate, legal system. From this perspective, the OSCE is seen as an organization that provides ‘soft security’.73 One may contend that from ‘soft security’ derives ‘soft responsibility’, and indeed this is how internal forms of accountability have been described.74 Within an original legal system, internal systems of compliance are based on what is usually defined as ‘accountability’. This does not mean that only original systems develop mechanisms for accountability, but they are more inclined to adopt this notion for internal compliance. They are not based on the mechanism provided by international responsibility, but on the internal system of implementation.75 For example, the immediate and most basic reaction to the breach of internal values would be expulsion from the community. In fact, the OSCE was the first regional institution to react to the crises in the western Balkans in June 1991, and in 1992 suspended the participation of the Federal Republic of Yugoslavia.76 In those years, the OSCE was also in the process of developing an internal dispute settlement system, consisting of different ‘political’ procedures: the so- called Valletta Mechanism, the CSCE Conciliation Commission, the Directed Conciliation, and the Court of Conciliation and Arbitration.77 The will to maintain a clear separation from international law is reflected in the academic commentaries written in those years. For example, scholars acknowledge the issues arising from the law applicable by the Court of Conciliation and Arbitration.78 The OSCE’s commitments would be subject only to conciliation and not arbitration, because the latter is decided in accordance with international law.79 The scholarly attention has recently shifted to the Electoral Observation Missions deployed by the OSCE’s Office for Democratic Institutions and Human Rights.80 In the absence of internationally binding norms, these missions do not have a clear legal framework within which perform their functions. Again, systems of internal accountability, such as the reports on methodology published by the OSCE’s Office for Democratic Institutions and Human Rights,81 are manifestation 73 Roberto Dominguez, The OSCE: Soft Security for a Hard World: Competing Theories for Understanding the OSCE (PIE Peter Lang 2014). 74 OSCE, ‘Common Responsibility’ (n 72) para 1. 75 Ibid. 76 Stefanova Boyka, ‘Institutionalist Theories. The OSCE in the Western Balkans’ in Roberto Dominguez (ed), The OSCE: Soft Security for a Hard World: Competing Theories for Understanding the OSCE (PIE Peter Lang 2014). 77 Susanne Jacobi, ‘The OSCE Court: An Overview’ (1997) 10 LJIL 281. 78 Luigi Condorelli, ‘En attendant la ‘Cour de conciliation et d’arbitrage de la CSCE’ in Christian Dominicé, Robert Patry and Claude Reymond (eds), Études de droit international en l’honneur de Pierre Lalive (Helbing & Lichtenhahn 1993). 79 Convention on Conciliation and Arbitration within the OSCE (opened for signature 15 December 1992, entered into force 5 December 1994) OSCE Segretariat, art 30. 80 Anne Van Aaken and Richard Chambers, ‘Accountability and Independence of International Election Observers’ (2009) 6 IOLR 541. 81 OSCE, ‘Common Responsibility’ (n 72).

Concluding Remarks 79 of the independence of the organization, and they are often presented as the only available option for ensuring respect for ‘non-legal’ obligations. In this sense, accountability is a notion useful for isolating an internal system from international law. The exceptional nature of the OSCE presents a different set of issues when we go beyond the responsibility of the OSCE and look into that of participating states for their conduct taken in the framework of the OSCE. Indeed, in this case, states could rely on their status as organs of the organization, concealing themselves behind the impermeable institutional veil. As an original entity the organization would lose its transparent quality, resulting in the impossibility of piercing the institutional veil. Such a consequence is no different from what is experienced today in the context of multinational corporations. For instance, concerning the attempts to sue the parent company for the conduct of its subsidiaries.82 Multinational corporations are a de facto entity not recognized by national or international law. Each subsidiary of the group is a singular entity incorporated in a state and is subject to the internal legal order of that state, with the result that the multinational entity constitutes a legal order by itself, with its own peculiarities.83

5.3 Concluding Remarks In conclusion, several international organizations have claimed to possess specific characteristics that would make them radically different from their peers. International organizations rely on legal argumentations built upon their uniqueness to ensure independence from their member states or to lean back against them as needs arise. Functional entities would claim that their specificities consist in the need to assure that member states control each action of the organization. Constitutional entities would claim that their specificities consist in the need to assure the independence from member states. In sum, no over-encompassing concept of an international organization can be successfully identified. The outstanding consequence is that common regulatory regimes cannot be identified either. Each organization could only be regulated on the basis of its constitutive instruments and no basic principle of equality could apply. The ILC projects are based on the false premise that common rules could apply to international organizations just in the way in which they apply to states. Taking an opposite view, I argue that different conceptualizations serve different argumentative strategies and analytical interests. The quality of the attributed functions does not transform a functional entity into a constitutional entity, and vice versa.

82 83

Peter Muchlinski, Multinational Enterprises and the Law (OUP 2007). Robé, ‘Multinational Enterprises’ (n 70).

6

Interim Conclusions In the previous chapters I discussed four alternative concepts of an international organization based on the nature of the law they produce. In particular, the International Law Commission (ILC) has identified four theories on the concept of ‘rules of international organizations’: 1. all rules are international; 2. all rules are internal; 3. only some administrative rules are internal while the rest are international; 4. only some organizations develop internal rules.1 On the basis of these four theses, I identified four corresponding conceptualizations of an international organization in international law. The international nature of the rules (first theory) relates to functionalism. The core idea of this mainstream paradigm is that international organizations derive from international law and the rules they produce possess an international nature.2 The second theory implies that the process of constitutionalization transforms international institutional rules into internal institutional law, relying on an institutive act of constitution, creative of a new order that develops internal obligations.3 The third and fourth theories referred to by the ILC are based on a notion of ‘hybrid’ legal systems, under which the rules of the organizations are created by so-called informal international law- making.4 The informality of this source of law comes from the lack of clarity on the applicable legal regime. Indeed, under this perspective international organizations do not develop comprehensive legal systems and the rules are divided among categories, some belong to international law and others develop an internal system. Similarly, under this perspective the rules of international organizations are the main component of global administrative law (GAL), understood as a qualitative transversal description of norms arising from the legal systems of different international organizations. In this chapter, I intend to expose the false dichotomies that led to the proliferation of the different perspectives. The following pages aim to demonstrate how the four conceptualizations can be applied to a legal dispute concerning the responsibility of international organizations. The circumstances of the case prompt the adoption of one or the other conceptualization on the basis of the argumentative strategy. My analysis highlights the difficulties in providing a general legal 1 ILC, ‘Draft articles on the responsibility of international organizations, with commentaries’ (2011) UN Doc A/66/10 (hereafter ARIO) 63. 2 Chapter 2. 3 Chapter 3. 4 Chapters 4 and 5.

The Concept of an International Organization in International Law. Lorenzo Gasbarri, Oxford University Press (2021). © Lorenzo Gasbarri. DOI: 10.1093/oso/9780192895790.003.0006

Competing Concepts of an International Organization 81 framework to establish the responsibility of international organizations and/or of their member states. I will conclude that the adoption of an international legal framework applicable to all international organizations is conditional upon rebutting limited perspectives and adopting an ‘absolute point of view’.

6.1 Al-Dulimi and the Competing Concepts of an International Organization The relationship between the European Court of Human Rights (ECtHR) and international organizations has always been complex. Different approaches have been applied to solve the legal dilemmas concerning human rights violations in the context of activities carried out by member states of international organizations. The two Al-Dulimi cases are the most recent, but probably not the last occasion on which the ECtHR will have to disentangle this complex situation.5 Different interests are at stake when the principle of independent responsibility of international organizations comes up against the lack of jurisdiction ratione personae, limiting the effective protection of human rights. The facts of the case concern the sanctions regime which the UN Security Council imposed on Iraq, yet the legal issue at stake had roots in the complex relation between the European Convention on Human Rights (ECHR) and international organizations at large. The application was filed on behalf of Montana Management Inc, a company based in Panama, against Switzerland for the violation of the right to a fair trial. The applicant complained of the denial of the right of appeal against the confiscation of the company’s assets. Switzerland justified its action on the basis of UN Security Council Resolution 1483(2003), which did not leave a margin of implementation to UN member states. This ECtHR case perfectly illustrates how the same international organization (in this case the UN) can be treated differently within a single legal order (in this case the Council of Europe), depending on the circumstances of the case and different conceptualizations of an international organization. In order to judge the responsibility of member states without expressly discussing the role of the UN for lack of jurisdiction, the Court was obliged to shift from one concept to another. In particular, the Court moves between functionalist and constitutionalist approaches, but it also takes into account the relevance of sui generis organizations (exceptionalism) and of particular acts within the organization (informalism).

5 Al-Dulimi v Switzerland App no 5809/08 (ECtHR, 26 November 2013) (hereafter Al-Dulimi Chamber); Al- Dulimi and Montana Management Inc v Switzerland App no 5809/ 08 (ECtHR Grand Chamber, 21 June 2016) (hereafter Al-Dulimi Grand Chamber). This chapter is based on the ideas already included in Lorenzo Gasbarri, ‘Al-Dulimi and Competing Concepts of International Organizations’ (2016) 1 European Papers 1117.

82 Interim Conclusions Later, in Chapter 11, I will rebut the either/or approach and extensively discuss issues of international responsibility. These interim conclusions are only a summary of the previous findings applied to the current status of the debate on the responsibility of international organizations and their member states before the ECtHR.

6.1.1 Admissibility ratione personae: attribution of conduct In both Al-Dulimi judgments, the ECtHR seems to have no doubts about the admissibility of claims against the conduct of states in their implementation of acts issued by international organizations. Member states are responsible for their own conduct, which is not exclusively attributable to international organizations. Copying and pasting the argumentation adopted in Nada,6 the Chamber distinguished the facts of the case from the facts that characterized the inadmissibility of Behrami and Saramati,7 affirming that UN resolutions required the state to act in its own name, and to implement the sanctions at national level. However, Switzerland was also left without sufficient discretion as to how to implement the resolutions. As pointed out by Judge Sajó in his partly dissenting opinion, the case could be similar to the Behrami and Saramati case, in which member states were defined as quasi-organs of the organization. Indeed, the Behrami and Saramati approach excludes state responsibility, considering that the relevant conduct is attributed exclusively to the organization. Consequently, member states act as quasi-organs and their autonomous international personality disappears behind the institutional veil of the organization. A different approach was adopted in Al-Jedda, in which the Court relied on the different circumstance of the authorization issued by an international organization.8 The Court considered that UN authorization did not transform the acts of soldiers within a multinational force into UN conduct. It should be recalled that the Court went as far as stating that the UN had neither effective control nor ultimate authority or control over the forces. As will be developed in Chapter 11, different approaches to the attribution of conduct to member states imply different approaches to the attribution of conduct to international organizations and, consequently, engage or not their responsibility. The Behrami and Saramati approach would result in considering member states as UN organs, and therefore would mean the adoption of the criterion enshrined in 6 Nada v Switzerland App no 10593/08 (ECtHR Grand Chamber, 12 September 2012). 7 Behrami v France and Saramati v France, Germany and Norway App nos 71412/01 and 78166/01 (ECtHR, 5 May 2007). 8 Al-Jedda v the United Kingdom App no 27021/08 (ECtHR Grand Chamber, 7 July 2011) (hereafter Al-Jedda).

Competing Concepts of an International Organization 83 article 6(1) ARIO.9 The Nada and Al-Dulimi approach would result in considering member states as independent entities, whose conduct, however, could trigger UN responsibility by virtue of the criterion of effective control under article 7 ARIO.10 Lastly, the Al-Jedda approach would also result in considering member states as independent entities, yet article 7 ARIO would not trigger UN responsibility in the absence of effective control. When the relationship between the organization and the member state is based on article 6 ARIO, the member state is considered an organ of the organization. The legal nature of the rules that governs this relationship is internal UN law and the constitutional concept of an international organization is triggered. Consequently, the conduct is exclusively attributed to the organization and the member state cannot be considered responsible for the wrongful act. Conversely, when the relationship between the organization and the member states is based on article 7 ARIO, the member state is considered as an independent subject. The legal nature of the rules that govern this relationship is international and the functionalist concept of an international organization is triggered. Consequently, the conduct is also attributable to the member state, which can be considered responsible for the wrongful act. The respondent’s litigation strategy perfectly demonstrates the legal argumentation that can be formed upon each of the two conceptualizations. A paradigmatic example of such argumentation is offered by the United Kingdom in the Al-Jedda case. On the one hand, the United Kingdom demanded the application of the Behrami and Saramati criterion on the attribution of conduct to claim that the case was inadmissible. On the other hand, with regard to the merits of the case, the United Kingdom demanded the primacy of UN obligations over ECHR obligations by virtue of article 103 of the UN Charter.11 The first submission implied a constitutional conceptualization. The second implied that obligations pertaining to two different regimes coexist in the same legal system, as functionalism requires.

6.1.2 Merits: coexistence or conflict of obligations? The two judgments in Al-Dulimi differ on the merits in the adoption of two different approaches to find Switzerland responsible. The Chamber relied on the 9 ARIO (n 1) art 6(1): ‘The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of the organization.’ 10 Ibid art 7: ‘The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.’ 11 Al Jedda (n 8) para 60.

84 Interim Conclusions presumption of equivalent protection, while the Grand Chamber relied on the presumption of harmonious interpretation. Beneath both approaches lies the application of the different conceptualizations of an international organization. They are employed to tackle the complex relationship between human rights standards and UN Security Council resolutions. On a textual level, the Chamber began with addressing the core issue with the heading: ‘Coexistence of Convention guarantees and obligations imposed on States by Security Council resolutions’.12 Conversely, the Grand Chamber addressed the conflict of obligations only after ascertaining if there had been a limitation of the right to a fair trial and a legitimate aim of the measures contested. The Court considered that the conflict of obligations falls under the analysis of ‘the proportionality of the limitation in question’.13

6.1.2.1 The Chamber: equivalent protection and constitutionalism In Al-Dulimi, the Chamber considered that Switzerland had merely implemented UN resolutions, and, therefore, was not responsible if the UN possesses a system of human rights protection equivalent to that of the ECHR. The equivalent protection is one of the earliest approaches developed by the ECtHR to deal with international organizations.14 It was employed to exclude member states’ responsibility when the conduct is adopted in a legal regime that guarantees a human rights protection equivalent to that of the ECHR. The Bosphorus presumption has been used as a means to consider the role of an organization when the member state does no more than implement legal obligations flowing from its membership.15 The presumption of equivalent protection is based on a constitutionalist conceptualization of an international organization, not too different from the Behrami and Saramati presumption in the context of the attribution of conduct. Indeed, in Bosphorus, the Court relied on the evolutionary sprit of the EU to claim that the organization had developed an internal system of human rights protection equivalent to that of the ECHR. Consequently, it held that no violation occurred. When the presumption is applied the Court recognizes the non-international nature of the legal system in which the state acted. The particular EU legal system, or UN legal system, is outside the Court jurisdiction and it cannot look into the proportionality of the measure or whether it pursues a legitimate aim. Similar to the Behrami and Saramati approach, the application of the presumption of equivalent protection allows member states to hide behind the institutional veil of their organization.

12 Al-Dulimi Chamber (n 5) paras 111–22. 13 Ibid paras 137–49. 14 M and Co v Germany App no 13258/87 (Commission Decision, 9 February 1990). 15 Bosphorus Hava Yollari Turizm ve Ticaret AS v Irelan App no 45036/ 98 (ECtHR, 13 September 2001).

Competing Concepts of an International Organization 85 However, in Al-Dulimi the Chamber contended that the UN does not provide a mechanism of protection equivalent to that of the ECHR and rebutted the presumption. The rebuttal had the consequence that Switzerland resurfaced from the institutional veil to appear as an independent subject. In practice, the Court rejected the constitutionalist conceptualization of the UN and went on to determine whether the contested measures were legitimate and proportional. Having rebutted the presumption of equivalent protection in the UN system, the Court recognized the transparency of the institutional veil of the organization behind which the state acted. Similar to the Al-Jedda and Nada cases, it considered that member states are independent subjects. Indeed, the Chamber completely ignored the origins of the measures implemented by member states and did not discuss the eventual conflict of obligations that arose once it rebutted the presumption of equivalent protection. It simply stated that the measure had a legitimate aim but was not proportional.16 In short, the Court relied on a false syllogism between non-equivalent protection and violation of the obligations without considering that member states acted to fulfil their obligations as UN members. If the protection is equivalent and the constitutional conceptualization is applied, the member state does not face the dilemma of which obligation to respect and will follow its duties of membership. However, if the human rights protection is not equivalent to the ECHR, a conflict of obligations arises leaving the member state with a choice between breaching its obligations either with the ECHR or the UN. Article 103 of the UN Charter should play a role at this point in the reasoning to claim the supremacy of UN obligations. However, as will be discussed in the next section, article 103 applies only if ECHR obligations are considered as international obligations.17 The Chamber mixed up the four concepts of an international organization to find a solution to the case. As we have seen, constitutionalism is relevant to apply the Bosphorus presumption, while functionalism is relevant when the Bosphorus presumption is rebutted. Moreover, further confusion is created by the fact that the Bosphorus presumption was developed in the context of a particular international organization, the EU, and in the context of particular rules of other organizations, such as the employment relationship.18 Consequently, informalism becomes relevant when claiming that the presumption of equivalent protection can be applied only when member states act in a particular institutional context, such as the employment relationship. Exceptionalism is relevant to claim that this presumption can be applied only when member states act within those particular organizations 16 Al-Dulimi Chamber (n 5) paras 123–35. 17 UN Charter, art 103: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ 18 Waite and Kennedy v Germany App no 26083/94 (ECtHR, 18 February 1999).

86 Interim Conclusions which possess an internal legal system, such as the EU. Indeed, as the Al-Dulimi Chamber judgment demonstrates, the presumption of equivalent protection creates problems when it is rebutted and internal UN law is considered to possess an international nature.

6.1.2.2 The Grand Chamber: harmonic interpretation and functionalism Whilst the Chamber does not discuss article 103 of the UN Charter, the main concern of the Grand Chamber was to avoid a conflict between UN and ECHR obligations. Consequently, it first bypassed the presumption of equivalent protection and immediately turned to addressing the compatibility of state conduct with human rights standards. It recognized that the applicant suffered major limitations to its right, even if justified by a legitimate aim. Subsequently, the Grand Chamber moved on to discuss the proportionality of the measure and decided to address the conflict of obligations under this section. It is not clear why article 103 of the UN Charter was analysed at this level of the Court’s reasoning. The conflict of obligations is related to the interaction between legal regimes and it seems better situated after the recognition that the conduct violated the Convention. Only then could the violation be justified by the supremacy of the UN Security Council Resolution. The Grand Chamber highlighted the role of article 103 of the UN Charter in international law, and excluded the jus cogens nature of the right at stake. As a result, the conflict arises between ECHR human rights obligations and UN Security Council resolutions. In its case law, the Court had adopted different approaches to solve this. In Al-Jedda, the Court considered that the resolution authorized the member state to take measures to contribute to the maintenance of security and stability in Iraq, but it did not authorize the state to violate its human rights obligations. In Nada, the Court considered the language of the resolution to be clear enough to impose a conduct capable of breaching human rights. However, the Resolution did not impose a particular model for its implementation, leaving a certain latitude to the member state. In Al-Dulimi, the Grand Chamber initially sought to find a harmonious interpretation.19 It then clarified that it did not intend to evaluate the legality of UN resolutions, which are issued to achieve the purposes of the UN Charter, including the promotion of respect for human rights.20 Finally, it applied the Al-Jedda presumption to the present case: there must be a presumption that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights (ibid.). In the event of any ambiguity in the terms of a UN Security Council

19 20

Al-Dulimi Grand Chamber (n 5) para 138. Ibid para 139.

Competing Concepts of an International Organization 87 resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law (ibid.). Accordingly, where a Security Council resolution does not contain any clear or explicit wording excluding or limiting respect for human rights in the context of the implementation of sanctions against individuals or entities at national level, the Court must always presume that those measures are compatible with the Convention. In other words, in such cases, in a spirit of systemic harmonisation, it will in principle conclude that there is no conflict of obligations capable of engaging the primacy rule in Article 103 of the UN Charter.21

The application of the harmonic interpretation is founded on a functionalist concept of international organizations, because it is the international nature of both ECHR obligations and UN Security Council resolutions that resolve the conflict and the presumption of compatibility. Conversely, other organizations such as the EU have relied on their constitutional nature to avoid the conflict and to claim the supremacy of their internal legal system.22 Indeed, the supremacy of UN obligations established in article 103 only applies to international obligations and not to obligations that pertain to a legal system of a non-member such as the EU or the Council of Europe. To claim that EU members are also UN members and, consequently, the EU is bound by UN obligations means applying a functionalist conceptualization as I will discuss in Chapter 9 on the law of treaties. In sum, the Grand Chamber argued that the Resolution ‘cannot be understood as precluding any judicial scrutiny of the measure taken to implement it’.23 From this conclusion, the Court deduced two fundamental findings: first, a real conflict of obligations capable of engaging article 103 of the UN Charter did not occur; second, the question whether the equivalent protection test should be applied was nugatory.24 Both findings can be criticized. First, concerning the conflict of obligations, the Grand Chamber inevitably ruled on the conflict, portraying as interpretation the supremacy of human rights obligations. Second, the Grand Chamber inevitably applied and rebutted the presumption of equivalent protection, as revealed in the concurring opinion of Judge Pinto de Albuquerque.25 21 Ibid para 140. 22 Joined Cases C-402-05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I 6351. 23 Al-Dulimi Grand Chamber (n 5) para 148. 24 Ibid para 149. 25 Ibid concurring opinion of Judge Pinto de Albuquerque, joined by Judges Hajiyev, Pejchal, and Dedov, para 54.

88 Interim Conclusions

6.2 In the Following Pages The application of different concepts of international organizations has outstanding implications for the possibility of establishing a legal regime in which every organization and every rule of the organization is subject to the international legal framework. To counter this fragmentation, the following pages will present a theory under which international organizations are neither purely functionalist nor purely constitutionalist subjects and are characterized by the dual legal nature of the law they produce. They constitute separate legal systems deriving from international law.26 Chapter 11 will discuss international responsibility and dual attribution of conduct, but to conclude on the Al-Dulimi case and to introduce the relevance of the dual legal nature is useful to close Part I of the book with final remarks on this case. Preliminary, the recognition of the dual legal nature requires an abstract analysis, not affected by the jurisdictional limitation of a Court. It is necessary to overturn the perspective of the ECtHR which deals with international organizations only with the intention of finding ways to avoid ruling on their responsibility. Whenever the conduct of a state is taken in the context of an international organization, both entities have to be considered by reason of their participation in the wrongful act. At the level of admissibility, the facts of the case should define whether the conduct is attributed to an organ of the organization (article 6 ARIO) or if the organization has effective control (article 7 ARIO). In both cases the role of member states should not be undervalued. The extent of latitude in implementing the act of the organization should play a role at this stage of the reasoning. Indeed, this factual variable can be used to distinguish whether the conduct is attributed to the organization by means of article 6 or 7 ARIO. A state organ can be considered as an organ of the organization if the rules of the organization affirm so, or if it is fully seconded to the organization. Conversely, if the state has a margin of decision on how to implement the measure, the conduct can still be attributed to the organization under article 7 ARIO. This is not far from what the ECtHR is doing already with the purpose of avoiding ruling on the organization, but I will return to it in Chapter 11, after describing the concept of international organizations as dual entities. On the merits, the presumption of equivalent protection can be used to exclude human rights violations. If the presumption is applied, there is no conflict of obligations between what is imposed by the ECHR and what is imposed by the organization. This could still lead to member state responsibility, for example, if the state wrongfully implements the resolution. 26 In the words of the European Court of Justice: ‘the Community constitutes a new legal order of international law’ in Case 26/62 van Gend & Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.

In the Following Pages 89 If the presumption is rebutted, there will be a conflict of obligations between what is imposed under the ECHR obligations and that of the organization. The conflict of obligations does not depend on whether the relevant organization is the EU, the UN, or NATO. In general, organizations tend to claim the supremacy of their own norms. Article 103 of the UN Charter is a rule of coordination. Similar rules are enshrined in other constitutive instruments, as in article 351 of the Treaty on the Functioning of the European Union (TFEU). The latter is a rule of the organization that regulates only one possible form of conflict, granting priority to treaties concluded by member states prior to the entry into force of the EC treaties, or prior to the date of accession. However, in its jurisprudential application, article 351 TFEU has been applied extensively to claim that it protects only the rights of third parties, while the rights of member states under such treaties have to be considered substantially renounced.27 Neither the Council of Europe nor the EU are hierarchically superior to the UN because they are based on a constitutionalist conceptualization of an organization unaffected by the international nature of UN norms. In their legal system, organizations can autonomously identify the rules that govern their relation with other regimes. Considering organizations as purely constitutional entities would imply that states act as organs of the organizations and it is possible that they are obliged to respect a norm as members of an organization and be responsible for the violation of another norm as members of a different organization. Considering organizations as purely functionalist entities, states would act as independent sovereign entities and the conflict of norms can be solved by interpretation or claiming the supremacy of one obligation. All rules of all organizations are international law and the supremacy of UN resolutions is based on a norm of international law such as article 103 of the UN Charter. Under the dual nature, the rules are simultaneously internal and international and member states are neither organs nor third parties in relation to their organization. Excluding a few circumstances, dual attribution is the most probable outcome. This does not mean joint and several liability as I will discuss in Chapter 11, after describing the concept of international organizations as dual entities.

27

See, in general, Jan Klabbers, Treaty Conflict and the European Union (CUP 2009).

PART II

IN T E R NATIONA L ORGA N IZ ATIONS AS DUA L E N TI T I E S Part I discussed the various concepts of international organizations as theories that are capable of explaining only limited aspects of the institutional life of an organization. Conversely, Part II seeks to find a better, more comprehensive understanding of the ‘double visage de l’organisation international’.* The first chapter of Part II (Chapter 7) lays out the theoretical implications of the dual legal nature. Chapter 8 describes the dual nature in practice, distinguishing between the sources of law that constitutes the category of ‘rules of international organizations’. Afterwards, I will present the dual nature theory in the context of the law of treaties (Chapter 9), ultra vires acts (Chapter 10), and international responsibility (Chapter 11).

*

Michel Virally, L’organisation mondiale (Armand Colin 1972) 30.

7

A Venture into Legal Theory The law of international organizations has yet to develop methods and concepts for assessing the nature of their legal systems.1 For instance, the debates on ‘transnational legality’ usually do not focus on these institutions and pivot around the characteristics of non-international legal orders, such as lex mercatoria as an autonomous legal order.2 Relevant discussions focus on the interactions between a legal system and its external environment and on the methods of analysing its degree of openness.3 This chapter seeks to apply their findings to international organizations, aiming at, first, providing a theoretical framework to describe the qualities of their legal systems, and, second, at discussing how these legal systems interact with their environment. I will analyse these particular orders by applying some of the analytical instruments developed in the framework of the debates on ‘Law Without the State’.4 In particular, I will focus on the so-called ‘problem of identity’ and analyse the criteria that determine the system to which a given law belongs.5 Indeed, every rule must belong to a legal system,6 otherwise they would not be law at all.7 The starting point is the theoretical background established by the studies on legal pluralism. Andrea Bianchi contended that legal pluralism is a characteristic of the postmodern age, under which states have lost their law-making monopoly.8 The rise of non-state law and transnational networks reflects the coexistence of several legal systems which overlap and conflict. The pluralist system accepts the existence of incoherencies and subsumes them under a universal network.9 1 See, for instance, Max Sørensen, ‘Autonomous Legal Orders: Some Considerations Relating to a Systems Analysis of International Organisations in the World Legal Order’ (1983) 32 ICLQ 559 and Julie Dickson, ‘How Many Legal Systems? Some Puzzles Regarding the Identity Conditions of, and Relations between, Legal Systems in the European Union’ (2008) 9 Problema: Annuario de Filosophia y Teoria del Derecho 9. 2 Gunther Teubner (ed), Global Law without a State (Dartmouth 1997) 8. 3 Michel van de Kerchove and François Ost, De la pyramide au réseau? (Publications des Facultés universitaires Saint-Louis 2002) (hereafter Kerchove and Ost, De la pyramide) 183. 4 This intuition was developed in 2015 during the course ‘Law Without the State’ of Professor Thomas Schultz at the Graduate Institute of International and Development Studies. 5 Joseph Raz, The Concept of a Legal System: An Introduction to the Theory of a Legal System (2 edn, OUP 1980) 1. 6 Ibid 16. 7 In the plethora of scholarly opinions, this hypothesis is not missing. See Giorgio Balladore Pallieri, ‘Le droit interne des organisations internationales’ (1967) 127 RCADI 1, 36. 8 Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (OUP 2016) 227. 9 William Burke-White, ‘International Legal Pluralism’ (2003) 25 MJIL 963, 977.

The Concept of an International Organization in International Law. Lorenzo Gasbarri, Oxford University Press (2021). © Lorenzo Gasbarri. DOI: 10.1093/oso/9780192895790.003.0007

94 A Venture into Legal Theory Counteracting forces drive towards a fragmentation of regulatory regimes or towards interrelatedness and coherence. The most famous definition of legal pluralism was probably given by Boaventura de Sosa Santos, who employed the term ‘interlegality’ to contend that: Legal pluralism is the key concept in a postmodern view of law. Not the legal pluralism of traditional legal anthropology in which the different legal orders are conceived as separate entities coexisting in the same political space, but rather the conception of different legal spaces superimposed, interpenetrated, and mixed in our minds as much as in our actions, in occasions of qualitative leaps or sweeping crises in our life trajectories as well as in the dull routine of eventless everyday life. We live in a time of porous legality or of legal porosity, of multiple networks of legal orders forcing us to constant transitions and trespassings. Our legal life is constituted by an intersection of different legal orders, that is, by interlegality. Interlegality is the phenomenological counterpart of legal pluralism and that is why it is the second key concept of a postmodern conception of law.10

Issues of legal pluralism are often debated within various disciplines concerned with the question of authority such as international relations/political science, sociology and law, just to name a few.11 When it comes to law, the absence of hierarchical relations among regimes seems to blur the kind of certitude that law claims to provide. The role of law is challenged by the ‘liquefaction of authority’, which transforms the way in which we can speak in terms of legal systems.12 Legal pluralism was described by Nico Krisch as ‘an order in which the relationships of the constituent parts are governed not by an overarching legal framework but primarily by politics, often judicial politics; where we find heterarchy, not hierarchy’.13 Under this conception, global governance is constituted by an heterarchical interaction of various layers of law. The absence of a hierarchical relationship among legal systems is the usual starting point to debate their relative interactions.14 Consequently, law is seen as an instrument for ‘damage limitation’, unable to rule on the collisions amongst systems and provide harmony.15 Lawyers have named 10 Boaventura de Sousa Santos, ‘Law: A Map of Misreading. Toward a Postmodern Conception Of Law’ (1987) JLS 279 (hereafter de Sousa Santos, ‘Law: A Map of Misreading’ 297. On the concept of interlegality in general, also see Jan Klabbers and Gianluigi Palombella, The Challenge of Inter-legality (CUP 2019). 11 See, for instance, the OSAIC project (Overlapping Spheres of Authority and Interface Conflicts in the Global Order) at . 12 Nico Krisch, ‘Liquid Authority in Global Governance’ (2017) 9 International Theory 237, 252. 13 Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (OUP 2010) 111. 14 François Rigaux, ‘La relativité général des ordres juridiques’ in Eric Wyler and Alain Papaux (eds), L’extranéité ou le dépassement de l’ordre juridique étatique (Pedone 1999). 15 See Andreas Fischer-Lescano and Gunther Teubner, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’ (2003) 25 MJIL 999, 1045.

Concept of Legal System Applied to Organizations 95 their fears of fragmentation and sought to tackle conflicts of norms using the traditional tools.16 I contend that hierarchy is not the only formal way in which legal systems interplay.17 The absence of hierarchy in the interactions between legal systems does not prevent the development of other forms of interconnections that characterize the capacity of international organizations to develop legal systems. Indeed, the network of overlapping legal systems creates a structure for legal interactions which are not hierarchical, yet formally interconnected. Indeed, the dual legal character of international organizations is a step towards the non-hierarchical interaction among legal systems, one in which the law has yet a role to play.

7.1 The Concept of Legal System Applied to International Organizations The International Law Commission (ILC) study group on fragmentation contended that: International law is a legal system. Its rules and principles (i.e. its norms) act in relation to and should be interpreted against the background of other rules and principles. As a legal system, international law is not a random collection of such norms. There are meaningful relationships between them. Norms may thus exist at higher and lower hierarchical levels, their formulation may involve greater or lesser generality and speciﬁcity and their validity may date back to earlier or later moments in time.18

This definition is based on the conventional notion of system as employed by Combacau: ‘Un ensemble dont les éléments ne s’agrègent pas au hasard mais constituent un «ordre» en ce qu’ils sont reliés les uns aux autres et à l’ensemble lui- même par des liens tels qu’on ne peut envisager l’un de ces éléments isolé de son entourage sans l’analyser faussement.’19 I do not see any reason to diverge from this definition of system and legal system in the context of international organizations. However, the ILC conclusions never refer to international organizations explicitly. They merely focus on the broader concept of ‘self-contained regimes’, under which ‘[a]‌group of rules and

16 ILC, ‘Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law’ (2006) UN Doc A/61/10 (hereafter ILC, ‘Fragmentation’). 17 Keith Culver and Michael Giudice, Legality’s Borders: An Essay in General Jurisprudence (OUP 2010) Chapter 4 in general and 161 in particular (discussing the EU). 18 ILC, ‘Fragmentation’ (n 16) 177. 19 Jean Combacau, ‘Le droit international: bric-à-brac ou système?’ (1986) 31 APD 85, 85.

96 A Venture into Legal Theory principles concerned with a particular subject matter may form a special regime (“self-contained regime”) and be applicable as lex specialis. Such special regimes often have their own institutions to administer the relevant rules.’20 In fact, the ILC did not clearly differentiate between special regimes constituted by areas of international law such as human rights law or humanitarian law and special regimes constituted by international organizations.21 In both cases, it contended that the relationship with international law is based on the lex specialis principle, meaning that the rules of international organizations are still part of international law. The main example of the international law nature of the special regime created by an international organization mentioned by the ILC is the World Trade Organization (WTO) law.22 Also in the context of international responsibility, I have already mentioned how the Chairman of the study group, Martti Koskenniemi, reacted against the proposal to take a clear position on the internal nature of the rules of certain organizations.23 I contest the analogy between special regimes of international law and international organizations, which is based on a state-centric, functionalist, conceptualization. I contend that the main problem of conceptualizing international organizations is how to apply the concept of legal system to these institutions in a way that would reconcile the four approaches I described. George Abi Saab identified three main notions of legal system.24 The first refers to the Kelsenian pure theory of law, based on the fundamental development of centralized sanctions.25 Under this theory, the belonging of a rule to a legal system is determined by a hierarchical relationship which connects every norm to a fundamental ‘Grundnorm’, which guarantees the validity of the entire system. Another theory of a legal system mentioned by Abi Saab is Santi Romano’s institutionalism.26 Santi Romano considered that the unity of a legal system is materialized by the presence of an institution. Rules are only the instruments through which an organization acts: ‘le droit avant d’être norme, avant d’avoir trait à un ou plusieurs rapports sociaux, est organisation, structure, attitude de la société même dans laquelle il est en vigueur et qui par lui s’érige en unité, en un être existant par soi-même’.27 20 ILC, ‘Fragmentation’ (n 16) 179. 21 ILC, ‘Fragmentation of International Law: Difficulties arising from the diversification and expansion of international law Report of the Study Group of the International Law Commission finalized by Martti Koskenniemi’ (2006) UN Doc A/CN.4/L.682 2006, para 129. 22 Ibid paras 134 and 165ss. 23 See Part 1, Chapter 3, Section 3.2.1. 24 Georges Abi-Saab, ‘Cours général de droit international public’ (1987) 207 RCADI 23 (hereafter Abi-Saab, ‘Cours général’) 106. 25 Hans Kelsen, Pure Theory of Law (University of California Press 1967) (hereafter Kelsen, Pure Theory of Law). 26 Santi Romano, L’ordinamento giuridico (Mariotti 1917) (hereafter Romano, ordinamento giuridico). The English translation only came after 100 years, see Santi Romano, The Legal Order (Taylor & Francis 2017). 27 Santi Romano, L’ordre juridique (Dalloz 1975) 19, para 10.

Concept of Legal System Applied to Organizations 97 Finally, the third notion of legal system is the analytical theory of HLA Hart.28 He divided the rules of a legal system into two categories. Primary rules of obligations are those norms that regulate the conduct of the subjects of the legal system. Secondary rules are those norms that regulate the functioning of primary rules. There are three categories of secondary norms. Rules of change concern the creation, modification, and extinction of primary rules. Rules of adjudication concern the application of primary obligations. Finally, rules of recognition concern the identification of the norms that belong to the legal system. They are at the foundation of every legal system and determine the criteria for identifying primary obligations and justifying their validity. My approach rebuts the Kelsenian conception of legal system which, as I mentioned in Part I, Chapter 2, was mostly applied by debates on the original or derivative qualities of international organizations, during the 1960s and 1970s.29 These debates were defined by a strict voluntarist approach which ultimately failed to apply the hierarchical nature of the Kelsenian pyramid of norms to the relativist and network-centred systems of international organizations.30 They mainly focused on the subjects of a legal system. For instance, the derived nature of international organizations was justified by the fact that states pre-exist and create the new entity. Moreover, the monist quality of Kelsen’s theory casts doubts on narratives that support the capacity of international organizations to create universal legal systems. For instance, many studies have focused on the capacity of the UN Charter to develop a global constitution of the international community.31 Functionalist theories rely on international law to argue that the law produced by international organizations is universally applicable. The embedded narrative in functionalist theories conceptualizes international organizations as the ‘salvation of mankind’, able to solve political conflicts through cooperation by elevating them to the global level.32 However, the derivation from international law itself is the fallacy at the core of the theory. Indeed, a legal system cannot achieve universality if it is founded on the law of a pre-existent legal system. This argument shows the 28 Herbert Lionel Adolphus Hart, The Concept of Law (3rd edn, OUP 2012) (hereafter Hart, The Concept of Law) 100. 29 Philippe Cahier, ‘L’ordre juridique interne des organisations internationales’ in René-Jean Dupuy (ed), Manuel sur les organisations internationales (Nijhoff 1998). 30 On hierarchy and relativism, see Kerchove and Ost, De la pyramide (n 3) 13. 31 Bruno Simma, ‘The Contribution of Alfred Verdross to the Theory of International Law’ (1995) 6 EJIL 33; Pierre-Marie Dupuy, ‘L’unité de l’ordre juridique international: cours général de droit international public’ (2002) 297 RCADI 215 (hereafter Dupuy, ‘Cours general’); Bardo Fassbender, The United Nations Charter as the Constitution of the International Community (Brill 2009); Bardo Fassbender, ‘Rediscovering a Forgotten Constitution: Notes on the Place of the UN Charter in the International Legal Order’ in Jeffrey L Dunoff and Joel P Trachtman (eds), Ruling the World? Constitutionalism, International Law and Global Governance (CUP 2009). 32 Nagendra Singh, Termination of Membership of International Organisations (Stevens &Sons 1958), as debated in Jan Klabbers, ‘The EJIL Foreword: The Transformation of International Organizations Law’ (2015) 26 EJIL 9, 29.

