Institutionalised International Law 9781472561831, 9781849464949

Citation preview

Preface This book resulted as a joint project from our teaching experience in the field of the law of International Organisations in Jena, Münster and Munich. The German version was first published in 2009, its second edition being currently in print. Our core purpose is to analyse the interactions between the development of the general law of International Organisations on the one hand and the growing institutionalisation of major substantive parts of public international law on the other. The title “Institutionalised International Law” reflects this approach. We believe that the law of International Organisations is best understood as “law in action” in specific subject areas, such as international peace and security, protection of human rights, environment as well as trade and development. The book should primarily be useful for students of international law and international relations, as well as practitioners and interested lawyers. The publication of this book was made possible by many helping hands. Most of all, the linguistic support by Christopher P. Hunt (Jena) and Stefan Schäferling (Munich) was indispensable. We are very grateful towards them, as well as towards Stefanie Hempel, Sophia Henrich, Tom Kuhfuß, Melanie Kühn, Susanne Prater, Fabian Preger, Chun-Kyung Paulus Suh and Markus Vordermayer for their tireless research and technical assistance. Of course, all remaining mistakes are our own, and critical resonance is most welcome ([email protected] or [email protected]). Jena and Munich, August 2014

Matthias Ruffert Christian Walter

V

§1 Concept and Theory of International Organisations I. Introduction – About Working with this Book

Not that long ago, the law of International Organisations was considered a subcategory of public international law of minor general interest. Some of its issues were relevant for public international legal scholarship at large or for international economic law, such as the various forms of action the United Nations Security Council could take or dispute resolution mechanisms within the World Trade Organisation. On the other hand, scholars at the core of the law of International Organisations discussed procedural, budgetary and personal-questions the general meaning of which was difficult to discern. Consequently, the law of International Organisations held merely minor importance for academic teaching. For several reasons, this perspective is one of the past: First of all, the importance of the law of International Organisations for the legal system at large has considerably grown. This may be illustrated by some current issues: How is it possible that a company may lose its economic potential after being enrolled in a sanctions list by a UN body without any opportunity for judicial review?1 What effect does a decision by the UNESCO World Heritage Committee to inscribe a monument in the “red list” have on the local planning decision or on a local referendum as occurred in Dresden concerning a bridge across the river Elbe (“Waldschlößchenbrücke”)?2 How can decisions by the International Panel on Climate Change (IPCC), a common expert body instituted by the UN environmental programme UNEP and the World Meteorological Organisation WMO, on recommendations to reduce CO2 emissions be legitimate if such recommendations have a direct effect on national climate/ environmental policy including on measures e.g. for the generation of electricity, the renovation of buildings or individual transport?3 These questions cannot be dealt with with the proper academic precision without intensifying research in the law of International Organisations. Secondly, the subject is gaining more and more importance for the training of law students. Some faculties offer special lectures or seminars on the subject. Thirdly, the increase in importance causes an increased need for interdisciplinary research. International Organisations have long since been an eminent object of research for social sciences such as political science and its sub-disci-

→ para 113 and para 439. → para 114. 3 → para 693.

1

2

3

1

2

3 4

§ 1 Concept and Theory of International Organisations

5

6

7

8

pline international relations.4 Consequently, many students in lectures on the law of International Organisations are IR-students. The following book is designed to offer a basis for a scientifically sound work on the law of International Organisations. It is addressed to law students as well as to students of other subjects (political science and other social sciences, history and other humanities). Above all, it aims at explaining current legal questions concerning the law of International Organisations, and at advancing academic discussion. Furthermore, it tries to offer solutions for the problems. The law of International Organisations is part of the general development of public international law, which is characterised by an enormous growth in interand transnational forms of cooperation. While until the 1960 s the United Nations were considered as the “International Organisation” (as opposed to the supranational European Communities of the time),5 a survey of the Union of International Associations counts 246 organisations today which are complemented by 1,717 international bodies6 – a number that can neither be easily verified nor understood. The common principles, rules and structures of these International Organisations form a distinct part of public international law that can be separately analysed without having to sever the link to general public international law.7 On this basis, the textbook is divided into three parts. The first part looks at the conceptual, historical and theoretical bases of the law of International Organisations, particularly at their relation to the general development of public international law as well as to new developments in legal scholarship and the social sciences. The second part is devoted to questions covering all organisations, following the assumption that the law of International Organisations is developed as an autonomous area of the law. The third part deals with selected areas of the law of International Organisations. It is in this last part that the obvious interrelationship between the law of International Organisations and the substance of public international law is illustrated. As international institutional law, it is the backbone of substantive public international law and can by itself only be understood by taking into account the substantive rules that describe the tasks of the relevant organisations. This is also illustrated by the title of the book: “Institutionalised International Law”. We have chosen areas of substantive public international law together with their institutional structures that hold substantial weight in international practice and that are capable of serving as particularly important areas of reference for the development of the law of International Organisations. These repercussions Cf. e.g. Freistein/Leiniger, Internationale Organisationen, 2012. Dicke, in: Völkerrecht und Internationales Privatrecht in einem sich globalisierenden internationalen System – Auswirkungen der Entstaatlichung transnationaler Rechtsbeziehungen, 2000, 317 f. 6 5 YIO (2005/2006), 33. 7 Amerasinghe, 33 ff. 4

5

4

II. Definition

on the law of organisations in general and on the interrelationship between institutional and substantive law in particular should be at the core of studies of the law of International Organisations and should not be replaced by accumulating details of single organisations. What is decisive for the approach of this book is the link between substantive and institutional questions and their treatment in public international law. Important examples from organisations that could not be dealt with in the third part of this book are for this very reason treated in the second part. II. Definition 1. The Concept of International Organisations

The exponential growth of inter- and transnational forms of cooperation has 9 effects on the law of International Organisations in its entirety. New structures of organisation must be explained, differentiated and integrated (→ paras 14 ff.). This growth, however, does not affect the definition of International Organisation; other forms of organisation must be designed and categorised. There is consensus on an International Organisation8 being an association of two or more subjects of public international law (mostly States) based on an international treaty, that is vested with own bodies and designed to fulfil tasks of common interest. 2. Particular Features

The legal basis of an International Organisation is its founding treaty (→ 10 paras 115 ff.). By definition, such a treaty lies at the basis of the foundation of an International Organisation. There are cases in which the agreement on the establishment of an institution at international level was deliberately not concluded by means of an international treaty to prevent the foundation of an International Organisation. The central example for this kind of development is the Conference on the Security and Cooperation in Europe (CSCE), the founding document of which was not legally binding (so called soft law or pré-droit).9 10 Meanwhile, the CSCE has been transformed into the OSCE, but it is continuously assumed that OSCE has no legal personality as a consequence of the non

8 Cf., above all, the definition given by the ILC (‘Report of the ILC’, 55th Session, GAOR 58th Session Supp 10, 38). On terminology Schmalenbach, ‘International Organizations or Institutions, General Aspects’, MPEPIL (2006), paras 2 and 3. 9 Graf Vitzthum, in: id./Proelß, para 1/152; Stein/von Buttlar, para 32. 10 Cf. only Schweisfurth, ‘Zur Frage der Rechtsnatur, Verbindlichkeit und völkerrechtlichen Relevanz der KSZE-Schlußakte’, 36 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1976), 681 at 684 ff.

5

§ 1 Concept and Theory of International Organisations

binding status of the organisation agreement.11 Due to the requirement of a founding treaty, many structures within the United Nations, created by General Assembly resolutions or by resolutions of other organs are not considered as International Organisations.12 They may be considered as subsidiary organs of the UN (→ paras 290 ff., also para 294, para 701). In part they are organised as autonomous International Organisations – e.g. UNCTAD (→ para 640), UNDP (→ para 639), UNEP (paras 684 ff.) – but rarely have they evolved into autonomous International Organisations by concluding a proper founding treaty (example: UNIDO, → para 639). This method of organisation increases the United Nations’ flexibility if not their transparency.13 11 International Organisations are associations of subjects of public international law. Entities that are not vested with legal personality cannot create a new International Organisation with public international legal personality. This is the main difference between International Organisations and non-governmental organisations (NGOs, → paras 20 ff.), the international legal personality of which is nonetheless the object of current discussion (→ para 22). In the vast majority of cases International Organisations are created by States alone. Membership of International Organisations in other International organisations, be it as a founding member or by later accession is possible and not rare (→ para 117). The Nordic Council may be viewed as a particular situation. According to the Helsinki Treaty of 1962, this organisation is based on the cooperation of the parliaments of the Nordic States.14 12 International Organisations need to possess own organs in order to be able to act. In practice, there are no “bodiless” entities without such organs. However, there are organisational structures which do not belong to an International Organisation but were established for the realisation of a public international legal treaty that does not found an organisation. The main examples are treaty organs for the protection of human rights (→ paras 526 ff.; sometimes as tribunals or courts) and for the international protection of the environment (→ paras 692 ff.; e.g. a State conference on the creation and supervision of standards). 13 Finally, International Organisations generally pursue a certain aim. The multitude of International Organisations mirrors the variety of possible aims (→ paras 11 ff.). For an easier understanding, International Organisations can be typologically categorised. Thus, we can differentiate between general and func11 See extensively Epping, in: Ipsen, para 6/235, followed by Stein/von Buttlar, para 436 and Herdegen, para 45/8; → para 486 of this book and also the OSCE Final Report and Recommendations of the Panel of Eminent Persons On Strengthening the Effectiveness of the OSCE of 27 June 2005, Common Purpose: Towards a More Effective OSCE, paras 28-30, as referred to by Ulfstein, ‘Institutions and Competences’, in: Klabbers/Peters/Ulfstein (eds.), The Constitutionalisation of International Law, 2011, 45 at 52 f. 12 See Schermers/Blokker, § 38. 13 On the whole subject matter Szacz, ‘The Complexification of the United Nations System’, 3 Max Planck UNYB (1999), 1. 14 Treaty of Cooperation between Denmark, Finland, Iceland, Norway and Sweden (the Helsinki Treaty), 434 UNTS 145, Art. 44-59.

6

II. Definition

tional (or special) organisations.15 While the former have general access to all topics of cooperation, the subject matter of the latter is (sometimes narrowly) limited to certain (functional) areas – a limitation which is also reflected in their powers (→ paras 197 ff.).16 There is an important difference between universal and regional International Organisations. Nevertheless, one should not be misled: universal organisations are not only such organisations that in fact represent the international community as a whole – at present, this would only be the United Nations, and even the UN are not complete17 –, but also those that strive for such representation.18 On the other hand, “regional” may not be understood merely in a geographical sense. The quality of “regionality” may also be fulfilled by ascertaining a certain proximity in security or economic policy (→ para 612 and para 450). 3. Similar and Differing Concepts

a) Regimes of Differing Organisational Density. The various forms of orga- 14 nisations in modern public international law may be categorised according to their differing organisational density. Not every organised structure in international relations is an International Organisation. Starting from concepts of political science, international legal scholarship uses the term regime in this respect.19 A regime is a construction of public international law that serves – based mostly on an international treaty – to fulfil common tasks of the States involved, creates objective obligations and provides comprehensive mechanisms for dispute resolution.20 In terms of organisations such a regime can be developed into an International Organisation –that process, however, does not necessarily have to take place.21 If an organisation is not based on an international treaty such as CSCE-OSCE 15 (→ para 10), a broad understanding of the term “regime” can still enable a categorisation on the continuous scale of different forms of organisation. One form 15 Cf. also Dicke, in: Völkerrecht und Internationales Privatrecht in einem sich globalisierenden internationalen System – Auswirkungen der Entstaatlichung transnationaler Rechtsbeziehungen, 2000, 328 ff.; Feld/Jordan, International Organizations: A Comparative Approach, 3rd edn. 1994, 9 ff. 16 It is also possible to treat general organisations as universal by subject matter. 17 The Vatican, the Cook Islands and the territory of Niue (a coral island in the Pacific) are not Members of the UN. 18 Cf. Amerasinghe, 11, with reference to the work of the ILC. 19 Slaughter/Tulumello/Wood, ‘International Law and International Relations Theory’, 92 AJIL (1998), 367; Rittberger (ed.), Regime Theory and International Relations, 1995. → para 36. 20 Classical definition: Krasner, ‘Structural causes and regime consequences: regimes as intervening variables’, in: id. (ed.), International Regimes, 1983, 1 f. (with further references on similar definitions); precised for public international law by Murase, ‘Perspectives from International Economic Law on Transnational Environmental Issues’, 253 RdC (1995), 283 at 413 f., Ott, Umweltregime im Völkerrecht, 1998, 37 ff. (definition p. 43). The term had initially been limited to territorial regimes, e.g. Klein, Statusverträge im Völkerrecht – Rechtsfragen territorialer Sonderregime, 1980; id., ‘International Regimes’, EPIL II (1986), 1354. 21 Ruffert, ‘Zuständigkeitsgrenzen internationaler Organisationen im institutionellen Rahmen der internationalen Gemeinschaft’, 38 Archiv des Völkerrechts (2000), 129 at 142 f.

7

§ 1 Concept and Theory of International Organisations

of organisation with a higher density yet still below the threshold for the foundation of an International Organisation is the treaty regime with so called treaty organs that is used for the implementation, realisation and survey of the treaty’s aims.22 This includes treaty regimes for the protection of human rights with their supervisory bodies or tribunals and courts respectively (→ paras. 526 ff.) as well as various treaty regimes in the field of international environmental law with committees for the survey of the implementation of environmental standards (→ paras. 692 ff.). In this way, the development of theory and practice of International Organisations touches the evolution of international treaty law and its theoretical bases.23 16 b) Supranational Organisations. Whilst in the context of regimes legal scholarship discusses forms of organisations that do not reach the organised density of an International Organisation, supranationality means a particular quality of International Organisations that do not only exceed mere interstate cooperation but which transcend and transform Member State based structures. However, it would be going too far to create an individual category of supranational organisations apart from International Organisations because first, supranational organisations remain International Organisations – albeit with special qualities –, and, second, the only institution with the quality of supranationality is the European Union. Various criteria are important to discern the supranationality of an organisation: 17 A first indicator is the ability of the bodies of the organisation to reach binding decisions that need to be respected by the Member States; if such decisions can be made by majority vote this is a very strong indicator for supranationality. It is a characteristic feature of supranationality that the organisation has law-making capacity and that such law-making prevails over Member States’ law. The greatest emanation of supranationality, finally, is the direct applicability of the law created by the International Organisation within the Member States without any Member State contribution, i. e. direct effect on natural or legal persons within these States. This effect which penetrates the Member States’ sovereignty illustrates that the European Union – created as a supranational European Community – is the prototype and central example for all forms of supranational organisations.24 As a matter of fact, supranationality outside the EU could up to now only develop to a very limited extent; if it all – with ques-

22 Cf. Szacz, ‘The Complexification of the United Nations System’, 3 Max Planck UNYB (1999), 1 at 17 ff.; for the international protection of the environment Churchill/Ulfstein, ‘Autonomous Insitutional Arrangements in Multilateral Environmental Agreements: a Little-Noticed Phenomenon in International Law’, 94 AJIL (2000), 623. 23 See the seminal article by Tietje, ‘The Changing Legal Structure of International Treaties as an Aspect of an Emerging Global Governance Architecture’, 42 GYIL (1999), 26. 24 This is made clear by Dicke, in: Völkerrecht und Internationales Privatrecht in einem sich globalisierenden internationalen System – Auswirkungen der Entstaatlichung transnationaler Rechtsbeziehungen, 2000, 318.

8

II. Definition

tionable scope – within the WTO.25 Finally, even supranational organisations are not capable of acquiring powers of the Member States (so called KompetenzKompetenz or compétence de la compétence). c) Public Law Categories. Here, the theory of International Organisations is 18 linked with the general theory of the State and public or constitutional law. It is in the German theory of federalism that for decades scholars have struggled for an appropriate distribution of competences between the federal government and the Member States of the federal State as well as for the solution of the problem of sovereignty in federal States.26 The early theory of federation differentiates between the loosely connected confederation (Staatenbund) and the integrated federal State (Bundesstaat).27 In the confederation, Member States maintain their sovereignty as well as full responsibility towards the outside world, and the federal construction is mainly intended to organise the cooperative fulfilment of common tasks, whereas in the federation the separation of responsibilities (with respective consequences for legal protection against the federation or the federated States) leads to highly complex problems of the attribution of sovereignty. This differentiation has long ago lost its importance for the supranational EU – not only because the creation of a European federal State exceeds the political planning – and has been replaced by the opposition of the association of sovereign States (Staatenverbund) on the one hand and multilevel constitutionalism (Verfassungsverbund) on the other hand.28 While the supporters of the idea of an association of sovereign States place emphasis on the supranational union’s statist roots, the theory of multilevel constitutionalism stresses the complementary link between various levels of constitutions. Because of this controversy, it is becoming more and more evident that not the controversy as such but the common elements of combination (Verbund) are decisive.29

25 Neyer, ‘Supranationales Regieren in EG und WTO. Soziale Integration jenseits des demokratischen Rechtsstaates und die Bedingungen ihrer Möglichkeit’, in: Neyer/Wolf/Zürn (eds.), Recht jenseits des Staates, ZERP-Diskussionspapier 1/99, 33 at 59 f..; Krajewski, ‘Democratic Legitimacy and Constitutional Perspectives of WTO Law’, 35 Journal of World Trade (2001), 167 (171): WTO law “functionally equivalent to supranational law”. 26 Seminal article by Oeter, ‘Souveränität und Demokratie als Probleme in der “Verfassungsentwicklung” der Europäischen Union’, 55 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1995), 659. 27 Cf. only Doehring, Allgemeine Staatslehre, 3rd edn. 2004, paras 155 ff. 28 On the first see Kirchhof, ‘Der deutsche Staat im Prozeß der europäischen Integration’, in: Handbuch des Staatsrechts, Vol. VII, 1992, § 183 para 38, as taken up in BVerfGE 89,, 155 at 188. On the second see Pernice, ‘Bestandssicherheit der Verfassungen: Verfassungsrechtliche Mechanismen zur Wahrung der Verfassungsordnung’, in: Bieber/Widmer (eds.), Der europäische Verfassungsraum, 1995, 235 at 261 ff.; id., ‘Europäisches und nationales Verfassungsrecht’, in: 60 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer (2001), 148 at 160 ff. The concept of Staatenverbund is stressed again by the Bundesverfassungsgericht in its Lisbonjudgment: BVerfGE 123, 267 at 348; translation available at http://www.bundesverfassungsgericht. de/entscheidungen/es20090630_2bve000208en.html. 29 The article by Schönberger, ‘Die Europäische Union als Bund’, 129 Archiv des öffentlichen Rechts (2004), 81, is very important in this respect. Cf. the detailed study by Beaud, Théorie de la fédération, 2009.

9

§ 1 Concept and Theory of International Organisations

These reflections revive theoretical constructions of the theory of the State. Nonetheless, these categories are of minor importance for the general doctrine of International Organisations below supranationality. International Organisations are not confederations – chiefly because of the limitation of their subject matter; instead of creating States and statal combinations, their main issues are cooperation and a functioning organisation.30 20 d) Non-State Organisations. In the context of the more recent development of international relations and of public international law, international non-governmental organisations (NGOs) are continuously gaining importance. Their number is usually given as 5,000-6,000, and they are vested with extensive powers of participation within bodies of International Organisations or at State conferences.31 Although the range of subject matters NGOs deal with is vast, there are a number of large and well-known organisations that have a special role in international relations, such as Greenpeace, Human Rights Watch or Médecins Sans Frontières.32 21 One important mechanism of participation for NGOs is the conclusion of an agreement under Article 71 of the UN -Charter to organise consultations between the NGO and the Economic and Social Council of the United Nations (ECOSOC).33 ECOSOC resolution 1996/3134 introduces three categories for an NGO’s consultative status.35 Universally active organisations that cover a broad range of subject matters are vested with general consultative status (category I). An NGO that is characterised by special expertise in one of ECOSOC’s fields of action, is awarded special consultative status (category II). All other NGOs (category III) may be listed in a roster in order to be able to provide comments on individual aspects of ECOSOC’s work. The different categories come with different possibilities of participation (written or oral comment, observers in meetings, influence on agenda).36 22 The legal personality of NGOs is not yet clear. The notion of them being vested with partial legal personality if they are granted certain rights by agree19

30 Cf. Klein/Schmahl in Graf Vitzthum/Proelß, para 17; Doehring, para 174; Hobe/Kimminich, 122. Cf. also the classical analysis by Kunz, Die Staatenverbindungen, 1929. 31 Schweisfurth, 1. Kap. paras 148 ff. 32 On the special category of ‚BINGOs‘ (Business NGOs) Anne Peters, ‘Membership in the Global Constitutional Community’, in: Klabbers/Peters/Ulfstein (eds.), The Constitutionalisation of International Law, 2011, 153 at 248 ff. 33 S. Lagoni/Chaitidou in Simma, Art. 71 paras 5 ff. 34 Consultative Relationship between the UN and Non-Governmental Organisations; E/RES/ 1996/31. 35 Sergey Ripinsky/Peer van den Bossche, NGO Involvement in International Organisations, 2007, 24 ff.; Schweisfurth, 11. Kap. paras 52 ff. 36 S. Lagoni/Chaitidou in Simma, Art. 71 paras 19 ff.