98 A Venture into Legal Theory paradoxical reasoning under which the fallback to international law justifies the universal aspiration of the law created by international organizations. However, only a contracting-out from international law would potentially achieve the creation of a global rule of recognition by an international organization. Indeed, it is difficult to sustain that the current status of international law has led to the creation of an international organization with universal reach based on a global rule of recognition. In this regard, in 2009 Kingsbury contended that global governance law had not yet developed a rule of recognition.33 He did not disregard this possibility, but at that time he only recognized the existence of specific rules of recognition in particular regimes, which increasingly overlap or mesh with one another. Similarly to Kingsbury, my approach is based on Hart’s theory of legal systems. I consider that the creation of legal systems by international organizations led to the development of a plurality of rules of recognition founded on the constitutive instrument of each organization. The next section will discuss Hart’s rule of recognition and the relevance of the point of view for understanding why international organizations have been perceived under different conceptualizations. I then probe into Santi Romano’s institutionalism and how it can be used to explore the interplays between rules of recognition as developed by international organizations and international law. Finally, I will develop the dual nature of international organizations in the context of legal pluralism.

7.2 The Point of View and Hart’s Rule of Recognition The difficulty in applying the concept of a legal system to international organizations are due to the unclear relationship between organizations and member states. This is because international organizations are ‘transparent’ institutions, neither self-contained in the way in which states are, nor perfectly open to international law, as the conferences of the parties to a treaty.34 Consequently, there is uncertainty as to whether international organizations are able to develop internal rules of recognition and legal systems producing laws which is no longer international. The question is whether the international instrument that creates an institution is also the foundation of its internal constitutional order. The notion of relative legality explains why international organizations can be analytically described either as special regimes that produce international law or as self-contained regimes that produce internal law. This section differentiates between perspectives of legality to reveal how the point of view modifies the 33 Benedict Kingsbury, ‘The Concept of “Law” in Global Administrative Law’ (2009) 20 EJIL 23. 34 Catherine Brölmann, The Institutional Veil in Public International Law: International Organisations and the Law of Treaties (Hart 2007) (hereafter Brölmann, The Institutional Veil) 11.

The Point of View and Hart’s Rule of Recognition 99 belonging of a rule to a legal system.35 It will show why it is relevant to discuss the capacity of international organizations to develop legal systems and what past debates have missed. In a nutshell, I will contend that the point of view has important effects on the concept of international organizations’ legal systems. Relative legality is an internal point of view adopted within the boundaries of a legal system to determine its content.36 It is what a legal system perceives through its rule of recognition.37 It can recognize a norm as its own or as belonging to a different legal system. For instance, if the law-making mechanism of the international legal system affirms that a resolution of the Security Council is international law, it becomes law of this system under its perspective. Conversely, if the law-making mechanism of the organization’s legal system affirms that the same resolution is internal UN law, it becomes law of this system under its perspective. When the legal system ‘A’ recognizes a norm as its own law or as belonging to legal system ‘B’, it adopts an internal point of view. Indeed, the adoption of a point of view affects the relationship between legal systems: ‘order A may be relevant for B but not for C, while both B and C be irrelevant for A’.38 Once a legal system applies a norm recognizing that it belongs to a different legal system, it reproduces the content of the norm within its system despite both the internal point of view of the system that created the norm and the absolute legality of the legal system. It is a consequence of the so-called ‘Midas principle’:39 what a legal system says is law becomes law belonging to that legal system; what legal system ‘A’ says is law that belongs to legal system ‘B’ becomes law of that system under the perspective of ‘A’. In sum, ‘The power to determine relative legality belongs to the official of the recognizing system.’40 Under one perspective of relative legality, the legal system of international organizations can be perceived as deriving from international law and the criteria to ascertain the validity of its rules are international. Under a different perspective of relative legality, a particular legal system has the power to attribute the rules of international organizations to its internal legal system and eventually to consider only internal criteria of validity. The absolute legality of a norm is attributed by an observer who recognizes the existence of a plurality of points of view. Being external to the legal system under study means not being affected by its rule of recognition.41 However, there are no points of view that are external to any legal system. Indeed, the internal or external perspective is only a matter of perspective, which define 35 Thomas Schultz, Transnational Legality: Stateless Law and International Arbitration (OUP 2014) (hereafter Schultz, Transnational Legality) 81. 36 Hart, The Concept of Law (n 28) 100. 37 Schultz, Transnational Legality (n 35) 86. 38 Ibid. 39 Kelsen, Pure Theory of Law (n 25) 161. 40 Schultz, Transnational Legality (n 35) 84. 41 Hart, The Concept of Law (n 28) 102.

100 A Venture into Legal Theory how legal phenomena may be apprehended. Analytical jurisprudence contends that distinguishing between points of view remainss an epistemological orientation.42 Kerchove and Ost considered the existence of an internal and an external point of view. They argued that while the internal perspective means adhering to the discourse that institutions use about themselves, the external perspective supposes an epistemological break.43 Both can be rendered absolute by the category of ‘internalité’, reflecting the possibility that one perspective acknowledges the existence of a different perspective.44 An observer can adopt a radical external, moderate external, radical internal, or moderate internal point of view. What is internal for one system is external for another one, and vice versa. These are radical points of view that do not consider the existence of an alternative. Conversely, an observer adopts a moderate point of view when the external/internal point of view considers the existence of the correlative internal/external point of view.45 For instance, a radical internal point of view is adopted when a subject of the international legal system considers the rules of international organizations as international law. Even if it recognizes the existence of a different legal system, the subject of international law defines the rule of the organization as international law, despite the internal point of view of the organization. This happens when a state (taking the role of a subject of the international legal system) evaluates the legal status of a UN Security Council resolution. The same radical internal point of view is adopted when a subject of the organization’s legal system defines a rule merely as internal law. This happens when a state (taking the role of a subject of the organization’s legal system) evaluates the status of a regulation of the EU. Absolute legality is a moderate point of view which acknowledges the existence of different perspectives of legal nature. Indeed, an observer external to the system under study should not exclude what that legal system considers as its own law. While relative legality covers what a legal system perceives as its own law and what it perceives as law of a different system, absolute legality considers the internal point of view of each system and the different perspectives of relative legality.

7.3 Santi Romano’s Institutionalism In order to discuss the formal relationship between international organizations and international law I will rely on Santi Romano’s institutionalism. The original/derivative dichotomy was first developed by Santi Romano, who introduced various 42 Michel van de Kerchove and François Ost, The Legal System between Order and Disorder (OUP 1993) (hereafter Kerchove and Ost, The Legal System). 43 Ibid 6, 7. 44 François Ost and Michel Van de Kerchove, Jalons pour une théorie critique du droit (Saint-Louis, Facultés Universitaires 1987) 28. 45 Kerchove and Ost, The Legal System (n 42) 6 ss.

Santi Romano’s Institutionalism 101 models to describe the relationships between legal systems.46 Throughout the years, Santi Romano’s institutionalism has served different purposes ranging from introducing the concept of legal system,47 to recognizing a well-established foundation of arbitration as a legal system without the state.48 For the purposes of this book, Santi Romano’s institutional pluralism is useful to describe non-hierarchical forms of interconnections between the legal systens of international organizations. Santi Romano drew a parallel between the concept of legal system and the concept of institution, defining the existence of orders that are independent for some aspects and overlapping for others.49 For instance, states are entities among various internal, external, overlapping, presupposed, or derived institutions. He explained the relationships between institutions with the concept of ‘relevance’, which, contrary to contemporary studies on legal pluralism, rejects the idea that legal systems only interact through a de facto balance of power.50 For him, the fact that an institution is ‘relevant’ for another implies an entitlement that affects their existence, content, and efficacy.51 He introduced five categories of entitlements based on the interactions amongst institutions: 1. superiority/subordination, where system A comprehends system B (example by Santi Romano: federal states); 2. pre-existence, where A derives from B (example by Santi Romano: international law derives from states); 3. mutual independence, but shared subordination with respect to a third legal system (example by Santi Romano: states among themselves); 4. unilateral relevance granted spontaneously (example by Santi Romano: private international law); 5. succession of legal systems (example by Santi Romano: succession of states).52 The dynamic of relevance based on existence is fundamental to the discussion of the concept of international organizations’ legal systems. Under this category, Santi Romano distinguished between subordination and pre-existence.53 Subordination denotes hierarchy and implies the complete subjugation of one order to another. Conversely, pre-existence describes the development of a legal system over a pre- existent legal system. For Santi Romano, the latter is the relation that connects states with international law, because states presuppose the existence of an international society. Indeed, Santi Romano’s idea of pre-existence revolves around the founders of a legal system. States created the international community, and, consequently, international law presupposes states. This thesis is applied by scholars who 46 Romano, ordinamento giuridico (n 26). 47 Abi-Saab, ‘Cours général’ (n 24). 48 Emmanuel Gaillard, Legal Theory of International Arbitration (Nijhoff 2010). 49 Romano, ordinamento giuridico (n 26) 95. 50 Schultz, Transnational Legality (n 35) 86. 51 Ibid 109. 52 Filippo Fontanelli, ‘Santi Romano and L’ordinamento giuridico: The Relevance of a Forgotten Masterpiece for Contemporary International, Transnational and Global Legal Relations’ (2011) 2 TLT 67 (hereafter, Fontanelli, ‘Santi Romano and L’ordinamento giuridico’. 53 Romano, ordinamento giuridico (n 26) 130.

102 A Venture into Legal Theory endorse the derived nature of international organizations, affirming that states created organizations too, and, thus, they create derived legal systems.54 However, it can be rebutted as an anachronistic reminder of voluntarism and of the traditional role of states in international law.55 Following the focus on the founders, individuals would actually be the only subjects that create legal systems. Actualizing Santi Romano’s theory, pre-existence is based on the formalistic creation of a system over sources of law belonging to a pre-existent order and not on the founder subjects. Applying this theory, the international legal system is not founded by a source of national law. Similarly, national systems are not founded by sources of international law. Both international and national orders are ‘original’ legal systems. Their interactions are not definable as a dynamic of relevance based on existence. Consequently, the international legal system can exist even without states.56 This theory rebuts the analytically necessary nexus between law and state.57 Focusing on the relationship of relevance based on existence, legal systems can be original or derivative. They are original when they emerge without a formal act of creation based on the law belonging to a different system; they are derivative when they are created by a source of law belonging to a pre-existent legal system. The notion of pre-existence is directly relevant for the legal systems of international organizations. They are created by individuals endowed with governmental powers to use a source of international law to create a new entity. International organizations and international law are not in a relation of equality/independence because one presupposes the other. This model is able to describe the structure of global governance including transnational legal networks. For instance, multinational corporations are ‘original’ systems, because they are not founded by the law of any legal system.58 As previously discussed, the difference between founder actors and founding instruments is fundamental. Multinational corporations are founded by subjects of national systems as de facto entities, without a relation of derivation to any legal system. Likewise, this model accommodates exceptional cases in the theory of international organizations, like the EU or the Organization for Security and Cooperation in Europe (OSCE).59 The two have opposite degrees of integration, yet they share a similarity 54 Matteo Decleva, Il diritto interno delle unioni internazionali (Cedam 1962). 55 On the relations between dualism and voluntarism, see Giorgio Gaja, ‘Dualism: A Review’ in Janne Nijman and André Nolkaemper (eds), New Perspectives on the Divide between National and International Law (OUP 2007) 57. 56 ‘which might reasonably be called international society, that is, a society of all societies, a society of all-humanity’ in Philip Allott, ‘The Emerging Universal Legal System’ in Janne E Nijman and André Nollkaemper (eds), New Perspectives on the Divide Between National and International Law (OUP 2007) 69. 57 See Neil MacCormick, Questioning Sovereignty. Law, State, and Nation in the European Commonwealth (OUP 1999) Chapter 1. 58 Jean-Philippe Robé, ‘Multinational Enterprises: The Constitution of a Pluralistic Legal Order’ in Gunther Teubner (ed), Global Law Without A State Aldershot: Dartmouth Gower (Dartmouth 1997). 59 See Chapter 5.

Dual Legal Character of Organizations 103 in their attempts to create an ‘original’ legal system disconnected from international law.60 The need to ‘go global’ in order to understand the dynamic of transnational legal normativity has frequently drawn the attention of scholars.61 But, in order to visualize the map of the universal network, the focus needs to shift from issues of subjectivity to the formal interactions among layers of law. As Pauwelyn has contented, pluralism and the emergence of non-state actors go hand in hand, but the creation of a ‘universe of interconnected islands’ cannot rely on the consent-based paradigm of international law which puts the subject at the centre of the system.62 For instance, an example of the hierarchical relationship between systems that looks at the founder subjects is proposed by Pierre-Marie Dupuy. He considered that the creation of new entities is a sovereign prerogative of states, and, consequently, the newly established subjects derive their existence from the states’ existence.63 Conversely, the dual character of international organizations is not based on the subjects of a legal system, but on the dual nature of their legal systems.

7.4 The Dual Legal Character of International Organizations On the one hand, if a relative perspective emphasizes the creation of an original legal system, the rules are internal; on the other hand, if another relative perspective emphasizes its derivation from international law, the rules are international. The issue has no solution in terms of relative legality, which is a radical point of view. Conversely, the adoption of a moderate point of view considers the existence of a plurality of points of view without adopting them. Two conclusions arise from the relativism of legal pluralism and the importance of the point of view: first, an observer must distinguish between relative legality and absolute legality and, second, the legal system of international organizations derives from international law in the way discussed above. To sum up, the absolute legality of the legal system of an international organization is neither a self-contained entity nor a special regime as discussed by the ILC. Legal pluralism and interlegality require ‘complex analytical tools’ to address the fragmentation of legality in a non-chaotic way.64 Boaventura de Sousa Santos described this concept of law as a chameleon: ‘By constantly changing its colours 60 Lorenzo Gasbarri, ‘The International Responsibility of the OSCE’ in Anne Peters, Mateja Platise, and Carolyn Moser (eds), Revisiting the Legal Status of the OSCE (CUP 2019). 61 Guilherme Vasconcelos Vilaça, ‘Transnational Legal Normativity’ (2017) Encyclopedia of the Philosophy of Law and Social Philosophy 1. 62 Joost Pauwelyn, ‘Bridging Fragmentation and Unity: International Law as a Universe of Inter- connected Islands’ (2003) 25 MJIL 903. 63 See Dupuy, ‘Cours général’ (n 31) 102. 64 de Sousa Santos, ‘Law: A Map of Misreading’ (n 10) 298.

104 A Venture into Legal Theory according to certain biological rules, the chameleon is truly not an animal but rather a network of animals—as much as law is a network of legal orders. Law as a chameleon may turn out to ﬁt the postmodern conception of law.’65 There is no better way to describe the changing status of the rules of international organizations based on the ‘point of view’ taken by the respective legal system. The absolute legality of the rules of international organizations is a combination of the derivative nature of the legal system that produces them and the point of view of the legal system in which the rules are implemented. Consequently, under absolute legality, an actor of the international legal system or an actor of the organization’s legal system should acknowledge its derivation from international law. At the same time, the derivation from international law does not eliminate the existence of the organization’s legal system. The conclusion is that the rules of international organizations are law of two different legal systems at the same time: their nature is dual. As the International Court of Justice has argued, the basic instrument of the World Health Organization (WHO) is at the same time an international treaty and a constitution of an internal order.66 Consequently, the rule of recognition developed by the WHO system is dual, as much as the nature of the law that it produces. Kelsen confutes the dual nature with the famous quote ‘no one can serve two masters’.67 He excludes this possibility on the basis of territorial exclusiveness, according to which there cannot be two or more legal systems governing the same territory.68 The theory has been widely criticized, recognizing that, under legal pluralism, non-comprehensive, non-exclusive, and non-supreme legal systems are feasible.69 Moreover, the issue before Kelsen is partially different from affirming that the same rule belongs to two different legal systems. The dual nature does not mean that a rule produced by one system is recognized by a different legal system as legal. It means that the rule is created by a secondary rule of recognition of the derivative system that is created by a secondary rule of recognition of the pre-existent legal system. Consequently, the pre- existent legal system does not have to recognize the rule of the derivative legal system as its own in order to import it into its system. Under legal pluralism, there are no analytical reasons to reject the dual nature of the rules of international organizations. The existence of a legal system is not the only relationship of relevance described by Santi Romano, who considered that legal orders affect each other also in terms of effects and content.70 Under his view, a legal system is ‘relevant’ when it affects the existence, content, or effects of another legal system on the basis of a legal entitlement.

65 Ibid 299. 66 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66 at 75. 67 See Kelsen, Pure Theory of Law (n 25) 329. 68 See Schultz, Transnational Legality (n 35) 87. 69 See Kerchove and Ost, The Legal System (n 42) 143. 70 See Romano, ordinamento giuridico (n 26) 127.

Dual Legal Character of Organizations 105 I have discussed how the relevance based on the existence of the legal system of an international organization produces the dual legal character of its rules. It remains to discuss how the dual nature affects the content and the effects of a legal system. The effects of a legal system concern the internal norms that regulate its relationship with external systems, while the content of a legal system concerns how internal norms are affected by an external order.71 Concerning the effects, it is again fundamental to distinguish between superiority/ subordination and pre-existence.72 Under the former, the superior system has the power to decide how its norms are imposed on the subordinate system and which degree of autonomy to confer. Conversely, the subordinate system has no decision on how to regulate its effects on the superior system. Santi Romano uses the example of private companies to explain how the effects of state law are regulated within a particular subordinate system. Under the latter, pre-existence implies a mutual spillover. Under this category, when the relationship of relevance based on existence creates a dynamic of pre-existence/derivation, the effects between the two legal systems are not hierarchical.73 Santi Romano wrote his masterpiece in 1918, but the capacity of his theory to describe the relationship between international organizations and international law is striking. Indeed, the complementarity between international organizations and international law is due to the dual nature of the derivative system, under which the law belongs to both legal systems simultaneously. For instance, article 103 of the UN Charter is a rule of coordination that determines the effects of the UN legal system on international law. Concerning the content, the most obvious relationship is the one in which the superior order shapes the content of the inferior.74 Again, this hierarchical relationship does not explain how different regimes of global governance interact, as there is no legal title which could confer supremacy. The dual legal character is better fitted to describing how international organizations’ legal systems interact among themselves and with international law. For instance, under functionalism the content of organizations’ legal systems is dependent on the competences attributed by member states. The development of powers that go beyond the attribution can be interpreted as being implied in the conferment or inherent in the institution.75 On the one hand, if organizations are considered original institutions, their powers are inherent to their existence and not functionally attributed by member states. On the other hand, the theory of implied power is premised on the derivation from the international instrument that created the institution. The either/or paradigm in this traditional debate is affected by issues of relative legality. Conversely, the dual quality of international organizations

71

See Fontanelli, ‘Santi Romano and L’ordinamento giuridico’ (n 52) 77. Ibid 83. 73 Ibid 168. 74 Ibid 143. 75 See Jan Klabbers, An Introduction to International Organizations Law (3rd edn, CUP 2015) 46–69. 72

106 A Venture into Legal Theory describes how the ‘content’ of their legal systems is at the same time internal and international.

7.5 The Definition of an International Organization in International Law Below, I suggest a definition of an international organization based on a conceptualization of the dual legal character of their legal systems: An international organization means an institution established by a treaty or other instrument governed by international law and capable of creating a legal system which derives from international law and that produces law which is at the same time internal and international.

Such a definition is intended to cover all circumstances and it is not designed for the specific purposes of international responsibility or the law of treaties. Similar to the Articles on the Responsibility of International Organizations (ARIO),76 it stresses that organizations can only be established by sources of international law. Unlike ARIO, it does not make an explicit reference to the possession of international legal personality or that they may include as members, in addition to states, other entities. Moreover, it does not make an explicit reference to other elements that are usually considered, such as the creation of at least one organ possessing an autonomous will.77 In my view, it is not necessary to make a reference to autonomous will and legal personality for the purposes of definition. Indeed, they are both inherent features of the dual quality of their legal systems. The creation of a legal system covers the existence of organs with a particular autonomy, based on its derivation from a pre- existent legal system. Legal personality is conferred (explicitly or implicitly) by member states on the basis of a norm of international law. Concerning membership, I have already discussed the shift of focus from issues of subjectivity to the formal relationship between legal systems. The facts that international organizations can be created by states or by other organizations and that they can have both as members are not fundamental elements of the definition. In the absence of a theoretical framework, scholarship has mentioned the dual nature in many instances, describing international organizations as Janus- faced institutions.78 Catherine Brölmann, for instance, defined the transparent 76 ILC, ‘Draft articles on the responsibility of international organizations, with commentaries’ (2011) UN Doc A/66/10 (hereafter ARIO). 77 Jan Klabbers, ‘Formal Intergovernmental Organizations’ in Jacob Katz Cogan, Ian Hurd, and Ian Johnstone (eds), The Oxford Handbook of International Organizations (OUP 2017). 78 Cedric Ryngaert and others, Judicial Decisions on the Law of International Organizations (OUP 2016) 7.

Concluding Remarks 107 institutional veil as ‘an endemic condition of intergovernmental organisations in general international law, partly due to the other two features counteracting: it indicates that organisations are neither entirely closed-off to international law in the way of states, nor entirely open, as instances of non-institutionalised inter-state cooperation would be’.79 On the basis of her theoretical insights, I describe the concept of an international organization on the basis of the characteristics of their legal systems. The dual legal character of the rules of international organizations reflects that ‘[t]‌heir legal image oscillates between “open” and “closed”, with a dialectic relation between the two’.80 Virally described the dual nature of international organizations with the words: cette dualité fondamentale introduit toujours une certaine équivoque dans l’action institutionnelle: autonome, puisqu’elle se développe suivant ses lois propres et les décisions prises par les organes de l’institution, elle n’est pas indépendante, puisqu’elle est téléguidée par les forces qui s’exercent à l’intérieur de l’institution, mais avec lesquelles celle-ci ne se confond pas. Ainsi l’institution apparait toujours comme un masque, recouvrant autre chose qu’elle-même. L’équivoque se dissipe, cependant, lorsqu’on lève le masque et considère le milieu intérieur qu’il dissimulait.81

The next chapter will analyse this definition, describing the different sources within the category of the ‘rules of international organization’ and how they fit into this proposal.

7.6 Concluding Remarks This chapter has described a novel conceptualization of an international organization as an entity derived from international law and capable of developing a particular legal system. The dual legal character of its norms is the main characteristic of such conceptualization. In the following pages, I will expand on the dual legal nature in practice, fleshing out its consequences for fundamental issues of the law of international organizations. For the moment, I would like to stress that the dual legal character is not a conceptualization de lege ferenda. It is based on evidences collected throughout the history of international organizations. This conceptualization does not reinvent the world, but it systematizes previous attempts for a comprehensive legal theory.

79 Brölmann, The Institutional Veil (n 34) 11. 80 81

Ibid 253. Michel Virally, L’organisation mondiale (Armand Colin 1972) 30.

8

The Dual Legal Nature in Practice In this chapter, I will discuss the dual legal character of international organizations as manifested in practice and scholarship. I will specifically consider every act mentioned by the International Law Commission (ILC) in its definition of rules of international organizations: ‘the constituent instruments, decisions, resolutions and other acts of the international organization adopted in accordance with those instruments, and established practice of the organization’.1 I will also cover agreements with third parties and judicial decisions, which the ILC mentioned only in the commentary to the Articles on the Responsibility of International Organizations (ARIO). Additionally, I will look into general principles and customary law, which are not mentioned by the ILC but rules of international organizations nonetheless.

8.1 Constitutive Instruments There is no doubt that constitutive instruments enjoy a dual nature, being treaties and constitutions simultaneously. The International Court of Justice (ICJ) has recognized this dual nature on several occasions. In Certain Expenses it stressed the special character of the UN Charter,2 while in Nuclear Weapons in Armed Conflict the Court expressly affirmed that ‘the constituent instruments of international organizations are also treaties of a particular type; their object is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realizing common goals. Such treaties can raise specific problems of interpretation owing, inter alia, to their character which is conventional and at the same time institutional.’3 The dual legal character of constitutive instruments has been described as the origin of the two faces of international organizations, creating an ‘open inter- state treaty regime on the one hand, and an independent constitutional order on the other’.4 The employment of tools such as teleological interpretation and the 1 ILC, ‘Draft articles on the responsibility of international organizations, with commentaries’ (2011) UN Doc A/66/10 (hereafter ARIO). 2 Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter) (Advisory Opinion) [1962] ICJ Rep 151 (hereafter Certain Expenses). 3 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226. 4 Catherine Brölmann, The Institutional Veil in Public International Law: International Organisations and the Law Of Treaties (Hart 2007) (hereafter Brölmann, The Institutional Veil) 113.

The Concept of an International Organization in International Law. Lorenzo Gasbarri, Oxford University Press (2021). © Lorenzo Gasbarri. DOI: 10.1093/oso/9780192895790.003.0008

Constitutive Instruments 109 relevance of the practice of internal organs are examples of the distinction between constitutive instruments and other international treaties.5 There is a rare consensus on the dual legal character of constitutive instruments even when the organization is not created by a treaty but by other instruments of international law.6 For instance, the World Tourism Organization (UNWTO) is created by an international instrument other than a treaty.7 The organization was first established as a non-governmental organization (named International Union of Official Travel Organisations) and was later on transformed into an international organization by a decision of its constituencies.8 In this peculiar case, it was the organization itself that promoted its transformation. A similar process happened for the General Agreement on Tariffs and Trade (GATT).9 In general, cases in which international organizations have been created by the means of international law other than treaties are more frequent than one could expect. Other examples include the Pan American Institute of Geography and History,10 the Organization of the Petroleum Exporting Countries,11 the Asian-African Legal Consultative Committee, the Inter-American Defence Board, the International Wool Study Group, and the Restructured Global Environmental Facility.12 The definition I proposed in the previous chapter suggests that international organizations can only be created on the basis of international law and there are cases in which this status is disputed. One of the main examples was debated in Chapter 5, which considered the exceptional nature of the Organization for Security and Cooperation in Europe (OSCE). A second example is the Nordic Council, which, until 1962, was an institution created by parallel acts of national parliaments.13 In this case, the organization was subsequently recreated by an international treaty. In other cases, institutions such as the World Conservation Union and the Institut du Monde Arabe were never transformed by international law and they remain incorporated in national law.14

5 Tetsuo Sato, Evolving Constitutions of International Organizations (Nijhoff 1996) (hereafter Sato, Evolving Constitutions); Seventh Commission, ‘Are there Limits to the Dynamic Interpretation of the Constitution and Statutes of International Organizations by the Internal Organs of such Organizations (with Particular Reference to the UN System)?’ (Institut de Droit International 2019). 6 For a comprehensive description of the argument see José E Alvarez, International Organizations as Law-makers (OUP 2005) 65 and Brölmann, The Institutional Veil (n 4) 59. 7 Dan Sarooshi, ‘Legal Capacity and Powers’ in Jacob Katz Cogan, Ian Hurd, and Ian Johnstone (eds), The Oxford Handbook of International Organizations (OUP 2017) 987. 8 David R Gilmour, ‘The World Tourism Organisation: International Constitutional Law with a Difference’ (1971) 18 NILJ 275. 9 John H Jackson, World Trade and the Law of GATT (Bobbs-Merrill 1969). 10 Amos Jenkins Peaslee, International Governmental Organizations (Brill 1979) (hereafter Peaslee, International Governmental Organizations) 389–403. 11 Kapteyn and others, International Organization and Integration (Nijhoff 1981) II.K.3.2. 12 Peaslee, International Governmental Organizations (n 10) I(1) 79, I(2) 805, II 539. 13 Max Sorensen, ‘Le Conseil nordique’ (1955) RGDIP 63; Paul Dolan, ‘The Nordic Council’ (1959) 12 Western Political Quarterly 511. 14 Jean Charpentier, ‘Pratique française du droit international public’ (1962) 8 AFDI 985.

110 The Dual Legal Nature in Practice Institutional pluralism is also evident in those areas of international law subjected to transformation of governance. In particular, global health law is nowadays shaped by various actors, which rarely resemble international organizations created by international law.15 Public–private partnerships threaten the monopoly of the World Health Organization as flexible instruments with facilitated access to funds and rapid deployment of resources.16 These institutions are not created by instruments of international law even if they possess characteristics similar to international organizations. On the basis of the theoretical framework for the concept of an international organization in international law, only those institutions that are created by means of an instrument of international law can be properly considered international organizations. This requirement is less strict as it may appear, because implicit agreements or similar acts can frequently be found. It is a case-by-case scenario to identify which organization can be properly called international, and the derivation from an instrument of international law is one of the few certainties commonly shared.

8.2 General Principles Whether general principles are a formal source of law in the legal system of an international organization is an open question.17 The ILC, for instance, does not include them in the definition of ‘rules of the organization’. Indeed, it is difficult to define what general principles are in this context. After all, the entire academic field concerned with the law of international organizations is devoted to identifying which general principles are common to every organization. Amerasinghe, for instance, contended that general principles are emerging in many areas covered by the rules of the organizations such as constitutive instruments, law-making, responsibility, validity, personality, immunities.18 In particular, the existence of general principles has been supported by scholars who rely on the purely internal nature of the rules.19 Organizations themselves frequently rely on general principles of law. The ICJ did so to define the internal rules of the UN, such as the implied powers

15 Lisa Clarke, Public-private Partnerships and Responsibility under International Law: A Global Health Perspective (Routledge 2014). 16 Gian Luca Burci, ‘Public/Private Partnerships in the Public Health Sector’ (2009) 6 IOLR 359. 17 See, in general, Mads Andenas and others, General Principles and the Coherence of International Law (Brill 2019). 18 Chittharanjan Felix Amerasinghe, Principles of the Institutional Law of International Organizations (CUP 2005) (hereafter Amerasinghe, Principles). 19 Finn Seyersted, Common Law of International Organizations (Nijhoff 2008) (hereafter Seyersted, Common Law).

General Principles 111 doctrine.20 While, the EU Court of Justice went as far as granting direct effects to general principles of EU law.21 General principles have been used by international administrative tribunals and identified by scholarship in the context of employment disputes,22 and also in relation to issues of procedure and law-making activities.23 Concerning the law of international civil service, the ICJ recognized the existence of the principle of res judicata in Effect of Awards,24 and in Application for Review it stated that general principles from municipal law may be found.25 A general principle of procedural law was also found in the context of personal immunity of a Special Rapporteur of the Human Rights Commission.26 The recognition by member states of the existence of a general principle of international law is often grounded in a rule of an international organization. The ICJ did so in Reservations to the Genocide Convention,27 Western Sahara,28 and North Sea Continental Shelf.29 In 2017, the ILC decided to include the topic ‘General Principles of International Law’ in its long-term programme of work and in 2019 Special Rapporteur Marcelo Vázquez-Bermúdez submitted his first report.30 He began by describing a methodology based on two steps: ‘first, identifying a principle common to a majority of national legal systems; second, determining whether that principle is applicable in the international legal system’.31 The Special Rapporteur did not state whether the same approach is relevant for international organizations, only affirming that ‘[t]‌he practice of international organizations may also be analysed if considered relevant for purposes of the present topic’, and ‘whether international

20 Shabtai Rosenne, The Law and Practice of the International Court, 1920–2005 (4 vols) (Brill 2006) Volume III Procedure, 1548. 21 Case 12/86 (1987) Demirel [1987] ECR 3719; Case 316/86 Krucken [1988] ECR 2213; Case C-144/ 04 Mangold [2005] ECR I 9981; Case 155/79 AM and S [1982] ECR 1575. Emanuel Castellarin, ‘General Principles and the Coherence of International Law’ in Mads Andenas and others (eds), General Principles of EU Law and General International Law (Brill 2019). 22 Blaise Knapp, ‘Jurisprudence du Tribunal administratif de l’Organisation internationale du Travail’ (1971) 17 AFDI 433; Renuka Dhinakaran, ‘Law of the International Civil service: A Venture into Legal Theory’ (2011) 8 IOLR 137. 23 de Merode [1981] World Bank Administrative Tribunal 1 WBAT Rep 734. 24 Effect of Awards of Compensation made by the United Nations Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 47, 53. 25 Application for Review of Judgment No 158 of the United Nations Administrative Tribunal (Advisory Opinion) [1973] ICJ Rep 166, 181, para 36. 26 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62 (hereafter Difference Relating to Immunity) 88, para 63. 27 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15, 23. 28 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12, 31, paras 54–55. 29 North Sea Continental Shelf (Judgment) [1969] ICJ Rep 3, 47, para 86. 30 ILC, ‘First report on general principles of law by Marcelo Vázquez-Bermúdez’ (2019) UN Doc A/ CN.4/732. 31 Ibid 8, 6.

112 The Dual Legal Nature in Practice organizations and other actors may also contribute to the formation of general principles of law as a source of international law’.32 Vázquez-Bermúdez made an explicit reference to international organizations when defining what ‘recognition’ of general principles entails, such as an act of an organization showing the consensus of member states. However, he postponed to future reports the crucial question of whether an international organization contributes to the formation of general principles.33 The second report briefly mentions international organizations, reiterating that their practice could be relevant in the formation of general principles derived from national legal systems. The report cites the EU as an example with no further examination.34 Although it is too early to predict the fate of the ILC project, it is possible to identify an analogy with its work on customary international law and, specifically, its either/or approach. International organizations are mainly considered from a functionalist perspective that gives particular relevance to the act of member states. Conversely, the constitutional perspective is rarely considered, underplaying the relevance of the practice of organizations. The first draft conclusions seem to embed a bias against the capacity of international organizations to contribute to the formation of general principles. It affirms that they must be recognized by states and that they only derive from the national and international legal systems, omitting institutional legal systems. The first report on general principles shows once again how international law does not have a clear concept of an international organization, limiting their role to a forum for member states’ conduct or, at maximum, an autonomous entity in limited circumstances. Conversely, the dual legal character would have the merit of fully capturing the role that these actors play in the formation of international law. Indeed, if the constitutive instrument embeds a dual nature, why would the body of laws from which it originates not share the same legal nature? General principles of institutional law have a clear dual dimension. They are simultaneously international and internal to each organization. The inter-systemic nature of general principles is one of their main features: ‘[t]‌hey also help smoothening certain tensions inherent in legal pluralism, by ensuring a minimum openness and conversation between legal orders, regimes and sub-regimes, precluding them from living “in clinical isolation” from each other.’35

32 Ibid 9. 33 Ibid 55. 34 ILC, ‘Second report on general principles of law by Marcelo Vázquez-Bermúdez’ (2020) UN Doc A/CN.4/741, para 72. 35 Jan Wouters, ‘General Principles and the Coherence of International Law’ in Mads Andenas and others (eds), Conclusions: The Role of General Principles in a Multi-layered Legal Setting (Brill 2019) 196.

Customary Law 113

8.3 Customary Law The ILC recently concluded its project on the identification of customary international law under the direction of Special Rapporteur Sir Michael Wood.36 International organizations are involved on the basis of four variables. Two of these variables reflect the distinction between the functionalist and the constitutionalist conceptualizations, while the third and the fourth give prevalence to the differences among organizations (exceptionalism) and among relevant instruments (informalism).37 First, Conclusions 6(2), 10(2), and 12 are founded on a conception of an international organization defined by a state-centric functionalist perspective.38 Under this conception, international organizations are nothing but transparent entities for member states’ actions. For example, under conclusion 12 resolutions do not constitute international practices of the organization but they are ‘aggregates of expression of the volition of States’.39 Second, Conclusion 4(2) is premised on an organization-centric perspective.40 Under this view, organizations are not open international fora but autonomous actors. However, in the ILC’s view, their role would be radically different from that of states. First, the Commission did not include any provision for what concerns the forms of evidence of opinio iuris, limiting the role of organizations in the formation of customary law to express practice. Second, it is conditioned to ‘certain

36 ILC, ‘Identification of customary international law’ (2108) UN Doc A/73/10 (hereafter ILC, ‘Customary law’). See Lorenzo Gasbarri, ‘Beyond the Either-Or Paradigm’ in Sufyan Droubi and Jean d’Aspremont (eds), International Organizations, Non-State Actors, and the Formation of Customary International Law (Manchester University Press 2020). 37 Similarly, under the project on subsequent agreements and subsequent practice in relation to the interpretation of treaties, the ILC distinguished between the subsequent practice of the parties to constituent instruments of international organizations, the practice of organs of an international organization, and a combination of practice of organs of the international organization and subsequent practice of the parties. See ILC, ‘Third Report on subsequent agreements and subsequent practice in relation to the interpretation of treaties Georg Nolte’ (2015) UN Doc A/CN.4/683 (hereafter Nolte, ‘Third Report’). 38 ILC, ‘Customary law’ (n 36) conclusion 6(2): ‘Forms of State practice include, but are not limited to: . . . conduct in connection with resolutions adopted by an international organization [ . . . ]’; conclusion 10(2): ‘Forms of evidence of acceptance as law (opinio juris) include, but are not limited to: . . . conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference’; conclusion 12: ‘1. A resolution adopted by an international organization or at an intergovernmental conference cannot, of itself, create a rule of customary international law. 2. A resolution adopted by an international organization or at an intergovernmental conference may provide evidence for establishing the existence and content of a rule of customary international law, or contribute to its development. 3. A provision in a resolution adopted by an international organization or at an intergovernmental conference may reflect a rule of customary international law if it is established that the provision corresponds to a general practice that is accepted as law (opinio juris).’ 39 Benedetto Conforti and Angelo Labella, An Introduction to International Law (Nijhoff 2012) 42, 43. Quoted by ILC, ‘Second report on identification of customary international law by Michael Wood’ (2014) UN Doc A/CN.4/672, 27. 40 ILC, ‘Customary law’ (n 36) conclusion 4: ‘2. In certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law.’

114 The Dual Legal Nature in Practice cases’, implying that only some organizations or only some acts can partially contribute to the formation of customary law. The third variable in the formation of customary law is grounded on the differences among organizations. Conclusion 4(2) specifies that only in ‘certain cases’, practice of international organizations in their respective area of work could be relevant.41 The concrete example is supranational organizations such as the EU which due to its exclusive competences stands on the same footing as states for the purpose of custom formation.42 Finally, the fourth variable affords varying degrees of relevance to different outputs of international organizations. For instance, Conclusions 12 and 13 isolate particular acts, dealing with resolutions and decisions of international courts.43 To sum up, the ILC Conclusions distinguish four effects that international organizations’ acts could have in the formation of customary law. From a functionalist perspective, what happens within international organizations is relevant insofar as it is seen as state practice accepted as law. From a constitutionalist perspective, some ‘exceptional’ organizations contribute to the identification of customary law by providing practice, but not opinio iuris. From an exceptionalist and informalist perspective, some acts and some organizations would have a particular function in the formation of customary law. The application of the concept of an international organization as a dual entity would unify this fragmented approach. Indeed, the ILC project on the formation of customary law has been described as a measure to prevent the fragmentation of international law.44 Special Rapporteur Wood affords a fundamental role to the unity of the international legal system, relying on the assumption that ‘it is neither helpful nor in accordance with principle . . . to break the law up into separate specialist ﬁelds’ and therefore ‘the same basic approach to the formation and identiﬁcation of customary international law applies regardless of the ﬁeld of law under consideration’.45 Yet, the ILC project clearly differentiates between different subjects of international law and between different acts that they produce in exercise of their functions. If the Commission is looking for ‘the same basic approach’,

41 ILC, ‘Third report on identification of customary international law by Michael Wood’ (2015) UN Doc A/CN.4/682, para 77. 42 Jed Odermatt, ‘The Development of Customary International Law by International Organizations’ (2017) 66 ICLQ 491. 43 ILC, ‘Customary law’ (n 36) conclusion 13: ‘Decisions of courts and tribunals 1. Decisions of international courts and tribunals, in particular of the International Court of Justice, concerning the existence and content of rules of customary international law are a subsidiary means for the determination of such rules. 2. Regard may be had, as appropriate, to decisions of national courts concerning the existence and content of rules of customary international law, as a subsidiary means for the determination of such rules.’ 44 Lorenzo Gradoni, ‘La Commissione del diritto internazionale riflette sulla rivelazione della consuetudine’ (2014) 97 RDI 667. 45 ILC, ‘Formation and evidence of customary international law, Note by Michael Wood, Special Rapporteur’ (2012) UN Doc A/CN.4/653, 5, para 22.