10

II. Definition

ments with ECOSOC is steadily gaining ground.37 It is beyond doubt that such an award of rights depends on the respective arrangement and may also be withdrawn. Apart from the controversial issue of personality, there is an ongoing debate on legitimacy problems of NGOs that operate on an international level.38 NGOs are founded by individuals or by private associations. As these are not 23 subjects of public international law, NGOs lack a quality required by definition of an International Organisation. Whatever the outcome of the controversy about legal personality of NGOs, they are not International Organisations.39 e) Hybrid Forms of International Administration. More recently, there has 24 been a global rise in importance of institutions that are created by private individuals – with varying amounts of support by States – and are subjected to anational jurisdiction even hough they engage in international activities. Their task is to set standards or to perform administrative tasks at the global level. Thus, the International Organisation for Standardization (ISO), a private law association under Swiss law, assembles the most important national (private) organisations for standardisation. Their standards are widely recognised in the international and national spheres.40 Similar importance is accorded to the work of the International Accounting Standards Board (IAS) for accounting law41 and to the Codex Alimentarius Commission for food law.42 Finally one needs to mention the Internet Corporation for Assigned Names and Numbers (ICANN), a 37 Epping in Ipsen, para 6/22 (explicitly enumerating treaties giving rights to NGOs); Dahm/ Delbrück/Wolfrum, Vol. I/2, § 107 III; Wedgwood, ‘Legal Personality and the Role of Non-Governmental Organizations and Non-State Political Entities in the United Nations System’, in: Hofmann (ed.), Non-State Actors as New Subjects of International Law, 1998, 21; Hobe, ‘Der Rechtsstatus von Nichtregierungsorganisationen nach gegenwärtigem Völkerrecht’, 37 Archiv des Völkerrechts (1999), 152 at 261 ff.; Nowrot, ‘Legal Consequences of Globalization: The Status of Non-Governmental Organizations under International Law’, 6 Indiana Journal of Global Legal Studies (1999), 579; Hempel, Die Völkerrechtssubjektivität internationaler nichtstaatlicher Organisationen, 1999, 190 ff., Hummer, ‘Internationale nichtstaatliche Organisationen im Zeitalter der Globalisierung – Abgrenzung, Handlungsbefugnisse, Rechtsnatur’, 39 Berichte der Deutschen Gesellschaft für Völkerrecht” (2000), 45 at 195 ff.; van der Hout, Die völkerrechtliche Stellung der Internationalen Organisationen unter besonderer Berücksichtigung der Europäischen Union, 2006, at 88 ff.; see the comprehensive analysis by Lindblom, Non-Governmental Organisations in International Law, 2005, 119 ff., further Dupuy/Vierucci (eds.), NGOs in International Law, 2008; Nikol/Bernhard/Schniederjahn (eds.), Transnationale Unternehmen und Nichtregierungsorganisationen im Völkerrecht, 2013; a divergent view is taken by Schweisfurth, 1. Kap. paras 157 ff. 38 Schweisfurth, 1. Kap. para 160. Cf. also Peters, ‘Dual Democracy’ , in: Klabbers/Peters/ Ulfstein (eds.), The Constitutionalisation of International Law, 2011, 263 at 315 ff. 39 Cf. also the report ‘We the peoples: civil society, the United Nations and global governance. Report of the Panel of Eminent Persons on United Nations – Civil Society Relations’, A 58/817 of 7 July 2004, paras 19 and 24. 40 Röhl, ‘Internationale Standardsetzung’, in: Möllers/Voßkuhle/Walter (eds.), Internationales Verwaltungsrecht, 2007, 319 at 322 f., preceded by Marburger, Die Regeln der Technik im Recht, 1979, 236 ff. 41 Cf. Tietje, ‘Transnationales Wirtschaftsrecht aus öffentlich-rechtlicher Perspektive’, 101 Zeitschrift für Vergleichende Rechtswissenschaft (2002), 404 at 413. 42 Tietje, Internationalisiertes Verwaltungshandeln, 2001, 309 ff., as well as Afonso Pereira, ‘Why Would International Administrative Activity Be Any Less Legitimate? – A Study of the Codex Alimentarius Commission’, 9 German Law Journal (2008), 1693.

11

§ 1 Concept and Theory of International Organisations

company under Californian law which distributes web addresses on a global scale without any State involvement.43 25 The existence and the activities of such institutions pose a challenge for national as well as international law.44 Above all, legal scholarship discusses the legitimacy of their actions as well as judicial review of their measures. Notwithstanding the results of such discussion, these bodies are not International Organisations, because these “hybrid” (private-statal) institutions are never created by international legal subjects nor do they bas their activity on international treaties. III. Theories of International Organisations in International Law and International Relations

When one tries to conduct an in-depth analysis of International Organisations it does not suffice to merely describe the factual phenomena of their existence. Rather, the development needs to be put into the context of an overall theoretical framework. Mere reference to functional necessities of modern international relations is insufficient for that purpose. Since it cannot be excluded per se that International Organisations pursue problematic or even illegal aims,45 theoretical concepts of International Organisations’ conditions of functioning, of their capacity for problem-solving as well as of the limits of their internal cooperation are necessary. 27 For that purpose, international relations theory has developed theoretical approaches that are also relevant in international law. These theories aim at the in26

43 Comprehensively: Froomkin, ‘Wrong turn in cyberspace’, 50 Duke Law Journal (2000), 17; illustratively Schneider, ‘Zur Ökonomisierung von Verwaltungsrecht und Verwaltungsrechtswissenschaft. Begriffsbildung und einführende Analyse ausgewählter Beispielsfälle’, 34 Die Verwaltung (2001), 317 at 336 ff. Cf. also Engel, The Role of Law in the Governance of the Internet, MPP-RdG Preprints 2002/13, 4; König, ‘Öffentliche Verwaltung und Globalisierung’, 92 Verwaltungsarchiv (2001), 475 at 482; Röben, ‘International Internet Governance’, 42 GYIL (1999), 400 at 412 ff.; Walter, ‘Constitutionalizing (Inter)national Governance – Possibilities for and Limits to the Development of an International Constitutional Law’, 44 GYIL (2001), 170 at 186 f.; Jayme, ‘Kollisionsrecht und Internet – Nationalisierung von Rechtsverhältnissen oder “Cyber-Law”?’, in: Leible (ed.), Die Bedeutung des Internationalen Privatrechts im Zeitalter der neuen Medien, 2003, 11 at 16; Mayer, ‘Das Internet, das Völkerrecht und die Internationalisierung des Rechts’, 23 Zeitschrift für Rechtssoziologie (2002), 93 at 108 ff.; Kleinwächter, ‘ICANN als United Nations der Informationsgesellschaft? Der lange Weg zur Selbstregulierung des Internet’, MMR 1999, 452 ff.; Meyer-Schönberger, ‘The Shape of Governance: Analyzing the World of Internet Regulation’, 43 Va.J.Int’l Law (2003), 605 at 656 ff.; Frankel, ‘The Managing Lawmaker in Cyberspace: A Power Model’, 27 Brooklyn Journal of International Law (2002), 859; Hanloser, ‘Die Internet Corporation for Assigned Names and Numbers (ICANN) – Legislative, exekutive und judikative Selbstverwaltung im Internet’, JurPC Web-Dok. 158/2000; Kleinwächter, ICANN. Der lange Weg zur Selbstregulierung des Internet, 2007; Voegeli, Die Regulierung des Domainnamensystems durch die Internet Corporation for Assigned Names and Numbers (ICANN), 2006; Hartwig, ‘ICANN - Governance by Technical Necessity’, in: von Bogdandy et al. (eds.), The Exercise of Public Authority By international Institutions, 2010, 575. 44 Dederer, Korporative Staatsgewalt, 2004, 515 ff.; Ruffert, Die Globalisierung als Herausforderung an das Öffentliche Recht, 2004, 36 ff. 45 Klabbers, Introduction, 38, para. 151.

12

III. Theories of International Organisations in International Law and International Relations

clusion of International Organisations into an overall concept of international relations. They inquire into the political consequences of enhanced cooperation within stable institutional structures as well as into possible changes International Organisations may bring about in international relations. Employing a certain degree of simplification, one can discern three major approaches: realism, institutionalism and idealism.46 1. Realism and Neo-Realism

Realism is based on the assumption that international politics are decisively 28 influenced by power struggles of States. In order to secure its enduring existence, each State must ensure that its competitors remain less powerful than itself.47 Based on this premise, cooperation in International Organisation is not a free choice of States but determined by their interest to monitor and control the action of other States, while at the same time using the fora provided for by International Organisations to promote their own interests. Particularly the U.S. policy towards certain International Organisations 29 (UNESCO,48 but also the UN in general)49 may be viewed as an illustration of the fact that the relationship between a powerful State and an International Organisation may become troubled if the State gains the impression that on balance membership in the organisation does not sufficiently serve the purpose of promoting its interests. However, realism and neo-realism are too limited in their analytical perspec- 30 tive as they are unable to include ‘soft’ factors of long-term interest politics. ‘Soft’ power is mainly based on the attractiveness of certain values which are associated with a State.50 The attractiveness of the U.S. as a country in which to obtain a university education may serve as an example. 2. Idealistic Theories

The opposite end of the range of possible theoretical concepts is marked by 31 idealistic approaches, which may be traced back to the works of Immanuel Kant, notably his writing on ‘Perpetual Peace’. A movement which has become known as ‘normative idealism’ understands International Organisations as fora for the creation and development of common values. A good example for this approach is President Wilson’s concept of the League of Nations according to which the

46 Rittberger/Zangl, International Organization, 2nd edn. 2012, 15; in addition, there are also other systematizations, cf. for example Archer, International Organiszations, 2001, 65 ff. 47 Morgenthau, Politics Among Nations: The Struggle for Power and Peace, 1955. 48 The US stopped funding UNESCO after its vote to grant the Palestinians full membership in 2011. 49 For example the Kassebaum–Solomon amendment of 1985 to the Foreign Relations Authorization Act for fiscal year 1986 and FY 1987 withheld 20 percent of U.S. assessed contributions to the UN budget until weighted voting on budgetary matters was adopted. 50 Nye, The Paradox of American Power, 2002, 8 ff.