Institutional Practice 115 the mechanism for the formation of customary law should be the same, even if the materials are disparate and coming from different subjects. The quality of an act that contributes to the formation of customary law should not be confused with the mechanism of its identification. Conclusion 6(3) states that ‘there is no predetermined hierarchy among the various forms of practice’, while the commentary recognizes that ‘it may be that different forms (or instances) of practice ought to be given different weight when they are assessed in context’. The capacity to contribute to the formation of customary law is different even within the same category of acts: not many UN General Assembly resolutions have the same value as the Universal Declaration of Human Rights or the Declaration on Friendly Relations among States.46 This does not mean that different resolutions should be subject to different methods. In the quest for a common approach, the different materials that contribute to the identification of customary law should not be subject to different methods. The risk is that the variety of international subjects will become confused with the variety of materials that concur in the identification of customary law. Every rule of every international organization is both the product of the conduct of member states and of the organization and, if a common approach to the formation of customary law is foreseeable, the dual nature of international organizations has to be acknowledged, rebutting special mechanisms for the practice of a particular organization or for certain rules within an organization. In practical terms, the role of international organizations in the formation of customary law can be described by a simplified framework which rebuts the either/or paradigm. The alternative for the ILC was to focus on one conclusion only, adopting the notion of ‘rules of international organizations’. This would have rendered the distinction between, on the one hand, the practice and opinio iuris of member states within organizations and, on the other hand, the practice and opinio iuris of organizations as such unnecessary.

8.4 Institutional Practice In both its projects on the law of treaties and international responsibility, the ILC defined institutional practice as a source of law. 47 It called it ‘established practice’, distinguishing it from ‘subsequent practice’ as means of interpretation, and ‘relevant practice’ as an element of customary law. Both scholars and organizations

46 Universal Declaration of Human Rights, UNGA Res 217 A (III) (10 December 1948); Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, UNGA Resolution 2625(XXV) (24 October 1970). See Rossana Deplano, ‘Assessing the Role of Resolutions in the ILC Draft Conclusions on Identification of Customary International Law’ (2017) 14 IOLR 227. 47 ARIO (n 1) art 2(b); ILC, ‘Draft articles on the law of treaties with commentaries’ (1966) UN Doc A/21/9 (hereafter ILC, ‘Law of treaties’) art 2(j).

116 The Dual Legal Nature in Practice welcomed this inclusion.48 The fundamental role of established practice is evident in the consolidations of powers that are not explicitly conferred in constitutive instruments.49 For instance, within the EU, organs have developed a form of ‘inter-institutional agreements’ to coordinate their activities.50 They are not mentioned in the EU treaties, but, if binding, are considered as a source of law by the European Court of Justice (ECJ).51 The dual legal nature of institutional practice is self-evident, because it is considered as a source of internal institutional rules and an element to establish an international customary norm.52 Paul Reuter, ILC Special Rapporteur on the law of treaties, discussed the role of institutional practice twice. In his second report, he affirmed that the content of the general principle of loyal cooperation is determined by the internal regulatory framework and, in particular, by the practice subsequent to the entry into force of the treaty that created the organization.53 In his third report submitted a year later, Reuter included the relevant practice within the category of the rules of organizations.54 He distinguished between established practice, which should be considered a legal rule, and relevant practice, which affords relevance to behaviours that are in the process of establishment. In order to ensure an autonomous constitutional development, Reuter contended that relevant practice has to be considered as part of the institutional sources of law. The ARIO reflects the same approach, mentioning the particular case of decision-making by consensus within the North Atlantic Treaty Organization.55 This is a case of institutional practice which does not originate from any other rule of the organization. Moreover, the importance of the practice is mentioned in the context of the attribution of conduct.56 It derives from an analogy with the project on states’ responsibility:

48 Emmanuel Roucounas, ‘Practice as a Relevant Factor for the Responsibility of International Organizations’ in Maurizio Ragazzi (ed), Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie (Nijhoff 2013); on the issue raised by the use of practice as an interpretative tool see Alvarez, International Organizations as Law-makers (n 6) 87. 49 Jan Klabbers, An Introduction to International Organizations Law (3rd edn, CUP 2015) (hereafter Klabbers, Introduction)50–69. 50 Jörg Monar, ‘Interinstitutional Agreements: The Phenomenon and its New Dynamics after Maastricht’ (1994) 31 CMLR 693. 51 Giorgio Gaja and Adelina Adinolfi, Introduzione al diritto dell’Unione europea (Laterza 2010) (hereafter Gaja and Adinolfi, Introduzione)182. 52 Guglielmo Verdirame, The UN and Human Rights: Who Guards the Guardians? (CUP 2011) 57. 53 ILC, ‘Second report on the question of treaties concluded between States and international organizations or between two or more international organizations by Paul Reuter’ (1973) UN Doc A/CN.4/ 271, 92, para 105. 54 ILC, ‘Third report on the question of treaties concluded between States and international organizations or between two or more international organizations by Paul Reuter’ (1974) UN Doc A/CN.4/ 279 and Corr.1, 151, para 27. 55 ARIO (n 1) 11. 56 ILC, ‘Second report on responsibility of international organizations by Giorgio Gaja’ (2004) UN Doc A/CN.4/541; ILC, ‘Comments and observations received from international organizations’ (2004) UN Doc A/CN.4/545 (hereafter Comments 2004).

Institutional Practice 117 In some systems the status and functions of various entities are determined not only by law but also by practice, and reference exclusively to internal law would be misleading. The internal law of a State may not classify, exhaustively or at all, which entities have the status of ‘organs’. In such cases, while the powers of an entity and its relation to other bodies under internal law will be relevant to its classification as an ‘organ’, internal law will not itself perform the task of classification.57

Evidently, the relevance to the practice developed within a particular organization is an expression of the need to distinguish a regulatory framework on the basis of its special characteristics.58 The ICJ remarked on this point: ‘Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice.’59 Moreover, institutional practice has been used to interpret constitutive instruments.60 The ILC project on the subsequent agreements and subsequent practice in relation to the interpretation of treaties included a specific conclusion on international organizations.61 It distinguished between the subsequent practice of the parties to constituent instruments of international organizations, the practice of organs of an international organization, and a combination of the practice of organs of the international organization and subsequent practice of the parties. The ICJ repeatedly interpreted the UN Charter on the basis of subsequent practice: . . . the proceedings of the Security Council extending over a long period supply abundant evidence that presidential rulings and the positions taken by members of the Council, in particular its permanent members, have consistently and uniformly interpreted the practice of voluntary abstention by a permanent member as not constituting a bar to the adoption of resolutions. . . . This procedure followed by the Security Council, which has continued unchanged after the amendment in 1965 of Article 27 of the Charter, has been generally accepted by Members of the United Nations and evidences a general practice of that Organization.62

It also applied the same interpretative standard in case of other organizations: 57 Official Record of the General Assembly, Fifty-sixth Session, Supplement No 10 and corrigendum UN Doc A/56/10 and Corr.1, chapter IV, section E.2, para 11 of the commentary, 90. 58 Charles De Visscher, ‘L’interprétation judiciaire des traités d’organisation internationale’ (1958) 61 RDI 177. 59 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174. 60 Sato, Evolving Constitutions (n 5). 61 Nolte, ‘Third Report’ (n 37). 62 Legal Consequences for States of the Contitiued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16 (hereafter Legal Consequences) 22, para 22.

118 The Dual Legal Nature in Practice . . . the constituent instruments of international organizations are also treaties of a particular type; their object is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realizing common goals. Such treaties can raise specific problems of interpretation owing, inter alia, to their character which is conventional and at the same time institutional; the very nature of the organization created, the objectives which have been assigned to it by its founders, the imperatives associated with the effective performance of its functions, as well as its own practice, are all elements which may deserve special attention when the time comes to interpret those constituent treaties.63

In general, the ICJ relied on institutional practice in several cases. In the Advisory Opinion Applicability of Article VI Section 22, of the Convention on the Privileges and Immunities of the United Nations, it decided on the basis of the information provided by the Security Council.64 In the Advisory Opinion Difference Relating to Immunity, it referred to the practice confirmed by the High Commission for Human Rights.65 In the case Legality of Use of Force, it contended that practice was not clear enough to be applied to the circumstances.66

8.5 Secondary Norms The category of international organizations’ secondary norms includes every act which is explicitly mentioned in their constitutive instruments. They assume various names, such as resolutions, decisions, regulations, or recommendations, and they represent the legislative power of international organizations. The dual legal nature of the secondary norms affects one of their most important activities. At the outset, it is useful to rebut the distinction between internal and external norms.67 Alvarez rightly contends that any secondary norms produce internal and external effects and it is not possible to distinguish between the two. For instance, budgetary competences can be described as producing merely internal norms, yet they do have fundamental external effects.68 Alvarez affirms that the definition of internal norms is circular, because those acts that deal with issues that have been previously defined as internal are called internal. For instance, applying the distinction internal/external acts, the decision of the UN General Assembly to apply 63 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66, 75, para 19. 64 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion) [1989] ICJ Rep 177, 194, para 48. 65 Difference Relating to Immunity (n 26) 85, para 53. 66 Legality of Use of Force (Serbia and Montenegro v United Kingdom) (Preliminary Objections) [2004] ICJ Rep 1307, 1333, para 65. 67 Alvarez, International Organizations as Law-makers (n 6) 122. 68 Ian Brownlie, Principles of Public International Law (OUP 2003) 665.

Secondary Norms 119 article 19 of the UN Charter, concerning the suspension of voting rights to sanction a member state in arrears of payments of its financial contributions, would be a merely internal issue. At the same time, the decision of the UN Security Council to impose sanctions on a member state for the violation of a different UN obligation, such as the prohibition of the use of force, would be a merely external issue. Alvarez underlines that the law-making activities of international organizations have both an internal and an external nature: ‘In life, if not in treaties, the line between internal and external law-making blurs.’69 In his textbook, Klabbers discusses three theories of institutional law- making: the treaty analogy; the theory of delegation; the theory of legislation.70 These attempts to conceptualize the capacity of norm creation reflect different conceptualizations of international organizations. The first and second theories are based on functionalist conceptualizations of international organizations. The first theory refers back to the treaty establishing the organization, in order to draw from it the binding force of secondary norms, while the second refers to the will of member states. The main shortcoming of these theories is questioned by Klabbers: ‘if there is no difference between a treaty and an organizational act, then what is the point of having an organization to begin with?’71 Conversely, the legislative theory is based on the constitutionalist conceptualization of an international organization, under which the assemblies of member states are equated to international parliaments. The dual legal nature defines the balance between these two faces, based on the idea that secondary norms are neither purely internal or purely international acts. The next sections will put forth a number of examples which have remained unexplained within the either/or paradigm.

8.5.1 The Mandate The first example of the dual legal nature of secondary norms has an historical relevance. The Mandate system was created after the First World War to resolve the question of jurisdiction over colonial territories detached from Germany and the Ottoman Empire.72 The Covenant of the League of Nations did not specify the legal nature of the Mandate and two main opinions have been identified.73 The first relies on the treaty nature of the law-making capacities of international organizations, while the second defines the Mandate as a quasi-legislative act of the League. The treaty or legislative nature had fundamental implications for the ICJ, ruling over the South African mandate over Namibia.

69 Alvarez, International Organizations as Law-makers (n 6) 144. 70 Klabbers, Introduction (n 49) 179. 71

Ibid 185. Ruth Gordon, ‘Mandates’ (2013) MPEPIL. 73 Jan Klabbers, The Concept of Treaty in International Law (Nijhoff 1996). 72

120 The Dual Legal Nature in Practice In its first Advisory Opinion, the Court was asked to clarify whether the Mandate was still in force.74 The Court held that the dissolution of the League of Nations had not meant the lapse of the Mandate, and that South Africa was still under an obligation to give an account of its administration to the UN. However, it did not qualify the legal nature of the Mandate as a treaty or as a legislative product of the League of Nations. It only underlined its international nature in order to reject the South African objection that the Mandate should be governed by analogy with the contract of mandate in private law. The Court stated that ‘[t]‌he object of the Mandate regulated by international rules far exceeded that of contractual relations regulated by national law. The Mandate was created, in the interest of the inhabitants of the territory, and of humanity in general, as an international institution with an international object—a sacred trust of civilization.’ The dual nature (contractual and institutional) can be read between the lines. In the first contentious case, South Africa objected that the Court lacked jurisdiction.75 In particular, it claimed that the Mandate was not a treaty in force and therefore the ICJ could not claim a transfer of competence on the basis of the Mandate itself, which granted jurisdiction to the Permanent Court of International Justice (PCIJ). The Court ruled that the Mandate took the form of a resolution of the Council of the League of Nations, but ‘it cannot be correctly regarded as embodying only an executive action in pursuance of the Covenant’.76 The Court ruled that the Mandate ‘is a special type of instrument composite in nature and instituting a novel international regime’,77 and, for the purposes of establishing jurisdiction should be considered as an international treaty ‘confirmed’ (in ICJ language) by the League. The League itself was a party to the agreement, concerning ‘the implementation of an institution in which all the Member States are interested as such’.78 Conversely, Judges Spender and Fitzmaurice, in their joint dissenting opinion, claimed that the Mandate could not be considered as a treaty because it only entered into force by virtue of a resolution of the Council. Consequently, it was a quasi-legislative act of the League. They reject the thesis that every instrument promulgated by an international organization has a treaty character that derives from the fact that the constitutive instrument is a treaty itself.79 The Mandate was created under ‘some general common understanding’, but it is not a treaty.80

74 International status of South-West Africa (Advisory Opinion) [1950] ICJ Rep 128. 75 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319, 331, 341. 76 Ibid 330. 77 Ibid 331. 78 Ibid 332. 79 Ibid dissenting opinion Judge Spender and Fitzmaurice, 491. 80 Ibid.

Secondary Norms 121 During the second stage of the decision, the Court retreated from its 1962 judgment.81 It did not explicitly change its position on the treaty nature of the Mandate, yet it gave more weight to the institutional context.82 It contended that the treaty nature was only ‘assumed for the purpose of determining the purely jurisdictional issue which was all that was before the Court’.83 The difference between the bilateral nature of a treaty and the institutional context of the Mandate played a fundamental role. The Court considered that: the mandates system was an activity of the League of Nations, that is to say of an entity functioning as an institution. In such a setting, rights cannot be derived from the mere fact of membership of the organization in itself: the rights that member States can legitimately claim must be derived from and depend on the particular terms of the instrument constitutive of the organization, and of the other instruments relevant in the context.84

Consequently, if the Mandate was an international agreement, the bilateral relationship of the agreement excluded other individual members of the League. The Court concluded that the applicants, Ethiopia and Liberia, had no legal interests to defend because they were not a part of the agreement: ‘Not being parties to the instruments of mandate, they could draw from them only such rights as these unequivocally conferred, directly or by a clearly necessary implication.’85 In sum, the legal nature of the Mandate was characterized by the either/or paradigm, which considered only a state-centric perspective (first phase), or an organization-centric perspective (second phase). The dual legal nature of this instrument is grounded in its institutional sui generis nature, as an instrument created by the will of states, without being a proper treaty.86

8.5.2 UN international territorial administration The dual legal nature is also recognized in the context of the administration of territories entrusted to international organizations, where the law governing this administration is described as both internal and international.87 The ICJ dealt with 81 South West Africa Cases— Second phase (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections) [1966] ICJ Rep 19. 82 Ibid para 18. 83 Ibid para 7. 84 Ibid para 25. 85 Ibid para 32. 86 Hugh Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989: Part Eight’ (1996) 67 BYBIL 1, 8. 87 Carsten Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and beyond (CUP 2008) (hereafter Stahn, International Territorial Administration).

122 The Dual Legal Nature in Practice this situation in its Advisory Opinion on Kosovo.88 My analysis focuses only on the nature of the UN Security Council Resolution 1244 (1999) and the constitutional framework arising from it.89 Paragraph 85 of the Opinion begins by recalling the Security Council’s power to impose international obligations: ‘[w]‌ithin the legal framework of the United Nations Charter, notably on the basis of Articles 24, 25 and Chapter VII thereof, the Security Council may adopt resolutions imposing obligations under international law’. This statement does not imply the international nature of resolutions, since effect and content are two different aspects of a legal system.90 This is confirmed by the relevant jurisprudence of the Court, which always speaks in term of obligations arising from resolutions.91 The legal nature is a different issue from ascertaining the legal effects of resolutions, which essentially concerns the capacity to impose international obligations. The relation between the UNSC resolutions and treaties, and specifically the paths to terminate resolutions of indefinite duration, has been the subject of extensive inquiry in the literature .92 Subsequently, the Court goes on to analyse the nature of the instruments adopted under the framework of Resolution 1244 (1999) by the Special Representative of the Secretary-General on behalf of the UN Mission in Kosovo (UNMIK), in particular the Constitutional Framework (Regulation 2001/9).93 Its nature is relevant because the question submitted to the Court covers only the compatibility of the unilateral declaration of independence with international law. Consequently, if the Resolution and the Constitutional Framework do not possess international nature, they are outside the competence of the Court. The argument is grounded on the possibility of ascertaining the legality of the declaration in accordance with the legal regime in Kosovo.94

88 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403 (hereafter Kosovo Advisory Opinion). 89 Marc Weller, Contested Statehood: Kosovo’s Struggle for Independence (OUP 2009). 90 See Chapter 7. 91 Legal Consequences (n 62); Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America) (Provisional Measures) [1992] ICJ Rep 114, 126–27, paras 42–44; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America) (Preliminary Objections) [1998] ICJ Rep 9 (hereafter Lockerbie 1998) paras 39–41. 92 Andrea Gioia, ‘Decisions of the UN Security Council of Indefinite Duration: How to Define the Limits of their Validity’ in Peter Hilpold (ed), Kosovo and International Law (Brill 2012)197; Paolo Palchetti, ‘Autorites Provisoires de Gouvernement (PISG) du Kosovo, Eulex et Onu: Les Principes d’Attribution a l’Epreuve’ (2013) 46 RBDI 45. 93 Constitutional Framework for Provisional Self-Government of Kosovo, UNMIK/REG/2001/9, 15 May 2001. 94 Sean D Murphy, ‘Reflections on the ICJ Advisory Opinion on Kosovo: Interpreting Security Council Resolution 1244 (1999)’ in Marko Milanovic and Michael Wood (eds), The Law and Politics of the Kosovo Advisory Opinion (OUP 2015); Marko Milanovic and Michael Wood, The Law and Politics of the Kosovo Advisory Opinion (OUP 2015) 134.

Secondary Norms 123 On the one hand, the Constitutional Framework is not international law: ‘surely, one could not accept that say parking ticket violations under the relevant UNMIK regulations were violations of international law!’ 95 As a consequence, the declaration could have been ultra vires only in reference to internal constitutional law.96 On the other hand and for Serbia, there were no good reasons to not consider UNMIK regulations as both international and internal.97 Comments have been made showing the hierarchy between international law, the UN Charter, 1244(1999) Resolution, and UNMIK regulation as an ‘hybrid international and domestic legal norms’.98 At this point of its legal reasoning, the Court argues: The Constitutional Framework derives its binding force from the binding character of resolution 1244 (1999) and thus from international law. In that sense it therefore possesses an international legal character. 89. At the same time, the Court observes that the Constitutional Framework functions as part of a specific legal order, created pursuant to resolution 1244 (1999), which is applicable only in Kosovo and the purpose of which is to regulate, during the interim phase established by resolution 1244 (1999), matters which would ordinarily be the subject of internal, rather than international, law.99

Consequently: ‘the Court concludes that Security Council resolution 1244 (1999) and the Constitutional Framework form part of the international law which is to be considered in replying to the question posed by the General Assembly in its request for the advisory opinion’.100 In a separate opinion, Judge Yusuf questions the Court’s analysis.101 He considered the Constitutional Framework to be internal in character, noting the difference between the source of the authority and the nature of the regulations. Although he recognized the dual capacity in which international administrators were acting, he did not consider the duality of the instrument they enact. He moved from a binary concept of law, excluding the possible dual legal nature.

95 Marko Milanovic, ‘Arguing the Kosovo Case’ in Marko Milanovic and Michael Wood (eds), The Law and Politics of the Kosovo Advisory Opinion (OUP 2014) 45. 96 Kosovo Advisory Opinion (n 88) ‘Further written contributions of the authors of the Unilateral Declaration of Independence regarding the Written Statements’ (17 July 2009) paras 5.66, 5.73, and 6.34. 97 ICJ, ‘Public sitting held on Tuesday 1 December 2009, at 10 a.m., at the Peace Palace, President Owada, presiding, on the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Request for advisory opinion submitted by the General Assembly of the United Nations)’ Verbatim Record 2009/24, Serbia Oral Argument, 48, para 39. 98 Leopold Von Carlowitz, ‘UNMIK Lawmaking between Effective Peace Support and Internal Self- Determination’ (2003) 41 ADV 336. 99 Kosovo Advisory Opinion (n 88) paras 88, 89. 100 Ibid para 93. 101 Ibid separate opinion of Judge Yusuf, ICJ Report (2010) 618.

124 The Dual Legal Nature in Practice Instead, the Court recognizes the regime as a sui generis international legal order.102 This idea derives from the dual nature of Resolution 1244 (1999).103 This is a clear example of dual legal character.104 The Resolution is international law for the purpose of the Court. Yet, its international nature does not preclude its capacity to form a specific legal order. The international nature of the Resolution can be deducted from the quality of its source (the UN Security Council), while the internal nature originates from the nature of the act itself.105 It is fundamental to note that in this circumstance the dual legal nature is asserted not in relation to the Resolution, but to an instrument deriving from the Resolution. Reconstructing the line of thought: the UN Security Council Resolution 1244(1999) as international law is the legal basis of UNMIK Regulation 2001/9, which is at the same time international and internal (to its own legal system). Notwithstanding, the internal UN character of Resolution 1244(1999) remains, and the international administration of the territory is still an internal UN peacekeeping operation.

8.5.3 UN Security Council anti-terrorism resolutions The UN Security Council’s anti-terrorism strategy is a laboratory for testing the conceptualization of an international organization as a dual entity. Famously, the quasi-legislative power of the Council and its human rights implications have been core topics of inquiry in international law.106 The purely international nature of Security Council resolutions can be used to argue that the UN does not bear human rights obligations. As a purely functional entity, the UN cannot be constrained by human rights law.107 First, the UN is not party to any human rights treaty. Even if there have been several attempts in the literature to rebrand the UN Charter as containing human rights obligations for the organization itself,108 the obligation to promote and support the respect of human 102 Dov Jacobs and Yannick Radi, ‘Waiting for Godot: An Analysis of the Advisory Opinion on Kosovo’ (2011) 24 LJIL 331. 103 Ibid 343. 104 Erika De Wet, ‘The Direct Administration of Territories by the United Nations and its Member States in the Post Cold War Era: Legal Bases and Implications for National Law’ (2004) 8 MPYUNL 291. 105 Stahn, International Territorial Administration (n 87). 106 Andrea Bianchi and Alexis Keller, Counterterrorism: Democracy’s Challenge (Bloomsbury 2008); Andrea Bianchi (ed), Enforcing International Law Norms against Terrorism (Bloomsbury 2004); Ben Saul (ed), Research Handbook on International Law and Terrorism (Edward Elgar 2014); Antonios Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (OUP 2013). 107 Samantha Besson, ‘The Bearers of Human Rights’ Duties and Responsibilities for Human Rights: A Quiet (R)evolution?’ (2015) 32 Social Philosophy and Policy 244. 108 Ian Johnstone, ‘The UN Security Council, Counterterrorism and Human Rights’ in Andrea Bianchi and Alexis Keller (eds), Counterterrorism: Democracy’s Challenge (Bloomsbury 2008); Salvatore Zappalà, ‘Reviewing Security Council Measures in the Light of International Human Rights Principles’ in Bardo Fassbender (ed), Securing Human Rights?: Achievements and Challenges of the UN Security Council (OUP 2011).

Secondary Norms 125 rights in the Charter is upon the member states and not the organization.109 Under a purely functionalist conceptualization, the UN is a platform of state coordination that does not allow the transfer of human rights obligations. Second, the international nature of the rules limits the importance of international customary law in binding the organizations to respect international human rights standards. The conflict of obligations between international human rights norms and international resolutions is in favour of the second, either applying a lex posterior or a lex specialis principle. Third, under the functionalist conceptualization, the legal personality of the UN is limited to the performance of its aims.110 Consequently, the UN does not have the legal capacity to bear human rights obligations, because its function is limited to the aim of promotion and support. This idea falls under the thesis that international organizations as functional entities cannot do any harm.111 Fourth, the purely international nature of the Security Council resolutions limits the capacity of the UN to exercise human rights jurisdiction over individuals. Although the subject matter of the current monograph does not allow me to delve into the differences between state jurisdiction and human rights jurisdiction,112 I would like to stress that functional entities can easily claim to not possess sufficient jurisdiction over individuals. Indeed, every activity would be performed under the jurisdiction of member states, the primary subjects of international law. Finally, the purely international nature of the UN Security Council resolutions implies the outstanding power to transform an illicit state conduct into a lawful one. Indeed, if a resolution is international law, the power of article 103 would trump other human rights obligations borne upon the UN member states. Article 103 is strictly linked to the concept of an organization as an entity dedicated to cooperation. The ICJ adopted this position in the Lockerbie case, affirming that the obligations deriving from resolutions 748(1992) and 883(1993) supersede the obligations deriving from the 1971 Montreal Convention.113 On the other hand, the counterargument in favour of the purely internal nature of UN Security Council resolutions can be used when the circumstance so requires following an opposite argumentative strategy. The first hypothetical argument concerns the view that individuals do not enjoy legal personality within the particular legal system created by the UN. If resolutions are internal law of a particular legal system, it would be the legal system itself which determines its internal subjects. Even if the contemporary status of international law grants legal personality to

109 Annalisa Ciampi, Sanzioni del Consiglio di sicurezza e diritti umani (Giuffrè 2007) 137. 110 Reparation for Injuries (n 59). 111 Jan Klabbers, ‘Interminable Disagreement: Reflections on the Autonomy of International Organisations’ (2019) 88 NJIL 111. 112 Ralph Wilde, ‘The ‘Legal Space’ or ‘Espace Juridique’ of the European Convention on Human Rights: Is it Relevant to Extraterritorial State Action?’ (2005) 10 EHRLR 115. 113 Lockerbie 1998 (n 91) paras 42–44.v

126 The Dual Legal Nature in Practice individuals as subjects of the international legal system, it is not the same for the internal legal system of the UN. Only states are members of the organization and individuals can be represented only through them. In the case of anti-terror resolutions this is evident in the fact that until 2009 only member states could demand the delisting of their citizens.114 Even the creation of the Ombudsperson does not automatically grant any legal capacity to individuals, since it remains a mechanism under the complete discretion of the Committee. This is clear in the context of the anti-terrorism agenda, under which until 2009 only states could access the delisting procedure. Even today, individuals enjoy a limited capacity to bring their claims directly to the UN. A second argument which can be put forward from a purely constitutional perspective concerns the exclusive internal standards of validity. Indeed, we cannot consider a resolution contrary to human rights law if the internal system of reference does not include a system of human rights protection. The reception of international human rights law within the UN system would be subject to internal criteria on the permeability of the institutional veil. Third, under a purely constitutional perspective, the UN Security Council would be able to exercise its margin of appreciation, balancing individual and collective interests. The European Court of Human Rights (ECtHR) created the margin of appreciation to give relevance to the internal necessity of a constitutional order.115 In order to establish that the human rights limitation is within the margin of appreciation, the act must be established by law and proportional.116 The first criterion is satisfied by the fact that within the UN constitutional order, the UN Security Council resolutions are rules of the organization. The second criterion means that the Security Council has a margin to appreciate the proportionality of individual sanctions with the aim of collective security. Finally, the last argument from a constitutionalist perspective concerns the applicability of derogatory clauses on the state of emergency.117 The Human Rights Committee has dealt with this issue in General Comment No 29. The Committee discussed article 4 of the International Covenant on Civil and Political Rights on derogation in case of emergencies which threaten the life of the nation and the

114 Annalisa Ciampi, ‘Security Council Targeted Sanctions and Human Rights’ in Bardo Fassbender (ed), Securing Human Rights?: Achievements and Challenges of the UN Security Council (OUP 2011); Lisa Ginsborg, ‘The United Nation’s Security Council’s Counter- Terrorism Al- Qaida Sanctions Regime: Resolution 1267 and the 1267 Committee’ in Ben Saul (ed), Research Handbook on International Law and Terrorism (Edward Elgar 2014). 115 Handyside v United Kingdom App no 5493/72 (ECtHR, 7 December 1976); The Sunday Times v United Kingdom App no 6538/74 (ECtHR, 26 April 1979); Christine Goodwin v United Kingdom App no 28957/95 (ECtHR Grand Chamber, 11 July 2002). 116 Steven Greer, The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights (Council of Europe 2000). 117 Angelika Siehr, ‘Derogation Measures under Article ICCPR, with Special Consideration of the War against International Terrorism’ (2004) 47 GYIL 545.

Secondary Norms 127 existence of which should be officially proclaimed. In the case of terrorism, the European Commission of Human Rights contended that: it falls to each Contracting State, with its responsibility for “the life of [its] nation”, to determine whether that life is threatened by a “public emergency” and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities.118

The same argument can be applied in the context of the UN Security Council from the constitutional perspective under which the Council is perceived as a ‘national’ authority. In sum, the fallacy under which international organizations are either perceived as functional or constitutional entities significantly affects the possibility of limiting their actions on the standard of human rights law. Chapter 10 will be dedicated to examining the notion of validity and ultra vires acts from the perspective of the dual legal nature.

8.5.4 EU secondary norms The dual legal character of EU law has been acknowledged in the context of investment claims involving EU member states. The perspective adopted by arbitral tribunals is particularly interesting because it is external to the EU legal system. The circumstances of the cases concern intra-EU bilateral investments treaties (BITs), which are treaties signed by EU member states which create a bilateral international relation within the EU. Intra-EU BITs conflict with the supremacy of EU law and the interpretative monopoly of the ECJ. The European Commission has opposed intra-EU BITs in many instances, demanding their termination in Eastern Sugar BV v The Netherlands,119 and defining them as an ‘anomaly within the EU internal market’ in Eureko v Czech Republic.120 From the EU perspective there are three main reasons to claim the incompatibility of intra-EU BITs with its legal system: 1. potential differences 118 Lawless v Ireland App no 332/57 (ECtHR, 1 July 1961). 119 See EU Commission Letter of 13 January 2006, quoted in Eastern Sugar BV (Netherlands) v Czech Republic SCC Case No 088/2004, Partial Award (27 March 2007) (hereafter Eastern Sugar) para 119. 120 European Commission Observations, 7 July 2010, quoted in Eureko BV v The Slovak Republic UNCITRAL, PCA Case No 2008-13, Award on Jurisdiction, Arbitrability and Suspension (26 October 2010) (hereafter Eureko) para 177.

128 The Dual Legal Nature in Practice between EU law and the treaty concerning substantive provisions; 2. total incompatibility with the prohibition of state aids; 3. the exclusive jurisdiction of the ECJ on EU law.121 In Eastern Sugar, the Tribunal did not take into consideration the Commission’s fears for the unity of the legal system and it affirmed that there are no incompatibilities between investment regimes and EU fundamental treaties.122 Subsequently, arbitral tribunals have consistently upheld this finding. Evidently, a different outcome would have been catastrophic for the entire investment regime within Europe, which is unsurprisingly detestable from the point of view of lawyers and arbitrators.123 In Eureko, the Tribunal recognized the dual nature of EU law stating that, on the one hand, EU law operates at the level of international law and, on the other hand, it is part of national law.124 In AES v Hungary, the Tribunal expressly stated: ‘Regarding the Community competition law regime, it has a dual nature: on the one hand, it is an international law regime, on the other hand, once introduced in the national legal orders, it is part of these legal orders.’125 Indeed, EU law was considered to be equivalent to national law for the purposes of the proceedings.126 Finally, in Electrabel v Hungary the dual nature was again at the core of the decision on the applicable law.127 At the outset, the Tribunal recalled its own nature as an entity established by public international law, being neither internal nor regional.128 This implied the rejection of the arguments made by the EU Commission based on the hierarchy of EU law. Subsequently, the Tribunal described four fundamental characteristics of the EU law. The first characteristic is the multiplicity of its nature: ‘EU law is a sui generis legal order, presenting different facets depending on the perspective from where it is analysed. It can be analysed from the perspectives of the international community, individual Member states and EU institutions’, therefore, ‘EU law has a multiple nature: on the one hand, it is an international legal regime; but on the other hand, once introduced in the national legal orders of EU Member states, it becomes also part of these national legal orders.’129 Second, the EU law is based on international treaties and, consequently, possess an international nature.130 Third, the EU law is a legal system that belongs to international law, without drawing a distinction between the constitutive treaties and 121 Jan Kleinheisterkamp, ‘European Policy Space in International Investment Law’ (2012) 27 ICSID Review 416. 122 Eastern Sugar (n 119) paras 120–25. 123 As noted by the claimant in Eureko (n 120) para 62. 124 Ibid para 225. 125 AES Summit Generation Limited v Hungary ICSID Case No ARB/07/22, Award (23 September 2010) para 7.6.6. 126 Ibid para 7.3.4. 127 Electrabel SA v Hungary ICSID Case No ARB/07/19. 128 Ibid para 4.112. 129 Ibid paras 4.117–4.118. 130 Ibid para 4.120.

Secondary Norms 129 the other norms.131 Fourth, ‘the fact that EU law is also applied within the national legal order of an EU Member State does not deprive it of its international legal nature’.132 In conclusion: ‘there is no fundamental difference in nature between international law and EU law that could justify treating EU law, unlike other international rules, differently in an international arbitration requiring the application of relevant rules and principles of international law’.133 The international nature allowed the Tribunal to consider the EU law as applicable law and to disregard the incompatibilities between the two regimes, applying a harmonious interpretation. Only if this were not possible would EU law prevail.134 The lesson to take from the Electrabel decision is that a conflict of laws may only arise when EU law is considered as international. Indeed, when the ECJ had the chance to declare the incompatibility of EU law and BITs, it relied on the dual legal nature of the EU law in order to reconcile the autonomy of its legal system and its derivation from international law.135 In Achmea, the ECJ affirmed that ‘[g]‌iven the nature and characteristics of EU law mentioned in paragraph 33 above, that law must be regarded both as forming part of the law in force in every Member State and as deriving from an international agreement between the Member States.’136 (emphasis added). Where paragraph 33 reads: 33. Also according to settled case-law of the Court, the autonomy of EU law with respect both to the law of the Member States and to international law is justified by the essential characteristics of the EU and its law, relating in particular to the constitutional structure of the EU and the very nature of that law. EU law is characterized by the fact that it stems from an independent source of law, the Treaties, by its primacy over the laws of the Member States, and by the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves. Those characteristics have given rise to a structured network of principles, rules and mutually interdependent legal relations binding the EU and its Member States reciprocally and binding its Member States to each other (see, to that effect, Opinion 2/13 (Accession of the EU to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraphs 165 to 167 and the case-law cited). (emphasis added)

The origin of this argument can be traced back to Van Gend and Loos, in which the Court famously affirmed that ‘the community constitutes a new legal order of international law’.137 In the process of the European integration, only the first part of

131

Ibid para 4.122. Ibid para 4.124. 133 Ibid para 4.126. 134 Ibid para 4.191. 135 Case C‑284/16 Slowakische Republik (Slovak Republic) v Achmea BV [2018] ECR 158. 136 Ibid para 41. 137 Case 26/62 van Gend & Loos v Nederlandse Administratie der Belastingen [1963] ECR 1. 132

130 The Dual Legal Nature in Practice this finding had far-reaching consequences for the creation of a new internal legal order. The consequences of the belonging to (or derivation from) international law are underdiscussed. The Achmea decision reminds us that the international origin of the EU law is not abandoned.

8.5.5 ICAO regulations Another example of the dual nature of secondary norms concerns the competence of the International Civil Aviation Organization (ICAO) to regulate air traffic over the high seas.138 The practical exigency of a uniform set of rules shared by members and non-members of the ICAO Convention is self-evident and it is codified in article 12 of the Chicago Convention, stating: ‘over the high seas, the rules in force shall be those established under this Convention’.139 Due to the absence of sovereignty over the high seas and for safety considerations, it is indispensable that all states conform to the same regulations without exceptions. This peculiar power to prescribe rules of civil conduct has been defined as ‘meaningful’ law-making.140 It is the law-making power of the ICAO Council to determine the international standards relating to flights over the high seas. This competence originates from the will of the founding states that adopted the ICAO Convention. In these circumstances, the need for a universal law-maker was evident. Even if article 12 of the Chicago Convention does not contain an explicit rule on the power to bind third parties, it intends to regulate a space which is not under the sovereignty of any party or non-party. The Chicago Convention was signed by fifty-two States in 1944 and, shortly afterwards, the question arose as to the legal basis of its peculiar law-making power.141 The question was how a non-universal organization could regulate air traffic over waters not subject to claims of sovereignty and under the freedom of overflight established by what today is article 87 of the UN Convention on the Law of the Sea (UNCLOS). The main explanation relied on the objective existence of the organization as elaborated by the ICJ in the Reparation Advisory Opinion, claiming that third states would be inclined to observe these rules for safety considerations.142 138 Michael Milde, International Air Law and ICAO (Eleven International 2008); Ludwig Weber, International Civil Aviation Organization (Wolters Kluwer 2007). The basis of this example has also been discussed in Lorenzo Gasbarri, ‘Beyond the Either-Or Paradigm’ in Sufyan Droubi and Jean d’Aspremont (eds), International Organizations, Non-State Actors, and The Formation of Customary International Law, Melland Schill Perspectives on International Law (Manchester University Press 2020). 139 Edward Yemin, Legislative Powers in the United Nations and Specialized Agencies (AW Sijthoff 1969) 146. 140 Ruwantissa Abeyratne, ‘Law Making and Decision Making Powers of the ICAO Council-A Critical Analysis’ (1992) 41 Zeitschrift fur Luft-und Weltraumrecht 387. 141 Jean Carroz, ‘International Legislation on Air Navigation over the High Seas’ (1959) 26 Journal of Air Law and Commerce 158. 142 Reparation for Injuries (n 59) 185.