13

§ 1 Concept and Theory of International Organisations

League was to operate as the “conscience of the world“.51 The United Nations may be regarded as being a continuation of this approach. Furthermore, in modern international legal literature there is school which argues for the constitutionalisation of international law on the basis of such a value-based approach, largely drawing on the values incorporated in international human rights instruments.52 Such normative-idealistic concepts present an attractive vision for understanding the role of International Organisations. However, this vision is too often blurred by the harsh realities of international politics. Hence, an idealisticnormativist perspective cannot sufficiently explain the day-to-day operation of International Organisations. 32 In this context one should also mention federalist conceptions which try to understand International Organisations as federations of States, or that even place them close to federal States, some developing the vision of a ‘world republic’.53 Under these conceptions, sovereign States create International Organisations in order to establish a binding common order while at the same time trying to preserve their national and cultural identity to the largest extent possible. This approach was quite successful on a regional level during the early phase of European integration.54 33 Social constructivist approaches are viewed as yet another shade of idealism.55 Social constructivism is based on the assumption that in social contexts actors are not only driven by their own interests, but also by their social environment’s expectations. From this perspective, subjects associated with easily communicatable values (human rights, environmental protection, abolishment of weapons of mass destruction, combating international terrorism and organised crime) are particularly well suited for being dealt with by International Organisations. The more elaborate the institutional structure of an International Organisation and the broader its powers, the easier the organisation will be able to pursue its own agenda on individual issues. The Commission of the European Union and the ECJ as engines of European integration are impressive examples which constantly develop new initiatives for the harmonisation of relevant trade and competition rules as well as – more recently – of anti-discrimination measures. Broad monitoring powers combined with effective mechanisms to sanction violations create important incentives for Member States to respect the applicable EU law and to adhere to the common values that are enshrined in these rules. The infringement procedure under Art. 258 ff. TFEU, which is the most important means for implementing EU law, illustrates the importance strong institutional structures have for effective International Organisations.

Speech of 14 September 1919. See for example Faßbender, ‘Der Schutz der Menschenrechte als zentraler Inhalt des völkerrechtlichen Gemeinwohls’ , EUGRZ 2003, 1. 53 For details see Höffe, Demokratie im Zeitalter der Globalisierung, 2002, 422 ff. 54 See Oppermann/Classen/Nettesheim, Chapter 1 para 23 ff. 55 Rittberger/Zangl, International Organization, 2nd edn. 2012, 27 ff. 51

52

14

III. Theories of International Organisations in International Law and International Relations

3. Institutionalism

According to institutionalist approaches, relations between States are more 34 than mere power struggles. At the same time, proponents of such approaches try to avoid the accusation of a lacking sense for the realities of international relations which is often voiced against idealistic conceptions. This leads to a strong focus on the necessity of legal regulations for international relations. A utilitarian movement among the institutionalist theories embraces the argument of the overall benefit for all members of the international community (in contrast to the individual benefit of each State which is emphasised by realists). A good example for cooperation based on such a motivation may be found in the Preamble to the WTO-Agreement according to which the WTO-members recognise that their “relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services […].” Utilitarian institutionalism suggests that once successful cooperation has been established with regard to commercial and social matters, the approach may be extended to the field of international security.56 International Organisations may also serve as platforms of coordination that 35 help States find a mutually acceptable reconcilement of interests in a given area. An essential precondition for reconciling interests in such a way is, however, that the interests at stake are neither completely parallel nor mutually exclusive. Only under this precondition is there a sufficient overlap allowing for reconcilement.57 The collective mechanisms of monitoring and implementation, which usually exist in International Organisations, create incentives for States to refrain from unilateral action even when their respective interests collide. Thus, in the long run each Member State may profit from the establishment of such collective mechanisms of monitoring and implementation. According to the institutionalist position, refraining from self-help and unilateral action will lead to common and comprehensive solutions to the benefit of all participants. This position may be exemplified by developments in the area of technical standardisation, in which increasing mutual economic interdependence has led to the adoption of common standards in certain areas. Thus, it is no coincidence that the first International Organisations were established to develop technical cooperation in the fields of telecommunications and postal services (→ para 44 f). One special teaching within institutionalist conceptions is the so- 36 called ’regime theory’.58 This theory was developed in the early and mid 1990 s and is based on the assumption that cooperation will reduce transaction cost and Frost, Ethics and International Relations, 1996, 153 ff. See in this regard Rittberger/Zangl, International Organization, 2nd edn. 2012, 18. 58 Keohane, ‘The Demand for International Regimes’, 36 International Organization (1982), 325 ff.; Hasenclever/Mayer/Rittberger, Theories of International Regimes, 1997; further references may be found at Fischer-Lescano/Teubner, Regime-Kollisionen, 2006, 18 f. 56

57

15

§ 1 Concept and Theory of International Organisations

thus be beneficial for all participating States. Regime theory operates on the basis of a broad concept of regimes which requires only norms and procedures, but no additional stability in form of institutional structures. From the perspective of traditional international law and also of international institutional law such an approach may seem problematic because it blurs the lines between law and nonlaw and between normative rules and institutional structures. At the same time, an advantage of the broad concept may be seen in the fact that it is capable of covering the broad existing range of different forms of cooperation. This permits the inclusion of informal forms of cooperation such as professional exchange of national and international judges at informal meetings or the cooperation of the presidents of national Central Banks within the Basel Committee on Banking Supervision.59

59 Slaughter, ‘Judicial Globalization’, 40 Va.J.Int’l Law (2000), 1103 ff.; van Aaken, ‘Transnationales Kooperationsrecht in der Finanzmarktaufsicht’, in: Möllers/Voßkuhle/Walter (eds.), Internationales Verwaltungsrecht, 2007, 219 at 234 ff.; Möllers, ‘Transnationale Behördenkooperation. Verfassungs- und völkerrechtliche Probleme transnationaler administrativer Standardsetzung’, 65 ZaöRV (2005), 351 ff.

16

§2 History of International Organisations Literature: Fellner, Vom Dreibund zum Völkerbund, 1994; Herren, Internationale Organisationen seit 1865, 2009; Kolb, ‘History of International Organizations or Institutions’, MPEPIL (2011); Knipping/von Mangoldt/Rittberger (eds.), Das System der Vereinten Nationen und seine Vorläufer, 3 vol, 1995/1996; Mangone, A Short History of International Organization, 1954; Märker/Wagner, ‘Vom Völkerbund zu den Vereinten Nationen’, 22 AuPZ (2005), 1; Potter, ‘The origin of the term“international organization“’, 39 AJIL (1945), 803; Reinalda, Routledge History of International Organizations, 2009; Rittberger/Zangl/Kruck, International Organization, 2nd edn. 2012; Volger, Geschichte der Vereinten Nationen, 2nd edn. 2008; Walters, A History of the League of Nations, 1960; Weber, Vom Völkerbund zu den Vereinten Nationen, 1987; Wehberg, ‘Entwicklungsstufen der internationalen Organisation’, 52 Die Friedens-Warte (1953-55), 193.

The history of International Organisations begins in the 19th century. Al- 37 though certain precursors and constructs resembling International Organisations can be traced back into antiquity, these organisational forms were so fundamentally different from modern International Organisations that analysing them would do little for our understanding of International Organisations today.1 Ancient or medieval federations, e.g., lacked the interstate component which is characteristic for modern International Organisations. For the same reason, leagues of cities, such as the Hanseatic League or the associations of city-States in northern Italy that existed in the early middle ages are only of limited comparative value. The 19th century brought about two developments which – taken together – 38 led to the foundation of the League of Nations in 1919 as the first modern International Organisation with universal aspiration. The two developments are the advent of the tradition of congresses and conferences as well as the gradual establishment of administrative unions to regulate modern technical developments. Another turning point may be traced back to the year 1945. The creation of 39 the United Nations not only stands for a second attempt of creating a universal organisation for the maintenance of international peace and security, but also for a functionalist or sectoral approach in International Organisation in general. The evolution of International Organisations since 1945 is marked by the creation of functionally limited International Organisations that are confined to specific substantive sectors, such as health (WHO), food and agriculture (FAO) etc.

1 Kolb, ‘History of International Organizations or Institutions’, in Wolfrum (ed.), MPEPIL para 8; Klabbers, Introduction, 16 ff.; Klein/Schmahl in Graf Vitzthum/Proelß, para 3 incl. footnote 5.

17

§ 2 History of International Organisations

I. The 19th Century: Peace Congresses and Administrative Unions as Early Forms of International Organisations 40

Starting with the Congress of Vienna (1815), the 19th century gave rise to a quite regular system of “congresses” or “conferences” that was on the one hand scarcely institutionalised, but on the other hand dealt with politically sensitive issues of war and peace. The “Administrative Unions” of the late 19th century, by contrast, were characterised by a comparatively dense institutional structure. However, they remained limited to technical issues with only narrow political dimensions. Between these two poles, the river commissions were the first examples of institutionally dense structures that dealt with matters of political importance. An important element of these commissions was their territorial character which stemmed from their geographical focus on specific rivers. 1. “Congresses” and “Conferences”

The Congress of Vienna of 1915, which founded as the so-called “Concert of Europe“, was the starting point for several congresses and conferences. After the the Napoleonic Wars, the Congress of Vienna aimed at creating a stable European order. For that purpose, multilateral negotiations including all major European powers took place. The “European Concert” was not institutionalised in any formal sense. Nonetheless, it created a rather stable forum for multilateral negotiations – an aspect which remains an important characteristic of International Organisations today.2 In doing so, it contributed to the legitimacy of newly independent States such as Belgium (1830) and Greece (1827–1832). An important element that contributed to the success of the Concert of Europe was the special status granted to the five most important powers (France, Prussia, Austria, Russia and Great Britain). Certain parallels to the current state of international relations may easily be detected – for instance the informal cooperation among the G8-members or the predominant role of the five permanent members of the Security Council. 42 The Concert of Europe as an informal platform for negotiations was complemented by the Hague Conferences which established a specific mechanism aiming at the prevention of wars and the limitation of their consequences. The Hague Conferences were established without a concrete situation of conflict. In that sense they were truly preventive. They led to the adoption of the Hague Convention on the Pacific Settlement of International Disputes and to the establishment of a Permanent Court of Arbitration3 as well as to a first attempt to 41

2 Reinalda, Routledge History of International Organizations, 2009, 24 ff.; Rittberger/Zangl/ Kruck, International Organization, 2nd edn. 2012, 36 ff.; Seidl-Hohenveldern/Loibl, para 207. 3 I. Hague Convention on Pacific Settlement of International Disputes (Hague I); 18 October 1907, 205 CTS 233.

18

I.The 19th Century: Peace Congresses and Administrative Unions as Early Forms of IO

codify the laws of war as comprehensively as possible.4 The establishment of the Permanent Arbitral Court was a first step of institutionalisation that bears importance even today. However, contrary to what the term “permanent court” suggests, the mechanism does not go beyond the establishment of a list of potential arbitrators, and in that sense it does indeed fail to create a permanent institution. The development described above extends to the maintenance of international 43 peace and security, including the regulation of military warfare. It thus relates to an eminently political area which is considered closely related to national sovereignty until today. The creation of international institutions endowed with autonomous decision-making capacities was, therefore, to be expected only to a rather limited extent. The fact that international cooperation nevertheless succeeded, at least to the point described above, may be viewed as an indication that even an area that is politically highly sensitive requires a minimum of fora for cooperation that are not merely based on political commitments but on legal ones. The need for a universal organisation which is dedicated to maintaining international peace and security and goes beyond these rather limited structures while resting on stable permanent institutional structures and being based on a legally binding international treaty, was one of the lessons learned from World War I (→ § 11 para 396 ff.). However, what the 19th century is concerned, one must conclude that the institutionalisation of the international order did not even come close to touching the principle of national sovereignty in any given area. 2. Administrative Unions

A second important step on the road to the advent of modern International Or- 44 ganisations was the creation of administrative unions in the mid 19th century. There are three major examples: the International Telecommunication Union (1865),5 the Universal Postal Union (1874)6 and the Paris Union for the Protection of Industrial Property (1883).7 The creation of these unions was triggered by the enormous progress made in technical development – notably in telecommuncations and transport – which began during the second half of the

4 Annex to the IV. Hague Convention respecting the Laws and Customs of War on Land: Regulations concerning the Laws and Customs of War on Land, 18 October 1907, available at: , accessed 24 February 2014. 5 Cf. , accessed 24 Feburary 2014; Westphal, ‘International Telecommunication Union (ITU)’, in Wolfrum (ed.), MPEPIL; Tegge, Die Internationale Telekommunikations-Union – Organisation und Funktion einer Weltorganisation im Wandel, 1994; Cowhey, ‘The international telecommunications regime: The political roots of regimes for high technology’, 44 IO (1990), 169 ff. 6 Created 1874 as the General Postal Union, Treaty Concerning the Formation of a General Postal Union (Treaty of Bern), 19 Stat. 577, amended in 1878 to give the organisation its current name- Universal Postal Union, 152 CTS 235. 7 Created by the Paris Convention on Industrial Property 828 UNTS 305; cf. , accessed 24 February 2014.

19

§ 2 History of International Organisations

19th century.8 The demand for transnational postal services, for instance, increased to an extent which rendered the existing bilateral postal agreements inadequate and required a multilateral solution, the basic principles of which still remain in force today. A parallel development took place in the field of telecommunications. In order to ensure the smooth transmission of telegrams, common technical standards were necessary. The agreements had to be administered which, in turn, required the creation of an international office.9 On the basis of the positive experience regarding the Universal Postal Union and the International Telecommunication Union, the Paris Union for the Protection of Industrial Property was finally established in 1883.10 The latter was complemented in 1886 by the Berne Union for the Protection of Literary and Artistic Works.11 45 Governing purely technical and unpolitical matters, these administrative unions provided for stable international institutions which were operated by permanent international staff and thus able to perform administrative tasks in their respective fields. Thus, the administrative unions provided valuable practice in the operation of permanent international institutions which could later, with the creation of the League of Nations in 1919, be transferred to the highly political area of international peace and security. 3. River Commissions 46

The river commissions that also blossomed in the mid 19th century were situated between the two types of development illustrated above. They bear resemblance to the administrative unions as their main tasks were of a technical rather than a political character. In essence, they dealt with the coordination of common standards regarding shipping and other uses of waterways. This work was important not only to riparian States but also constituted a matter of general interest. A major characteristic of river commissions was their geographical link to a stream course – a distinctive feature which offers certain parallels to the exercise of public authority by States. This importance was the decisive reason why river commissions were the first international institutions to be accorded partial international legal personality.12 II. The League of Nations and the Interwar Period

47

These developments were joined when, after World War I had ended in 1919, the League of Nations was founded as the first International Organisation in the area of international peace and security that was endowed with permanent orReinalda (n 2) 85, 89; Rittberger/Zangl/Kruck (n 2) 46 ff. Cf. the analyses by Tietje, ‘The Changing Legal Structure of International Treaties as an Aspect of an Emerging Global Governance Architecture’, 42 GYIL (1999), 30 ff. 10 (n 7). 11 Berne Convention for the Protection of the Rights of Authors over their Literary and Artistic Works of 9 September 1886, 331 UNTS 217. 12 Mosler, ‘Die Erweiterung des Kreises der Völkerrechtssubjekte‘, 22 ZaöRV (1962), 9 ff.; Gibson, International Organizations, Constitutional Law and Human Rights, 1991, 15 ff. 8

9

20

II. The League of Nations and the Interwar Period

gans which allowed it to take autonomous action towards its Member States. The League of Nations were created as a reaction to the lack of permanent institutional structures for the maintenance of international peace and security – a deficit which was viewed as a critical factor that led to the outbreak of World War I. The major step in international institutionalisation that was made by creating the League of Nations was certainly toadied by the exceptional circumstances of the immediate post-war situation. In that sense, it is fair to speak of a “constitutional moment”.13 While the importance of the creation of the League of Nations cannot be 48 overemphasised on a theoretical or conceptual level, its practical impacts were nonetheless much weaker than what the founders had hoped for. This was mainly due to the fact that the League of Nations, in contrast to what its spiritus rector, U.S. President Wilson, had envisaged, never even came close to universal membership. The United States never became a party and the Soviet Union acceded as late as 1934, only to be excluded again in 1939 after its invasion of Finland. From the German perspective, the formal inclusion of the League Covenant in the Peace Treaty of Versailles created the impression of an organisation of victors that was further fostered by the fact that Germany was not admitted until 1926.14 After the withdrawal of Germany in 1933 and of Japan in 1935, the League became even less universal. How effective collective action by the League of Nations would have been was, therefore, never tested in practice. 15 Further weaknesses included the (initial) lack of a general prohibition of the use of force16 and the absence of an effective mechanism for imposing sanctions.17 Like the Covenant of the League of Nations, the Constitution of the Interna- 49 tional Labour Organization (ILO), which was also created in 1919, was included in the Versailles Peace Treaty. The ILO’s main task is to contribute to social justice by developing minimum standards for working conditions. Right at the beginning, the ILO featured a tripartite composition of its organs that included representatives of governments, employers and workers (→ § 13 para. 634). Based on an agreement under Art. 57 UN, the ILO in 1946 became the United Nations’ first Specialised Agency. The establishment of the Permanent Court of International Justice (PCIJ) 50 constituted a third important development of the interwar period. The PCIJ which took up its work in 1922, i.e. shortly after its statute had entered into force

Hudson, Progress in International Organization, 1932, 22 ff. Reinalda, (n 2) 196. 15 Klabbers, International Organizations, 17 ff.; Märker/Wagner, ‘Vom Völkerbund zu den Vereinten Nationen’, APuZ 2005, 3 ff. 16 The prohibition of the use of force was only introduced later in the Kellog-Briand-Pact in 1928; Lesaffer, ‘Kellogg-Briand-Pact (1928)’ in Wolfrum (ed.), MPEPIL; Brownlie, International Law and the Use of Force by States, 1963, 74 ff. 17 Tams, ‘League of Nations’, in Wolfrum (ed.), MPEPIL, paras 26, 30; Märker/Wagner (n 15) 5 ff. 13

14

21

§ 2 History of International Organisations

in September 1921, was the first international court that was permanently institutionalised. It thus stood at the beginning of the “rise of the international judiciary” and contributed to a profound change of international legal culture.18 51 On balance, an assessment of the developments during the interwar period remains ambiguous. On a conceptual level, major things were achieved. The League of Nations and the ILO were the first permanent International Organisations with universal ambitions, the PCIJ brought about an institutionalised international judiciary. From an operative perspective, by contrast, the League of Nations, despite some achievements in the field of the protection of national minorities,19 failed to reach its ambitious goals. This failure was, however, less the result of a general conceptual deficit in the idea of maintaining peace through International Organisations, but was rather due to a lack of political will on the part of the States. For this reason, when a new beginning became necessary in 1945 the concept of a universal International Organisation endowed with broad competences – notably in the area of international peace and security – retained its persuasiveness irrespective of the League’s failure. Conceptionally, the United Nations thus rest on the ideas of 1919. 52 The American international lawyer Manley O. Hudson predicted this development as early as 1932 when he phrased the importance of the founding of the League of Nations as follows: “(…) I venture to predict, men will look back on the struggles for establishing the League of Nations as we in America look back on the struggles for establishing the union of these United States. Doubtless the League will have changed its form, perhaps even its purpose will be different; but it is difficult for one living in our time to believe that it will have disappeared altogether. And if it does not disappear, to our generation must ever be the credit for its establishment.”20 III. The United Nations and Developments After 1945 53

In the years following 1945, sectorially limited cooperation between International Organisations that were competent for specific subject matters became more and more accepted. The immediate postwar period witnessed the foundation of a number of specialised agencies (“UN family” with legal ties linking them to the UN (Art. 57 and 63 UN)). Similar to the UN themselves, these specialised organisations over time virtually achieved universal membership. The “Food and Agricultural Organization of the United Nations” (FAO) bears its affiliation to the UN in its name. It was founded on 16 October 1945

18 Spiermann, ‘Historical Introduction’, in: Zimmermann/Tomuschat/Oellers-Frahm/Tams (eds.), The Statute of the International Court of Justice, 2nd edn. 2012, para 1. 19 Cf. e.g. the ‘Minorities Treaty between the Principal Allied and Associated Powers (the British Empire, France, Italy, Japan and the United States) and Poland’, signed at Versailles (28 June 1919)’ available at , accessed 24 February 2014. 20 Hudson (n 13) 45.