Secondary Norms 131 However, there is an important theoretical difference between considering that an injured organization can present a claim against a non-member state and claiming that an organization can regulate the conduct of non-member states. The intriguing relation between treaties, customs, and the rules of international organizations provides the reason for dealing with the controversial notion of objective regimes. The discussion will develop on the complex nature of international organizations. ILC Conclusion 12(1) on the formation of customary law rejects the existence of so-called ‘instant custom’, stating that: ‘A resolution adopted by an international organization or at an intergovernmental conference cannot, of itself, create a rule of customary international law.’143 While this is a relatively uncontested position, there are certain circumstances in which organizations seek to bind non-member entities, such as ICAO regulations. Objective regimes are traditionally considered to be exceptions to article 34 of the 1969 Vienna Convention on the Law of Treaties, codifying the maxima pacta tertiis neque nocent neque prosunt.144 The main characteristic of objective regimes is their capacity to create ‘situations’ in which third parties have no option other than to acknowledge their existence and to comply with their obligations. Before the codification of the law of treaties there was an active debate on the existence of this rule, often seen as a dangerous exception to the sovereign equality of states.145 To mention only a few, Rousseau, Monaco, and McNair affirmed the existence of treaties with universal effects by reason of their fundamental and general importance in the creation of new institutions giving a particular status to territories.146 In the context of the ILC, Sir Humphrey Waldock proposed including the rule in the project on the law of treaties.147 In order to be ‘objective’, a regime must fulfil 143 ILC, ‘Customary law’ (n 36) 147. 144 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) art 34: ‘A treaty does not create either obligations or rights for a third State without its consent.’ 145 Malgosia Fitzmaurice, ‘Third Parties and the Law of Treaties’ (2002) 6 MPYUNL 37. 146 Charles Rousseau, Principles generaux du droit international public 2 (Pedone 1944) 452–84; Arnold Duncan McNair, The Law of Treaties (OUP 1961) 311. 147 ILC, ‘Third report on the law of treaties by Humphrey Waldock’ (1964) UN Doc A/CN.4/167 and Add.1-3, 26: ‘1. A treaty establishes an objective regime when it appears from its terms and from the circumstances of its conclusion that the intention of the parties is to create in the general interest general obligations and rights relating to a particular region, State, territory, locality, river, waterway, or to a particular area of sea, sea-bed, or air-space; provided that the parties include among their number any State having territorial competence with reference to the subject-matter of the treaty, or that any such State has consented to the provision in question. 2. (a) A State not a party to the treaty, which expressly or impliedly consents to the creation or to the application of an objective regime, shall be considered to have accepted it. (b) A State not a party to the treaty, which does not protest against or otherwise manifest its opposition to the regime within a period of X years of the registration of the treaty with the Secretary-General of the United Nations, shall be considered to have impliedly accepted the regime. 3. A State which has accepted a regime of the kind referred to in paragraph 1 shall be —(a) bound by any general obligations which it contains; and (b) entitled to invoke the provisions of the regime and to exercise any general right which it may confer, subject to the terms and conditions of the treaty. 4. Unless the treaty otherwise provides, a regime of the kind referred to in paragraph 1 may be amended or revoked by the parties to the treaty only with the concurrence of those States which have expressly or impliedly accepted the regime and have a substantial interest in its functioning.’

132 The Dual Legal Nature in Practice three requisites: to be the intention of the parties; to concern territorial, maritime, or air space; and to fall within the territorial competence of one of the parties.148 The existence of objective regimes has always been debated, either relying on the necessary consent of third parties,149 or their colonial legacy.150 The ILC rejected Waldock’s proposal, but international practice showed the development of the phenomenon in unexpected directions. The particular relevance of treaties establishing boundaries or ‘other territorial regimes’ was considered in the 1978 Convention on Succession of States in Respect of Treaties.151 Another frequent example is the international regime of ‘the Area’, subject to the international sea-bed authority under UNCLOS as modified by the 1994 agreement.152 Francesco Salerno compiled an exhaustive list of agreements having an objective nature.153 Examples of the notion have been considered in the context of the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks,154 to protect certain species of fauna155 or the environment,156 to ensure international peace or disarmament,157 to address drug trafficking,158 to regulate international

148 Carlos Fernández De Casadevante Romani, ‘Objective Regime’ (2010) MPEPIL. 149 Philippe Cahier, ‘Le problème des effets des traités à l’égard des états tiers’ (1974) 143 RCADI 593 (hereafter Cahier, ‘Le problème des effets’). 150 Christine Chinkin, Third Parties in International Law (OUP 1993). 151 Convention on Succession of States in Respect of Treaties (adopted 23 August 1978, entered into force 6 November 1996) 1946 UNTS 3, art 11: ‘A succession of States does not as such affect: (a) a boundary established by a treaty; or (b) obligations and rights established by a treaty and relating to the regime of a boundary’; art 12: ‘1. A succession of States does not as such affect: (a) obligations relating to the use of any territory, or to restrictions upon its use, established by a treaty for the benefit of any territory of a foreign State and considered as attaching to the territories in question; (b) rights established by a treaty for the benefit of any territory and relating to the use, or to restrictions upon the use, of any territory of a foreign State and considered as attaching to the territories in question. 2.A succession of States does not as such affect: (a) obligations relating to the use of any territory, or to restrictions upon its use, established by a treaty for the benefit of a group of States or of all States and considered as attaching to that territory; (b) rights established by a treaty for the benefit of a group of States or of all States and relating to the use of any territory, or to restrictions upon its use, and considered as attaching to that territory. 3.The provisions of the present article do not apply to treaty obligations of the predecessor State providing for the establishment of foreign military bases on the territory to which the succession of States relates.’ 152 Hermann Mosler, ‘The International Society as a Legal Community’ (1974) 140 RCADI 7. 153 Francesco Salerno, ‘Treaties Establishing Objective Regimes’ in Enzo Cannizzaro (ed), The Law of Treaties beyond the Vienna Convention (OUP 2011). 154 José Antonio de Yturriaga, The International Regime of Fisheries: From UNCLOS 1982 to the Presential Sea (Nijhoff 1997) 164. 155 For example, International Convention for the Regulation of Whaling (adopted 2 December 1946, entered into force 10 November 1948) 161 UNTS 72; Craig L Carr and Gary L Scott, ‘Multilateral Treaties and the Environment: A Case Study in the Formation of Customary International Law’ (1998) 27 DJILP 313. 156 David M. Ong, ‘International Environmental Law’s “Customary” Dilemma: Betwixt General Principles and Treaty Rules’ (2006) 1 IYIL 3. 157 Theodor Schweisfurth, ‘International Treaties and Third States’ (1985) 45 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 653. 158 Cahier, ‘Le problème des effets’ (n 149) 654–55.

Secondary Norms 133 communications,159 to define the status of the so-called maritime cemeteries,160 and in the context of human rights treaties.161 Several theses have been proposed in order to describe the legal basis of objective regimes.162 Simma, discussing the Antarctic treaty system, considered three main positions.163 The first is based on a treaty law approach, considering objective regimes as an exception to the pacta tertiis rule. He disregarded this theory on the basis of the primacy of state consent, and on the fact that the silence of third parties cannot be taken as assent. The second possible legal basis was the ‘public law theory’, founded on the quasi-legislative power of certain states to develop a regime binding third states. Simma rebutted this theory in seven points, mainly concerning sovereign equality and incompatible circumstances of the Antarctica treaty. Third and lastly, he described the ‘subsequent practice approach’, according to which the process of customary law, recognition, estoppel, and acquiescence can transform a contractual regime into an objective regime. He discarded this theory, and finally contested the objective nature of the regime as incompatible with the Antarctica treaty. In the theoretical background, there is the undisputed and unsurmountable thesis that the rules of international organizations do not create instant custom. The interactions between treaty law and custom make this last theory relevant for the purposes of this chapter. Article 38 of the 1969 Vienna Convention states that a rule set forth in a treaty may become binding upon a third state as custom.164 It is a saving clause that seeks to avoid any conclusions on the formation of customary law.165 Thus, it clearly differentiates rules binding states parties to a treaty from those binding third parties as customary law, and it only concerns customary rules that are created after the stipulation of the treaty. Article 38 does not codify a process of formation of new customary law. It states that the development of custom is not excluded by the existence of a treaty.166 Mark Villiger considered that objective regimes do not derive from conventional rules because treaties do not produce legal effects for non-parties. First, the non-party conforms to the rule 159 Jean-françois Prevost, Les Effets des traités conclus entre Etats à l’égard des Etats tiers (Dphil thesis, Paris 1973), 424ss. 160 Jan Klabbers, ‘Les cimetières marins sont-ils établis comme des régimes objectifs? A propos de l’accord sur l’épave de M/S Estonia’ (1997) Espaces et Resources Maritimes 121. 161 Malcolm N Shaw, International Law (6th edn, CUP 2008) 981. 162 Surya P Subedi, ‘The Doctrine of Objective Regimes in International Law and the Competence of the United Nations to Impose Territorial or Peace Settlements on States’ (1994) 37 GYIL 162, 174. 163 Bruno Simma, ‘The Antarctic Treaty as a Treaty Providing for an Objective Regime’ (1986) 19 Cornell International Law Journal 189. 164 VCLT (n 144) art 38: ‘Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such.’ 165 Giorgio Gaja, ‘Article 38’ in Olivier Corten and Pierre Klein (eds), The Vienna Conventions on the Law of Treaties: A Commentary (OUP 2011) 949. 166 Mark Eugen Villiger, Customary International Law and Treaties: A Study of their Interactions and Interrelations, with Special Consideration of the 1969 Vienna Convention on the Law of Treaties (Brill 1985) 183.

134 The Dual Legal Nature in Practice due to its persuasiveness and, with the formation of customary law, ‘the process of a written rule generating customary law is the closest approximation to true legislation offered by international law’.167 Again, international organizations do not produce instant custom, but customary law could develop independently from it. This is the position of the ILC, stating that resolutions may provide evidence for establishing the existence and the content of customary law.168 The complex nature of international organizations can be understood better by exploring the relation between objective regimes, the law of treaties, and customary law. Indeed, a notion similar to objective regimes was used by the ICJ in its Advisory Opinion on Reparations in order to allow the UN to bring a claim against a non-member state. It considered that ‘fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims’.169 Evidently, international organizations do not create objective regimes in the sense considered by Special Rapporteur Waldock. However, it is relevantly similar that third parties cannot easily deny the existence of a new entity. They are subject to the legal effects emanating from a treaty to which they are not party. The dual legal nature explains how rules of international organizations do not form instant custom but they bind third parties in certain circumstances. The functionalist conceptualization applies insofar as resolutions and other rules derive from the will of member states enshrined in the institutional treaty. Complementary to this, the constitutionalist conceptualization explains how the institutional treaty may develop a customary power to bind third parties by the means of its rules. International organizations contribute to the formation of customary law as entities that are founded on the will of member states and, at the same time, on customary international law itself. Finn Seyersted contended that if a law common to every organization were to exist, it must be found in customary international law.170 However, his differentiation between internal and external law does not reflect the complex relation that organizations have with members and third states. It reproduces the dynamic of ambivalence byfocusing on either what is internal from a state-centric perspective or what is external from an organization- centric perspective. Conversely, the present focus on anomalies to this binary mindset exposes the nature of international organizations as dual entities. Rules of international organizations such as the ICAO regulations do not bind third parties as general practice accepted as law. They are not instant custom.

167

Ibid 197. ILC, ‘Customary law’ (n 36) conclusion 12(2). 169 Reparation for Injuries (n 59) 185. 170 Seyersted, Common Law (n 19) 21. 168

Judicial Decisions 135 However, the power enshrined in article 12 could become customary law itself by means of general practice accepted as law by international organizations as much as by states. It is article 12 of the Chicago Convention that could develop into a rule of customary law. This example illustrates how the two concepts of international organizations interact. The ICAO contributes to the formation of customary law both as an entity created by member states and by developing some type of objective regime which derives from a rule of customary law. There is no distinction between the practice and the opinio iuris of the member states within the organization and the practice of the organization itself. Today, the quasi-universal membership of the ICAO demonstrates the cost of remaining outside the centre of norms production.

8.6 Judicial Decisions Judicial decisions are mentioned in the definition of rules adopted In the ARIO.171 The importance of including judicial decisions in the definition was primarily emphasized by organizations themselves in their comments. In particular, the EU considered that: the case law of the European Court of Justice and the Court of First Instance is of particular importance. It offers important guidelines about the apportionment of responsibility as between the Community and its member States. Accordingly, it should be emphasized that the notion ‘established practice of the organization’ must be understood broadly as encompassing the case law of the courts of an organization. We would therefore recommend making this point clear either in the text by referring to ‘established practice of the organization, including case law by its courts’ or by explaining this point in the commentary to the draft definition.172

It is evident that judicial organs created by constitutive instruments or secondary norms contributes to the formation of institutional norms and the development of institutional legal systems.173 Conversely, in many cases judicial decisions have been ignored or, at least, they have been difficult to implement. For instance, the ICJ Advisory Opinion on the Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) was simply ignored by the Soviet Union.174 Or, the refusal to share the 171 ARIO (n 1). 172 Comments 2004 (n 56) 15. 173 Elihu Lauterpacht, ‘The Development of the Law of International Organization by the Decisions of International Tribunals’ (1976) 152 RCADI 383. 174 Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion) [1948] ICJ Rep 57.

136 The Dual Legal Nature in Practice expenses of the first peacekeeping missions found its solution only after diplomatic efforts, with a limited relevance of the fundamental Advisory Opinion on Certain Expenses.175 Undoubtedly, an internal mechanism of dispute settlement facilitates the creation of an internal order to which the parties to the proceedings are its legal subject. However, the different models of judicial organs included in constitutive instruments vary from the character of a quasi-constitutional Court, such as the ECJ, to a bilateral dispute settlement system such as the ICJ. Amerasinghe distinguished judicial organs into two categories, based on their autonomous international or their functional internal nature.176 Schermers and Blokker discuss judicial decisions by analogy with secondary norms, and the distinction between internal and external effects.177 For instance, the ICJ is an organ of the UN called to rule upon cases that can be either presented as internal or external to the organization. Regarding rules of the organizations, the ICJ can be called upon to decide cases concerning internal effects,178 such as headquarters agreements, or external effects, such as international personality.179 The dual legal character of judicial decisions renders judicial organs instruments of international dispute settlement under article 33 of the United Nations Charter or instruments of internal dispute settlements. Schermers and Blokker contended that judicial organs affect the internal functioning of organizations in four areas: constitutional validity, employment relationships, harmonization with member states’ domestic systems, application of private international law.180 It is clear how the external/internal dichotomy blurs. For instance, decisions of the PCIJ and ICJ have a clear dual nature, identifying rules of international organizations that possess international and internal character simultaneously.

8.7 Treaties with Members and Non-members International agreements which organizations conclude with third parties are explicitly mentioned as sources of internal and dual obligations in the commentary on the ARIO.181 In particular, the dual nature is evident when it is not clear whether a decision issued by an organization is a secondary norm deriving from the constitutive instrument or an agreement with the state concerned.182 This 175 Certain Expenses (n 2). 176 Amerasinghe, Principles (n 18) 217. 177 Henry G Schermers and Niels M Blokker, Institutional Law: Unity within Diversity (Nijhoff 2011) (hereafter Schermers and Blokker, Institutional Law) para 597. 178 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 12. 179 Reparation for Injuries (n 59). 180 Schermers and Blokker, Institutional Law (n 177) para 598. 181 ARIO (n 1) 11. 182 Gaja and Adinolfi, Introduzione (n 51).

Treaties with Members and Non-members 137 problem was faced by the ECJ with regard to decisions issued by the Organization for European Cooperation. In 1975 the ECJ considered these decisions to be international agreements.183 Afterwards, after its transformation into the Organization for Economic Cooperation and Development, it decided that the decisions are binding on member states and the EU as international agreements with a third party.184 Conversely, the Commission held that these decisions are administrative acts which bind only organs and not the entire organization.185 The difficult distinction between international agreements and internal rules was also discussed in the context of loan agreements signed by the World Bank and a member state.186 World Bank loans concluded with private entities, states, and other international organizations and constitute the principal activity of the organization. The issue is whether they are governed by international law,187 domestic law,188 or by the internal system of the World Bank.189 Another example concerns agreements concluded by the UN and member states in the context of peacekeeping missions. If these agreements are international agreements, contributing states are perceived as third parties in relation to the organization, while if these agreements are internal law, contributing states are perceived as organs of the organization. Evidently, the consequences for the issue of attribution of conduct for the purposes of establishing international responsibility are relevant.190 The last example that I am going to use to describe the difficulty of dealing with the dual legal nature of international organizations concerns the so called ‘EU–Turkey statement on migration’. In 2017, the General Court ruled that it lacked jurisdiction to hear the application based on article 263 TFEU seeking the annulment of the ‘EU–Turkey statement, 18 March 2016’.191 In particular, it argued that ‘independently of whether it constitutes . . . a measure capable of producing binding legal effects, the EU–Turkey statement, as published by means of Press Release No 144/16, cannot be regarded as a measure adopted by the European Council, or, moreover, by any other institution, body, office or agency of the European Union’.192 In sum, the Court considered that the 183 Opinion 1/75 [1994] ECR 1355. 184 Opinion 2/92 [1995] ECR I 525. 185 Case C-327/91 France v Commission [1994] ECR I 3641; Christine Kaddous, ‘L’arrêt France c. Commission de 1994 (accord concurrence) et le contrôle de la” légalité” des accords externes en vertu de l’art. 173 CE: la difficile réconciliation de l’orthodoxie communautaire avec l’orthodoxie internationale’ (1996) Cahiers de droit européen 613. 186 Simone Vezzani, Gli accordi delle Organizzazioni del Gruppo della Banca mondiale (Giappichelli 2011) (hereafter Vezzani, Gli accordi). 187 Amerasinghe, Principles (n 18) 240. 188 Luigi Ferrari Bravo, ‘Le operazioni finanziarie degli enti internazionali’ (1965) ADI 80. 189 Vezzani, Gli accordi (n 186). 190 Y Chen, ‘Attribution, Causation and Responsibility of International Organizations’ in Dan Sarooshi (ed), Remedies and Responsibility for the Actions of International Organizations (Brill 2014). See Chapter 11. 191 Case T‑192/16 NF v European Council [2017]. 192 Ibid para 71.

138 The Dual Legal Nature in Practice expression ‘members of the European Council’ and the acronym ‘EU’ contained in the Press Release No 144/16 does not refer to the European Union itself, but only to its member states. The Turkish counterpart only met with the Heads of State or Government of the European Union, while the President of the Commission and the President of the European Council participated in the meeting without being ‘formally invited’.193 Following the reasoning of the order, in some circumstances member states’ representatives have the power to decide whether they are acting in their own name or in the name of the organization, changing their hats or adding a line to a meeting schedule. Two main remarks will conclude this section: one concerns the incompatibility of the General Court’s order with the theory on the exceptional nature of the EU; the other deals with the need to replace exceptionalism with a concept of an international organization based on their dual nature. The Court’s order reveals the inconsistency of the European exception in international law.194 As discussed, exceptionalist theories applied to the EU rely on the attribution of exclusive competences to claim the development of a new legal system not derived from international law, within which member states are organs and its law is not international. It has frequent manifestations, as in the context of responsibility (claiming attribution of responsibility based on exclusive competences) and invalidity of acts (claiming that EU regulations are not international law as UN Security Council resolutions are). The exceptional nature of the EU is not compatible with the concept of an international organization adopted by the General Court in the case concerning the EU–Turkey statement. Indeed, the order shows how the EU modifies the openness of its legal system following opportunism. The fact that Heads of State or Government can be separate from the EU’s legal system contravenes one of the fundamental pillars of the theory of exception. As expressed in the Kadi case: ‘neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions’.195 If, as the General Court contended, the European Council (or the Heads of State or Government) has the power to determine if an act is attributable to the organization or to its member states, the system of legal remedies is rather incomplete.

193 Ibid para 67. 194 Turkuler Isiksel, ‘European Exceptionalism and the EU’s Accession to the ECHR’ (2016) 27 EJIL 565. See Chapter 5. 195 Joined Cases C-402-05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I 6351, para 281.

Treaties with Members and Non-members 139 The effect of the General Court’s order is that in some circumstances the member states hide behind the EU by emphasizing the autonomy of the organization’s legal system. In other circumstances, member states unveil themselves and appear as international actors with the competence to exercise control over the organization. However, the functional concept of organization used by the General Court cannot be applied indiscriminately. Indeed, the EU cannot be considered an institution driven by its member states without autonomous will. The problem is usually solved by claiming that there are certain matters within any organization that are only internal, while the rest is external, or international. On international issues, organizations would rather be transparent and led by member states, while on internal issues they would rather be opaque and led by their autonomous will. This does not solve the problem, substituting it with the dangerous question of boundaries: where does the autonomy stop and where does the will of member states start? I discussed this question previously in the context of informalist theories.196 The dual legal nature means that what member states do within organizations cannot be distinguished from what the organization does, relying on the coexistence of member states with the organization. It recognizes that on the one hand, the organization is not a third party to the agreement concluded by its member states within its framework, as the order of the General Court contends. On the other hand, an agreement concluded by the organization does not directly bind member states, as exceptionalism should require. There is an evident failure of legal theory in explaining the relationship, but it can be solved by excluding the either/or mindset and working on theories based on the dual nature of international organizations.197 In the context of the EU–Turkey statement, the dual nature of the EU can explain that the negotiation of the statement took place in a context which excludes the either/or perspective of international organizations’ legal orders. The EU–Turkey statement was negotiated by the member states and, at the same time, by the European Council. This does not mean that member states are bound by the agreement concluded by the organization (or vice versa). It is not even a mixed agreement, under which both the member states and the organization concluded the treaty. Dual legal nature implies that, when an agreement is concluded in the framework of an international organization, member states never disappear and they assume an indirect position. The next chapter will discuss the dual nature in the context of the law of treaties.

196 197

See Chapter 4. See Chapter 9.

140 The Dual Legal Nature in Practice

8.8 Concluding Remarks This chapter takes a closer look at a number of examples where the dual legal character of the rules of international organizations can shed new light on traditional debates (e.g. the legal nature of the Mandate) or is acknowledged by practice and scholarship (e.g. the legal nature of international territorial administration). The examples are not exhaustive and were selected with a view to both diversity and their capacity to support my conclusions. The fundamental claim is that all rules of all organizations possess a dual legal character, without distinguishing between organizations or between types of rule.

9

The Law of Treaties With the words ‘International law is not rules. It is a normative system’ Rosalyn Higgins began her General Course at the Hague Academy of International Law.1 The same can be said of international organizations: they are not a mere collections of rules. They are normative systems in continuous development, overlapping and meshing with one another. Until now, the book has adopted a static perspective, describing the current status of international law. I have provided a definition of these entities on the basis of the law they produce and the normative quality of their legal systems. The dual legal nature has the benefit of conceptualizing international organizations in the framework of legal pluralism, in which the relationship between legal systems assumes a fundamental priority. The next chapters will tackle the practical consequences of the dual legal nature. First, I will focus on the law of treaties: how to reconcile the transparent institutional veil with the ‘mono-dimensional’ law of treaties. Second, invalidity of ultra vires acts: how to reconcile the international and the internal legal basis of institutional law. Third, international responsibility: how to reconcile the relationship between the organization and its member states. The three themes follow the classical distinctions of the ‘effects of illegal acts’ originally drafted by Elihu Lauterpacht.2 Obviously, there are interconnections between the three topics: the invalidity of a treaty may derive from the invalidity of a rule; the invalidity of a rule may also recall responsibility; responsibility may also derive from the breach of a treaty obligation. The purpose is to describe how the dual nature of international organizations has practical implications and how it is useful to clarify certain aspects of their activities. The book will end with a claim for a simplified legal framework, which would overcome the current complexities and the argumentative opportunism that lead to reliance on one or the other concept of an international organization.

1 Rosalyn Higgins, Problems and Process: International Law and How We Use It (OUP 1994) 1. 2 Elihu Lauterpacht, ‘The Legal Effect of Illegal Acts of International Organizations’ in Cambridge Essays in International Law Essays in Honour of Lord McNair (Stevens & Sons 1965).

The Concept of an International Organization in International Law. Lorenzo Gasbarri, Oxford University Press (2021). © Lorenzo Gasbarri. DOI: 10.1093/oso/9780192895790.003.0009

142 The Law of Treaties

9.1 International Organizations in the Law of Treaties 9.1.1 The 1969 Vienna Convention The absence of an agreed definition of an international organization is reflected in the work of the International Law Commission (ILC) on the Law of Treaties, which gave birth to the 1969 and 1986 Vienna Conventions. Initially, the Commission did not distinguish between treaties concluded by states and those concluded by international organizations.3 The Special Rapporteurs Brierly, Lauterpacht, Fitzmaurice, and Waldock included international organizations in their preliminary reports.4 However, the Commission encountered two main difficulties concerning the definition of international organizations and the source of their capacity to conclude treaties. In particular, the Commission was not confident of the possibility to include a general provision applicable to every international organization. Catherine Brölmann noted that the difficulties faced by the ILC and its uncertainty on whether it should include organizations in its draft articles reflect the transparent institutional veil of international organizations which cannot be readily accommodated by the law of treaties.5 In order to include international organizations, the Commission would have had to take two decisions which it was not willing to address: the first concerns whether it is possible to conceive a general framework applicable to every organization; the second is whether international organizations can be assimilated to states or whether they are merely agents, empowered with a limited capacity to conclude treaties. In 1950, Brierly defined international organizations as an ‘an association of States with common organs which is established by Treaty’.6 He contended that the term international organization is ‘ambiguous’ but that it would include the UN, all specialized agencies, and regional organizations. Despite definitions, he adopted a concept of an international organization as a separate and independent entity from its member states, which is in line with a constitutional conceptualization. Indeed, he claimed that both states and international organizations have a general capacity to conclude treaties, although it might be limited by constitutional provisions. 3 ILC, ‘Draft articles on the law of treaties with commentaries’ (1966) UN Doc A/21/9 (hereafter ILC, ‘Law of treaties’) 187, para 2. 4 James Brierly was appointed in 1949 (three reports, 1950–1952); Sir Hersch Lauterpacht was appointed in 1952 (two reports, 1953, 1954); Sir Gerald Fitzmaurice was appointed in 1955 (five reports, 1956–1960); Sir Humphrey Waldock was appointed in 1961 (six reports, between 1962 and 1966). On how the ILC dealt with international organizations, see Shabtai Rosenne, The Law of Treaties: A Guide to the Legislative History of the Vienna Convention (Brill 1970). 5 Catherine Brölmann, The Institutional Veil in Public International Law: International Organisations and the Law of Treaties (Hart 2007) (hereafter Brölmann, The Institutional Veil) 173. 6 ILC, ‘First Report on the law of treaties by James L Brierly’ (1950) UN Doc A/CN.4/23, 223.

International Organizations in the Law of Treaties 143 When he presented his proposal, the Commission preferred to avoid the issue of a general capacity to conclude treaties.7 In 1953, Lauterpacht did not include a definition of international organizations in his draft articles, but he stressed that treaties are agreements between states, including ‘organizations of States’.8 In the commentary to article 1, he contended that ‘States can exercise their capacity to conclude treaties either individually or when acting collectively as organizations created by a treaty’ and that: The expression ‘organizations of States’ is here intended as synonymous with the expression ‘international organizations’ conceived as entities which are created by treaty between States, whose membership is composed primarily of States, which have permanent organs of their own, and whose international personality is recognized either by the terms of their constituent instrument or in virtue of express recognition by a treaty concluded by them with a State.9

This definition radically diverged from Brierly’s proposal and considered international organizations as collective organs created by states through a treaty. The functionalist point of view is clearly predominant. In 1956, Fitzmaurice provided a different definition of an international organization as ‘a collectivity of States established by treaty, with a constitution and common organs, having a personality distinct from that of its member-States, and being a subject of international law with treaty-making capacity’, even if he acknowledged the provisional nature of the decision to include organizations in the draft articles.10 This definition includes three essentials elements: the conventional basis, the institutional element, and the separate entity of the organization. It reflects the crystallization of a definition which emerged in those years.11 However, it does nothing to define whether the capacity to conclude treaties is general as a constitutional theory would require or limited on the basis of attributed competences and has its legal basis on functionalism and the will of member states. In 1959, Fitzmaurice decided to expunge his definition of international organizations from the draft articles.12 He inaugurated an approach that will be consistent in the work of the ILC, under which ‘[i]‌t had been decided to discuss, first, the code as it applied to relations strictly between States and to discuss subsequently what modifications or additions to the code would be needed to cover treaties to which international organizations were parties.’13

7

ILC, ‘Summary record of the 98th meeting’ (1951) UN Doc A/CN.4/SR.98, 136. ILC, ‘First Report on the law of treaties by Hersch Lauterpacht’ (1953) UN Doc A/CN.4/63, art 1. 9 Ibid 96, 99. 10 ILC, ‘First report on the law of treaties by Gerald G Fitzmaurice’ (1956) UN Doc A/CN.4/101, 108. 11 Paul Reuter, International Institutions (Allen & Unwin 1958) 195. 12 ILC, ‘Summary record of the 480th meeting’ (1959) UN Doc A/CN.4/SR.480, para 9. 13 Ibid. 8

144 The Law of Treaties In 1962, Waldock’s first report opposed the decision of the Commission not to discuss the capacity of international organizations to conclude treaties and considered it necessary to include a number of provisions to deal with international organizations in a separate chapter.14 For the time being, he included in article 3(4) a functionalist reference to the capacity to conclude treaties: ‘International capacity to become a party to treaties is also possessed by international organizations and agencies which have a separate legal personality under international law if, and to the extent that, such treaty-making capacity is expressly created, or necessarily implied, in the instrument or instruments prescribing the constitution and functions of the organization or agency in question.’ The Commission retained the article on the capacity to conclude treaties proposed by Waldock, but reaffirmed its approach that it was not opportune to discuss international organizations ‘until it had made further progress with its draft on treaties concluded by States’.15 In his second report, Special Rapporteur Waldock dealt with the validity of treaties and included a number of provisions to consider the special nature of the treaties concluded within international organizations or constitutive of them.16 Article 14 ‘conflict with a prior treaty’ established in paragraph 3(a): ‘Paragraphs 1 and 2 are without prejudice to any question of invalidity that may arise when the earlier treaty is the constituent instrument of an international organization which contains provisions limiting the treaty-making powers of its members with respect to the amendment of the constituent treaty or with respect to any particular matters.’17 Article 17 ‘Treaties containing no provisions regarding their duration or termination’ established in paragraph 3(b): (b) In the case of a treaty which is the constituent instrument of an international organization, unless the usage of the organization otherwise prescribes, a party shall have the right to withdraw from the treaty and from the organization by giving such notice as the competent organ of the organization, in accordance with its applicable voting procedure, shall decide to be appropriate.18

Article 18 ‘Termination of a treaty by subsequent agreement’ established that a treaty can be terminated at any time: (a) in the case of a treaty drawn up at an international conference convened by the States concerned or by an international organization, by the agreement of not less 14 ILC, ‘First report on the law of treaties by Humphrey Waldock’ UN Doc A/CN.4/144 and Add.1, 30. 15 ILC, ‘Report of the International Law Commission on the work of its 14th Session’ (24 April–29 June 1962) UN Doc A/CN.4/148, para 21-161. 16 ILC, ‘Second report on the law of treaties by Humphrey Waldock’ (1963) UN Doc A/CN.4/156 and Add.1-3. 17 Ibid 54. 18 Ibid 64.

International Organizations in the Law of Treaties 145 than two-thirds of the States which drew up the treaty, including all those which have become parties to the treaty, provided that, if X years have elapsed since the date of the adoption of the treaty, only the agreement of the States parties to the treaty shall be necessary; (b) in the case of a treaty drawn up within an international organization, by a decision of the competent organ of the organization in question, adopted in accordance with the applicable voting rule of such organ.19

Finally, article 22 ‘The doctrine of rebus sic stantibus’ established an exception for ‘(c) a treaty which is the constituent instrument of an international organization’.20 The Commission considered that the constitutive instruments and the treaties concluded within an international organization should be excluded from the application of the draft articles by way of a general provision.21 Waldock accepted this recommendation and in his fourth report drafted a general provision which, for the first time, mentioned the notion of ‘rules of the organization’: ‘The application of the present articles, with the exception of articles 31–37 and article 45, to treaties which are constituent instruments of an international organization or have been drawn up within an organization shall be subject to the established rules of the organization concerned.’22 This is the only reference to international organizations that would be retained in the final draft and in the 1969 Vienna Convention. Article 4 of the final draft contains a provision that considers the particular nature of treaties which are also the constitutive instruments of international organizations or that are negotiated within international organizations: ‘The application of the present articles to treaties which are constituent instruments of an international organization or are adopted within an international organization shall be subject to any relevant rules of the organization.’23 Consequently, article 2(1)(i) included the laconic definition: ‘ “International organization” means an intergovernmental organization.’24 The commentary explains the inclusion of this definition in order to exclude the relevance of the rules of non-governmental organizations from the scope of article 4. However, the Vienna Conference drastically modified the scope of this article, and article 5 of the 1969 Convention reads: ‘The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization.’ This modification is fundamental to analysing the relationship lex specialis–lex generali inaugurated by this article. While the 19 Ibid 70. 20 Ibid 80. 21 ILC, ‘Summary record of the 692nd meeting’ (1963) UN Doc A/CN.4/SR.692; ILC, ‘Report of the International Law Commission on the work of its 15th Session’ (1963) UN Doc A/CN.4/163, 213. 22 ILC, ‘Fourth report on the law of treaties by Humphrey Waldock’ (1965) UN Doc A/CN.4/177 and Add.1 & 2, 18. 23 ILC, ‘Law of treaties’ (n 3). 24 Ibid.

146 The Law of Treaties Commission draws a distinction between codification of international law in its draft articles and the constitutional framework of the organization, the Convention envisages the ‘fall-back’ to international law in any case in which the rules of the organization are not detailed enough.

9.1.2 The 1986 Vienna Convention As early as 1969, the General Assembly recommended a study on the topic of treaties concluded by international organizations,25and three years later Paul Reuter was appointed Special Rapporteur.26 Unsurprisingly, the work of the Commission was characterized by the same two questions that remained unanswered: are international organizations similar to states? And, is it possible to conceive a general regulatory framework applicable to every institution? The Commission’s approach was to avoid these questions with a stratagem, claiming that the purpose of its work was not to define the status of international organizations in international law, but to regulate the regime of treaties.27 Consequently, the definition of international organization was as general as possible, and retained the formulation included in the 1969 Vienna Convention: ‘international organization means an intergovernmental organization’.28 However, the regime of treaties is inevitably affected by the status of the subject that concluded them and the Commission elaborated a ‘passepartout’ concept to apply every time in which the possibility to develop a general regime is affected by the concept of an organization: the rules of international organizations. In his first report, Reuter emphasized the importance of defining the rules of international organizations, as it affects the possibility to develop a general regime. He considered the reservation ‘subjected to any relevant rules’ as a minimum requirement to codify the law of international organizations.29 In his second report, he underlined the importance of the comments by international organizations and governments, which defined the rules as the lex specialis of every organization.30 25 Report of the International Law Commission and resolution relating to article 1 of the Vienna Convention on the Law of Treaties, UNGA Res 2501 (XXIV) (12 November 1969), 5, in which the GA ‘Recommends that the International Law Commission should study, in consultation with the principal international organizations, as it may consider appropriate in accordance with its practice, the question of treaties concluded between States and international organizations or between two or more international organizations, as an important question’. 26 ILC, ‘Summary record of the 1129th meeting’ (1971) UN Doc A/CN.4/Ser.A/1971, para 53. 27 ILC, ‘Draft articles on the law of treaties between States and international organizations or between international organizations with commentaries’ (1982) UN Doc A/37/10 (hereafter ILC, ‘Law of treaties international organizations’) 20, para 21. 28 Ibid 18. 29 ILC, ‘First report on the question of treaties concluded between States and international organizations or between two or more international organizations by Paul Reuter’ (1972) UN Doc A/CN.4/ 258, 181. 30 ILC, ‘Second report on the question of treaties concluded between States and international organizations or between two or more international organizations by Paul Reuter’ (1973) UN Doc A/CN.4/ 271, 92, para 105.

International Organizations in the Law of Treaties 147 In his third report, Reuter stressed the fact that each organization develops its constitutional framework and the content of its particular rules cannot be described generally.31 Following his approach, the final draft contains many references to the rules. Article 5 concerns the general reservation that is also included in the parallel article 5 of the 1969 Vienna Convention and excluded the application of the general framework in cases where the rules provide a special regime: ‘The present articles apply to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization, without prejudice to any relevant rules of the organization.’32 Article 6 contains a fundamental provision on the capacity of international organizations to conclude treaties: ‘The capacity of an international organization to conclude treaties is governed by the relevant rules of that organization.’33 The Commission does not qualify the rules as either international or internal law and the issues arising from the dual nature will be discussed in the next section. However, in practical terms the rules are considered equal to states’ internal law.34 Concerning observance of obligations, article 27 imposes on organizations the same provision that was envisaged for states by article 27 of the 1969 Vienna Convention: ‘2. An international organization party to a treaty may not invoke the rules of the organization as justification for its failure to perform the treaty.’35 Similarly, articles 35, 36, and 37 affirm that the acceptance of obligations, the assent to rights, and the consent to their revocation arising from a treaty to which an organization is not a party are governed by its relevant rules.36 Article 39 uses the rules to govern the consent of the organization to amend a treaty.37 Concerning invalidity article 46 states: ‘3. An international organization may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of the rules of the organization regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of fundamental importance’ and article 65 determines that the notification or objection is governed by the relevant rules.38 31 ILC, ‘Third report on the question of treaties concluded between States and international organizations or between two or more international organizations by Paul Reuter’ (1974) UN Doc A/CN.4/ 279 and Corr.1, 151. 32 ILC, ‘Law of treaties international organizations’ (n 27) 23. 33 For the genesis of art 6 see Jean Pierre Dobbert, ‘Evolution of the Treaty-making Capacity of International Organizations’ in The Law and The Sea: Essays in Honour of Jean Carroz (FAO 1987) (hereafter Dobbert, ‘Evolution’) 21; Gunther Hartmann, ‘The Capacity of International Organizations to Conclude Treaties’ in Karl Zemanek (ed), Agreements of International Organizations and the Vienna Convention on the Law of Treaties (Springer 1971) (Hartman, ‘Capacity’) 127. 34 Giorgio Gaja, ‘A “New” Vienna Convention on Treaties between States and International Organizations or between International Organizations: A Critical Commentary’ (1988) 58 BYBIL 253 (hereafter Gaja, ‘A “New” Vienna Convention’). 35 ILC, ‘Law of treaties international organizations’ (n 27) 38. 36 Ibid 42, 43, 47. 37 Ibid 48. 38 Ibid 51, 63.

148 The Law of Treaties Since the new category of ‘rules of international organization’ was used extensively in the draft articles, the Commission decided to include a definition in article 2(j): ‘ “rules of the organization” means, in particular, the constituent instruments, relevant decisions and resolutions, and established practice of the organization’.39 The commentary warned about the danger of including such a general provision, and referred to its debate on whether it should rather refer to it as ‘internal law’ of the organization. However, it concluded that ‘for while it has an internal aspect, this law also has in other respects an international aspect’.40 Moreover, it underlined that decisions and resolutions constitute the rules of the organization only when ‘relevant’, probably implying a distinction between what is internal and what is external. The Commission did not invent this definition, which was first included in the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character.

9.1.3 L’Institut de Droit International In 1973, the fourteenth Commission of the Institut de Droit International (IDI) produced a set of articles on the topic ‘The Application of the Rules of the General International Law of Treaties to International Agreements Concluded by International Organizations’.41 In his first report, the IDI Rapporteur, René-Jean Dupuy, defined international organizations on the basis of the three elements: ‘[1.] un groupement de personnes de droit international public établi par convention [; 2.] exerçant au sein d’organes communs, constitues de façon permanente, certaines fonctions d’intérêt international [; 3.] et possédant une volonté distincte de celle de chacune des personnes qui la composent.’42 They differ from states on three levels. First, international organizations are based on the principle of speciality and they do not have a general capacity to perform any actions. Second, the treaty-making power is defined on the basis of the particular rules established by the organization, in terms of administrative procedures and competent organs. Third, at the level of legal systems, he introduced for the first time the concept of the transparent institutional veil: ‘à l’ordre juridique unique et “intègré” de l’État s’oppose également l’opacité ou la transparence, selon le cas, des ordres juridiques propres é chaque Organisation internationale’.43 However, the resolution published in 1973 does not reflect the theoretical 39 Ibid 18. 40 Ibid 21. 41 Fourteenth Commission, ‘L’application des règles du droit international général des traités aux accords conclus par les Organisations internationales’ (Annuaire de l’Institut de Droit International 1973). 42 Ibid 220 43 Ibid 221.