22

III. The United Nations and Developments After 1945

and counts 192 members today.21 The World Health Organization (WHO) which was founded on 22 July 1946 and had a predecessor in the 1923 League of Nations Health Organization 22 currently comprises 194 Member States. The United Nations Organization for Education, Science and Culture (UNESCO), a third member of the UN family, was founded on 16 November 1945. With Palestine’s admission to full membership in 2011, UNESCO today has 195 members.23 The number of International Organisations continued to grow exponen- 54 tially beyond the UN family as well.24 While it is difficult to find reliable figures as to the exact number of International Organisations,25 the general trend is beyond any doubt. The growing interdependence of the world economy must be seen as a major driving force for this development. Until 1989/90, it was also the East-West block structure that contributed to the proliferation of International Organisations. Finally, regionalism must be mentioned as another important reason for the 55 growing number of International Organisations. The regional (and subregional) level of all continents saw a development which was – albeit sometimes with a considerable delay – parallel to the proliferation of International Organisations at the universal level. On the one hand regional organisations with broad competence regarding general political issues were founded. In this context, the Organization of American States (OAS)26 the Council of Europe27 as well as the Organization of African Unity (OAU, later replaced by the African Union, AU)28 21 191 Member States and one member organisation, the European Union. The FAO also has two associate members, the Faroe Islands and Tokelau. Cf. , accessed 24 Feburary 2014; Schiavone, International Organizations, 2005, 141 ff. 22 The League of Nations Health Organization was not an Independent International Organisation but legally integrated into the League itself; cf. the detailed analysis by Borowy, Coming to Terms with World Health, The League of Nations Health Organisation 1921-1946, 2009. 23 In addition, the UNESCO has eight associate members – Aruba, the British Virgin Islands, the Cayman Islands, Curaçao, Faroes, Macao (China), Sint Marteen, Tokelau; cf. , accessed 24 February 2014. 24 Rittberger/Zangl/Kruck, (n 2) 68. 25 Schiavone, (n 21) 7 ff. 26 The OAS Charter (119 UNTS 48 ff.) was signed at the Nineth International American Conference, the founding conference of the OAS, on 30 April 1948 in Bogotá. It came into force on 31 December 1951. As the OAS can be traced back to the first Pan-American Conference which was convened as early as 1826, it is identified by some scholars as the oldest international organisation, cf. Kokott, Das interamerkanische System zum Schutz der Menschenrechte, 1986, 11 including footnote 39; on the development of the OAS, cf. Arrighi, ‘Organization of American States (OAS)’ in Wolfrum (ed.), MPEPIL, paras 3-14. 27 The Statute of the Council of Europe (also called the Treaty of London, 87 UNTS 103, ETS 001) was signed by ten founding member states (Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom) on 5 May 1949 in London. Greece and Turkey joined four days later. Germany acceded in 1950, BGBl. 1950 II, 263. Since the accession of Montenegro in 2007, the Council has 47 member states [as of Feburary 2014]. 28 The OAU was founded in 1963. It was replaced by the African Union (AU) in 2002, cf. Packer/Ruckare, ‘The New African Union and Its Constitutive Act’, 96 AJIL (2002), 365 ff.; Viljoen, ‘African Union’, in Wolfrum (ed.), MPEPIL; Abdulqawi/Ouguergouz, The African Union: Legal and Institutional Framework, 2012. As for 2013, 54 Member States are united in the AU. Thus, with the exception of Marocco, all States of the African continent are members.

23

§ 2 History of International Organisations

may be mentioned. In addition to organisations that have general competence, a sectoral differentiation takes place at the regional level as well. This led notably to the founding of regional organisations of economic integration. Apart from the EEC (later EC and today EU) in Europe29 the North American Free Trade Association (NAFTA),30 the Andean Pact31 and MERCOSUR32 can be referred to regarding North and South America. The Economic Community of West African States (ECOWAS)33 may serve as African example for this development (→ § 13 paras. 663 ff.). 56 Notwithstanding proliferation of universal and regional organisations after 1945, the United Nations retained its predominant and formative role in the postwar international order. Founded in 1945 with originally 51 members (cf. Art. 3 UN), it has today virtually reached universal membership with 193 Member States, the youngest member being the Republic of South Sudan which was admitted in July 2011. In contrast to the League of Nations, the United Nations succeeded in avoiding the impression of an organisation of victorious powers. While it is true that the enemy State clauses (Art. 53 para 1 phrase 2, 2nd sentence, and Art. 107 UN) allowed for exceptional measures directed against “any State which during the Second World War has been an enemy of any signatory to the Charter” (Art. 53 para. 2), these clauses did not play any role in the practice of the organisation and it is telling that their abolition was one of the few points which were easily agreed upon during the reform discussion of 2005.34 57 The United Nations underwent significant changes during the more than 60 years of its existence. The changes of the organisation are but a reflection of general alterations in world politics. Two of the most important developments were probably the process of decolonialisation which largely dominated the agenda of the 1960 s and early 1970 s35 as well as the Cold War that brought with it the corresponding East-West confrontation and the new options for UN action which became apparent when the Cold War was overcome after 1989/90.

29 Cf. on the history of the European integration: Ott/Vos (eds.), Fifty Years of European Integration, Foundation and Perspectives, 2009. 30 NAFTA was established by a trilateral treaty between Canada, Mexico and the United States on 1 January 1994 and creates a free trade area on the North American continent, 32 ILM (1993), 289 ff. and 605 ff. 31 Established in 1969 by the Andean Subregional Integration Agreement (Cartagena Agreement), 28 ILM (1989), 1165 ff. 32 The Southern Common Market was founded on 26 March 1991 by Argentina, Brazil, Paraguay and Uruguay with the signature of the Treaty of Asuncion 30 ILM (1991), 1041 ff. 33 The Economic Community of West African States was established on 28 May 1975 by the Treaty of Lagos. It was replaced by a revised treaty as the basis for ECOWAS on 24 July 1993 in Cotonou, Benin. Cf. Schiavone, (n 21) 106 ff. 34 GA Res A/RES/60/1. 2005 World Summit Outcome, para 177; Ress/Bröhmer in Simma, ‘Art. 53’, para 112. The General Assembly already committed itself in its resolution 50/52 of 11 December 1995 to repeal the ‘enemy state’ clauses in a future reform of the Charter. 35 Cf. the ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’, GA Res 1514 (XV) of 14 December 1960. For details, cf. Kunig, ‘Decolonization’, in Wolfrum/Philipp (eds.), United Nations: Law, Policies and Practice, vol. I 1995, 390 ff.

24

III. The United Nations and Developments After 1945

The process of decolonialisation not only provoked a sharp increase in UN 58 membership but also led to a significant change of majorities and interests in favor of the developing countries. These changes provoked institutional amendments. The size of the Security Council, for instance, was increased in 1963.36 Furthermore, a considerable number of specialised institutions with a specific focus on development were created.37 Starting with the 1960 s, the North-South divide gradually became as decisive for world politics as the East-West confrontation already was.38 The end of the Cold War in 1989/90 resulted in a considerable boost in im- 59 portance for the United Nations. The most visible expression of new options for UN action is the reinforced activity of the Security Council. It may even be said that the mechanism established by Chapter VII of the Charter became operable in the originally intended way for the first time. The number of Security Council resolutions experienced a significant rise39 and the Security Council demonstrated its capability of action in a first major crisis when Iraq invaded Kuwait in 1990.40 However, there were also setbacks and steps in the opposite direction. The 60 Balkans crisis of the 1990 s and notably the differences concerning the situation in Kosovo revealed that, at least in some (important) areas, old tensions between the United States and Russia were still very much present. This was further underlined by the crisis in South Ossetia where the same confrontation became apparent.41 In addition, the unilateral actions taken by the United States in the wake of the 9/11 attacks (intervention in Afghanistan without a Security Council mandate;42 invasion of Iraq43) undermined the United Nations’ credibility as a truly universal organisation for the maintenance of international peace and security. Finally, the failure of the overall UN reform in 2005 must be considered a setback. The ambitious project to detach the UN Charter from its origins in the immediate postwar situation of 1945 and to bring about a Security Council reform reflecting the current geopolitical situation failed utterly. What remained were minor institutional changes below the level of a formal revision of the Charter: the creation of the Peacebuilding Commission for a better coordination GA Res 1991-A (XVIII) of 17 December 1963. Notable examples are the UN Conference on Trade and Development (1965) and the UN Industrial Development Organisation (1966). 38 Reinalda (n 2) 443 ff.; Gareis/Varwick, Die Vereinten Nationen, 2006, 31. 39 Cf. the UN documentation at , accessed 21 February 2014; also cf. the decrease in the usage of the veto power described by Klein/Schmahl in Graf Vitzthum/Proelß, para 145. 40 SC Res S/RES/660 of 2 August 1990; SC Res S/RES/661 of 6 August 1990; SC Res S/RES/662 of 9 August 1990. 41 The adoption of a draft resolution issued by France and supported by the United States, requesting Russia to comply with the ceasefire and to withdraw all remaining troops, failed due to the Russian resistance, cf. UN Doc. S/PV.5961 of 19 August 2008. 42 In its resolution S/RES/1368 of 12 September 2001 the Security Council regards the attacks of 11 September 2001 against the United States as ’a threat to international peace and security’. 43 For details cf. von Heinegg, ‘Invasion of Iraq (2003)’, in Wolfrum (ed.) MPEPIL. 36

37

25

§ 2 History of International Organisations

of UN peacekeeping activities44 and the replacement of the politically controversial Human Rights Commission by the newly founded Human Rights Council.45 It is difficult to believe that these changes will suffice to prepare the United Nations for the challenges of the 21st century which will certainly include finding answers to threats to international peace and security that emanate from the private sphere such as international terrorism and organised crime.

44 UN Doc A/60/L.40; SC Res S/RES/1645 of 20 December 2005. For details cf. → § 11 para 415. 45 GA Res A/RES/60/251 of 3 April 2006. For details cf. → § 12 paras 511 ff.

26

§3 International Organisations within the Constitution of the International Community Literature: Alvarez, International Organisations as Law-makers, 2005; Aston, Sekundärgesetzgebung internationaler Organisationen zwischen mitgliedstaatlicher Souveränität und Gemeinschaftsdisziplin, 2005; Auby, La globalisation, Le droit et l’État, 2003; Boyle/Chinkin, The Making of International Law, 2007; Dicke, ‘Erscheinungsformen und Wirkungen von Globalisierung in Struktur und Recht des internationalen Systems auf universaler und regionaler Ebene sowie gegenläufige Renationalisierungstendenzen‘, 39 BerDGVR (2000), 13 ff.; Diggelmann/ Altwicker, ‘Is There Something Like a Constitution in International Law?‘, 68 ZaöRV (2008), 623 ff.; Fassbender, ‘The United Nations Charter As Constitution of the International Community‘, 36 Colum. J. Transnat’l L. (1998), 529 ff.; id., Targeted Sanctions and Due Process, 2006, available at: www.un.org/law/counsel/Fassbender_study.pdf; Feinäugle, Hoheitsgewalt im Völkerrecht, 2011, 141 f., id., ‘The UN Security Council Al-Quaida and Taliban Sanctions Committee: Emerging Principles of International Institutional Law for the Protection of Individuals?’, 9 German Law Journal (2008), 1513 ff.; Frenzel, Sekundärrechtsetzungsakte internationaler Organisationen, 2011; Friedmann, The Changing Structure of International Law, 1964; Frowein, ‘Konstitutionalisierung des Völkerrechts’, 39 BerDGVR (2000), 427 ff.; Haltern, ‘Internationales Verfassungsrecht?’, 128 AöR (2003), 511 ff.; id., ‘The UN Anti-Terrorism Administration and the Rule of Law‘, Festschrift Tomuschat, 2006, 785 ff.; Harlow, ‘Global Administrative Law: The Quest for Principles and Values’, 17 EJIL (2006), 187 ff.; Kingsbury/Krisch/Stewart, ‘The Emergence of Global Administrative Law’, 68 Law and Contemporary Problems (2005), 15 ff.; Koskenniemi, ‘International Legislation Today: Limits and Possibilities’, 23 Wisconsin Int’l L J (2005), 61 ff.; Krisch, ‘The Pluralism of Global Administrative Law’, 17 EJIL (2006), 247 ff.; Paulus, Die internationale Gemeinschaft im Völkerrecht, 2001; Peters, ’Rechtsordnungen und Konstitutionalisierung: Zur Neubestimmung der Verhältnisse’, 65 ZÖR (2010), 3 ff.; Petersen, ‘Der Wandel des ungeschriebenen Völkerrechts im Zuge der Konstitutionalisierung‘, 46 AVR (2008), 502 ff.; Ruffert, Die Globalisierung als Herausforderung an das Öffentliche Recht, 2004; Schmidt-Aßmann, ‘Die Herausforderung der Verwaltungsrechtswissenschaft durch die Internationalisierung der Verwaltungsbeziehungen‘, 45 Der Staat (2006), 315 ff.; Schmidt-Aßmann/Rademacher, ‚Rechtsschutzgarantien des internationalen Rechts‘, Jahrbuch des Öffentlichen Rechts der Gegenwart, neue Folge (2013), 61 ff.; Szasz, ‘The Security Council Starts Legislating’, 96 AJIL (2002), 901 ff.; Tietje, ‘The Changing Legal Structure of International Treaties as an Aspect of an Emerging Global Governance Architecture‘, 42 German Y.B. Int´l L. (1999), 26 ff.; Tomuschat, ‘Die internationale Gemeinschaft‘, 33 AVR (1995), 1 ff.; Uerpmann, ‘Internationales Verfassungsrecht‘, JZ 2001, 565 ff.; Walter, ‘Constitutionalizing (Inter)national Governance – Possibilities for and Limits to the Development of an International Constitutional Law‘, 44 German Y.B. Int´l L. (2001), 170 ff.; Wihl, „Freiheit als Unwert? Verwandlungen des Völkerrechts aus liberaler Perspektive“, in Tomuschat (ed.), Weltordnungsmodelle für das 21. Jahrhundert, 2009, 65 ff.

27

§ 3 International Organisations within the Constitution of the International Community

I. How International Organisations Constitutionalise Public International Law 1. The Constitution of the International Community

Currently, public international law is undergoing a process of change. Until long after World War II the focus was on realising and coordinating the interests of sovereign States. Since this period began with the 1648 peace treaties of Münster and Osnabrück (which ended the Thirty Years’ War) it is called the “Westphalian System”, the central idea of which being that sovereign States take on obligations by means of agreements in realisation of the principle of consensus.1 This State-centred perspective has long since been replaced by the international law of cooperation which underlines the need for cooperation as well as the multitude of cooperative entanglements between the States.2 International Organisations are the most important actors of the international law of cooperation. More recently, the international law of coordination and the international law of cooperation have been modified by a new school of international legal thinking which views international law as the constitutional law of the international community of States.3 62 At the core of this change is the fact that the international community of States’ as a whole is recognised as a public international legal entity, as is expressed in Article 53 VCLT, which provides that a treaty which is in conflict with a peremptory norm of international law (ius cogens) is void – a peremptory norm being defined as a rule which is accepted and recognised by the international community of States as a whole to constitute a norm from which no derogation is permitted and which may only be modified by a subsequent rule of international law of the same character.4 The international community is constituted by institutions and organs that serve common values shared by all States which may be considered public interests of the whole world – for this reason 61

1 The classical formulation is provided for by the so-called Lotus-Doctrine following PCIJ, The Case of the S.S. Lotus, 1927 P.C.I.J. Rep. (ser. A) No. 10, at 18: “International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these coexisting independent communities or with a view to the achievement of common aim. Restrictions upon the independence of States cannot therefore be presumed.”. 2 The foundations are laid by Friedmann, 45 f. at 61 f. 3 Cf. only the critical assessment by Kadelbach/Kleinlein, ‘International Law – a Constitution for Mankind? An Attempt at a Re-appraisal with an Analysis of Constitutional Principles’, 50 German Y.B. Int`l L. (2007), 303. On the sequence coordination – cooperation – constitutionalism Wihl, ‘Freiheit als Unwert? Verwandlungen des Völkerrechts aus liberaler Perspektive’, Tomuschat (ed.), Weltordnungsmodelle für das 21. Jahrhundert, 65 at 72. 4 On the international community in international law cf. Tomuschat, ‘Die internationale Gemeinschaft’, 33 AVR (1995), 1 ff.; Paulus, Die internationale Gemeinschaft im Völkerrecht, 2001, and on the parallel idea of a constitution of world society Fischer-Lescano, ‘Globalverfassung: Verfassung der Weltgesellschaft‘, 88 ARSP (2002), 348.

28

I. How International Organisations Constitutionalise Public International Law

the term public law approach is often used.5 Such a constitution cannot be conceived without having recourse to International Organisations. From a theoretical point of view, this change of perspective requires a separation of the concept “constitution” from the idea of the “State”,6 which becomes all the more difficult if the concept of constitution shall not lose its main features while replacing its traditional object with a new one.7 The three ideas of public international law – coordination, cooperation, and 63 constitution – are, strictly speaking, not separate concepts that exclude each other. On the contrary, modern developments of public international law are characterised by a simultaneous existence of anachronistic and new concepts as well as by continuous shifts of perspective.8 Furthermore, the constitutional perspective’s historical roots run very deep. Some time ago the international legal scholars Alfred Verdross and Hermann Mosler regarded the legal system created by the United Nations as a constitutional system of the international community.9 Later, this approach was intensified by identifying several decisive constitutional elements within United Nations law:10 (1) The UN-Charter’s constitutional moment and the time of its creation (i.e. the revolutionary approach), (2) the institutional system of the United Nations, (3) rules on membership, (4) the hierarchy of norms established by Article 103 UN, (5) the particular stability of the UN-Charter with respect to modifications, (6) the concept of a “charter”, (7) the role of the UN-Charter as a point of departure for further development of public international law, and finally (8) the UN-Charter’s universality. Other approaches relate the constitutional perspective to different areas of public international

5 Cf. only Frowein, Collected Courses of the Academy of European Law, 1990, Vol. I Book 2, 428. 6 Cf. only Peters, Elemente einer Theorie der Verfassung Europas, 2001, 93 ff.; also Möllers, ‘Verfassunggebende Gewalt – Verfassung – Konstitutionalisierung’, in: von Bogdandy/Bast (eds.), Europäisches Verfassungsrecht, 2nd edn. 2009, 227. 7 Critically Wahl, ‘Konstitutionalisierung – Leitbegriff oder Allerweltsbegriff? ’, in: Eberle (ed.), Der Wandel des Staates vor den Herausforderungen der Gegenwart, Festschrift für Winfried Brohm zum 70. Geburtstag, 2002, 191 at 199 ff., as well as Haltern, 128 AöR (2003), 511. 8 Cassese, 21. 9 Verdross, Die Verfassung der Völkerrechtsgemeinschaft, 1926, in particular 12 f. and 42 f., followed by Verdross/Simma, ‘Preface to the 3rd edition’, in: Universelles Völkerrecht, at VII f., and para 374; Mosler, ‘The International Society as a Legal Community’, Vol. 140 RdC (1974-IV), 1; Dupuy, ‘The Constitutional Dimension of the Charter of the United Nations Revisited’, 1 Max Planck U.N.Y.B. (1997) 1; Macdonald, ‘The Charter of the United Nations in Constitutional Perspective’, 20 Austl. Y.B. Int´l L. (1999) 205; Franck, ‘Is the UN Charter a Constitution?’, in: Frowein (ed.), Verhandeln für den Frieden. Liber Amicorum Tono Eitel, 2003, 95. 10 Fassbender, ‘The United Nations Charter as Constitution of the International Community’, 36 Colum. J. Transnat’l L. (1998), 529.