The Capacity to Conclude Treaties 149 debates and only defines international organizations as intergovernmental organizations, following the approach taken by the ILC.44 Concerning the capacity to conclude treaties, the IDI followed the debates of the ILC and gives a pre-eminent role to the rules of each international organization. Dupuy stressed the lack of general provisions in constitutive treaties, which often include a limited capacity to conclude specific agreements.45 Moreover, Dupuy’s report discusses the complex issue of the effects on member states of the treaty concluded by an organization.46 He distinguished between purely functionalist organizations (‘Organisations de coopération’), such as the UN, under which the treaty concluded by the organization is also binding on its member states, and purely constitutional organizations (‘Organisations de subordination’), such as the European Community, under which member states are not parties to the treaty autonomously concluded by the organization.47 The final report, produced following a questionnaire, is rather different.48 First, Dupuy explicitly contended that member states can never be considered as parties to the agreement concluded by the organization. Mixed agreements are the only option in which members assume direct rights and obligations. However, he considered that member states cannot be considered as third parties to the treaty concluded only by the organization. In conclusion, the final set of articles is not that different from the approach adopted by the ILC: ‘[a]‌n agreement concluded by an organ in accordance with II and III above is binding on the Organization as such. This applies without prejudice to any obligation that may arise from such agreement for Member States either under the relevant rules of the Organization or under any general rule of international law.’ In this provision, ‘[t]he term “relevant rules of the Organization” means the constitutive instrument, any other rules governing the Organization and the practice established by the Organization.’

9.2 The Capacity to Conclude Treaties on the Basis of International and Institutional Law The capacity of international organizations to conclude treaties is self-evident in practice and it is commonly acknowledged by scholarship.49 However, constitutive instruments do not often contain specific norms granting the capacity to conclude treaties. For instance, the UN Charter does not grant international legal

44 Ibid 380. 45 Ibid 224. 46 Ibid 304. 47 Ibid 305–10. 48 Ibid 374. 49 Jan Klabbers, An Introduction to International Organizations Law (3rd edn, CUP 2015) (hereafter Klabbers, Introduction) 70.

150 The Law of Treaties personality to the UN nor a general capacity to conclude treaties. However, article 43 authorizes the Security Council to conclude agreements with member states for the provision of military forces; articles 57 and 63 confer on the Economic and Social Council the capacity to conclude treaties with other international organizations. Despite the lack of a legal basis for a general capacity, the UN treaty-making activity in several areas of international law is often justified by the implied powers doctrine. However, its origin and its relationship with the competences attributed to the organization are still not clear. On the one hand, the capacity to conclude treaties may derive from the competences attributed by member states or, on the other hand, it may derive from the autonomy enjoyed by the organization. The different conceptualizations of an international organization lead to polarization of the theoretical discussion between those scholars who rely on an internal legal basis and those who rely on an international legal basis. Already in 1966, Hungdah Chiu claimed that international organizations conclude treaties on the basis of a norm of customary international law.50 Conversely, the preamble to the 1986 Vienna Convention states that ‘international organizations possess the capacity to conclude treaties which is necessary for the exercise of their functions and the fulfilment of their purposes’, implicitly distinguishing between the capacity to conclude a treaty and the internal competences to do so. However, this practical distinction is rather artificial, since it ends up splitting the problem in half, dividing those that rely on the inherent capacity to conclude treaties (general capacity) and those that rely on the implied capacity to conclude treaties (particular capacity based on the attribution of competences).51 Shying away from taking a stance, article 6 of the 1986 Vienna Convention states: ‘The capacity of an international organization to conclude treaties is governed by the relevant rules of that organization.’52 The commentary to Article 6 stresses the compromise embedded in the provision, to avoid a clear position on the status of international organizations in international law: ‘that question remains open, and the proposed wording is compatible both with the concept of general international law as the basis of international organizations’ capacity and with the opposite concept’.53 The decision taken by the ILC to avoid a clear reference to the internal law of international organizations is the evidence of the compromise, even if in many provisions the rules are considered equal to states’ internal law, as already discussed. On the one hand, the rules can be considered as internal institutional law and the capacity to conclude treaties is inherent to organizationhood. Under this constitutional theory, organizations’ capacity is not different from that of states. On the other hand, the rules can be considered as international law and the implied 50 Hungdah Chiu, The Capacity of International Organizations to Conclude Treaties, and the Special Legal Aspects of the Treaties So Concluded (Springer 2012). 51 Klabbers, Introduction (n 49) 252. 52 For the genesis of art 6 see Dobbert, ‘Evolution’ (n 33) 21; Hartmann, ‘Capacity’ (n 33) 127. 53 ILC, ‘Law of treaties international organizations’ (n 27) 24.

The Capacity to Conclude Treaties 151 capacity to conclude treaties is based on the attribution of competences by an instrument of international law. The two positions reflect the two concepts of an organization, distinguishing between a general capacity inherent to its existence, similarly to states, and a capacity limited by the attribution of competences.54 The two concepts of an organization are based on the internal or international nature of the law they produce: ‘does general international law lay down the principle of such capacity subject to possible limitation by restrictive provisions in constituent instruments, or does capacity derive solely from the rules of particular organizations?’55 The discussion is divided between the objective existence of international organizations, where the capacity is inherent to the organization,56 and the will of member states, which has drawn up the constitutive instrument.57 Article 6 is an attempt to be consistent with both views and is based on the definition of the rules of the organization.58 The dual legal nature of international organizations captures the relevance of both perspectives by explaining the relationship between capacity and competences. It is founded on the relationship between the specific characteristics of each international organization represented by the plurality of institutional rules and their belonging to international law. Conversely, if we consider the two theories separately, the capacity based on international law, according to which organizations act in a sort of representation of the interests of member states, becomes incompatible with their autonomous nature.59 While, the capacity based on the objective existence of the organization does not reflect its derivation from international law.60 The relevance the ILC attributes to the rules does not solve the issue. If there is no clarity on their legal nature, any conceptualization would fall somewhere on the spectrum between functionalism and constitutionalism. The dual legal nature faces the problem of the basis of the legal nature of the legal system developed by international organizations. The absolute legality, as defined in the previous

54 PK Menon, The Law of Treaties between States and International Organizations (Edwin Mellen 1992) 21. 55 Felice Morgenstern, ‘The Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations’ in Yoram Dinstein (ed), International Law at a Time of Perplexity (Nijhoff 1989) 441. 56 Finn Seyersted, ‘International Personality of Intergovernmental Organizations: Do their Capacities Really Depend upon their Constitutions?’ (1964) 4 IJIL 1, 55. 57 See in particular the opinion of Soviet scholars, in Geraldo Eulálio do Nascimento Silva, ‘The 1969 and the 1986 Conventions on the Law of Treaties: A Comparison’ in Yoram Dinstein (ed), International Law at a Time of Perplexity (Nijhoff 1989) 461. 58 Philippe Manin, ‘La Convention de Vienne sur les accords entre Etats et organisations internationales ou entre organisations internationales’ (1986) 32 AFDI 454. 59 Evelyne Lagrange, La représentation institutionnelle dans l’ordre international: Une contribution à la théorie de la personnalité morale des organisations internationales (Kluwer 2002) (hereafter Lagrange, La representation) 60 Finn Seyersted, Common Law of International Organizations (Nijhoff 2008) (hereafter Seyersted, Common Law).

152 The Law of Treaties chapter, helps to explain how the capacity to conclude treaties must be found in both international and institutional legal systems. The thesis bears implications in two main areas, concerning member states obligations in the treaty concluded only by the organization and the validity of the treaty concluded in breach of an institutional norm (discussed in Chapter 10).

9.3 Member States are neither Parties nor Third Parties in the Treaty Concluded by the Organization The dual legal nature is the origin of the transparent institutional veil of the organization, and it sheds light on the complex issue of the position of member states under a treaty signed by an organization.61 This was one of the most debated issues within the ILC and the 1986 Vienna Conference.62 The question is whether member states are third parties to the agreement concluded by the organization or if they assume rights and obligations. The troubled history of article 36bis explains the difficulties of the issue.63 Special Rapporteur Reuter identified two different situations in which an agreement of the organization creates rights and obligations for member states, when the constitutive instrument envisages it or when the internal distribution of competences will produce that effect: 1. A treaty concluded by an international organization gives rise directly for States members of an international organization to rights and obligations in respect of other parties to that treaty if the constituent instrument of that organization expressly gives such effects to the treaty. 2. When, on account of the subject-matter of a treaty concluded by an international organization and the assignment of areas of competence involved in that subject-matter between the organization and its member states, it appears that such was indeed the intention of the parties to that treaty, the treaty gives rise for a member State to: (i) rights, which the member State is presumed to accept, in the absence of any indication of intention to the contrary; (ii) obligations when the member State accepts them, even implicitly.64

61 Brölmann, The Institutional Veil (n 5) 212. 62 Catherine Brölmann, ‘The 1986 Vienna Convention on the Law of Treaties: The History of Draft Article 36 bis’ in Jan Klabbers and René Lefeber (eds), Essays on the Law of Treaties: a Collection of Essays in Honour of Bert Vierdag (Brill 1998). 63 Neri Sybesma-Knol, ‘The New Law of Treaties: The Codification of the Law of Treaties Concluded between States and International Organizations or between Two or More International Organizations’ (1985) 15 GJICL 425. 64 ILC, ‘Fourth report on the question of treaties concluded between States and international organizations or between two or more international organizations, by Mr. Paul Reuter’ (1975) UN Doc A/ CN. 4/285.

Member States are neither Parties nor Third Parties 153 This proposal is based on the functionalist conceptualization, under which third actors that conclude an agreement with the organization are de facto contracting with its member states. In sum, organizations act as agents of member states under this functionalist conceptualization. After the criticism expressed by the Commission, the Special Rapporteur gave more weight to the autonomy of the organization. He modified the provision with an explicit reference to the rules and included a subjective element represented by the intention of the parties: Third States which are members of an international organization shall observe the obligations, and may exercise the rights, which arise for them from the provisions of a treaty to which that organization is a party if: (a) the relevant rules of the organization, applicable at the moment of the conclusion of the treaty, provide that the States members of the organization are bound by the treaties concluded by it: or (b) the States and organizations participating in the negotiation of the treaty as well as the States members of the organization acknowledged that the application of the treaty necessarily entails such effects.65

The debates on this second draft focused on whether this article could only apply to the EU, and whether it would be possible to envisage general articles applicable to all international organizations.66 The text included in the final draft is again different. The final article states that direct rights and obligations may arise only with the consent of the parties and with the consent of member states expressed in the constitutive instrument of the organization.67 There is not a direct involvement of member states in the treaty: Obligations and rights arise for States members of an international organization from the provisions of a treaty to which that organization is a party when the parties to the treaty intend those provisions to be the means of establishing such obligations and according such rights and have defined their conditions and effects in the treaty or have otherwise agreed thereon, and if: (a) the States members of the organization, by virtue of the constituent instrument of that organization or otherwise, have unanimously agreed to be bound by the said provisions of the treaty; and (b) the assent of the States members of the organization to be bound by the relevant provisions of the treaty has been duly brought to the knowledge of the negotiating States and the negotiating organizations.

65 ILC, ‘Summary record of the 1510th meeting’ (1978) UN Doc A/CN.4/SR.1510, 193, para 28. 66 Ibid; ILC, ‘Summary record of the 1512th meeting’ (1978) UN Doc A/CN.4/SR.1512, 194–203. 67 Discussed and adopted at ILC, ’Summary record of the 1740th meeting’ (1982) UN Doc A/CN.4/ SR.1740, 261–63, paras 21–40.

154 The Law of Treaties This proposal was harshly criticized as it merged the internal relationship with member states and the international relationship with third parties.68 The final outcome in the 1986 Vienna Conference is the deletion of the provision,69 including only a saving clause in article 74(3), which states: ‘The provisions of the present Convention shall not prejudge any question that may arise in regard to the establishment of obligations and rights for States members of an international organization under a treaty to which that organization is a party.’ This provision does not exclude or confer direct rights and obligations to member states, it simply refers the question to the lex specialis provided by the organization. This is another saving clause that defers the question to the legal nature of the rules. However, this case is more complex because institutional rules should not produce legal effects for third parties, which could even ignore the existence of an internal norm that extends the effect of the treaty on member states. For instance, this is the case of article 216(2) Treaty on the Functioning of the European Union (TFEU), stating: ‘Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.’70 Clearly, this institutional rule does not have any effects on third parties. Consequently, the exception introduced in article 74(3) of the 1986 Vienna Convention does not have practical application, except for the cases in which the treaty itself specifies that member states must be considered as parties. Article 36bis created more problems than it would have solved. In particular, it would have undermined the autonomy of the organization, impairing its functioning. Indeed, if member states bear rights and obligations from the treaty concluded only by the organization, each of them also have the individual right to bring and be subject to claims. International organizations are agents, or representatives, of member states and their direct involvement creates an inextricable web of conflicting obligations. However, neither are member states third parties to the agreements concluded by the organization. Even if they do have a distinct international personality, often the decision to bind the organization with a treaty is taken unanimously, or it can be traced back to the aggregation of member states’ separate wills. The exclusion of any role in the treaty concluded only by the organization risks ignoring the role that members play within the organization. Often, organizations conclude agreements with third parties in order to confer rights on their member states. For instance, this is the case of fishing agreements concluded by the EU, which directly benefit member states.71 As I mentioned in

68 UNGA Sixth Committee, Summary Record of Meetings (5 November 1982) UN Doc A/C.6/37/ SR.40 paras 50-67. 69 Gaja, ‘A “New” Vienna Convention’ (n 34). 70 Consolidated version of the Treaty on the Functioning of the European Union (adopted on 13 December 2007, entered into force 1 December 2009) Official Journal C 326, 26/10/2012 P. 0001–0390. 71 See Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (Advisory Opinion) [2015] ITLOS Report No 21 (hereafter SRFC Advisory Opinion).

Member States are neither Parties nor Third Parties 155 Part 1, Chapter 5, the absence of obligations excludes any form of responsibility for member states. This effect is based on a purely internal nature of the rules, under which member states disappear behind the institutional veil of the organizations, which act as federal states. Alongside article 36bis, the opposite issue concerns whether international organizations are bound by the international obligations of their member states.72 An historical example is the Versailles Treaty and the particular norms concerning the administration of Saar by the League of Nations.73 A contemporary example concerns the treaties concluded within an international organization, which are not signed by the organization itself. For instance, the legal effects attributed to the depositary functions of the UN Secretary General,74 or the norms included in UN human rights instruments which oblige the organization to provide administrative support for various supervisory organs.75 The European Court of Justice faced the same issue concerning its ‘succession’ to member states obligations under the General Agreement on Tariffs and Trade.76 These examples reflect the unclear position of international organizations and the difficulty in applying a strict rule to impose a clear separation between member states’ obligations and those of the organization. The origin of the thesis under which organizations assume certain member states’ obligations is based on the transfer of competences, which would operate as a sort of ‘substitution’ of the organization in every international relationship.77 Obviously, under this hypothesis, organizations would be bound by a plurality of conflicting obligations.78 Consequently, if the treaties concluded by organizations do not create direct obligations for their member states, neither can treaties concluded by member states create direct obligations for their organizations. In sum, member states are neither parties nor third parties to the treaty concluded by the organization. The rules of international organizations are neither

72 Christian Tomuschat, ‘International Organizations as Third Parties under the Law of International Treaties’ in Enzo Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (OUP 2011); Moshe Hirsch, The Responsibility of International Organizations toward Third Parties: Some Basic Principles (Nijhoff 1995) (hereafter Hirsch, Responsibility) 38. 73 Treaty of Versailles, 10 January 1920, Part III, Section IV. 74 Shabtai Rosenne, ‘The Depositary of International Treaties’ (1967) 61 AJIL 923. 75 International Covenant on Civil and Political Rights (opened for signature 16 December 1966, entry into force 23 March 1976) 999 UNTS 171, art 36, for instance: ‘the Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Covenant’. 76 Case 21-24/72 International Fruit Company v Produktschap voor Siergewassen [1972] ECR 1219. Case 21-24/72 International Fruit Company v Produktschap voor Siergewassen, Court of Justice of the EC [1972] ECR 1219. 77 Hirsch, Responsibility (n 72) 49; Pierre Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Bruylant 1998) 331. 78 Lagrange, La représentation (n 59) 428.

156 The Law of Treaties purely internal nor international law, but their nature is dual. The dual nature leads us to rethink the role of members within the organizations based on complementarity. It means that member states have an indirect involvement with the treaty concluded only by the organizations. For instance, member states’ obligations arise in order to provide the organization with the means to fulfil the obligations included in the treaty. For a similar purpose in the context of international responsibility, the ILC included article 40 ARIO: ‘2. The members of a responsible international organization shall take all the appropriate measures that may be required by the rules of the organization in order to enable the organization to fulfil its obligations under this Chapter.’ Indeed, international law develops primary obligations, based on customary international law, that acknowledge the dual nature of international organizations in all those cases where member states cannot be considered under an either/or approach.79 De lege ferenda, I contend that it is necessary to recognize the progressive development of a norm based on complementary, establishing that member states do not assume direct rights or obligations from the treaty concluded by the organization, but, nonetheless, they have a primary obligation to do their utmost to allow their organization to respect the treaty provisions, granting competences, funds, and material aid. This obligation is based on the dual nature of international organizations and not on the particular treaty signed with a third party. Bordin speaks of ‘an evolving rule of incorporation for international organizations’.80 Rosalyn Higgings, in her position as the Rapporteur of the Institute of International Law on the topic ‘The Legal Consequences for Member States of the Non-fulfilment by International Organizations of their Obligations toward Third Parties’ (extensively discussed in Chapter 11) expressly stated that: Our brief survey of the international law relating to the conclusion of treaties by international organizations suggests that, while states are not parties to such treaties, neither are they ‘third parties’, in the sense that they may not engage in acts that run counter to the effective implementation of such treaties. If the obligation of an international organization is engaged through contract, or a duty of care, the legal consequences for a member state entail a requirement to put the organization in funds to meet such obligations.81

79 Fernando Lusa Bordin, The Analogy between States and International Organizations (CUP 2018) (hereafter Bordin, The Analogy) 168: ‘There is nothing preventing general international law from developing so as to provide for rules that make sense of “layered subjects”.’ 80 Ibid 184. 81 Fifth Commission, ‘The legal consequences for member states of the non-fulfilment by international organizations of their obligations toward third parties’ (Annuaire de l’Institut de Droit International 1995) 284.

Member States are neither Parties nor Third Parties 157

9.3.1 Effects of the dual legal nature in practice: IUU fishing and obligations binding EU member states In Chapter 5, I discussed the limits of exceptionalism describing an example concerning Illegal, Unreported and Unregulated (IUU) fishing activities committed by vessels flying the flag of an EU member state. I contended that the International Tribunal for the Law of the Sea (ITLOS) excluded EU member states from responsibility for the violation of the due diligence obligation to prevent IUU activities.82 Indeed, the Tribunal argued that coastal states had granted fishing licences by means of an agreement that was signed by the EU and not by its member states. Consequently ‘the obligations of the flag State become the obligations of the international organization’ when the organization concludes the fishing agreement to which member states are not a party.83 In sum, EU member states benefit from fishing licences without assuming international obligations. Applying the strict functionalist approach, the fishing agreement concluded with Sub-Regional Fisheries Commission (SRFC) member states by the EU would also bind EU member states, and they would share with the EU an obligation to do their utmost to prevent IUU activities. A purely functionalist approach safeguards the interest of third parties, who will always find an entity to which to address their claims. Circumstances such as those mentioned in the SRFC submission would not arise. However, the attribution of competences would be relevant for apportioning the responsibility of the organization and it would undermine its autonomy and independence from member states. Consequently, under this theory, both the UN Convention on the Law of the Sea and the fishing agreement are primary obligations and flag states which are members of the EU do not experience different treatment in comparison with other flag states. This version of functionalism under which member states are always responsible for the wrongful act committed by the organization is rarely upheld by scholarship because it is against the principle of independent responsibility.84 Conversely, a purely constitutional theory means that international organizations are not that different from federal states. This is why this approach can also be called a ‘state-analogy’.85 Under this theory, the internal relationship between the organization and the member states does not affect third parties. For instance, article 216(2) TFEU, which imposes on member states an obligation to implement the international agreements concluded by the EU, is a matter of EU law. Indeed, the EU law would be different from international law. In this case, the autonomy of the 82 SRFC Advisory Opinion (n 71). 83 Ibid para 172. 84 Ian Brownlie, ‘The Responsibility of States for the Acts of International Organizations’ in Maurizio Ragazzi (ed), International Responsibility Today: Essays in Memory of Oscar Schachter (Nijhoff 2005) 85 Bordin, The Analogy (n 79).

158 The Law of Treaties organization is enhanced by its constitutional structure, and member states would not be responsible for the ships flying their flags. Even this version of constitutionalism is rarely upheld by scholarship, as it contradicts the limited competences conferred by member states and the distinction between exclusive and shared competences.86 However, ITLOS supported this version of constitutionalism. I believe that both approaches fail because they are based on a limited perspective which either considers international organizations only as a matter of public international law, or only as a matter of internal law (such as EU law). Consequently, the concept of an international organization as a dual entity is primarily useful to explain how they assume international obligations. In practice, the dual nature of the EU legal system affects the way in which the EU contracts obligations, including due diligence obligations. Concerning IUU fishing activities, the dual legal nature implies that member states are neither parties to the fishing agreement, which was concluded only by the organization (thus, they do not assume a direct obligation of doing the utmost for preventing IUU fishing activities), nor can they be considered third parties to it. Indeed, the law of international organizations is developing rules imposing legal effects on members states, caused by the treaty concluded only by the organization, such as article 40 ARIO, mentioned above.

9.4 Concluding Remarks This is the first chapter that explores the consequences of the dual legal nature of international organizations. The purpose is to revisit controversial debates on the law of treaties and how they have practical consequences for recent controversies. The absence of a comprehensive concept of an international organization is particularly evident for those institutions that claim the application of a special regime due to their peculiar characteristics. The case of fishing agreements concluded by the EU is paradigmatic. The dual legal nature showed that the position of member states in the treaty concluded by the organization is based on complementarity, under which they do not assume direct rights and obligations, but have to put the organization in a position to fulfil its obligations assumed with third parties.

86 Seyersted, Common Law (n 60).

10

Validity and Ultra Vires Acts Three elements characterize the legal validity of a norm: the parameters of the validity (which is the legal system of reference?); the subjects with the power to claim invalidity (who is the ultimate judge of the legal rule?); the consequences of invalidity (between ex tunc and ex nunc effects).1 This chapter will focus on the first. I will only discuss the so-called ‘formal’ validity of the rules of international organizations.2 I acknowledge the importance but I will not discuss other fundamental elements of validity, such as effectiveness.3 The formal validity that I will discuss concerns the belonging of a rule to its legal system and the respect of the criteria of legality imposed by that system. Different conceptualizations of an international organization have an impact on how to interpret the notion of ultra vires act and its relationship with the validity of a rule. Indeed, the concept of formal validity interferes with the concept of ultra vires act.4 The functionalist perspective privileges a notion of ultra vires which refers to acts or actions of an international organization that overstep its attributed competences, causing their invalidity. The treaty-law nature of the constitutive instrument is privileged over its constitutionalist nature. The textualist means of interpretation enshrined in the 1969 Vienna Convention are privileged over theological interpretation.5 Functionalism implies that attributed competences are the only criteria of validity and, consequently, customary international law does not determine the legality of a rule. Indeed, under functionalism the rules are purely international law and, with the exception of jus cogens, there is not a hierarchical relationship with customary law which could trigger invalidity. Conversely, a constitutional perspective adopts a so-called dynamic interpretation under which it is more difficult to determine the invalidity of a rule of the

1 Ebere Osieke, ‘The Legal Validity of Ultra Vires Decisions of International Organizations’ (1983) 77 AJIL 239. 2 François Ost and Michel Van de Kerchove, Jalons pour une théorie critique du droit (Saint-Louis, Facultés Universitaires 1987) 270. 3 Robert Y Jennings, ‘Nullity and Effectiveness in International Law’ in Derek William Bowett (ed), Essays in Honour of Lord McNair (Dobbs Ferry: Oceana 1965) 64. 4 Rudolf Bernhardt, ‘Ultra Vires Activities of International Organizations’ in Theory of International Law at the Threshold of the 21st Century (Kluwer 1996) 599. 5 Fuad Zarbiyev, ‘A Genealogy of Textualism in Treaty Interpretation’ in Andrea Bianchi, Daniel Peat, and Matthew Windsor (eds), Interpretation in International Law (OUP 2015).

The Concept of an International Organization in International Law. Lorenzo Gasbarri, Oxford University Press (2021). © Lorenzo Gasbarri. DOI: 10.1093/oso/9780192895790.003.0010

160 Validity and Ultra Vires Acts organization.6 The textualist criteria enshrined in the 1969 Vienna Convention are usually set aside, privileging a theological interpretation granting more autonomy to the organization. Ultra vires becomes something difficult to prove, and is subjected to presumptions of validity and to the organ’s competence to determine its competence.7 Concerning customary law as a criterion of invalidity, the absence of a clear conceptualization of a constitutional entity fostered the practice of setting up ‘customized’ institutional systems. For instance, the EU developed its own human rights charter,8 the Organization for Security and Cooperation in Europe its ‘human dimension’,9 the World Bank its ‘operational policies’.10 Under exceptionalism, every organization is free to decide the degree of openness of its legal system to international law and, in general, they tend to exclude themselves from being bound by customary international law. In this framework, the concept of an international organization as dual entities has a fundamental role in finding a balance between different conceptualization and finally concluding on the vexed issue of the respect for customary international law by an international organization.

10.1 The Either/Or Paradigm Applied by the PCIJ and the ICJ This section analyses the decisions of the Permanent Court of International Justice (PCIJ) and of the International Court of Justice (ICJ) in order to reveal their approach, which is either based on the organization-centric, constitutionalist, perspective or on the state-centric, functionalist, perspective.11 The former is adopted when the Court declares the validity of the norm the legality of which is contested. The latter is adopted in the few cases in which the ICJ declared the invalidity of the rule issued ultra vires.

6 Seventh Commission, ‘Are there Limits to the Dynamic Interpretation of the Constitution and Statutes of International Organizations by the Internal Organs of such Organizations (with Particular Reference to the UN System)?’ (Institut de Droit International 2019). 7 Enzo Cannizzaro and Paolo Palchetti, ‘Ultra Vires Acts of International Organizations’ in Jan Klabbers and Åsa Wallendahl (eds), Research Handbook on the Law of International Organizations (Edward Elgar 2011) (hereafter Cannizzaro and Palchetti, ‘Ultra Vires Acts’). 8 Nicole Lazzerini, La Carta dei diritti fondamentali dell’Unione europea. I limiti di applicazione (FrancoAngeli 2018). 9 Mateja Steinbrück Platise, Carolyn Moser, and Anne Peters, The Legal Framework of the OSCE (CUP 2019). 10 Daniel D Bradlow and Andria Naudé Fourie, ‘The Operational Policies of the World Bank and the International Finance Corporation’ (2013) 10 IOLR 3. 11 Lorenzo Gasbarri, ‘Beyond the Either-Or Paradigm’ in Sufyan Droubi and Jean d’Aspremont (eds), International Organizations, Non-State Actors, and the Formation of Customary International Law (Manchester University Press 2020

The Either/Or Paradigm Applied by the Courts 161

10.1.1 Decisions adopting a functionalist perspective The functionalist perspective is usually adopted when the Court interprets the constitutive instruments relying on the criteria established in the 1969 Vienna Convention. This approach generally leads to a finding that the relevant practice is not in conformity with the constitutive instrument based on a textualist interpretation. In the first opinion on Admissions the ICJ described the UN Charter as a multilateral treaty, and found that the text of article 4(1) of the UN Charter should be interpreted literally as to mean that membership cannot be conditioned on criteria additional to those explicitly included in the Charter.12 It held that ‘the political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment. To ascertain whether an organ has freedom of choice for its decisions, reference must be made to the terms of its constitution.’13 Similarly, in 1950 the ICJ stated that the existence of an ‘administrative practice’ within the organization is not a decisive factor in ascertaining the rights and obligations of states deriving from a convention drafted and adopted by the General Assembly.14 A second case in which the functionalist perspective was privileged concerns the composition of the Maritime Safety Committee of the Intergovernmental Maritime Consultative Organization.15 In this case, the Court affirmed that the decision which established the composition of the Committee was against the constitutive instrument of the organization. First, it applied the rules on the interpretation of treaties: ‘the words of Article 28(a) must be read in their natural and ordinary meaning, in the sense which they would normally have in their context’ and, secondly, it analysed preparatory works. Only at the end of its argumentation did the Court compare its finding with the purposes and aims of the international organization in order to justify its decision. A third example concerns the Advisory Opinion requested on Nuclear Weapons by the World Health Organization (WHO).16 In this case the Court explicitly referred to the rules of the organization, and in particular to the constitutive instrument, as a criterion of legality.17 As mentioned already, in this decision the Court 12 Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion) [1948] ICJ Rep 57, 61. 13 Ibid 64. 14 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15, 25. 15 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (Advisory Opinion) [1960] ICJ Rep 150. 16 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66 (hereafter Nuclear Weapons Legality). 17 Elihu Lauterpacht, ‘Judicial Review of the Acts of International Organisations’ in Laurence Boisson de Chazournes and Philippe Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (CUP 1999).

162 Validity and Ultra Vires Acts recognized the dual nature of the WHO constitution, being at the same time an international and an internal instrument. Notwithstanding this, it applied the 1969 Vienna Convention to interpret the WHO constitution. It distinguished between the legality of nuclear weapons (on which the organization is not competent) and the effects of nuclear weapons (on which the organization is competent). Consequently: ‘the WHO is not empowered to seek an opinion on the interpretation of its Constitution in relation to matters outside the scope of its functions’. This finding excludes from the competence of the organization all those cases in which competences are not well defined, implicitly accepting the cases where clarity means an opinion is not required at all.18 In sum, it applies a strict version of functionalism that limits the capacity of the organization to decide on its own competences. The validity of the act does not only derive from the internal procedural rules, but, mainly, from the function attributed by member states. Consequently, the Court applies a functionalist conceptualization: The Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are governed by the “principle of speciality”, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.19

10.1.2 Decisions adopting a constitutional perspective In Chapter 3, I have already mentioned that the first case in which a constitutional perspective was adopted goes back to the PCIJ and the expansion of the competences of the International Labour Organization (ILO).20 In particular, the validity of the ILO practice was established by relying on the object and purpose of the organization.21 The circumstances of the cases concerned the competence of the ILO to discuss activities linked to its aim, but that are not expressly included in the constitutive instrument. 18 Jan Klabbers, An Introduction to International Organizations Law (3rd edn, CUP 2015) (hereafter Klabbers, Introduction) 239. 19 Nuclear Weapons Legality (n 16) para 25. 20 Employment of Women during the Night Case [1932] PCIJ Series A/B No 50; Competence of the ILO in regard to International Regulation of the Conditions of the Labour of Persons Employed in Agriculture (Advisory Opinion) [1922] PCIJ Series B No 2; Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employer (Advisory Opinion) [1926] PCIJ Series B No 13. 21 Ebere Osieke, ‘Ultra Vires Acts in International Organizations— The Experience of the International Labour Organization’ (1977) 48 BYBIL 259, 266–67.

The Either/Or Paradigm Applied by the Courts 163 Later in time, in all those cases in which the ICJ established the validity of the practice, it interpreted the constitutive instrument referring to the purpose and object of the organization, rather than looking at the ordinary meaning of the words in the constitutive instrument. The first case in which the Court applied this organization-centric, constitutional mindset is the second opinion on Admissions in which the Court placed relevance on the consistent interpretation made by institutional organs: ‘The organs to which Article 4 entrusts the judgment of the Organization in matters of admission have consistently interpreted the text in the sense that the General Assembly can decide to admit only on the basis of a recommendation of the Security Council.’22 In Certain Expenses, the ICJ found that the budget of the UN must also include those activities which are not specifically included in the UN Charter. The Court recognized the special characteristics of the treaty establishing the UN, placed relevance on the ‘practice of the Organization throughout its history’, and established that ‘each organ must, in the first place at least, determine its own jurisdiction’.23 Similarly to the PCIJ, the Court relied only on the UN Charter as an institutional criteria of validity: ‘such expenditure must be tested by their relationship to the purpose of the United Nations in the sense that if an expenditure were made for a purpose which is not one of the purposes of the United Nations, it could not be considered an “expense of the Organization” ’.24 Consequently, the Court affirmed that ‘when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization’. The implied power theory is based on the purposes of the organization and expands the competences as far as is necessary, and towards a general capacity. In particular, the power would be valid insofar as it is not limited by an explicit exclusion in the Charter. Under the constitutionalist conceptualization, implied powers become inherent powers.25 The ICJ considered once again the possibility of claiming the invalidity of an act of the UN in its 1971 Advisory Opinion on Namibia.26 South Africa contested the validity of the General Assembly Resolution which demanded the Advisory Opinion, and the Court answered in these terms: ‘A resolution of a properly constituted organ of the United Nations which is passed in accordance with that organ’s 22 Competence of Assembly regarding admission to the United Nations (Advisory Opinion) [1950] ICJ Rep 4, 9. 23 Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter) (Advisory Opinion) [1962] ICJ Rep 151,165, 168. 24 Ibid para 167. 25 Finn Seyersted, ‘Objective International Personality of Intergovernmental Organizations—Do their Capacities Really Depend upon the Conventions Establishing them’ (1964) 34 Nordisk Tidsskrift Internationall Ret 3. 26 Legal Consequences for States of the Contitiued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16.

164 Validity and Ultra Vires Acts rules of procedure and is declared by its President to have been so passed, must be presumed to have been validly adopted.’ This is an example of the transformation of an implied power derived from the attribution of competences by member states to an inherent power that is only limited by a correct institutional procedure. Similarly, in the Wall Advisory Opinion, the opposition of Israel to the competence of the General Assembly to request the Opinion was faced in the same terms.27 Indeed, the Court found that the General Assembly had competence based on the procedural rules established in the relevant practice concerning the application of article 12 of the Charter.

10.2 The Dual Legal Character of Ultra Vires Acts In sum, there is a clear tendency to apply the functionalist conceptualization of an organization when the Court declares the invalidity of the rule and the constitutional conceptualization when the Court declares the validity of the rule. Obviously, this is not a strict correlation. A practice could be invalid from a constitutional perspective and valid from a functionalist one. The point is the clear application of one conceptualization or the other. In order to rebut the either/or mindset and to acknowledge the dual nature, I would like to discuss the Advisory Opinion on the WHO Headquarters in Egypt once more.28 My intention is to claim that the validity of the rules of international organizations should be subject to both institutional and international criteria. As mentioned already, this case concerns the transfer of the regional office of the WHO from Egypt to Jordan. The main issue was whether to apply the headquarters agreement concluded in 1951, which envisaged a notice period of two years, or an informal agreement concluded in 1949, which did not include any clause on its termination.29 The legal question concerns the capacity of member states to modify the obligations of the organization on the basis of their common will. If member states created the organization and voted for the transfer of the regional headquarters, why should the organization be bound by an agreement concluded with a member state? Initially, the Court identified and compared the relevance of the two concepts of an international organization: The Court notes that in the World Health Assembly and in some of the written and oral statements before the Court there seems to have been a disposition to 27 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136. 28 See Chapter 2. Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 73 (hereafter WHO–Egypt Agreement). 29 Christine Gray, ‘The International Court’s Advisory Opinion on the WHO-Egypt Agreement of 1951’ (1983) 32 ICLQ 534.

The Dual Legal Character of Ultra Vires Acts 165 regard international organizations as possessing some form of absolute power to determine and, if need be, change the location of the sites of their headquarters and regional offices. But States for their part possess a sovereign power of decision with respect to their acceptance of the headquarters or a regional office of an organization within their territories; and an organization’s power of decision is no more absolute in this respect than is that of a State.30

In sum, the power of the organization is not absolute and the two concepts need to be balanced, considering the functional and constitutional nature. As mentioned already, the thesis that member states have the power to modify the obligations of the WHO derives from the purely international nature on which is based the representation in one and the same legal system. Conversely, the thesis that the obligations concluded by the WHO cannot be modified by a majority vote is based on the concept of an organization as a constitutional entity, able to create a separate legal order and internal rules. To break the deadlock, the Courts considered that International organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties. Accordingly, it provides no answer to the questions submitted to the Court simply to refer to the right of an international organization to determine the location of the seat of its regional offices.31

Consequently, it decided the case by referring to general international law and proposing a third way, excluding the alternative applications of the two agreements and concluding that a notice period should be given before relocating the headquarters. The flaws of the either/or paradigm are evident.32 This case underlines the dual position of member states, which are, at the same time, members and third parties. Consequently, the validity of a rule of the organization cannot be based exclusively on institutional or international criteria, but must be found in both at the same time. This is how international organizations have to respect customary international law on the basis of the dual nature of their legal system. It is different from considering the monist or dualist character of the legal systems developed by member states, whose degree of openness to international law is a matter of internal criteria only.33 The respect for international law of an international organization is 30 WHO–Egypt Agreement (n 28) para 37. 31 Ibid. 32 Jan Klabbers, ‘The EJIL Foreword: The Transformation of International Organizations Law’ (2015) 26 EJIL 9 (hereafter, ‘The EJIL Foreword’) 59. 33 Solange I, BverfGE 37, 291, 29 May 1974; Solange II, BverfGE 73, 339, 22 October 1986; Solange III, BverfGE 89, 155 12 October 1993; and Solange IV, BverfGE 102, 147, 7 June 2000.

166 Validity and Ultra Vires Acts based on the dual nature of the rules and the dual nature of its legal system, which does not require an internal norm to transpose international law into the institutional system. The next two sections will distinguish between institutional and international criteria of validity to discuss how they are both relevant.

10.3 The Rules of the Organization as a Limit of Validity A state cannot justify a breach of a treaty or an internationally wrongful act by claiming the internal legality of its actions. The same norm applies to international organizations, but with a caveat. If the rules of the organization are international law, they definitely have a role to play in the determination of the act as wrongful. Article 27 of the 1986 Vienna Convention draws an analogy between domestic law and the rules of the organization claiming that ‘1. A State party to a treaty may not invoke the provisions of its internal law as justification for its failure to perform the treaty. 2. An international organization party to a treaty may not invoke the rules of the organization as justification for its failure to perform the treaty.’ This article considers the rules of the organization as exclusively internal institutional law, analogous to domestic law. Indeed, to sustain the opposite would lead to the unilateral power of the organization to modify its international obligations. However, when the treaty is concluded with a member state, the international nature is again relevant and article 27 may not be particularly useful: ‘The subordination of a treaty to a unilateral act of the organization can only arise in practice for States whose status as members of an organization renders them substantially subject to “the rules of the organization”.’34 In this context, the UN Security Council can request the violation of an international obligation by means of a rule of the organization. Indeed, if the rules are international law in the same way as the treaty binding the organization, the absence of hierarchy in the sources of international law allows derogation based on the criteria of conflicts of norms within the same legal system. The issue under article 27 is to define up to which point the UN legal system is part of international law.35 Similarly, under article 32 of the Articles on the Responsibility of International Organizations (ARIO): ‘1. The responsible international organization may not rely on its rules as justification for failure to comply with its obligations under this Part. 2. Paragraph 1 is without prejudice to the applicability of the rules of an international organization to the relations between the organization and its member 34 ILC, ‘Draft articles on the law of treaties between States and international organizations or between international organizations with commentaries’ (1982) UN Doc A/37/10 (ILC, ‘Law of treaties international organizations’) 39, 40, para 8, art 27. 35 Catherine Brölmann, The Institutional Veil in Public International Law: International Organisations and the Law of Treaties (Hart 2007) 226.

The Rules of the Organization as a Limit of Validity 167 States and organizations.’36 The second paragraph reflects the need to consider the international nature of the rules, which might be important to consider whether the act is internationally wrongful or not. If the rules are international law, the analogy with domestic law is no longer acceptable. The result is the application of the either/or paradigm which triggers the fallacy of perceiving organizations from an internal or from an external perspective. Either the rules are institutional law and they do not affect the characterization of an act as valid or invalid, or the rules are international law and they do affect their characterization.

10.3.1 Invalidity of the treaty caused by the violation of a rule of the organization The difference between general capacity and attributed competences is again relevant for the invalidity of a treaty caused by the violation of a rule of the international organization. In particular, the question concerns the conditions under which the lack of competence of the organization to conclude a treaty affects its validity. In analogy with article 46 of the 1969 Vienna Convention, article 46 of the 1986 Vienna Convention establishes that the manifest violation of an institutional rule can be invoked to claim the invalidity of a treaty: 1. 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. 2. An international organization may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of the rules of the organization regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of fundamental importance. 3. A violation is manifest if it would be objectively evident to any State or any international organization conducting itself in the matter in accordance with the normal practice of States and, where appropriate, of international organizations and in good faith.

Both for states and international organizations, this disposition finds a difficult application. For instance, the ICJ excluded the application of article 46 (1969 Vienna Convention) in Land and Maritime Boundary between Cameroon and Nigeria, for the simple reason that a state can perfectly ignore the internal rules of another

36 ILC, ‘Draft articles on the responsibility of international organizations, with commentaries’ (2011) UN Doc A/66/10 (hereafter is a rule that coordinates legal systems).

168 Validity and Ultra Vires Acts state.37 Moreover, it is difficult to say when a violation is ‘manifest’, meaning that it is ‘objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith’.38 However, the ILC included the same provision in the two sets of articles on the law of treaties, implying an analogy between domestic law and institutional law. The main issue faced by the ILC concerned the absence of a ‘normal practice of organizations’ similar to that which can be found for states.39 The Commission also refers to the importance of this rule in the context of a treaty concluded with a member state, in which it is easier to bypass the issue of the knowledge of the institutional norm that was manifestly violated. In such cases, Schermers and Blokkers speak of a presumption of knowledge.40 The dual legal nature is again fundamental to understanding the role of this provision. On the one hand, article 46 reflects the internal nature of the application of the state analogy. On the other hand, the fact that article 46 is also relevant to the treaty concluded between a member state and its organization presupposes a relationship between the two subjects based on international law. As the ILC contended: ‘the member States of an organization are third parties in respect of the treaties concluded by the organization; this principle is not open to dispute and derives from the legal personality of the organization. The member States of an organization are, however, not exactly third States like the rest.’41 Article 46 of the 1986 Vienna Convention considers institutional law in exactly the same way as domestic law, adapting the same disposition on consent to conclude an agreement. However, the conditions for the application of this norm are so strict that there is little practice to describe. The doctrine of implied powers and legal interpretation have a fundamental relevance to assure the validity of the treaty. Indeed, the organization can claim that member states have agreed to the conclusion of the agreement even when the institutional rule was actually breached.42 The doctrine of implied powers can be stretched to the point that limited attribution of competence becomes a general capacity to conclude treaties. One of the few cases to be discussed concerned a trade agreement between the EU and Morocco.43 This case shows how difficult it is to claim that a treaty 37 Land and Maritime Boundary between Cameroon and Nigeria (Merits) [2002] ICJ Rep 303, paras 265–68. 38 Ibid para 265. 39 See the commentary to art 46 ILC, ‘Law of treaties international organizations’ (n 34). 40 Henry G Schermers and Niels M Blokker, Institutional Law: Unity within Diversity (Nijhoff 2011) para 1784. 41 See the commentary to art 46 ILC, ‘Law of treaties international organizations’ (n 34). 42 Klabbers, Introduction (n 18) 254. 43 Conclusion of an Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part [2012] OJ 2012 L 241, 2.

The Rules of the Organization as a Limit of Validity 169 is invalid because it was concluded in violation of a rule of the organization. The national liberation movement Fronte Polisario applied to the General Court for the annulment of the EU Council decision on the conclusion of the agreement and all the implementing acts.44 It claimed that the agreement was concluded in violation of both EU and international law because it applies to Western Sahara, a territory occupied by Morocco and partially governed by Fronte Polisario.45 Clearly, this case does not concern the lack of competence to conclude the treaty, but the violation of fundamental rights, established both in EU law and in international law. In 2015, the General Court considered that ‘nothing in the applicant’s pleas and arguments supports the finding that, under EU law or international law, the conclusion of an agreement with a third State which may be applied on a disputed territory is absolutely prohibited’.46 However, it annulled the decision in so far as it approved the application of that agreement to Western Sahara, considering that ‘the protection of fundamental rights of the population of such a territory is of particular importance and is, therefore, a question that the Council must examine before the approval of such an agreement’.47 In sum, the agreement has valid application in the territory of Morocco, but it cannot be applied to Western Sahara because the EU Council breached the internal EU norm requiring examination of all the elements of the case before the adoption of the decision.48 The Council appealed the judgment and in 2016 the Court of Justice set aside the decision of the General Court and declared the action brought by Fronte Polisario inadmissible.49 It affirmed that the EU–Morocco agreement cannot be interpreted as applying to the territory of Western Sahara. In sum, it relied on a presumption of compatibility under which the Council and the Commission had not intended to conclude an agreement that could violate international and EU law.50 However, in order to reach this decision, the Court bypassed a preliminary objection raised by Fronte Polisario, which claimed that the appeal was inadmissible because the EU lacked the competence to conclude an international agreement with Morocco that is legally applicable to Western Sahara and, therefore, it had no interest in the appeal.51 The Court simply stated that under its Statute, the Council does not have to show any interest in the appeal. 44 Case T-512/12 Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) v Council of the European Union [2015] ECR 953 (hereafter Polisario v Council). 45 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12. 46 Polisario v Council (n 44) para 215. 47 Ibid para 227. 48 Ibid para 247. 49 Case C-104/16 P Council of the European Union v Front populaire pour la libération de la saguia-el- hamra et du rio de oro (Front Polisario) [2016] ECR 973. 50 Ibid para 123. 51 Ibid para 66.

170 Validity and Ultra Vires Acts

10.4 Customary International Law as a Limit of Validity In the Fronte Polisario case, the General Court affirmed in 2015 that ‘when [the EU] adopts an act, it is bound to observe international law in its entirety, including customary international law, which is binding upon the institutions of the European Union’.52 However, the use of customary international law as a limit of validity of a rule of the organization is more complex that it seems. Indeed, it is not clear which customary norms bind international organizations. Moreover, the adoption of a functionalist conceptualization would render void this limit of validity. When EU law is perceived as international law, it cannot breach customary international law despite the fact that the Treaty on European Union (TEU) expressly states that the EU shall contribute to the ‘strict observance and the development of international law, including respect for the principles of the United Nations Charter’.53 The issue is more evident for other international organizations. As Benvenisti pointed out, the ICJ, in its Advisory Opinion on the WHO Headquarters, did not intend to claim that the same customary norms that apply to states also apply to international organizations.54 The Court specified that organizations are bound by obligations ‘incumbent upon them’, which gives relevance to the particular qualities of these institutions. Again, it is a matter of conceptualization. If under the functionalist paradigm the rules of international organizations are perceived as purely international law, it is not possible to claim that international organizations are bound by customary international law. Indeed, excluding jus cogens norms, the absence of hierarchy in the sources of international law normatively excludes that a subsequent norm, such as a UN Security Council resolution, violates a customary rule. This is the normative effect of the functionalist conceptualization and of how international organizations were perceived as subjects that can do no harm.55 Conversely, if under the constitutional paradigm the rules of international organizations are perceived as purely internal law, it is possible to claim that international organizations are bound by customary international law, but only if their constitutional instrument makes a reference to it, as article 3(5) TEU, mentioned above. The issue is no different from the classical debate between monist and dualist countries.56 Indeed, under this conceptualization, the state analogy is particularly relevant. In the absence of a specific reference in their constitutive instruments, international organizations are free to set up their internal criteria of validity. 52 Polisario v Council (n 44) para 180. 53 Consolidated version of the Treaty on European Union (adopted on 13 December 2007, entered into force 1 December 2009) Official Journal C 326, 26/10/2012 P. 0001–0390, art 3(5). 54 Eyal Benvenisti, ‘Upholding Democracy Amid the Challenges of New Technology: What Role for the Law of Global Governance?’ (2018) 29 EJIL 9. 55 Klabbers, ‘The EJIL Foreword’ (n 32) 29. 56 Giorgio Gaja, ‘Dualism: A Review’ in Janne Nijman and André Nolkaemper (eds), New Perspectives on the Divide Between National and International Law (OUP 2007).

Customary International Law as a Limit of Validity 171 One of the most debated issues is whether UN peacekeeping missions are bound by customary international humanitarian law.57 Usually, the problem is solved by claiming that the UN unilaterally claims to respect these rules, if only as a matter of volition.58 Another example concerns the respect for human rights law in the UN Security Council, for instance in the pursuit of its counterterrorism agenda. Since 2001, relevant resolutions impose respect for human rights on member states as a general clause, but there are no signals that the UN itself should respect human rights as a matter of law and not for political opportunity.59 Kristina Daugirdas recently applied the either/or approach and distinguished between the two conceptualizations.60 She referred to a ‘vertical relationship’, under which organizations are states’ vehicles, and a ‘horizontal relationship’, under which organizations are peers of states. Similarly, Fernando Lusa Bordin distinguished between what he called the ‘relations on the international plane’ and the ‘relations on the institutional plane’ between an organization and its member states.61 The first are regulated by a horizontal relationship, while the second by a vertical relationship. I contend that the two conceptualizations are nothing more than what I have described as functionalism and constitutionalism and that any either/or approach fails because international organizations are neither exclusively vehicles nor exclusively peers and the two perspectives enmesh. From a ‘vehicle perspective’, the reasons why organizations are bound by customary international law can be rebutted by simply applying the ‘peers conceptualization’. From a ‘peers perspective’, the reasons why organizations are bound by customary international law can be rebutted by simply applying the ‘vehicle conceptualization’. The dual legal nature of international organizations seeks to provide the common theory to explain why and the extent to which customary international law binds international organizations.

10.4.1 The validity of UN Security Council resolutions encroaching on human rights In order to discuss the issue, one of the most interesting concrete circumstances in which an alleged ultra vires character has been claimed concerns the 57 Philippe Sands and Pierre Klein, Bowett’s Law of International Institutions (Sweet and Maxwell 2009) 463, 474–75. 58 Kofi A Annan, ‘Observance by United Nations Forces of International Humanitarian Law’ (1999) 81 IRRC 812. 59 Monika Heupel and Michael Zürn (eds), Protecting the Individual from International Authority: Human Rights in International Organizations (CUP 2017). 60 Kristina Daugirdas, ‘How and Why International Law Binds International Organizations’ (2016) 57 HILJ 325. 61 Fernando Lusa Bordin, ‘General International Law in the Relations between International Organizations and their Members’ (2019) 32 LJIL 653.

172 Validity and Ultra Vires Acts counterterrorism sanctions adopted by the UN Security Council in relation to the human rights standard.62 One starting point for the discussion is the claim that ‘the powers conferred to international organizations do not include the power to violate international law’.63 However, it is not clear which international norms bind international organizations. First, the theory under which organizations are bound by the treaties concluded by their member states needs to be discarded.64 International law does not provide for such a mechanism, which is incompatible with the autonomous legal personality of international organizations and that may create an inextricable web of conflicting obligations. Going back to what I mentioned in the previous chapter on the law of treaties, the fact that member states’ obligations are transferred to their organizations runs parallel to the opposite idea of obligations of the organization transferred to their member states. The theory comes from the pure international nature of the rules.65 Each legal system establishes the limits to the validity of its norms. On the basis of the concept of an international organization as a dual entity, the validity of the rules are institutional and international. The dual legal nature of ultra vires acts has been discussed in few circumstances.66 It combines the constitutionalist perspective, under which the legality of organizations’ rules (perceived as internal law) must be assessed in conformity with internal criteria of validity,67 with the functionalist perspective, under which the legality of the rules must be assessed in conformity with international law.68 The dual nature explains why international organizations are at the same time bound by their internal lex specialis and by general international law. Concerning UN and human rights obligations, the functionalist perspective focuses on the attribution of competences enshrined in the UN Charter as a limit to UN Security Council resolutions.69 Following this approach the rules are invalid because they are adopted contrary to the international treaty that created the organization. With regard to human rights obligations, it is difficult to claim that they 62 Annalisa Ciampi, Sanzioni del Consiglio di sicurezza e diritti umani (Giuffrè 2007) (hereafter Ciampi, Sanzioni); Martina Buscemi, Illeciti delle Nazioni Unite e Tutela dell’Individuo (Editoriale Scientifica 2020). 63 Cannizzaro and Palchetti, ‘Ultra Vires Acts’ (n 7) 369. 64 Frederik Naert, ‘Binding International Organisations to Member State Treaties or Responsibility of Member States for their Own Actions in the Framework of International Organisations’ in Jan Wouters and others (eds), Accountability for Human Rights Violations by International Organisations (Intersentia 2010). 65 See Chapter 9. 66 Cannizzaro and Palchetti, ‘Ultra Vires Acts’ (n 7) 390. 67 Benedetto Conforti, ‘The Legal Effect of Non-Compliance with Rules of Procedure in the UN General Assembly and Security Council’ (1969) 63 AJIL 479. 68 Karl Doehring, ‘Unlawful Resolutions of the Security Council and their Legal Consequences’ (1997) 1 MPYUNL 91. 69 Erika De Wet, The Chapter VII Powers of the United Nations Security Council (Hart Publishing 2004).

Customary International Law as a Limit of Validity 173 constitute a limit to the functions of the organization. Scholarship has provided several theories, but they usually fail when they try to reconcile the UN purpose to promote and encourage respect for human rights by its member states with the existence of a legal obligation binding the UN itself.70 Again, the two conceptualizations assume a fundamental role. From a functionalist point of view, international organizations are not created to violate or to respect human rights; they are agents in the hands of their member states. Adopting the constitutional perspective, the rules are perceived as internal law of the UN, and the regime of reference is constituted only by its legal system, which establishes the limits of the Security Council powers.71 The issue is the degree of openness of a legal system perceived as similar to that of a state. Under this hypothesis, the second criterion of legality is based in conventional and general international law.72 As of today, only a few organizations are party to international human rights treaties and the UN is not one of those.73 Consequently, the only source of human rights law must be found in general international law.74 Two problems remain to be solved and the dual nature of the rules is useful to shed some light. The first one comes from the lex specialis nature of the Charter, which allows derogation from general international law.75 Consequently, every Security Council resolution may derogate from customary law, imposing its nature as international law. Notwithstanding, the contextual internal nature of the resolutions may prevent the possibility of such derogation. Indeed, resolutions are not only international law—they derive their validity also from the internal system established in the Charter. Consequently, the resolution has to respect customary international law in the absence of a provision established in the Charter that excludes its application.76 Since the UN Charter does not contain an express provision stating that the Security Council is not bound by customary human rights obligations, the dual legal nature of resolutions triggers their invalidity in case of violations. One could object that article 103 is a rule of the UN Charter which expressly grants supremacy of UN obligations over treaty obligations of its member states. 70 Ian Johnstone, ‘The UN Security Council, Counterterrorism and Human Rights’ in Andrea Bianchi and Alexis Keller (eds), Counterterrorism: Democracy’s Challenge (Bloomsbury 2008); Salvatore Zappalà, ‘Reviewing Security Council Measures in the Light of International Human Rights Principles’ in Bardo Fassbender (ed), Securing Human Rights?: Achievements and Challenges of the UN Security Council (OUP 2011); Andrea Bianchi, ‘Security Council’s Anti-terror Resolutions and their Implementation by Member States: An Overview’ (2006) 4 JICJ 1044. 71 Antonios Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (OUP 2013) (hereafter Tzanakopoulos, Disobeying) 57. 72 Ciampi, Sanzioni (n 62) 141. 73 Guillaume Le Floch, Responsibility for Human Rights Violations by International Organizations (Brill 2015). 74 Ciampi, Sanzioni (n 62) 141. 75 Ibid 142. 76 Dapo Akande, ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations?’ (1997) 46 ICLQ 309.

174 Validity and Ultra Vires Acts Moreover, there is the tendency to consider that article 103 also covers customary obligations.77 However, article 103 only applies to conflicting obligations of UN member states and not to obligations of the UN as such. Article 103 is a rule that coordinates legal systems that declares the supremacy of UN obligations.78 It deals with the effects and not the content of a legal system and it does not exclude that the actions of the organization are limited by the human rights obligations arising from its own legal system and international law. The invalidity of a resolution issued in violation of human rights law does not trigger the supremacy clause enshrined in article 103. The second problem comes from the nature of human rights laws as legal instruments that are created on the basis of the specific characteristics of states.79 For instance, the capacity of international organizations to bear human rights obligations has been contested because organizations do not have territorial jurisdiction.80 Since the possession of a territory is not a fundamental characteristic of international organizations, the concept of jurisdiction does not apply to them. However, these theses cannot be generalized. Practice shows that certain organizations, such as the UN, are entrusted with territorial administration, and other organizations, such as the EU, bear international human rights obligations. Moreover, the concept of extraterritorial jurisdiction is well accepted and does not appear to be a limit for international organizations.81 From the constitutionalist perspective, the jurisdiction of the organization over individuals is exercised through the jurisdiction of member states. The rules of international organizations have internal and international criteria of validity, allowing reconciliation between lex specialis and lex generali.82 Their parallel application is the possible outcome of the dual legal nature of the rules.

10.5 Concluding Remarks One of the most interesting effects of the dual legal nature is to reject an either/or approach that characterizes the law of international organizations. This is particularly evident in the debates on the validity of the law they produce. The dual legal nature explains how the rules of international organizations have two parameters 77 Johann Ruben Leiæ and Andreas L Paulus, ‘Article 103’ in Bruno Simma and others (eds), The Charter of the United Nations: A Commentary, Volume II (OUP 2012). 78 Jan Klabbers, Treaty Conflict and the European Union (CUP 2009) 150. 79 Samantha Besson, ‘The Bearers of Human Rights’ Duties and Responsibilities for Human Rights: A Quiet (R)evolution?’ (2015) 32 Social Philosophy and Policy 244. 80 Samantha Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to’ (2012) 25 LJIL 857. 81 Ralph Wilde, ‘Legal Black Hole—Extraterritorial State Action and International Treaty Law on Civil and Political Rights’ (2005) 26 MJIL 739. 82 Tzanakopoulos, Disobeying (n 71) 57.

Concluding Remarks 175 of legality, deriving from the international and the institutional legal systems. The main practical consequence of the theory is to explain how international organizations are bound by customary international law without reverting to a fictional distinction between activities that take place on the international plane and activities that take place on the institutional plane. I have demonstrated that this distinction is arbitrary, constructed on the argumentative aim of the interpreter. The same activity can be perceived as taking place on the international or the institutional plane by applying the constitutional or the functional concept of an international organization. Only the dual legal nature is able to provide a comprehensive understanding.

11

International Responsibility The first consequence of the dual legal nature applied to international responsibility is a rebuttal of the conventional ‘either/or’ approach under which member states are either considered from an internal institutional or an external international perspective. For instance, a recent book on allocation of responsibility by Nikolaos Voulgaris distinguishes between an interaction based on ‘the particular member state-international organization relationship’ and an ‘interaction as independent subjects of international law’.1 The distinction is justified by the attribution of competences. The first approach is applied when member states exercise competences that lie with the organization and do so following the rules of the organization (not acting ultra vires). The second approach covers all the other circumstances, under which ‘member States act as States, do not disappear “under the organisation veil” ’.2 Similarly, the International Law Commission (ILC) deals with the attribution of conduct to an international organization on the basis of two main criteria, an institutional link and a factual link.3 As I will soon contend, member states can be considered under both criteria depending on whether they are perceived as internal or as external subjects. Throughout this book I have contended that the need to distinguish between these two approaches is based on the application of different concepts of an international organization. This means that the same factual circumstance can be arbitrarily perceived as concerning an internal or an international relationship, depending on how the rules of the organization are perceived and the corresponding conceptualization applied. When the treaty conferring the attribution of competences is considered to be purely international law, the functionalist concept of organization is applied and member states are perceived as merely ‘states’. When the constitution establishing the competences is considered to be purely internal law, the constitutionalist concept of organization is applied and member states are perceived as merely ‘members’. However, competences are never clearly identifiable because they can be expressed, implied,

1 Nikolaos Voulgaris, Allocating International Responsibility between Member States and International Organisations (Bloomsbury 2019) (hereafter Voulgaris, Allocating International Responsibility). 2 Ibid 4, 5. 3 ILC, ‘Draft articles on the responsibility of international organizations, with commentaries’ (2011) UN Doc A/66/10 (hereafter ARIO); Francesco Messineo, ‘Attribution of Conduct’ in André Nollkaemper and Ilias Plakokefalos (eds), Principles of Shared Responsibility in International Law: An Appraisal of the State of the Art (CUP 2014) (hereafter Messineo, ‘Attribution of Conduct’).

The Concept of an International Organization in International Law. Lorenzo Gasbarri, Oxford University Press (2021). © Lorenzo Gasbarri. DOI: 10.1093/oso/9780192895790.003.0011

International Responsibility 177 or inherent and they are too weak a ground to be relevant for establishing a legal framework. Another traditional approach distinguishes between legal systems and identifies different rules based on whether the wrongful act is a matter of international law or institutional law.4 However, this approach also fails because it relies on the fiction that the acts of organizations can be clearly distinguished as internal or as external. Again, I contend that is only a matter of points of view and the same rule can be perceived both as internal or as international law. Indeed, Pierre Klein established a clear separation between the internal and the external dimension as a matter of intuition, in the absence of an analysis of what constitutes a legal system established by an international organization. Similarly, Jan Klabbers in the last edition of his manual distinguished between the relationship between member states and organizations, the internal relation and the external relation.5 These distinctions may have a descriptive purpose, but they only complicate the issue if the adoption of different perspectives affects the application of the legal framework. Conversely, several other scholars, especially those concerned with shared responsibility, do not rely on the differences between the external and the internal dimension.6 However, this approach is not based on a grounding theory on the concept of an international organization and it is conditioned by the need to find a common agreement on what international organizations are. In the next section of this chapter I will describe how the work of the ILC was affected by the absence of an agreed conceptualization. Indeed, the Articles on the Responsibility of International Organizations (ARIO) are grounded in the idea that the institutional veil has different degrees of transparency, depending on the context. In some cases, the rules are perceived as international law and member states are visible behind the institutional veil, in other cases the rules are perceived as internal law and member states are not visible behind the institutional veil.7 I will contend that the rejection of the either/or paradigm is the most important effect of conceptualizing international organizations as dual entities. It means recognizing the value of the several perspectives under which international organizations can be perceived. Consequently, it opens the way to the possibility of conceiving a comprehensive legal framework. Simplification is probably the most important effect of this approach. I will first present how international organizations have been perceived by historical attempts to develop a set of articles on international responsibility and later discuss dual legal nature in the context of the 4 Pierre Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Bruylant 1998). 5 Jan Klabbers, An Introduction to International Organizations Law (3rd edn, CUP 2015). 6 See, for instance, Moshe Hirsch, The Responsibility of International Organizations toward Third Parties: Some Basic Principles (Nijhoff 1995); José Manuel Cortés Martín, ‘The Responsibility of Members Due to Wrongful Acts of International Organizations’ (2013) 12 CJIL 679. 7 Catherine Brölmann, ‘Member States and International Legal Responsibility’ (2015) 12 IOLR 358, 361.

178 International Responsibility norms on attribution of conduct that deal with the particular internal and international relationships between member states and their organizations.

11.1 International Organizations in the Law of International Responsibility 11.1.1 L’Institut de Droit International In the mid-1990s, the Institut de Droit International (IDI) tackled the complex issue of the responsibility of member states in relation to the non-fulfilment by international organizations of their obligations towards third parties. The collapse of the Tin Council and the subsequent litigation in domestic courts urged the IDI to set up a Commission,8 and Rosalyn Higgins was appointed Rapporteur of the project, titled ‘The Legal Consequences for Member States of the Non-fulfilment by International Organizations of their Obligations toward Third Parties’.9 In her preliminary study, she began by defining international organizations for the purposes of the project as essentially having legal personality.10 Interestingly, she relied on the work of Seidl-Hohenveldem and its distinction between acta iure imperii and acta iure gestionis. Under the definition provided by Seidl- Hohenveldem, international organizations are only those entities which performs activities that if pursued by a single state, would be considered as iure imperii.11 The governmental nature of the function performed by an international organization determines whether members states are liable or not for the act of an organization. Indeed, if the acts are characterized as iure gestionis, the entity is not an international organization, does not possess legal personality, and members are directly liable towards third parties. Indeed, the essential elements that characterize an international organization are the possession of international legal personality and its intergovernmental nature. The final resolution states in article 1 that the project ‘deals with issues arising in the case of an international organization possessing an international legal personality distinct from that of its members’.12 8 Romana Sadurska and Christine M Chinkin, ‘The Collapse of the International Tin Council: A Case of State Responsibility?’(1990)’ 30 VJIL 845; J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry and Others [1987] EWHC [1988] 77 ILR 56; Maclaine Watson & Company Ltd v Department of Trade and Industry [1987] EWHC [1989] 80 ILR 39; JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry and Others and Related Appeals, and Maclaine Watson & Co Ltd v Department of Trade and Industry, and Maclaine Watson & Co Ltd v International Tin Council [1989] UKHL [1990] 81 ILR 670; In Re International Tin Council [1988] EWCA [1989] 80 ILR 181; Australia & New Zealand Banking Group Ltd and Others v Australia and others [1989] UKHL [1990] 29 ILM 670. 9 Fifth Commission, ‘The legal consequences for member states of the non-fulfilment by international organizations of their obligations toward third parties’ (Annuaire de l’Institut de Droit International 1995) (hereafter Fifth Commission, ‘Legal consequences’). 10 Ibid 253. 11 Ignaz Seidl-Hohenveldern, Corporations in and under International Law (CUP 1987) 72. 12 Fifth Commission, ‘Legal consequences’ (n 9).

Law of International Responsibility 179 In the subsequent work of the IDI, Rosalyn Higgins confirmed her preliminary finding that under international law member states do not bear a legal liability towards third parties for the non-fulfilment by international organizations of their obligations.13 However, as I mentioned in Chapter 9 on the law of treaties, she identified an obligation based on customary law that obliges member states to place their organizations in a position to meet their treaty obligations with third parties. Moreover, the final report stressed the relevance of the special rules of each organization in order to define whether a particular obligation on the liability of member states should apply.14 Finally, the set of articles include a definition of rules similar to that adopted by the ILC: ‘ “Rules of the organization” means the constituent instruments of the organization and any amendments thereto, regulations adopted thereunder, binding decisions and resolutions adopted in accordance with such instruments and the established practice of the organization.’15 On the liability of member states, article 5 established that: a) The question of the liability of the members of an international organization for its obligations is determined by reference to the Rules of the organization. b) In particular circumstances, members of an international organization may be liable for its obligations in accordance with a relevant general principle of international law, such as acquiescence or the abuse of rights. c) In addition, a member State may incur liability to a third party i) through undertakings by the State, or ii) if the international organization has acted as the agent of the State, in law or in fact.

11.1.2 The International Law Commission The last ILC attempt to codify the law of international organizations concerns their international responsibility for wrongful acts. Similarly to the codification of the law of treaties, the Commission received the mandate to commence the new study when it was finalizing its work on state responsibility.16 However, the work on state responsibility differed from the work on treaty law in the fact that it never addressed international organizations, nor the responsibility of states that are members of an international organization.17 The only mention is in article 57 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), which expressly excludes from the project the responsibility of international organizations

13 Ibid 461. 14 Ibid 462. 15 Ibid. 16 ILC, ‘Report of the International Law Commission on the Work of its 52nd session’ (1 May–18 August 2000) UN Doc A/55/10. 17 ILC, ‘First report on State responsibility by Roberto Ago’ (1969) UN Doc A/CN.4/217 and Add.1, 140, para 94.

180 International Responsibility and that of any state for the conduct of an organization.18 The commentary to this article relies on the 1986 Vienna Convention to define international organizations as intergovernmental organizations, without further explanation. The commentary also underlines that article 57 does not exclude from the scope of the project all those acts that are attributable to states under Chapter II, Part I. The exclusion only covers ‘what is sometimes referred to as the derivative or secondary liability of member States for the acts or debts of an international organization’.19 In 2002, Giorgio Gaja was appointed Special Rapporteur and the Commission established a working group, which submitted its first report in the same year.20 At the outset, the working group included a few paragraphs on ‘the concept of international organizations’, affirming that under the previous work of the Commission, the definition ‘international organization means an intergovernmental organization’ comprises entities of quite a diverse nature. It stressed that it might be useful to devise specific rules for different categories of organizations, because ‘it may be unreasonable to look for general rules applying to all intergovernmental organizations, especially with regard to the issue of responsibility which States may incur for activities of the organization of which they are members’.21 It also excluded from its work organizations established by states under national law and non- governmental organizations (NGOs). In his first report, Gaja moved on from the brief definition used in the previous work of the Commission.22 He stated that the difficulties in defining international organizations derive from the variety of institutions covered by the traditional definition based on membership, which only excludes non-governmental institutions. A further element that must be considered is the constitutive instrument, which is generally a treaty for intergovernmental organizations, and an instrument not funded by international law for other NGOs. However, he recognized that there are organizations which have non-state actors among their members and are not founded by an instrument of international law. Similarly to Rosalyn Higgins and the IDI, he turned to the issue of legal personality to resolve the problem of defining organizations, considering that the project should cover all the institutions that enjoy international personality and are able to bear international obligations. Despite being an essential characteristic, he considered that personality alone is not sufficient to delimit the scope of the project. Indeed, the risk he envisaged 18 ILC, ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ (2001) UN Doc A/56/10 (hereafter ARSIWA) art 57: ‘These articles are without prejudice to any question of the responsibility under international law of an international organization, or of any State for the conduct of an international organization.’ 19 ILC, ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ (2001) UN Doc A/56/10 (hereafter ARSIWA) 142. 20 ILC, ‘Report of the Working Group on the Responsibility of International Organizations’ (2002) UN Doc A/57/10. 21 Ibid para 470. 22 ILC, ‘First report on responsibility of international organizations by Giorgio Gaja’ UN Doc A/ CN.4/532 (hereafter Gaja, ‘First report’).

Law of International Responsibility 181 is the same as the one I discussed in the first part of the book, concerning the different views on whether legal personality arises de facto by the existence of the organization or whether it is attributed by member states and recognized by non- members.23 Gaja preferred an approach under which ‘it is appropriate to limit the scope of this study to questions relating to organizations that exercise certain functions, that are similar, and possibly identical, to those exercised by States. These functions, whether legislative, executive or judicial, may be called governmental.’24 He proposed to draft a new definition for the purposes of international responsibility and to identify a more homogenous category of institutions based on their ‘governmental’ functions, independently of whether they are constituted by an instrument of international law or if their members are only states: ‘For the purposes of the present draft articles, the term ‘international organization’ refers to an organization which includes States among its members insofar as it exercises in its own capacity certain governmental functions.’25 He does not refer to acta iure imperi, but one can read the approach adopted by Seidl-Hohenveldem behind the words.26 This definition is particularly interesting because it is an attempt to reconcile functionalism with the state analogy. It includes the idea that the functions of international organizations have an element of ‘publicness’ that makes them autonomous entities similar to states. However, it is a difficult task to delimit something as general as a governmental function and it might end up including unexpected entities. The discussion in the plenary sessions goes along this line and shows the drawbacks of a definition of international organizations based on their functions. Gaja’s intention was probably to find a definition that would allow the application of the framework established for states. Sharing this purpose, Brownlie reinterpreted the governmental function to read ‘activity analogous to that of Governments’, but he also acknowledged its meaninglessness for practical purposes: ‘a beautiful phrase that was completely useless, but was exactly what was needed’.27 In the end, the Commission rejected the approach of the Special Rapporteur and established a working group to provide a new definition, which is included in the final draft without modification: ‘For the purposes of the present draft articles, the term “international organization” refers to an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.’28 The commentary stresses that the need for a new definition arose from the development of international law which rendered the 23 See Chapter 1. 24 Gaja, ‘First report’ (n 22) para 20. 25 Ibid para 34. 26 See section 11.1.1. 27 ILC, ‘Summary record of the 2752nd meeting’ (Yearbook of the International Law Commission, 2003, vol I, 2003) UN Doc A/CN.4/SR.2752 (hereafter ILC, ‘2752nd meeting’) para 10. 28 ILC, ‘Report of the International Law Commission on the work of its 55th Session’ (5 May–8 August 2003) UN Doc A/58/10, 18.

182 International Responsibility reference to ‘intergovernmental’ unclear and obsolete: it does not provide much information and it is not clear if it is referring to the constituent instrument or actual membership. It is inappropriate because many organizations have been established by states organs other than governments and are not always represented by governments. It is obsolete because many organizations comprise among their members entities other than states. The new definition was not without criticism, because it leaves out organizations created by parallel instruments of national law and it is not clear whether international legal personality is inherently possessed by every organization or whether it is possible to conceive organizations without international legal personality.29 Concerning the definition of ‘rules of the organization’, Special Rapporteur Gaja tackled this issue in his third report, discussing the breach of an international obligation.30 Only the violation of an international obligation triggers international responsibility and, consequently, it is not clear to what extent the rules of the organization are covered by the project. He distinguished the four theories which are the starting point of this book, but he did not indulge in the relevance of the nature of the rules to define the concept of an international organization. The discussion within the Commission pivots around the capacity of certain organizations to develop rules that are not part of international law.31 Gaja contended that the project should take into consideration that the law of the EU, for instance, is not international law. Some members of the Commission opposed this view. Other members even contested the comprehensive notion of the rules, which should only concern the ‘internal functioning’.32 The debate did not result in an agreement and it ended with Koskenniemi’s words: ‘It was not the Commission’s task to make judgments on the nature of the rules of an organization. What mattered was the relationship between those rules, regardless of their nature, and the responsibility of the organization under general international law.’33 The Commission did not take a stance and it reaffirmed the absence of an agreed position: the internal law of an international organization cannot be sharply differentiated from international law. At least the constituent instrument of the international organization is a treaty or another instrument governed by international law; some further parts of the internal law of the organization may be viewed as belonging to international law. One important distinction is whether the relevant obligation exists towards a member or a non-member State, although this distinction is not 29 Maurice Mendelson, ‘The Definition of “International Organization” in the International Law Commission’s Current Project on the Responsibility of International Organizations’’ in Maurizio Ragazzi (ed), International Responsibility Today Essays in Memory of Oscar Schachter (Nijhoff 2005). 30 ILC, ‘Third report on responsibility of international organizations by Giorgio Gaja’ (2005) UN Doc A/CN.4/553, paras 16ss. 31 ILC, ‘Summary record of the 2840th meeting’ (2005) UN Doc A/CN.4/SR.2840. 32 Ibid para 72. 33 ILC, ‘Summary record of the 2841th meeting’ UN Doc A/CN.4/SR.2841, para 34.

Law of International Responsibility 183 necessarily conclusive, because it would be questionable to say that the internal law of the organization always prevails over the obligation that the organization has under international law towards a member State. On the other hand, with regard to non-member States, Article 103 of the United Nations Charter may provide a justification for the organization’s conduct in breach of an obligation under a treaty with a non-member State. Thus, the relations between international law and the internal law of an international organization appear too complex to be expressed in a general principle.34

Consequently, the ILC did not adopt a comprehensive approach and modified the nature of the rules, and the concept of an international organization, throughout the project.35 The relevance of the nature of the rules arises in comparison with article 3 ARSIWA, stating that internal state law cannot affect the wrongful character of an international act.36 Adopting a functionalist perspective, the Commission affirmed that a similar article does not apply to international organizations, because the rules could belong to international law.37 The nature of the rules is also relevant in order to attribute the conduct of an organ of the organization, as I will discuss in the next section.38 Article 10 considers that international responsibility may arise from the breach of the rules when these create international obligations.39 The admissibility of countermeasures between the organization and its members is justified by the international nature of the rules, even if it is controversial whether countermeasures should rather be considered as internal sanctions.40 Concerning reparation, article 32(1) considers the rules’ internal law by analogy with article 32 ARSIWA, stating that an organization cannot rely on its rules as a justification for a failure to comply with its obligations of reparation.41 Conversely, article 32(2) considers the rules as the international law that applies in the relationship between the organization and its members.42 Article 40 concerns the internal obligation to ensure the fulfilment of the obligation to make reparation. Still on reparation, responsibility in connection with other subjects (articles 14–18; 58–62) distinguishes 34 ILC, ‘2752nd meeting’ (n 27) 48. 35 Christiane Ahlborn, ‘The Rules of International Organizations and the Law of International Responsibility’ (2011) 8 IOLR 397. 36 ARSIWA (n 19) art 3: ‘The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.’ 37 ARIO (n 3) comment to arts 4, 15. 38 Ibid art 6(2): ‘The rules of the organization shall apply in the determination of the functions of its organs and agents.’ 39 Ibid art 10(2): ‘Paragraph 1 includes the breach of an international obligation that may arise for an international organization towards its members under the rules of the organization.’ 40 See Chapter 3, Section 3.2.1. 41 ARIO (n 3) art 32(1): ‘The responsible international organization may not rely on its rules as justification for failure to comply with its obligations under this Part.’ 42 Ibid art 32(2): ‘Paragraph 1 is without prejudice to the applicability of the rules of an international organization to the relations between the organization and its member States and organizations.’

184 International Responsibility between the international responsibility of the entities involved and the internal relations between them. Finally, article 64 on lex specialis implies an international nature of the rules which is able to supersede the application of the project.

11.1.3 The International Law Association The International Law Association (ILA) focused on the wrongful acts of international organizations twice. First, from 1996 to 2004, a committee focused on ‘accountability of international organizations’.43 Subsequently, a study group focused on ‘responsibility of international organizations’ from 2005 to 2012.44 The first committee had three purposes: to establish a set of recommended rules and best practices on good administration, to identify primary rules, and to identify secondary rules on responsibility.45 In its first report of 1998, the Committee discussed the role of the applicable law, realizing the plurality of legal systems in which international organizations act.46 They distinguished between ‘governing law’, ‘internal law’, ‘the law common to a group of organizations’, and ‘the external law.47 In the third report of 2002, the legal relationship between the member states and the organizations is considered to be governed by the rules of the organization, even if there is no clear definition between their international and internal nature. However, the committee preferred the term ‘internal law’ rather than ‘rules of the organization’.48 Concerning the attribution of conduct, the ILA Committee relies on a general principle under which member states are not directly responsible for the wrongful acts of their organizations, but at the same time they do not disappear behind the institutional veil of the organization, opening up the way to dual attribution.49 Member states can incur ‘subsidiary’ responsibility as ‘a matter of international law to be determined by reference to the rules of the IO’.50 The study group established in 2005 on the responsibility of international organizations had the limited aim of facilitating the ILC’s project with comments and suggestions.51 In particular, the members of the study group considered the 43 Committee on Accountability of International Organisations, ‘Final Report’ (International Law Association, Berlin conference, 2004). 44 Study Group on the Responsibility of International Organizations, ‘Final Report’ (International Law Association, Sofia conference, 2012) (hereafter ILA Study Group, ‘Final Report’). 45 Committee on Accountability of International Organisations, ‘Second Report’ (International Law Association, London conference, 2000) 874. 46 Committee on Accountability of International Organisations, ‘First Report’ (International Law Association, Taipei conference, 1998) 591. 47 Ibid 592–96. 48 Committee on Accountability of International Organisations, ‘Third Report’ (International Law Association, New Delhi conference, 2002) 9. 49 Ibid 15, 16. 50 Ibid 18. 51 Study Group on the Responsibility of International Organisations, ‘Trascript of the Working Session’ (International Law Association, The Hague conference, 2010) 924.

Dual Attribution of Conduct and Shared Responsibility 185 differences between the institutional structure of states and of international organizations, debating the opportunity of a copy-and-paste approach. They discussed the ‘monodimensional’ nature of states in comparison with the transparent and ‘layered’ structure of international organizations.52 In 2012, the study group discussed the definition of international organization adopted by the ILC and criticized the fact that the ARIO did not sufficiently distinguish between the different relations that an international organisation might have with its members, which could act internally but also externally.53 The final report of the study group, focusing on specific comments on the ARIO, underlined the absence of a clear definition of legal personality and ‘volonté distincte’.54 In particular, it analysed this sentence included in the final ARIO commentary of article 2(a): ‘The existence for the organization of a distinct legal personality does not exclude the possibility of a certain conduct being attributed both to the organization and to one or more of its members or to all its members.’ The ILA wondered whether members incur this concurrent responsibility in that capacity or in their capacity as subjects of international law.55 Interestingly, the final report of the study group took a position on the nature of the rules, arguing for the capacity to develop an internal legal system which produces internal law.56 However, this decision was criticized in the last meeting, in which the final report was considered.57 For instance, Tzanakopoulos argued that the only reason the Commission did not explicitly stress the international nature of the rules was the lobbying of the EU in demanding a special treatment.58 Reinisch argued that the distinction between international and internal law is ‘artificial’.59 Finally, the ILA’s study group could not agree on a common position and left the question open.

11.2 Dual Attribution of Conduct and Shared Responsibility The absence of a concept of an international organization plays a fundamental role in the attribution of conduct in cases before national and international courts. As I already contended in the interim conclusions concerning the Al-Dulimi 52 Ibid 924, 927. 53 Study Group on the Responsibility of International Organisations, ‘Trascript of Working Session’ (International Law Association, Sofia conference, 2012) (hereafter ILA Study Group, ‘2012 Transcript’) 882. 54 ILA Study Group, ‘Final Report’ (n 44) 12. 55 Ibid. 56 Ibid 15 ff. 57 ILA Study Group, ‘2012 Transcript’ (n 53) 880. 58 Ibid 883. 59 Ibid 885.

186 International Responsibility judgments (Chapter 6), the constitutional conception of an international organization, under which member states appear as quasi-organs and hide behind the institutional veil of the organization, has been used to claim that international courts do not have jurisdiction rationae personae because the conduct is not attributable to member states.60 Also before domestic courts, the exclusive attribution of conduct to the international organization prevents the hearing of the case, raising issues of immunities and shielding the state behind the institutional veil.61 This despicable lack of clarity risks the denial of justice when states act within the framework of international organizations. As the European Commission of Human Rights held in 1990: the Convention [ECHR] does not prohibit a Member State from transferring powers to international organisations. Nonetheless, The Commission recalls that ‘if a State contracts treaty obligations and subsequently concludes another international agreement which disables it from performing its obligations under the first treaty it will be answerable for any resulting breach of its obligations under the earlier treaty’ (cf. N° 235/56, Dec. 10.6.58, Yearbook 2 p. 256 (300)). The Commission considers that a transfer of powers does not necessarily exclude a State’s responsibility under the Convention with regard to the exercise of the transferred powers. Otherwise the guarantees of the Convention could wantonly be limited or excluded and thus be deprived of their peremptory character. The object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective.62

The dual legal nature of international organizations reflects the fundamental balance between the different conceptualizations and, in concrete terms, reconfigures the position of member states as neither organs nor third parties in relation to the organization. On the one hand, a state cannot hide behind the institutional veil of the organization as an organ of a constitutional entity; on the other hand, a member state cannot be directly responsible for the act attributable only to the organization as a functional entity. Autonomous attribution of conduct can be performed to ascertain the responsible subject.63 While rarely applied in practice, dual attribution is the most frequent outcome of situations in which the organization acts through its member states, or member states act through their organization. Only in limited

60 See Chapter 6. 61 See, in general, August Reinisch, The Privileges and Immunities of International Organizations in Domestic Courts (OUP 2013). 62 M and Co v Germany App no 13258/87 (Commission Decision, 9 February 1990) (hereafter M and Co v Germany). 63 Stian Øby Johansen, ‘Dual Attribution of Conduct to both an International Organisation and a Member State’ (2019) 6 Oslo Law Review 178.

Dual Attribution of Conduct and Shared Responsibility 187 circumstances does the fact that an organ of one subject was placed at the disposal of another subject trigger exclusive attribution to the former.

11.2.1 The legal basis of dual attribution in the law of states’ responsibility In order to define what I will cover under dual attribution it is useful to go back to the second ILC Special Rapporteur on states’ responsibility, Roberto Ago, who dealt with the issue of dual attribution in its seventh report, in 1978.64 First, he distinguished between two forms of shared responsibility, distinguishing between complicity and direction and control.65 The latter is discussed in his eighth report, in 1979.66 Concerning the former, he defined complicity by a process of subtraction, excluding those hypotheses in which shared responsibility is created by a plurality of independent responsibilities. In particular, he first excludes from complicity the violation of a different obligation to prevent the wrongful conduct. Moreover, he considered that complicity does not cover the concerted violation of an obligation by two actors when the conduct is attributable to both or when is attributable to a joint organ, because both actors would be independently responsible for the same wrongful act. These two last hypotheses, under which two actors are independently responsible for the same conduct, are the object of this section, which excludes other norms concerning different conducts that are somehow connected to the wrongful act, such as aid and assisting, direction and control, coercion. Dual attribution is considered by the ILC when the same conduct is shared by a plurality of actors, whether states or international organizations. They are autonomously responsible on the basis of two or more autonomous attributions of conduct. Dual attribution is a specific notion falling in the broader category of shared responsibility.67 Indeed, shared responsibility also covers many other cases, in which there are different levels of participation in the same wrongful act. Often, as in the case of Roberto Ago, dual attribution is presented only to identify the notion of complicity. Similarly, Ian Brownlie focused on ‘joint responsibility’ distinguishing between complicity and direct participation in the wrongful act.68 Also John Quigley defined this distinction as a matter of fact.69 John Noyes and Brian 64 ILC, ‘Seventh report on State Responsibility by Mr Roberto Ago’ (1978) UN Doc A/CN.4/307. 65 On the definition of shared responsibility, see André Nollkaemper and Dov Jacobs, ‘Shared Responsibility in International Law: A Conceptual Framework’ (2012) 34 MJIL 359 (hereafter Nollkaemper and Jacobs, ‘Shared Responsibility’). 66 ILC, ‘Eight report on State Responsibility by Roberto Ago’ (1979) UN Doc A/CN.4/318. 67 André Nollkaemper and Ilias Plakokefalos (eds), Principles of Shared Responsibility in International Law: An Appraisal of the State of the Art (CUP 2014). 68 Ian Brownlie, System of the Law of Nations: State Responsibility, Part I (8th edn, OUP 1983)189 ss. 69 John Quigley, ‘Complicity in International Law: A New Direction in the Law of State Responsibility’ (1987) 57 BYBIL 77.

188 International Responsibility Smith framed the development of a principle of joint and several liability in two circumstances, under which the wrongful act is committed by means of one conduct which is attributed to two or more actors, or when two or more different conducts contribute to the same wrongful act.70 Dual attribution of conduct is only caused by an agreement of the responsible entities to conduct a joint activity and it does not depend on the circumstances of the case. In 1990, Maria Luisa Padelletti affirmed that the majority of cases in which issues of complicity arise should be rather considered as cases of dual attribution of conduct.71 Bernhard Graefrath applies joint and several liability only in those cases in which the conduct is effectively shared by two actors. Recent scholarship has distinguished between dual attribution and different contributions to the same wrongful act on the basis of the distinction between direct and indirect responsibility.72 Nollkaemper and Jacobs distinguished between cooperative and cumulative shared responsibility to indicate the relevance of concerted actions such as coalition warfare and non-concerted actions such as independent pollution of an international watercourse by two actors.73 ILC Special Rapporteur James Crawford, in his second report, affirmed that ‘According to Article 1 and 3, each State is responsible for its own conduct, . . . The question is then to identify, from the different forms of joint or concerted actions of several States identified, those which are not adequately resolved by this general principle.’74 Cases of dual attribution fall under this general principle, and are defined as circumstances in which every actor violates the same primary obligation with a single conduct attributable to both. In the practice of states’ responsibility, dual attribution is frequently at stake.75 I will focus on one International Court of Justice (ICJ) case only, Certain Phosphate Lands in Nauru (Nauru v Australia), as it is particularly interesting also for the concept of an international organization.76 The environmental crime caused by the exploitation of phosphate lands by an Australian, New Zealander, and British joint venture is a paradigmatic case 70 John E Noyes and Brian D Smith, ‘State Responsibility and the Principle of Joint and Several Liability’ (1988) 13 YJIL 225. 71 Maria Luisa Padelletti, Pluralità di Stati nel fatto illecito internazionale (Giuffrè 1990). 72 Christian Dominicé, ‘Attribution of Conduct to Multiple States and the Implication of a State in the Act of Another State’ in James Crawford, Alain Pellet, and Simon Olleson (eds), The Law of International Responsibility (OUP 2010) 281. 73 Nollkaemper and Jacobs, ‘Shared Responsibility’ (n 65) 368. 74 ILC, ‘Second report on State responsibility by James Crawford’ (1999) UN Doc A/CN.4/498, para 162. 75 Main examples include: Samoan Claim [1902] RIAA IX 15; Honduras v El Salvador and Guatemala [1908] American Journal of International Law 2 838; Treatment in Hungary of Aircraft and Crew of United States of America (United States v Hungarian People’s Republic; United States v Ussr) [1954] ICJ Pleadings 8; Anglo-Chinese Shipping Co v United States (cert denied) [1955] 349 US 938; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14 (hereafter Military and Paramilitary Activities); Oil Platforms (Islamic Republic of Iran v United States of America) (Merits) [2003] ICJ Rep 161. 76 Certain Phosphate Lands in Nauru (Nauru v Australia) (Prliminary Objections) [1992] ICJ Rep 240 (hereafter Nauru).

Dual Attribution of Conduct and Shared Responsibility 189 in which the ICJ explicitly dealt with a case of shared responsibility for the same conduct attributable to a plurality of states.77 In 1919, the three states in question signed an agreement that established a common administration of the island of Nauru, which was entrusted to Australia for the first five years. The same agreement also created the British Phosphate Commission, which was managed by three representatives of the three states with the aim of organizing the economic exploitation of Nauru. The United Kingdom, New Zealand, and Australia would obtain the mineral at a fixed price which would not exceed the cost of extraction, while the surplus would be sold at market price. The profits were managed by the Commission. After the Second World War and the Japanese occupation, Nauru was a trust territory jointly managed by the United Kingdom, New Zealand, and Australia. It finally gained independence in 1968. In 1989 the Republic of Nauru lodged an application against Australia before the ICJ, claiming compensation for the violation of several international obligations committed by the joint administration. Australia raised several objections, which were rejected by the ICJ in its judgment on June 1992. In particular, Australia claimed that the League of Nations Mandate was conferred in 1920 upon the United Kingdom, New Zealand, and Australia and exercised by a joint administration. Consequently, the Court would inevitably have to rule on the responsibility of states which are not party to the proceeding, that is the United Kingdom and New Zealand. Australia objected on the ground of lack of jurisdiction, justified by the Monetary Gold precedent.78 The Court established that it could rule upon the responsibility of Australia without debating the position of the United Kingdom and New Zealand because the wrongful act is independently attributable to Australia. The fact that the same conduct is also attributable to the other two states does not trigger the Monetary Gold principle. In particular, the fact that the conduct is shared by three states means that there is not a relation of dependency between the different actors and the Court does not need to rule upon the responsibility of other states in order to consider Australia autonomously responsible. It does not have to ascertain, or even consider, the position of the United Kingdom or New Zealand. In sum, the administration is a joint organ and the Court relied on the position of the ILC to claim that the conduct of the joint organ is autonomously attributed to each of the states involved. Separate and parallel responsibilities may arise if the common organ violates an international obligation, and the states concerned

77 Antony Anghie, ‘The Heart of my Home: Colonialism, Environmental Damage, and the Nauru Case’ (1993) 34 HILJ 445; Christopher Gregory Weeramantry, Nauru: Environmental Damage under International Trusteeship (OUP 1992). 78 Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America) (Preliminary objections) [1954] ICJ Rep 19; Martins Paparinskis, ‘Procedural Aspects of Shared Responsibility in the International Court of Justice’ (2013) 4 JIDS 295.

190 International Responsibility will concurrently have committed separate, although identical, internationally wrongful acts.79 I am not concerned here with the correct application of the Monetary Gold principle, but with the fundamental finding that the same conduct can be separately attributable to several subjects. In particular, the Court distinguished the case of parallel attribution of the same conduct from the case of different degrees of contribution to the same wrongful conduct. In sum, the Court did not apply the Monetary Gold principle because there was only one conduct which amounted to the wrongful act, and not several contributions which could have been qualified as a different kind of participation. In its judgment, the Court did not discuss whether the British Phosphate Commission first, and the joint administration later, were actually international organizations created by three states to administer a common interest. The Court only asserted that the joint administration did not have autonomous legal personality, but it did not give reasons for this finding.80 Judge Shahabuddeen, in his concurrent opinion, only stressed that the three states were designated as the joint authority.81 However, the issue of separate legal personality was raised by the parties during the proceedings. Australia, in its preliminary objections, contested joint and several liability also relying on the Tin Council cases, claiming that ‘In that litigation it was accepted by the English Courts that members of an international organisation were not liable for the debts of the International Tin Council.’82 Moreover, it contended that the trusteeship obligations rested on the Administering Authority, even if it was not defined as an international organization, but only as a ‘partnership’.83 It claimed that under the agreement the Administering Authority was ‘responsible for the peace, order, good government and defence of the Territory’ and assumed international obligations.84 In sum, Australia relied on joint, but not several, obligations in order to contend that the Court lacked jurisdiction to hear the case in the absence of the United Kingdom and New Zealand. Nauru responded in its written statement, contending that the trusteeship agreement did not create a separate legal entity, ‘in the way that an international organization is an entity separate from its members’ and it defined it as ‘a legal description for a particular arrangement involving a degree of participation on the part of the other two States, a device for associating the United Kingdom and New Zealand in the administration of Nauru’. 85 It stressed the undesirable outcome of 79 ILC, ‘Report of the International Law Commission on the work of its 13th Session’ (1978) UN Doc A/33/10, arts 27, 99. 80 Nauru (n 76) para 47. 81 Ibid separate opinion of Judge Shahabuddeen, 277. 82 Ibid Preliminary Objection of the Government of Australia, para 314. 83 Ibid 321. 84 Draft Trusteeship Agreement for Nauru (21 October 1947) UN Doc A/402/Rev.1. 85 Nauru (n 76) Written Statements of Nauru, para 284.

Dual Attribution of Conduct and Shared Responsibility 191 defining as international organizations all administered territories, which would limit the responsibility of states. During the oral proceedings, Australia claimed that it was not its intention to contend that the Administering Authority was a separate subject of international law and it defined it as a joint organ and not as an international organization.86 Consequently, the three states shared joint obligations, which cannot be apportioned. Nauru replied that: there is no third thing between the liability of a separate legal entity, such as an international organization with separate legal personality, and the liability of one or several States—to use the words of Article 81 of the Charter. States remain responsible for their own actions, even if they may perform them on behalf of, or in conjunction with, others as well as themselves. Any other view would produce legal irresponsibility.87

In sum, the main reason why the Administering Authority was not defined as an international organization was that it would have encroached upon the responsibility of member states and the same argument would have applied to every trusteeship agreement. This is not a question of the attribution of conduct, but of the capacity of Australia to bear obligations under the trusteeship agreement. In any case, I am not totally convinced by this finding, because it does not consider the dual legal nature of the mandate system and of international territorial administration, which I discussed in Chapter 8.5.1. States can establish international organizations to administer territories and the terms of the trusteeship agreement do so, because the Administering Authority seemed to be able to develop a particular legal system based on an instrument of international law. Indeed, under article 4 of the trusteeship agreement, the Administering Authority had ‘full powers of legislation, administration and jurisdiction in and over the Territory’. Mutatis mutandis, it is not that different from the United Nations Mission in Kosovo (UNMIK) constitutional framework.88 However, the existence of a separate legal entity does not automatically mean that responsibility cannot be shared by member states if the wrongful conduct is attributed to multiple subjects, or if obligations of membership entangle member states. The distinction between a joint organ, which is not an entity separate from its states, and an institution with a separate personality is not clear-cut. For instance, if the Administering Authority was not an international

86 ICJ, ‘Public sitting held on Tuesday 12 November 1991, in the case concerning Certain Phosphate Lands in Nauru (Nauru v Australia)’ 42. 87 ICJ, ‘Public sitting held on Tuesday 19 November 1991, in the case concerning Certain Phosphate Lands in Nauru (Nauru v Australia)’ 52. 88 Matthew Saul, ‘Internationally Administered Territories’ in André Nollkaemper and Ilias Plakokefalos (eds), The Practice of Shared Responsibility in International Law (CUP 2017) (hereafter Saul, ‘Internationally Administered Territories’).

192 International Responsibility organization, there are no reasons to exclude that its predecessor, the British Phosphate Commission, was an international organization established with the aim of exploiting Nauru’s natural resources. I believe that the exploitation of Nauru can also be qualified as a wrongful act caused by a conduct which was attributable to Australia and to the Administering Authority. Dual, or multiple, attribution of conduct is particularly frequent in the relationship between member states and international organizations. However, the absence of an agreed concept of an international organization prevented the development of a rule which would facilitate the attribution of conduct in these complex scenarios. The next section will examine the legal basis of a norm on dual attribution applying the concept of an international organization as dual entities.

11.2.2 Applicability to international organizations and member states Once it is clear that multiple attribution is possible, a second difficulty arises as to how it can be reconciled with the layered structure of international organizations.89 Indeed, issues of multiple attribution are affected by the different conceptualizations under which international organizations are perceived. Under a constitutional conceptualization, dual attribution is not applicable because member states act as organs of the organization, which bear the exclusive responsibility for the conduct, even if it would have been attributable also to the state under the ARSIWA.90 Under a functionalist conceptualization, dual attribution is possible, but rare, because the member state is considered as a third entity which bears exclusive responsibility for the conduct, even if it would have been attributable also to the organization under the ARIO.91 Only in factual circumstances of ‘effective control’ by the international organization, could the conduct also be attributable to the organization, but there is no clear rule on whether this is an exclusive attribution or whether it can be shared by the member state.92 Under exceptionalism, the same rule of attribution does not apply to every international organization. For instance, dual attribution is excluded when a member state of the EU acts in the 89 ILC, ‘Second report on responsibility of international organizations by Giorgio Gaja’ (2004) UN Doc A/CN.4/541, para 6. 90 As applied in Behrami v France and Saramati v France, Germany and Norway App nos 71412/ 01 and 78166/01 (ECtHR, 5 May 2007) (hereafter Behrami and Saramati); Kasumaj v Greece App No 6974/05 (ECtHR Grand Chamber, 5 July 2007); Gaji v Germany App No 31446/02 (ECtHR Grand Chamber, 28 August 2007); Jaloud v the Netherlands App No 47708/08 (ECtHR Grand Chamber, 20 November 2014). 91 As applied in Al-Jedda v the United Kingdom App no 27021/08 (ECtHR Grand Chamber, 7 July 2011) (hereafter Al Jedda). 92 Paolo Palchetti, ‘Attributing the Conduct of Dutchbat in Srebrenica: The 2014 Judgment of the District Court in the Mothers of Srebrenica case’ (2015) 62 NILJ 279 (hereafter Palchetti, ‘Attributing the Conduct’) 289.

Dual Attribution of Conduct and Shared Responsibility 193 fulfilment of exclusive competences.93 Under informalism, particular actions of international organizations require a specific norm on the attribution of conduct. For instance, it is frequently contended that peacekeeping missions are covered by the ‘effective control’ standard.94 I believe that this complex framework based on the different conceptualizations has to be rejected in favour of a holistic approach based on the dual legal nature of international organizations. Indeed, only a few contributions on multiple attribution contend that the two ILC projects can both be applied to the same factual circumstance.95 However, there is no clarity even once this assumption is made. Scholars such as Francesco Messineo do not distinguish between those cases in which shared responsibility is caused by entities that do not have an institutional relationship, for instance two states committing the same wrongful act, and those cases in which shared responsibility is caused by entities that have an institutional relationship. I contend that the institutional relationship created by an international organization requires a criterion on dual attribution which was not formulated or excluded by the ILC. I will start by identifying those cases in which dual attribution of conduct between member states and their organizations is possible under ARIO and ARSIWA. Article 6 ARIO establishes the institutional criterion of attribution of conduct, under which: The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of the organization.

In parallel, article 4 ARSIWA establishes that: The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.

Institutional links apply to those actors whose conduct is automatically attributed to the organization or to the state. In order to have dual attribution, the only possibility is the existence of an organ that is shared by the organization and the member 93 See Chapter 5, section 5.2.1. 94 Cedric Ryngaert, ‘Apportioning Responsibility between the UN and Member States in UN Peace- Support Operations: An Inquiry into the Application of the “Effective Control” Standard after Behrami’ (2012) 45 ILR 151 (hereafter Ryngaert, ‘Apportioning Responsibility’). 95 Messineo, ‘Attribution of Conduct’ (n 3).

194 International Responsibility state, which possesses an institutional link with both.96 This hypothesis is far from rare and it is the main outcome of the concept of an international organization as a dual entity. Indeed, article 2(c) ARIO contends that ‘ “organ of an international organization” means any person or entity which has that status in accordance with the rules of the organization’; while article 2(d) contends that ‘ “agent of an international organization” means an official or other person or entity, other than an organ, who is charged by the organization with carrying out, or helping to carry out, one of its functions, and thus through whom the organization acts’. The commentary to article 6 ARIO stresses that ‘The distinction between organs and agents does not appear to be relevant for the purpose of attribution of conduct to an international organization. The conduct of both organs and agents is attributable to the organization.’97 Despite the unclear differentiation between organs and agents, it is relevant to stress that member states’ organs can indeed be considered as agents or organs of an international organization at the same time.98 This is not a contingency of a particular circumstance, but is based on the dual nature of international organizations. Whether the rules of the organization call them organs or agents, their dual legal nature triggers the dual attribution of conduct. On the one hand, the purely international nature of the rules would make the institutional veil ‘transparent’ and the conduct of a state’s organ would be primarily attributed to the state. On the other hand, the purely internal nature of the rules would make the institutional veil ‘opaque’ and the conduct of a state’s organ would be primarily attributed to the organization. This is how attribution has been conceived in the absence of a concept of an international organization based on the dual legal quality of its legal system. The dual nature means that the rules of the organization are international and institutional law at the same time and, consequently, leads to dual attribution. The ILC does not exclude the possibility that a state’s organ could be considered as an international organization’s organ. It considered that ‘An organ or agent of an international organization may be an organ or agent who has been seconded by a State or another international organization. The extent to which the conduct of the seconded organ or agent has to be attributed to the receiving organization is discussed in the commentary on article 7’,99 which states that ‘When an organ of a State is placed at the disposal of an international organization, the organ may be

96 Similarly, Luigi Condorelli, ‘Le statut des forces de l’ONU et le droit international humanitaire’ (1995) 78 RDI 881 (hereafter Condorelli, ‘Le statut des forces’) and Aurel Sari, ‘UN Peacekeeping Operations and Article 7 ARIO: The Missing Link’ (2012) 9 IOLR 77 (hereafter Sari, ‘UN Peacekeeping Operations’). 97 ARIO (n 3). 98 Patrick Jacob, ‘Definitions des Notions d’Organe et d’Agent Retenues par la CDI Sont-Elles Operationnelles, Les’ (2013) 46 RBDI 17. 99 ARIO (n 3).

Dual Attribution of Conduct and Shared Responsibility 195 fully seconded to that organization. In this case the organ’s conduct would clearly be attributable only to the receiving organization.’100 Article 7 ARIO establishes the factual criterion for attribution of conduct, under which ‘The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.’ This article is extremely complex and was criticized by several authors.101 Indeed, the ILC does not describe what ‘effective control’ means, whether it is an alternative criterion of attribution that excludes dual attribution and in which situation it should be applied. Concerning the meaning of effective control, the majority of scholars contend that it should be interpreted differently from the ‘direction and control’ that triggers the attribution to a state under article 8 ARSIWA, as interpreted by the ICJ.102 However, there is no agreement on whether effective control should act as a presumption, under which the conduct of a state’s organ is attributed to the international organization unless the state has effective control over its organ, or as a mechanism of prevention, under which the conduct is attributed to the organization if it has the means to prevent the wrongful act.103 Concerning the issue of whether it is an alternative criterion of attribution, the domestic application of the article interpreted ‘effective control’ as excluding the attribution via the institutional link and article 6 ARIO.104 Also, scholarship contended that in particular circumstances the factual criterion of effective control would take precedence over the institutional relationship.105 In short, the idea is that the conduct is attributed either to the state or to the international organization on the basis of effective control over the conduct. Only in a few circumstances, which are not clearly identified, would both actors have effective control.106

100 Ibid. 101 For instance, Caitlin A Bell, ‘Reassessing Multiple Attribution: The International Law Commission and the Behrami and Saramati Decision’ (2009) 42 NYUJIL 501; Pierre d’Argent, ‘State Organs Placed at the Disposal of the UN, Effective Control, Wrongful Abstention and Dual Attribution of Conduct’ (2014) 1 QIL-Questions of International Law, Zoom-in; Charuka Ekanayake and Susan Harris Rimmer, ‘Applying Effective Control to the Conduct of UN Forces: Connecting Factual Complexities with Legal Responsibility’ (2018) 15 IOLR 9. 102 Yohei Okada, ‘Effective Control Test at the Interface between the Law of International Responsibility and the Law of International Organizations: Managing Concerns over the Attribution of UN Peacekeepers’ Conduct to Troop-Contributing Nations’ (2019) 32 LJIL 275 (hereafter Okada, ‘Effective Control’); Military and Paramilitary Activities (n 75). 103 Tom Dannenbaum, ‘Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should Be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers’ (2010) 51 HILJ 113. 104 Nuhanović: District Court The Hague, 10 September 2008, [M M-M], [D M] and [A M] v The Netherlands; Appeals Court The Hague, 5 July 2011. 105 Cedric Ryngaert, ‘The Responsibility of Member States in Connection with Acts of International Organizations: Assessing the Recent Case Law of the European Court of Human Rights’ (2011) 60 ICLQ 997. 106 Palchetti, ‘Attributing the Conduct’ (n 92) 289.

196 International Responsibility I believe that this idea goes against a plain reading of article 7 ARIO, which only attributes the conduct to the international organization and not to the contributing states, to which the criteria established in ARSIWA should apply.107 Concerning the scope of application of article 7 ARIO, the ILC explicitly contended that it was written to address the complexities of peacekeeping missions.108 However, this reference is only in the commentary and in the reports of the Special Rapporteur. There is no reason why the factual criteria should not be applied in every circumstance. For instance, effective control would be extremely relevant also in the context of sanctions issued by an international organization and applied, with or without autonomous contribution, by a member state. Moreover, it is also relevant to attribute the conduct to the organization in those cases in which there is no institutional relationship between states and organizations. In conclusion, the main reason why the application of article 7 ARIO is extremely difficult is because it absolves several functions which are not clearly distinguished. First, it covers those situations of shared responsibility that are not institutional, that is not between a member state and its organization. Second, in the context of an institutional relationship, it is a factual criterion of attribution for those cases that do not fall under article 6.109 Particularly under the functionalist conceptualization, member states’ organs as autonomous subjects can rarely be considered under article 6 and it is easier to consider their conduct according to the factual hypothesis in which they were controlled by the organization. Only in these limited circumstances would article 7 ARIO create a situation of dual attribution. Third, it covers those cases that would fall under article 6 ARIO and article 4 ARSIWA because the borrowed organ ‘still acts to a certain extent as organ of the seconding State or as organ or agent of the seconding organization’.110 According to this last hypothesis, article 7 ARIO is a norm that excludes dual attribution, claiming that the conduct is attributable only to that subject possessing ‘effective control’.111 Consequently, it has been considered as a special norm that applies in the context of peacekeeping missions to exclude dual attribution when an actor has effective control over the relevant conduct.112 The chaotic application of dual attribution to member states and international organizations is due to the fact that the usual distinction between institutional and factual links blurs in the context of the relationship between member states 107 Andrea Spagnolo, ‘The “Reciprocal” Approach in Article 7 ARIO: A Reply to Pierre d’Argent’ (2014) 1 QIL-Questions of International Law, Zoom-in 33. 108 ARIO (n 3) commentary to art 7. 109 Paolo Palchetti, ‘International Responsibility for Conduct of UN Peace-keeping Forces: The Question of Attribution’ in Paolo Palchetti and others (eds), Refining Human Rights Obligations in Conflict Situations (2014) (hereafter Palchetti, ‘International Responsibility’). 110 ARIO (n 3) commentary to art 7. 111 On the different uses of effective control, see Okada, ‘Effective Control’ (n 102). 112 Ryngaert, ‘Apportioning Responsibility’ (n 94).

Dual Attribution of Conduct and Shared Responsibility 197 and international organizations, which can be perceived both in terms of organic and factual criteria. A norm on dual attribution based on the dual nature of international organizations would resolve the impasse. This is the set of principles to consider: 1. Dual attribution for the same conduct arises in those cases in which the conduct of an organ or agent is attributable to the member state under article 4 ARSIWA and to the organization under article 6 ARIO. 2. Dual attribution for the same conduct also arises in those cases in which the conduct of an organ or agent is attributable under article 4 ARSIWA only, but an international organization exercises effective control over that conduct (article 7 ARIO). 3. Dual attribution for the same conduct also arises in those cases in which the conduct of an organ or agent is attributable under article 6 ARIO only, but a member state exercises direction and control over that conduct (article 8 ARSIWA). 4. Dual attribution for the same conduct does not arise in those cases in which the member state organ is placed at the disposal and it is fully seconded to its international organization. 5. Dual attribution for the same conduct does not arise in those cases in which the international organization organ is placed at the disposal and is fully seconded to its member state. I would like to stress that this is not a new hypothesis of attribution of conduct, but only a reorganization and interpretation of the criteria which were already applicable under ARSIWA and ARIO. I will test the criteria by analysing which kind of conduct falls under every criterion on dual attribution.

11.2.2.1 Dual attribution via institutional links: article 4 ARSIWA and article 6 ARIO Dual attribution should be considered as the general rule when issues of attribution involve conduct in the context of an institutional relationship between an international organization and its member states. It is based on the concept of an international organization as dual entities and is applicable when both article 4 ARSIWA and article 6 ARIO are applicable. In particular, the internal law of the state must qualify the relevant actor as a state organ, and the rules of the organization must qualify the same actor as an institutional organ or agent. This circumstance occurs particularly frequently and it covers many relevant cases of international responsibility. Giorgio Gaja identified a first scenario of dual attribution in the case of military missions, attributable to an international organization and to some or all of its members. He mentioned NATO bombing as a particular example, quoting

198 International Responsibility cases before the ICJ and before the European Court of Human Rights (ECtHR).113 National courts also dealt with the particular circumstance of NATO missions or military exercises, contending that member states remain responsible for their conduct in the framework of military action.114 Another case in which the dual attribution of conduct is rather uncontroversial concerns the responsibility of the EU for acts attributed to its member states.115 Indeed, the dual concept of an international organization accommodates the needs of this particular institution, and was frequently upheld by WTO panels.116 The institutional link between the member state and the international organization affects the dual attribution of conduct when a joint organ commits a wrongful act. There is no need to develop a special rule based on normative control in order to claim that when an organ of a member state is, at the same time, an organ of the EU, the conduct is attributed to both.117 The dual legal nature has also the advantage of understanding the role of the EU in different legal regimes. In the context of the European Convention on Human Rights (ECHR), exclusive attribution to the EU is traditionally excluded, rebutting the argument under which ‘by granting executory power to a judgment of the European Court of Justice the competent German authorities acted quasi as Community organs and are to that extent beyond the scope of control exercised by the Convention organs’.118 However, as discussed above, dual attribution for the same conduct does not preclude the Commission, now the Court, from deciding on independent responsibilities. The theory of equivalent protection, under which there is a presumption of compatibility between the EU and the ECHR framework, is an effect of the dual nature, but in this case the issue is solved at the level of primary obligations and not attribution of conduct (equivalent protection also arises in the absence of dual attribution and will not be discussed here). Also, in the context of the law of the sea, 113 Legality of Use of Force (Yugoslavia v Spain, USA; Serbia and Montenegro v Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, United Kingdom) (Preliminary Objections) [1999] ICJ Rep 124; Banković and Others v Belgium and Others App no 52207/99 (ECtHR Grand Chamber, 2001). 114 USS Saratoga v TCG Muavenet, Akan and others v Turkish Ministry of Defence, 22 February 1995, Turkish Supreme Military Administrative Court, Final Award on Compensation, No K 1995/1095, ildc 1731 (tr 1995); nv vb v Belgian Bureau of Car Insurers and Belgian State and Minister of Defence, 10 March 2005, Belgian Police Court, (2008) 72(16) Rechtsk Weekbl 679, ildc 1504 (be 2005). See contra, R (AlJedda) v Secretary of State for Defence, 12 December 2007, UK House of Lords, [2007] UKHL 58, [2008] 1 AC 332; Anonymous v German Federal Government, 9 February 2012, German Administrative Court (First Instance), 26 K 5534/10, ildc 1858 (de 2012) para 65. 115 Esa Paasivirta, ‘The Responsibility of Member States of International Organizations?’ (2015) 12 IOLR 448. 116 See, in general practice book, James Flett, ‘The World Trade Organization and the European Union and its Member States in the WTO’ in André Nollkaemper and Ilias Plakokefalos (eds), The Practice of Shared Responsibility in International Law (CUP 2017). 117 Aurel Sari and Ramses A Wessel, ‘International Responsibility for EU Military Operations: Finding the EU’s Place in the Global Accountability Regime’ in Bart Van Vooren, Steven Blockmans, and Jan Wouters (eds), The EU’s Role in Global Governance (OUP 2013). 118 M and Co v Germany (n 62).

Dual Attribution of Conduct and Shared Responsibility 199 the concept of the EU as a dual entity bypasses the need to claim a special supranational status, under which member states are exclusively organs of the organization.119 In the majority of cases the institutional link established in article 6 ARIO and article 4 ARSIWA is applicable. Moreover, dual attribution does not necessarily mean joint and several liability, or even shared responsibility, because attribution is only one element of international responsibility. The international obligation allegedly violated may state that in case of dual attribution caused by an institutional link, only the organization or only the members bear the responsibility, or it could distinguish between a primary and a secondary (or subsidiary, in ILC terminology) responsibility. Finally, I contend that dual attribution on the basis of an institutional criterion should also apply to peacekeeping missions as a general rule.120 In this case the level of controversy is particularly high because, as mentioned above, there is no clear application of the standard of effective control.121 For instance, Dutch judges opened the way for an unclear application of dual attribution on the basis of the fact that both the UN and the Netherlands had ‘effective control’ over the relevant conduct.122 This case, and the similar claims submitted by the association Mothers of Srebrenica,123 are solved by applying various interpretations of the effective control test and without discussing the application of the institutional link enshrined in article 6 ARIO and 4 ARSIWA. In Nuhanović, the Dutch Supreme Court considered that article 4 ARSIWA does not apply to the case because it falls under the application of article 7 ARIO, devoted to peacekeeping missions.124 In Mothers of Srebrenica, the same Court recently held that ‘The Court of Appeal determined that in this case, it is not in dispute between the parties that Dutchbat was deemed to be an “organ” of the UN (para. 15.2). This opinion is not disputed in cassation. It must be assumed, therefore, that Dutchbat was not an organ of the State within the meaning of Article 4(1) [ARSIWA].’125 It is not clear why the fact that Dutchbat was an organ of the UN should exclude it from also being a military contingent of a member state. Attribution as a matter of effective control rests on an argument already expressed in 1979, under which the decisive question is ‘in whose name and for whom (from the functional standpoint) that person was acting at the moment when the act occurred’.126 Belgian judges followed that approach,127 and it was 119 See Chapter 5, section 5.2.1. 120 Similarly, see Condorelli, ‘Le statut des forces’ (n 96). 121 Sari, ‘UN Peacekeeping Operations’ (n 96) 80; Palchetti, ‘International Responsibility’ (n 109) 28. 122 Nuhanović and Mustafić and Others v The Netherlands [2013] Dutch Supreme Court 12/03324. 123 Palchetti, ‘Attributing the Conduct’ (n 92). 124 Nuhanović Supreme Court (n 122) para 3.10.2. 125 Netherlands v Stichting Mothers of Srebrenica [2013] Dutch Supreme Court ECLI:NL: HR:2019:1284, para. 3.3.3. 126 NK. v Austria (1979) 77 ILR 470 (Austria, Superior Provincial Court (Oberlandesgericht) of Vienna). Quoted in Aurel Sari, ‘Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases’ (2008) 8 HRLRev 151, 161. 127 Mukeshimana-Nguilinzira and Others v Belgium and Others (2010) Brussels Court of First Instance, ILDC 1604 (BE 2010), 8 December 2010.

200 International Responsibility recently upheld by UK courts.128 In the Kontic case, the England and Wales High Court (Queen’s Bench Division) contended that ‘The Claimants have raised the possibility of dual attribution in this case. However, putting the matter shortly, [it] see[s]‌no support for that approach in any of the leading cases.’129 However, this argument ignores the institutional link between the relevant conduct and the actor to which it is attributed.130 In 1969, a domestic decision of the UK House of Lords contended that military troops under a peacekeeping mission continued ‘to be soldiers of Her Majesty’.131 Indeed, peacekeeping missions are clearly ‘subsidiary organs of the United Nations’,132 and at the same time are organs of the contributing state. Dual attribution can only be rebutted if the relevant actor is placed at the disposal of a state under article 6 ARSIWA or ‘fully seconded’ to an international organization, as the ILC commentary to article 7 ARIO contends.133 Many other instances of dual attribution arise in practice. For instance, a recent case that I mentioned in Chapter 1.4 concerns the arrest of individuals by member states acting under an International Criminal Court (ICC) arrest warrant. In this case, dual attribution derives from the institutional link between member states and the ICC, under which the same conduct can be automatically attributed to both entities. Whether member states can also be ICC organs is a matter of institutional rules and their dual nature. Particular situations arise when it is not clear whether the entity to which the conduct is attributable is an international organization or merely a joint organ. The case of Nauru’s Administering Authority is a clear example, which will be relevant also in the next section. Relevant case law also arose concerning the Eurotunnel arbitration awards, in which the Intergovernmental Commission overseeing the Channel Tunnel was considered a joint organ of France and the United Kingdom, whose acts were attributable to both.134

11.2.2.2 Dual attribution via factual links: effective control (article 7 ARIO) Dual attribution is also possible when the relevant actor is not an organ or agent under domestic law and under the rules of the organization at the same time. 128 Kontic and Others v The Ministry of Defence (2016) EWHC 2034 (QB) (4 August 2016). 129 Ibid para 132. 130 Luigi Condorelli, ‘De la responsabilité internationale de l’ONU et/ou de l’État d’envoi lors d’actions de Forces de Maintien de la Paix: l’écheveau de l’attribution (double?) devant le juge néerlandais’ (2014) 1 QIL-Questions of International Law, Zoom-in. 131 Attorney General v Nissan (1969) UKHL 3, [1969] 1 All ER 646 (11 February 1969). 132 Letter of 3 February 2004 by the United Nations Legal Counsel to the Director of the Codification Division, A/CN.4/545, s II.G. in ARIO p 21. 133 ARIO (n 3) commentary to art 7. 134 The Channel Tunnel Group Ltd and France-Manche SA v the Secretary of State for Transport of the Government of the United Kingdom of Great Britain and Northern Ireland and le ministre de l’équipement, des transports, de l’aménagement du territoire, du tourisme et de la mer du Gouvernement de la Republique française, Partial Award, (2007) 132 ILR 1.

Dual Attribution of Conduct and Shared Responsibility 201 Indeed, there are cases in which a factual criterion should be applied to decide whether conduct is attributed as a matter of fact, and not on the basis of an institutional link. For instance, if the Administering Authority of Nauru, mentioned above, is considered to be an international organization, dual attribution of conduct could be based on the factual circumstances under which Australia was governing the island on behalf of the Administering Authority, rather than Australia being an organ of the Administering Authority. Another case concerning international territorial administration was brought before the ECtHR for actions attributed to the ‘Office of High Representative’ (OHR) in the post-war administration of Bosnia.135 The OHR is an organ supervised by the Peace Implementation Council, charged with implementing the Dayton Peace Agreement for Bosnia and Herzegovina and representing the countries involved in the peace plan. The ECtHR found that the UN Security Council exercised effective control over the conduct of the OHR and it considered the application inadmissible on that basis. In short, the Court used effective control as a rule to exclude dual attribution and did not consider whether the conduct was also attributable to Bosnia.136 Also, it did not discuss the institutional link between the territorial administration and the UN, which would make the OHR an organ of the UN rather than a third entity over which the UN has effective control. Conversely, effective control would have been relevant to attribute responsibility to Bosnia, which cannot be considered an organ or agent of the OHR. Similar argumentation can be applied to the Galić case, in which the ECtHR rightly excluded dual attribution to the International Criminal Tribunal for the Former Yugoslavia (ICTY) and to the Netherlands.137 However, I do not agree with its reasoning. After his conviction by the ICTY, Stanislav Galić lodged a complaint for the violation of the right to a fair trial against the Netherlands, as the host state of the Tribunal. There is no doubt that the conduct was attributable to the ICTY, and consequently to the UN, as a matter of institutional ink and the Court correctly pointed out this argument. However, in order to exclude the responsibility of the Netherlands it relied on its precedent of Behrami and Saramati and concluded that it would not rule upon UN Security Council acts as a matter of policy, because it would interfere with the fulfilment of a UN Security Council mandate.138 I believe that there is no need to rely on this controversial ground when the conduct is clearly not attributable to the Netherlands either under institutional or factual criteria. Another important circumstance concerns military missions that are authorized by the UN Security Council. In this case, member states are neither organs nor 135 Saul, ‘Internationally Administered Territories’ (n 88) 22. 136 Ibid 27. 137 Galic v the Netherlands and Blagojevic v the Netherlands App Nos 22617/07 and 49032/07 (ECtHR, 9 June 2009). 138 Behrami and Saramati (n 90).

202 International Responsibility agents of the organization under the rules of the UN, but the responsibility of the UN could still arise in the particular case in which it has effective control over the relevant conduct.139 Domestic UK courts discussed this circumstance in several cases and, in particular in the Al-Jedda and Serdar Mohammed sagas.140 In 2014, the High Court discussed attribution of conduct of the basis of the Behrami and Saramati ECHR precedent and claimed that it was ‘quite clear that the detention of [Serdar Mohammed] is attributable to the United Kingdom. It is unnecessary . . . to consider the possibility of joint responsibility, as . . . it [is] equally clear that the acts involved in the detention of [Serdar Mohammed] are not attributable to ISAF or the UN.’141 In 2015, it relied on the Al-Jedda ECtHR precedent to claim that the conduct was not attributable to the UN Security Council either on the basis of article 5 ARIO or on the basis of effective control.142

11.2.2.3 Exclusion of dual attribution because the organ is ‘place at the disposal’ (article 6 ARSIWA) or ‘fully seconded’ (commentary article 7 ARIO) As already mentioned, the ILC did not describe the meaning of ‘effective control’ and scholars have proposed several interpretations, which are consistently different from one another.143 Despite divergences, I would like to stress that effective control is per se a factual criterion of attribution, which is not enough to trigger exclusive attribution. Roberto Ago identified several types of secondments: It may happen that the organ of one State is placed temporarily at the exclusive disposal of another State and ceases, in that case, to perform any activity on behalf of the State to which it belongs. On the other hand, it may be that if another State is given an opportunity to use the services of such an organ, its demands may not be so exacting as to prevent the organ from continuing to act simultaneously, though independently, as an organ of its own State. In such cases it will be necessary to ascertain in each particular instance on whose behalf and by whose authority a specific act or omission has been committed. It may be that a State at whose disposal a foreign State has placed a person belonging to its administration will appoint this person to a post in its service, so that at a given moment he will formally be an organ of two different States at the same time. If that were so, the acts or omissions committed by the person in question in performing a function of the recipient State would be acts of the recipient State just as if they were acts

139 Al Jedda (n 91). 140 R (AlJedda) v Secretary of State for Defence, [2007] UKHL 58, [2008] 1 AC 332 (12 December 2007); Serdar Mohammed and Others v Ministry of Defence [2014] EWHC 1369 (QB); ; Serdar Mohammed and Others v Secretary of State for Defence [2015] EWCA Civ 843. 141 Serdar Mohammed and Others v. Ministry of Defence [2014] EWHC 1369 (QB), para 165. 142 Serdar Mohammed and Others v. Secretary of State for Defence [2015] EWCA Civ 843, para 60. 143 Okada, ‘Effective Control’ (n 102).

The Effects of Dual Attribution 203 or omissions of its own organs. If, on the other hand, the person in question is not formally an organ of the recipient State, his actions will still be considered as acts of the recipient State but will be regarded rather as of the same nature as the acts or omissions of private persons in fact performing State functions, since the status of organ accorded under the legal order of the State of origin is not valid under the legal order of the recipient State. In any case, the basic conclusion is still the same: the acts or omissions of organs placed at the disposal of a State by other subjects of international law are attributable to that State if in fact these acts and omissions have been committed in the performance of functions of that State and under its genuine and exclusive authority.144

Indeed, dual attribution is a matter of fact that cannot be excluded a priori. For instance, I find it unlikely that before the ECtHR the act of the member state’s organ will be ever considered as ‘fully seconded’ to an international organization, in the light of its jurisprudence based on the Waite and Kennedy decision, under which ‘It would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution [of competences to an international organization].’145 However, there are cases in which the member state has little or no capacity to affect the conduct of its organs when they are implementing sanctions issued by the international organization.146 Many scholars contend that the international organization is exclusively responsible where the member state cannot interfere with the implementation of the measure.147 Whether the conduct of member states’ organs is attributable to the international organization as a matter of institutional or factual link, the question is whether the dual attribution is excluded because the organ is fully seconded to the organization. Indeed, in many cases member states do not have a margin of appreciation on how to implement the measure and it is always a matter of fact to exclude the dual attribution on the basis of the secondment.148

11.3 The Effects of Dual Attribution In response to the third report by Special Rapporteur James Crawford, the ILC debated the inclusion of a norm on the consequences of shared responsibility.149 144 ILC, ‘Third report on State responsibility by Roberto Ago’ UN Doc A/CN.4/246andAdd.1-3. Also quoted and discussed in Sari, ‘UN Peacekeeping Operations’ (n 96). 145 Waite and Kennedy v Germany App no 26083/94 (ECtHR, 18 February 1999) para 67. 146 Nada v Switzerland App no 10593/08 (ECtHR Grand Chamber, 12 September 2012). 147 Voulgaris, Allocating International Responsibility (n 1). Contra Antonios Tzanakopoulos, ‘Sharing Responsibility for UN Targeted Sanctions’ (2015) 12 IOLR 427. 148 Al-Dulimi v Switzerland App no 5809/08 (ECtHR, 26 November 2013); Al-Dulimi and Montana Management Inc v Switzerland App no 5809/08 (ECtHR Grand Chamber, 21 June 2016). 149 ILC, ‘Third report on State responsibility by James Crawford’ (2000) UN Doc A/CN.4/507.

204 International Responsibility Crawford affirmed that shared responsibility does not necessarily produce joint and several liability, which would depend on the factual circumstances.150 Consequently, he proposed a norm to make a reference to the principle of independent responsibility: 1. Where two or more States are responsible for the same internationally wrongful act, the responsibility of each State is to be determined in accordance with the present draft articles in relation to the act of that State. 2. Paragraph 1:(a) Does not permit any State, person or entity to recover by way of compensation more than the damage suffered; (b) Is without prejudice to: (i) Any rule as to the admissibility of proceedings before a court or tribunal; (ii) Any requirement for contribution as between the responsible States.151

In the ILC debates, this norm was criticized by Alain Pellet, who would have preferred a clear reference to join and several responsibility: ‘When two or more States are responsible for one and the same internationally wrongful act, each of them is obliged—or to err on the side of caution, may be obliged—to make reparation for all damage caused by that act.’152 He also contended that this norm should be clearly distinguished from the attribution of responsibility, and should focus only on the effects of shared responsibility. To solve the impasse, Constantin Economides suggested focusing only on invocation of responsibility, without covering either attribution or division of responsibilities.153 Consequently, article 47 was approved in its final formulation: 1. Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act. 2. Paragraph 1: (a) does not permit any injured State to recover, by way of compensation, more than the damage it has suffered; (b) is without prejudice to any right of recourse against the other responsible States.

The norm does not affirm that the effect of dual attribution is joint and several liability, which can only be based on the content of the primary obligation or on the factual circumstances. For instance, in the case concerning Nauru, mentioned above, the dispute was settled by an agreement between Nauru and Australia under which Nauru renounced further claims against Australia, New Zealand, and the United Kingdom.154 Subsequently, New Zealand and the United Kingdom 150 Ibid para 277. 151 Ibid art 46 sexies. 152 ILC, ‘Summary Record of the 2644th meeting’ (2000) UN Doc A/CN.4/SER.A/2000, 255, para 43. 153 Ibid 256, para 61. 154 Agreement between Australia and the Republic of Nauru for the Settlement of the Case in the International Court of Justice concerning Certain Phosphate Lands in Nauru (10 August 1993) 1770 UNTS 379.

The Effects of Dual Attribution 205 compensated Australia for its payments to Nauru, apparently accepting a joint and several responsibility. Concerning the relationship between international organizations and member states, article 48 ARIO similarly establishes: 1. Where an international organization and one or more States or other international organizations are responsible for the same internationally wrongful act, the responsibility of each State or organization may be invoked in relation to that act. 2. Subsidiary responsibility may be invoked insofar as the invocation of the primary responsibility has not led to reparation. 3. Paragraphs 1 and 2: (a) do not permit any injured State or international organization to recover, by way of compensation, more than the damage it has suffered; (b) are without prejudice to any right of recourse that the State or international organization providing reparation may have against the other responsible States or international organizations.

Excluding the concept of subsidiary responsibility, the norm reflects article 47 ARSIWA. Again, joint and several liability arises only on the basis of the primary norm, for instance, a so-called ‘mixed agreement’ concluded by the EU and its member states, under which ‘in the absence of derogations expressly laid down in the Convention, the Community and its member States as partners of the ACP States are jointly liable to those latter States for the fulfilment of every obligation arising from the commitments undertaken, including those relating to financial assistance.’155 Also the UN Convention on the Law of the Sea, another mixed agreement, contained a norm of joint and several liability, establishing in its annex IX that: Any State Party may request an international organization or its member States which are States Parties for information as to who has responsibility in respect of any specific matter. The organization and the member States concerned shall provide this information. Failure to provide this information within a reasonable time or the provision of contradictory information shall result in joint and several liability.156

It is important to stress that joint and several liability does not require dual attribution, but the conduct can only be attributable to the organization or to its member states.157 Moreover, special norms on the liability of the UN or of its member states are also included in the agreements that are concluded between the UN and the contributing 155 Case C-316/91 European Parliament v Council of the European Union [1994] ECR 1 (hereafter Parliament v Council) para 29. 156 United Nations Convention on the Law of the Sea (opened for signature 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3. 157 Parliament v Council (n 155) para 29.

206 International Responsibility states.158 According to the model contribution agreement, the UN is regarded as liable towards third parties, but has a right of recovery from the contributing state under circumstances such as ‘loss, damage, death or injury [arising] from gross negligence or wilful misconduct of the personnel provided by the Government’.159 Article 48 ARIO also makes reference to the concept of subsidiary responsibility which might be relevant in the case of dual attribution. In this context, subsidiarity is a chronological criterion, meaning that in case of shared responsibility, the injured party should address its claim first against one actor, and, eventually, against the co-responsible entity.160 Subsidiarity plays a fundamental role in those cases of shared responsibility that do not arise from a dual attribution of conduct. However, it cannot be excluded that a form of subsidiary responsibility also arises in the case of dual attribution when the dual conduct is attributed on the basis of effective control.161 For instance, if the organ of a state is under the effective control of an international organization and the dual attribution is triggered, it might be relevant to give a pre-eminent role to the control, without excluding the attribution to the member state. This could be another effect of the criterion on effective control which was not discussed by the ILC, but could give relevance to the dual legal nature of international organizations.162 Finally, the dual attribution could also trigger the application of special norms carved for the exigencies of particular regimes. For instance, the principle of equivalent protection was developed by the ECtHR to deal with cases of shared responsibility, among which is dual attribution. In the Bosphorus case, the impounding of the aircraft was clearly attributed to Ireland as a matter of institutional link, while it could also be attributed to the EU and/or the UN.163 This case was resolved on the basis of the argument according to which ‘the protection of fundamental rights by Community law can be considered to be, and to have been at the relevant time, “equivalent” (within the meaning of paragraph 155 above) to that of the Convention system’.164 However, the principle of equivalent protection is also relevant to those cases in which shared responsibility does not derive from dual attribution but on the basis of a norm that establishes the responsibility of one actor for the conduct of another.

158 Contribution Agreement between the United Nations and participating States contributing resources to United Nations peace-keeping operations (A/50/995, annex, art 9, 5); and Model Memorandum of Understanding between the United Nations and participating States contributing resources to United Nations peacekeeping operations (A/51/967, annex, art 9, 6–7). 159 Art 9 of the Model Contribution Agreement (A/50/995, annex; A/51/967, annex). 160 Voulgaris, Allocating International Responsibility (n 1). 161 Okada, ‘Effective Control’ (n 102) 278. 162 Marten Coenraad Zwanenburg, Accountability of Peace Support Operations (Nijhoff 2005) 100. 163 Bosphorus Hava Yollari Turizm ve Ticaret AS v Irelan App no 45036/98 (ECtHR, 13 September 2001). 164 Ibid para 165.

Concluding Remarks 207

11.4 Concluding Remarks The fragmented case law on the responsibility of international organizations shows how different conceptualizations do not allow the establishment of a common legal framework. Different attempts to identify common rules clashed with the need to distinguish certain institutions, such as the EU, or certain practice, such as peacekeeping missions. The dual legal nature seeks to reduce the complexity of the system in place by showing how a common legal framework coalesces around the fundamental notion of the dual attribution of conduct. The set of principles identified in the previous sections are applicable to any set of circumstances and cover the majority of cases concerning the responsibility of international organizations. The chapter intentionally avoided discussing the liability of member states for an act that is attributable only to the international organization, because the vast majority of cases can be resolved by reverting to the dual attribution. Conversely, when the act is only attributable to the organization, member states may incur responsibility for ancillary obligations based on complementary, as discussed in Chapter 9 on the law of treaties.

12

Conclusion Despite their exponential growth in number and activities, international law lacks a comprehensive legal concept of an international organization. They are indiscriminately perceived as agents of member states when criticism is against state sovereignty and its limits in globalization; autonomous powerful entities when criticism is against the lack of democratic legitimacy; administrative entities when criticism is against the lack of transparency; ‘supranational’ or ‘soft law’ institutions when criticism is either against or in favour of integration. The book tackles this topic from the perspective of the legal nature of legal systems developed by international organizations. It is the first comprehensive study of the different concepts under which international organizations’ legal systems are commonly understood: functionalism, constitutionalism, exceptionalism, informalism. It has a threefold purpose: to trace the historical origins of the different concepts of an international organization, to describe four families under which these different notions are subsumed, and to propose a theory which defines international organizations as ‘dual entities’. The concept of an international organization is defined by looking at the nature of the legal systems they develop. The notion of ‘dual legal nature’ describes how organizations create particular legal systems that derive from international law. This peculiar condition affects the law they produce, which is international and internal at the same time. The effects of the dual legal nature are discussed by analysing international responsibility, the law of treaties, and the validity of organizations’ acts. The research led to a series of concluding principles: The peculiar nature of the legal systems developed by international organizations is the reason behind the difficulties encountered by legal scholarship to provide valid conceptualizations. In particular, internal or external points of view leads to diverging hypothesis on the nature of the law they produce, which have outstanding consequences on the applicable legal regime.

International organizations are defined as dual entities: ‘international organization means an institution established by a treaty or other instrument governed by international law and capable of creating a legal system which derives from international law and that produces law which is at the same time internal and international.’ This conceptualization allows the development of a common legal framework applicable to all international organizations, despite their differences in terms of The Concept of an International Organization in International Law. Lorenzo Gasbarri, Oxford University Press (2021). © Lorenzo Gasbarri. DOI: 10.1093/oso/9780192895790.003.0012

Conclusion 209 powers, membership, size, and other descriptive features. In particular, the most valuable consequence of this conceptualization is to rebut a frequent argumentative motif, under which organizations are either perceived as vehicles for member states’ interests or as autonomous entities. In the context of the law of treaties, the dual legal nature explains fundamental principles, such as the capacity to conclude a treaty based on a norm of general international law which gives relevance to the attribution of functions and the position of member states in the treaty concluded by the organization. In the context of invalidity of ultra vires acts, the dual legal nature explains how the law produced by international organizations is subject to both institutional and international criteria of validity. In particular, it is able to explain how international organizations are bound by customary international law without reverting to the fictional distinction between international and internal acts. In the context of international responsibility, the dual legality explains how the conduct of member states is intertwined with the conduct of the organization, providing a simpler and more effective way to attribute their conduct. It rebuts all those approaches which either look at the member state or at the organization in isolation and support a comprehensive point of view. Dual attribution is the most common outcome and only in limited circumstances is the conduct attributed either to the organization or to its member states.

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European Union Document Council decision, Conclusion of an Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part (2012)

International Labour Organization Documents ILO, Minutes of the XIV Session of the Governing Body of the International Labour Office (09601(1922-14) 1922) ILO, Official Bulletin (Volume XVI 1931) ILO, Official Bulletin (Volume XVII 1945) ILO, Official Bulletin (Volume XVII 1946)

World Health Organization Document WHO, Report of the Ebola Interim Assessment Panel (2015)

Organization for Security and Cooperation in Europe OSCE, Common Responsibility: Commitments and Implementation, Report submitted to the OSCE Ministerial Council in response to MC Decision No 17/05 on Strengthening the Effectiveness of the OSCE (2006)

Institut de Droit International Fourteenth Commission, L’application des règles du droit international général des traités aux accords conclus par les Organisations internationales (Annuaire de l’Institut de Droit International 1973) Fifth Commission, The legal consequences for member states of the non-fulfilment by international organizations of their obligations toward third parties (Annuaire de l’Institut de Droit International 1995) Seventh Commission, Are there limits to the dynamic interpretation of the constitution and statutes of international organizations by the internal organs of such organizations (with particular reference to the UN system)? (Institut de Droit International 2019)

International Law Association Committee on Accountability of International Organisations, First Report (International Law Association, Taipei conference, 1998) Committee on Accountability of International Organisations, Second Report (International Law Association, London conference, 2000) Committee on Accountability of International Organisations, Third Report (International Law Association, New Delhi conference, 2002)

230 Bibliography Committee on Accountability of International Organisations, Final Report (International Law Association, Berlin conference, 2004) Study Group on the Responsibility of International Organisations, Trascript of the Working Session (International Law Association, The Hague conference, 2010) Study Group on the Responsibility of International Organisations, Transcript of Working Session (International Law Association, Sofia conference, 2012) Study Group on the Responsibility of International Organizations, Final Report (International Law Association, Sofia conference, 2012)

Index For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on occasion, appear on only one of those pages. 1969 Vienna Convention see Vienna Convention on the Law of Treaties 1971 Montreal Convention see Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1975 Vienna Convention see Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character 1978 Vienna Convention see Vienna Convention on Succession of States in Respect of Treaties 1986 Vienna Convention see Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations absolute and relative point of view 80–81, 99, 100, 103–4, 151–52 accountability 55, 59–60, 62, 77–79, 184 ACP states 205 acta iure imperii and acta iure gestionis 178 see also Institut de Droit International: definition of an international organization; immunities Afghanistan International Security Assistance Force 201–2 agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 132–33 see also international environmental law: illegal, unreported and unregulated fishing activities analogy with states 21–22, 35, 39–42, 56, 58, 59, 71, 72–73, 116, 157–58, 166–67, 168, 170, 183–84 Antarctic treaty system 133 see also objective regimes ARIO see Articles on the Responsibility of International Organizations armed conflict 23–24, 104, 108, 161–62, see also international humanitarian law

ARSIWA see Articles on the Responsibility of States Articles on the Responsibility of International Organizations 6–9, 41–42, 46, 66–67, 72– 73, 74–75, 106, 108, 116, 135, 136–37, 177, 185, 192–93, 197 see also International Law Commission article 2 6, 46, 74–75, 115–16, 185, 193–94 see also rules of international organizations article 5 179, 201–2 article 6 46, 82–83, 88, 176, 183–84, 193–94, 195–96, 197–200 see also attribution of conduct article 7 82–83, 88, 194–96, 197, 199–203 see also effective control article 10 8, 69–70, 183–84 article 32 41–42, 164–65, 166–67 article 40 155–56, 158 article 48 205, 206 article 52 31 article 64 41–42, 76 see also lex specialis Articles on the Responsibility of States 68, 192–93, 195–96, 197 see also International Law Commission article 3 183–84 article 4 193, 196, 197–200 article 6 199–200, 202–3 article 8 195, 197 article 12 69 article 22 28–29 see also international responsibility: countermeasures article 32 41–42, 183–84 article 47 205 article 49-54 28–29 article 55 41–42 article 57 179–80 article 64 7–8 Asian-African Legal Consultative Committee 109 attribution of competences 1, 17, 24, 72–74, 105–6, 120, 130, 143, 147, 149–52, 155, 156, 157 see also exclusive competences Australia 178, 188–92, 200–1, 204–5

232 Index Austria 75, 199–200 autonomy 6, 17, 19, 20, 22, 25–26, 30–31, 33, 36–37, 51, 56, 57, 64, 73–74, 75, 105, 106, 108, 129, 139, 149–50, 153, 154, 157–58, 159–60 Basel committee 55 Belgium 197–98, 199–200 bilateral investment treaties 127–30 Bosnia Dayton Peace Agreement 201 Office of High representative 201 Peace Implementation Council 201 British Phosphate Commission 188–89, 190, 193 Cameroon 167–68 Cape Spartel lighthouse 65 constitutionalism 8–13, 19, 20–21, 22, 24, 26, 27–28, 33–48, 49, 51, 54, 61, 64, 65–66, 68, 69–70, 73–74, 76, 79, 80, 81, 83, 84–86, 89, 108–9, 114, 119, 143, 150–51, 157–58, 159– 60, 162, 164, 185–86 constitutive instruments 20, 24, 108–10, 145, 159 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 23–24, 125 Council of Europe 11–12, 81, 87, 89 CSCE see Organization for Security and Cooperation in Europe Czech Republic 127–28 declaration of competences 72–73 Declaration on Friendly Relations among States 114–15 diplomatic relations 1–2 see also permanent missions dispute settlement mechanism 13 dual legal nature 9, 14, 76, 88, 89, 93–107, 108– 40, 141–58, 159–75, 176–207 due diligence 70, 71, 72–73, 157, 158 Dutch Supreme Court 199 Dutchbat 199 see also peacekeeping Ebola 29 ECHR see European Convention on Human Rights Egypt 27–28, 164 Ethiopia 120, 121 European Commission 70, 71–72 European Commission of the Danube 21 European Commission of Human Rights 186 see also European Court of Human Rights

European Convention on Human Rights 11–12, 81, 83, 84–85, 86, 87, 88–89, 126, 186, 198–99, 201 European Council 137–38, 139 European Court of Human Rights 45, 77, 80–89, 126, 127, 197–98, 201–2, 203, 206 see also European Convention on Human Rights admissibility ratione personae 82–83 presumption of equivalent protection 83–86, 87, 88, 198–99, 206 presumption of harmonious interpretation 83–84, 86, 128–29 see also interpretation European Court of Justice 11–12, 88, 115–16, 127–28, 129, 136–37, 155 European Union 11–12, 43–44, 45, 60, 64, 66, 67, 69–74, 84, 85–86, 87, 89, 102–3, 137–38, 139, 170, 182, 185, 198 EU-Turkey statement on migration 137–38, 139 international responsibility 157–58 intra-EU bilateral investments treaties 127–28 law of treaties 157–58 Eurotunnel 200 EU see European Union exceptionalism 9–11, 13–14, 51, 64–79, 81, 85–86, 113, 138, 139, 159–60, 192–93 exclusive competences 66, 71–73, 74, 77, 114, 138, 157–58, 192–93 Federal Republic of Yugoslavia 78, 201 first world war 21, 119 food and agriculture organization 18 fragmentation 42–43, 73, 88, 93–95, 103–4, 114–15 France 45, 82, 200 Fronte Polisario 168–69, 170 functionalism 9–11, 13–14, 17–32, 33, 34–35, 49, 50–51, 58–59, 65, 76, 85–86, 105–6, 143, 151–52, 157, 159, 161–62, 171, 181 G20 55 GAL see Global Administrative Law GATT see General Agreement on Tariffs and Trade General Agreement on Tariffs and Trade 109, 155 Germany 45, 82, 84, 85–86, 119, 186–87, 192–93, 197–99, 203 global administrative law 13, 59–63, 98 Greece 21, 23–24, 192–93

Index 233 Hague conferences 65 headquarter agreements 7–8, 20–21, 27–28, 136, 164–65, 170 human rights 11–12, 45, 58, 59, 60, 76, 78–79, 80–89, 95–96, 111, 114–15, 124, 127, 155, 159–60, 171–74, 186, 198 Human Rights Committee 126–27 ICAO see International Civil Aviation Organization ICC see International Criminal Court ICJ see International Court of Justice ICTY see International Criminal Tribunal for the Former Yugoslavia IDI see Institut de Droit International ILA see International Law Association ILC see International Law Commission ILO see International Labour Organization IMF see International Monetary Fund immunities functionaries of international organizations 111 heads of state 44–45, 46–47 international organizations 1, 3, 110, 118, 185–86 implied powers 17, 21, 22–23, 36, 58–59, 110–11, 149–50, 163, 168 informalism 9–11, 49–63, 80, 81, 85–86, 113, 114, 139, 192–93 inherent powers 6, 19, 22, 105–6, 150–51, 163–64, 176–77 IN-LAW see informalism Institut de Droit International Definition of international organization 148 The Application of the Rules of the General International Law of Treaties to International Agreements Concluded by International Organizations 148–49 The Legal Consequences for Member States of the Non-fulfilment by International Organizations of their Obligations toward Third Parties 178–79 Institut du Monde Arabe 109 Inter-American Defence Board 109 Intergovernmental Maritime Consultative Organization 161 interlegality 93–95, 103–4 see also legal pluralism international administrative law 7, 8, 26, 27, 39, 47–48, 54–55, 56–59, 62, 80, see also Global Administrative Law international civil service 56–59, 111 International Civil Aviation Organization 130–35

Article 12 Chicago convention 130, 132– 33, 134–35 International Court of Justice 22, 23–24, 26–28, 35, 36–37, 45–46, 50, 54, 56, 60, 108, 160– 62, 188 International Covenant on Civil and Political Rights 155 Article 4 126–27 International Criminal Court 12–13, 44–45, 200 International Criminal Tribunal for the Former Yugoslavia 201 international environmental law 60–61, 66, 109, 188–89 fishing agreements 70–73, 154–55 illegal, unreported and unregulated fishing activities 157–58 protection of biodiversity 71–73 International Health Regulations 13, 29 international humanitarian law 95–96, 171 International Institute of Agriculture 17– 18, 19, 65 International Labour Organization 20–21, 34–35, 36, 56, 162, 163 International Law Association 184–85 accountability of international organizations 184 definition of international organization 184–85 responsibility of international organizations 184–85 International Law Commission copy-paste approach 184–85 see also analogy with states customary international law 113–15 definition of international organization 2, 6, 74–75, 108, 110 fragmentation 42–43, 95–96, 103–4 general principles 111–12 international responsibility of international organizations 8, 28–31, 41–42, 43, 53, 54–55, 57, 66–67, 74, 80, 176–207 see also Articles on the Responsibility of International Organizations; international responsibility international responsibility of states 7–8, 41–42 see also international responsibility law of treaties 1–2, 3, 4, 116, 142–48 relations between States and International Organizations 7 see also Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character subsequent agreements and subsequent practice 115–16, 117

234 Index international legal personality 1–2, 3, 4, 18, 19–23, 33, 35–36, 39–40, 51, 65, 74–77, 106, 125–26, 134, 136, 143, 144, 149–50, 154–55, 168, 172, 178, 180–82, 185, 190 International Monetary Fund 67–68 international responsibility aid and assisting 187 attribution of conduct 12–13, 33–34, 40–41, 44–47, 70, 72–73, 82–83, 84, 88, 116, 137, 176, 184, 185–207 circumstances precluding wrongfulness 28–29 coercion 187 complicity 187–88 countermeasures 13–14, 28–31, 183–84 direct and indirect responsibility 186–87 direction and control 187–88, 195, 197 dual attribution of conduct 88, 89, 185–207 effective control 82–83, 88, 192–93, 195–97, 199, 200–2, 206 exclusive competences 66, 71–73, 74, 77, 114, 138, 157–58, 192–93 international organizations see Articles on the Responsibility of International Organizations; International Law Commission: international responsibility of international organizations; international responsibility joint and several liability 73, 89, 187–88, 190, 199, 203–6 lex specialis 7–8, 13, 29, 41–44, 66–67, 69, 70, 76, 172, 173, 174, 183–84 see also principle of speciality normative control 72–73, 198 reparation 75, 183–84, 204 responsibility of the member for the act of the organization 176–77, 182 shared responsibility 177, 185–207 soft responsibility 77–78 see also accountability states see international responsibility of states subsidiary responsibility 205, 206 international sea-bed authority 132–33 International Tribunal for the Law of the Sea 45, 70–74, 157–58 see also Law of the Sea International Union for the Conservation of Nature and Natural Resources 72–73 International Union of Official Travel Organisations 109 International Wool Study Group 109 interpretation 70, 86–87, 108, 115–16, 117, 128–29, 159–60, 161, 163, 197 see also presumption of harmonious interpretation textualism 159, 161, 173

theological 159–60 Iraq 81, 86 ISAF see International Security Assistance Force Israel 164 Italy 18, 189 ITLOS see International Tribunal for the Law of the Sea Japan 188–89 Joint organ see organ in common Jordan 12–13, 27, 47, 164 jurisdiction of states 12–13, 18, 20–21, 59–60, 125, 174 jus cogens 86, 159, 170 kompetenz kompetenz 159–60 Kosovo 121–22, 123, 191–92 law of the sea 45, 70 see also International Tribunal for the Law of the Sea high sea 130 Law of Treaties see also International Law Commission; Vienna Convention on the Law of Treaties capacity to conclude a treaty 149–52 definition of international organizations 142 international organizations 141–58 article 36bis see position of member states in the treaty concluded by the organization position of member states in the treaty concluded by the organization 152–56 validity of treaties 167–69 League of Nations 20–21, 56, 119–20, 121, 189 Administrative Tribunal 56 legal system 93–107 see also fragmentation; interlegality hybrid legal systems 22, 49–63, 66, 73–74, 80 original and derivative 37–39, 69, 76, 93–107 self-contained regimes 25–26, 27 see also fragmentation lex mercatoria 93 Liberia 121 Libya 23–24, 122 Midas principle 99 Mixed agreements 139, 149, 205 monetary gold principle 190 Morocco 168–69 Namibia 37, 117, 163–64 NATO see North-Atlantic Treaty Organization Nauru 188–92, 200–1, 204–5 Netherlands 127–28, 199, 201–2

Index 235 New Zealand 188–90 Nigeria 167–68 non-state actors 6, 49, 103, 180 corporations 6, 22, 24, 77, 79 public-private partnerships 110 Nordic Council 109 North-Atlantic Treaty Organization 23–24, 89, 116, 197–98 Nuclear Weapons 23–24, 104, 108, 118, 161–62

Resolution 1244 (1999) 121–24 Restructured Global Environmental Facility 109 Rhine Commission 65 rule of incorporation 156 rule of recognition 61, 62–63, 97–98, 100, 104 rules of international organizations 7, 23–25, 32, 34–40, 50–55, 64–68, 80, 89, 108, 115, 134, 146, 155–56, 164, 170, 174–75

objective regimes 131–35 organ in common 24, 187, 189–90, 191–92, 198, 200 Organization for Economic Cooperation and Development 136–37 Organization for European Cooperation 136–37 Organization for Security and Cooperation in Europe 64, 66, 68, 74–79, 103, 109, 159–60 Court of Conciliation and Arbitration 78 electoral observation missions 78–79 human dimension 159–60 Office for Democratic Institutions and Human Rights 78–79 Organization of the Petroleum Exporting Countries 109 OSCE see Organization for Security and Cooperation in Europe Ottoman empire 119

Saar 155 Serbia 118–19, 123, 197–98 shared organ see organ in common soft law 10–11, 49–63 bright line and grey zone schools 49–63 sources of international law customary international law 113–15 general principles 110–13 informal law-making 49–63 institutional practice 115–18 judicial decisions 135–36 jus cogens 86, 159, 170 South Africa 37, 119–21 Soviet Union 135–36, 151 Srebrenica 199 SRFC see Sub-Regional Fisheries Commission Sub-Regional Fisheries Commission 45–46, 70–73, 157 Sudan 12–13, 44–46 supranational organizations 10–11, 45, 47, 65–67, 114, 198–99, 208 Switzerland 20–21, 81–87, 203–4

Pan American Institute of Geography and History 109 Permanent Court of International Justice 20, 21–22, 35–36, 120, 136, 160–62 permanent missions 1, 4, 7 see also Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character legal pluralism 61–62, 93–95, 98, 100–1, 103–4 principle of speciality 23–24, 40, 148–49, 162 see also lex specialis problem of identity 61–62, 93 prohibition of the use of force 30, 118 Public Health Emergency of International Concern 29 Regional (Economic) Integration Organizations 73–74 see also supranational organizations Relation between member states and international organization see Relations between States and International Organizations relative legality 11–12, 98–100, 103, 105–6

terrorism 60, 124–27, 171–72 TFUE see Treaty on the Functioning of the European Union TIN Council cases 178, 190 transnational legality 49, 62, 93–94, 102–3 transparent institutional veil 4, 17, 33, 38–39, 45, 47, 50, 62, 64, 73, 79, 82, 84, 85, 106–7, 141, 142, 148–49, 152 Treaty of Versailles 23, 155 Treaty on European Union 170 article 3 170 Treaty on the Functioning of the European Union Article 216 154 Article 263 137–38 Article 351 89 Turkey 21, 137–38, 139 UK see United Kingdom ultra vires acts 23–24, 59–60, 123, 127, 159–75 UN see United Nations

236 Index UN Counterterrorism Committee see terrorism UNGA see United Nations General Assembly United Nations administrative tribunal 26–27, 54, 56 see also international administrative law admission 36, 135–36, 161, 163 article 4 36, 135–36, 161 article 12 164 article 19 118–19 article 24 122 article 25 122 article 27 37, 117 article 33 136 article 43 149–50 article 57 149–50 article 63 149–50 article 81 191 article 103 11–12, 60, 83, 85, 86–89, 105, 125, 173–74, 182–83 authorizations to military missions 82, 201–2 budget 27, 59, 118–19, 163 constitution of the international community 97–98 Economic and Social Council 149–50 mandate 18, 119–21, 189, 191–92, 201 Ombudsperson 125–26 peacekeeping missions 36–37, 42, 124, 135– 36, 137, 171, 192–93, 196–97, 199–200, 207 sanctions 11–12, 28–31, 59–60, 81, 82, 171– 72, 183–84, 196, 203 Secretary General 36–37, 155 subsidiary organs 27, 199–200 territorial administration 121–24, 174 United Nations General Assembly 2, 26, 27, 36, 52, 54, 74–75, 114–15, 118–19, 123, 146, 161, 163–64 United Nations Security Council 7–8, 23–24, 30, 36, 37, 44, 52, 59–61, 81, 83–84, 85–87, 99, 201–2 United Nations Convention on the Law of the Sea article 87 130–31 article 305 71–73 article 306 71–73 annex IX 71–73 United Nations Interim Administration Mission in Kosovo 122, 191–92 United Kingdom 23–24, 83, 118–19, 126, 188–91, 200, 201–2, 204–5 United States 23–24 unity within diversity 58 Universal Declaration of Human Rights 114–15 Universal Postal Union 65

UNMIK see United Nations Interim Administration Mission in Kosovo UNSC see United Nations Security Council UNWTO see World Tourism Organization validity of norms 159–75 Valletta mechanism 78 Vienna Convention on Succession of States in Respect of Treaties 132–33 Vienna Convention on the Law of Treaties 142–46 article 2 145–46 article 5 145–46 article 27 145–46 article 34 131 article 38 121 article 46 147 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 4, 142, 146–49 preamble 150 article 2(j) 148 article 5 147 article 6 147, 150 article 27 147 article 35 147 article 36 147 article 37 147 article 39 147 article 46 147 article 65 147 article 74 154 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character 1–2, 5, 7–8, 51 article 1 7 article 3 7 Western Sahara 111, 168–69 WHO see World Health Organization World Bank 60–61, 137, 159–60 operational polices 159–60 World Conservation Union 109 World Health Organization 10–11, 13, 23–24, 25, 27–28, 29, 55, 57, 104, 161–62, 165, 170 World Health Assembly 27–28 World Tourism Organization 109 World Trade Organization 25, 29–30, 43–44, 76, 95–96, 198 WTO see World Trade Organization Yugoslav Republic of Macedonia 23–24