29

§ 3 International Organisations within the Constitution of the International Community

law, primarily international economic law11 or even to the international community as a whole. 2. Constitutional Elements

a) Functions and Institutions. The international law elements identified as forming the international community’s constitution are closely linked to the developments of the law of International Organisations. Naturally, this mainly holds true for institutional elements. Building on George Scelle who elaborated on the quality of State institutions as organs of the international community as early as the 1950 s (“dédoublement fonctionnel“ – State organs as organs of the State and the international community),12 the institutions of International Organisations may today easily be classified within the institutional fabric of the international community’s constitution. 13 In this regard, one may detect traces of a specific, functional separation of powers:14 dispute resolution, rule-making and execution of laws are developing towards the well-known triad of jurisprudence, legislation and administration (→ paras 66 f.). 65 b) Aims and Values. International Organisations also play a major role in realising the international community’s substantive law. The decisive factor is international law’s orientation towards values that are embedded in peremptory international law (ius cogens), thereby being immune to modification via agreement between subjects of international law, and which give rise to obligationes erga omnes, the implementation of which lies in the interest of the international community as a whole.15 It is on the basis of these values that public international law as constitutional law of the international community formulates certain targets, the fulfilment of which is often transferred to International Organisations. This is evident for the United Nations and the goal of peace and security (→ § 11). However, human rights also constitute values of the international community that are primarily implemented by International Organisations at the 64

11 Above all Petersmann, Constitutional functions and constitutional problems of international economic law, 1991; see for WTO → para 606; Stoll, ‘Freihandel und Verfassung’, 57 ZaöRV (1997), 82; Krajewski, Verfassungsperspektiven und Legitimation des Rechts der Welthandelsorganisation (WTO), 2001, for ILO see Osieke, Constitutional Law and Practice in the International Labour Organisation, 1985; Maupain, ‘L’OIT, la justice sociale et la mondialisation’, Vol. 278 RdC (1999), 201; Duplessis, ‘Le recours à la constitution de l’OIT dans l’acquisition de son autonomie institutionelle’, 37 Revue Belge de Droit International (2004), 37. 12 Scelle, ‘Le phénomène juridique du dédoublement fonctionnel’, in: Schätzel/Schlochauer (eds.), Rechtsfragen der internationalen Organisation. Festschrift für Hans Wehberg zu seinem 70. Geburtstag, 1956,324. 13 Uerpmann, ‘Internationales Verfassungsrecht’, JZ 2001, 565 at 566 f. 14 Analysis by Möllers, Gewaltengliederung, 2005, 287 f. Critically Ulfstein, ’Institutions and Competences’, in: Klabbers/Peters/Ulfstein (eds.), The Constitutionalisation of International Law, 2011, 45 at 47, following ICTY, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case IT-94-1-AR72 Appeals Chamber, 2 October 1995, para 43. 15 See the contributions in: Tomuschat/Thouvenin (eds.), The Fundamental Rules of the International Legal Order, 2006, as well as Uerpmann, ‘Internationales Verfassungsrecht’, JZ 2001, 565 at 569 f.

30

II. Elements of an International Separation of Powers

global level (→ § 12).16 In addition, there is the aim to maintain natural resources which is pursued by international environmental organisations (→ § 14). Finally, various aspects illustrate the emergence of a world economic constitution. This constitution recognises individual economic freedom as the driving force for all economic development. Yet, it must be able to achieve a balance between diverging economic interests and integrate non-economic matters in an institutional way (→ § 13). II. Elements of an International Separation of Powers

The idea of separation of powers was developed in the constitutional law of 66 the State, to control the State’s powers by mutual checks and balances. It is a relatively new idea that the principle of the separation of powers also aims at achieving a distribution of competences which reflects the different functional abilities of the individual institutions.17 At the international level, the principle of separation of powers is not enshrined in a constitutional statute. Nonetheless, one may detect a distribution of the three powers to different types of organs of International Organisations that takes account of the differences between the organs’ functions. 1. Executive Function

a) International Organisations as an Alternative to World Government. Gov- 67 ernance and steering activity at the international level as well as the execution of international law vis-à-vis the State suggest traditional ideas of a world government. Nevertheless, the theory of international relations, public international law and diplomatic practise are opposed to such a notion and have been so for a very long time. This refusal does not call into question the need for political activity and implementation of the rule of law beyond the confines of individual States. These tasks are functionally attributed to the ensemble of International Organisations. b) Political Governance. The institutions of International Organisations are 68 vested with manifold tasks of political governance. This is particularly true if a general member organ (→ paras 295 f.) or another organ permits high-level State representatives – heads of State or government (“summit”). Some organisations explicitly provide for this possibility (→ para 656 on G8; Article 15 TFEU on the European Council). However, organs of International Organisa16 Cf. only Walter, ‘Constitutionalizing (Inter)national Governance – Possibilities for and Limits to the Development of an International Constitutional Law’, 44 German Y.B. Int´l L. (2001) 170 at 196 f.; id., ‘Die Europäische Menschenrechtskonvention als Konstitutionalisierungsprozeß’, 59 ZaöRV (1999), 961; Hoffmeister, ‘Die europäische Menschenrechtskonvention als Grundrechtsverfassung und ihre Bedeutung in Deutschland’, 40 Der Staat (2001), 349; Bryde, ‘Konstitutionalisierung des Völkerrechts und Internationalisierung des Verfassungsrechts’, 42 Der Staat (2003), 61. 17 On the preceeding orientation of national, above all German constitutional law cf. Zippelius/ Würtenberger, Deutsches Staatsrecht, 32nd edn. 2008, § 12 para 15.

31

§ 3 International Organisations within the Constitution of the International Community

tions which are composed in a different manner may also fulfil governance tasks. This is particularly true for the power to take the initiative in political processes (e.g. the environmental conference of Rio 1992; → para 673) or in international rule-making (→ paras 80 f.). An International Organisation’s far-reaching discretionary powers in the implementation of the law also imply a large degree of formative power in solving “highly political” questions by its organs. Finally, there is room for political decisions in the coordination of International Organisations’ activities amongst each other (→ paras 212 f.) as well as of the concomitant cooperation with the States.18 69 c) Implementation. The implementation of public international law was until recently dominated by decentralised mechanisms. As the sovereign equality of States is firmly guaranteed (Article 2 para 1 UN), this perspective remains unchanged as a matter of principle. Public international law generally is implemented by permitting the State whose rights have been infringed to take countermeasures in conformity with public international law.19 This approach is sometimes continued in the law of International Organisations, e.g. in the WTO’s dispute settlement mechanism (→ paras 329-331 and 654). From the perspective of decentralised implementation, implementing the law sometimes cannot be easily distinguished from dispute resolution between conflicting parties. 70 The concept of countermeasures was complemented by the notion of duties erga omnes: if a rule of public international law is violated the adherence to which constitutes an obligation towards the international community as a whole, all members of the international community are entitled to take countermeasures.20 71 Objective duties and implementation mechanisms beyond the bilateral-decentralised concept also play an eminent role in the law of International Organisations. Often, founding treaties create substantive duties while compliance is ensured by organs of International Organisations.21 There are several mechanisms to enable such a way of control: 72 –

In many instances, reporting systems impose an obligation on the involved States to report on their progress in implementing the substantive obligations they took on within the International Organisation as well as on possible deficits and difficulties.22 Discussing such reports is by itself capable of

Cf. Schermers/Blokker, paras 448 f. Instructively Crawford, The International Law Commission’s Articles on State Responsibility, 2002, 254 f. 20 Leading case: I.C.J., Barcelona Traction, Light and Power Company, Limited, Second Phase, 1970 I.C.J. Rep.,3, para 33. 21 E.g. Art. 22 ILO-Convention. See above all Chayes/Handler Chayes, The New Sovereignty, 1995, also Tietje, ‘The Changing Legal Structure of International Treaties as an Aspect of an Emerging Global Governance Architecture’, 42 German Y.B. Int´l L. (1999), 26; Brown Weiss (ed.), International Compliance with Nonbinding Accords, 1997. 22 Schermers/Blokker, §§ 1402 ff.; Sands/Klein, paras 12-037 ff. 18

19

32

II. Elements of an International Separation of Powers

creating public pressure and enhancing compliance by the respective States (→ paras 528 f., para 682). –

In some International Organisations the organs themselves are entitled to 73 establish facts.23 This may be done by establishing contacts to State institutions but also by accepting private information, e.g. by NGOs (→ paras 20 f.). In exceptional cases information may be collected by inspections.24 The best-known inspections are those by the International Atomic Energy Agency (IAEA).25

–

Deploying election observers is a mechanism that is frequently used by In- 74 ternational Organisations to ensure compliance. At universal level, this is primarily done by the United Nations, in Europe it is the OSCE (→ para 558 at the end).

–

Additionally, some International Organisations provide for the possibility to 75 impose sanctions on individual members. The most prominent sanctions mechanism is the one the United Nations employs in case of a threat or breach of the peace (→ paras 426 f.). Suspending voting rights or imposing financial burdens are less severe forms of sanctions.26

d) Internal Administration. Finally, International Organisations fulfil internal 76 administrative tasks when they establish and implement their budgets as well as in the personnel sector (→ paras 385 f.). This also includes revision processes to trigger and implement organisational reforms. 2. Rule-Making

a) Rule-Making in the International Community. The theory of the sources of 77 public international law is still dominated by Article 38 ICJ which was originally worded in the early 1920 s. Indeed, it cannot be denied that the sources this rule names – treaties, custom, general principles of law – form the basis of public international law, and that jurisprudence as well as scholarly opinion may and must be employed as useful support for establishing the law in international matters. Today, however, international law is also created outside the categories of this enumeration which by now is more than 90 years old.27 One of the main reasons for this development is the law-making activity of International OrganiSands/Klein, paras 12-046 f. Schermers/Blokker, §§ 1414 ff.; Sands/Klein, paras 12-048 f. 25 Chauvistré, The implications of IAEA inspections under Security Council Resolution 687, 1992; Schermers/Blokker, § 1418. 26 Schermers/Blokker, §§ 1455 ff. 27 Cf. v. Bogdandy/Dann/Goldmann, ‘Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities’, 9 German Law Journal (2008), 1375 at 1388; see also Petersen, ‘Der Wandel des ungeschriebenen Völkerrechts im Zuge der Konstitutionalisierung’, 46 AVR (2008), 502. 23

24

33

§ 3 International Organisations within the Constitution of the International Community

sations. Not only are they a driving force behind the creation of law along the lines of the traditional sources mentioned above – promoting the creation of international treaties in many ways (→ paras 79 f.). They are also to a large extent enabled to not only emit punctual legal acts but also to formulate and implement legal norms – or at least existing competence norms are adjusted in this sense.28 78 The rule-making by International Organisations contributes to the diversification of the international legal system. They occupy an important place within the pluralistic, polycentric ensemble of law-making institutions. Traditional concepts of the hierarchy of sources only provide a limited picture of the global legal reality.29 Binding legislation by International Organisations does not necessarily have to be brought about by means of law-making acts by States. Consequently, there are various overlapping layers of law which complement each other and which need to have concrete hierarchical relationships in the case of collisions.30 In sum, International Organisations increasingly adopt rule-making functions within the international community’s constitution.31 However, it is by no means easy to speak of international legislation. Using this term would ignore the difference between State legislation by means of parliamentary procedures on the one hand and rule-making by International Organisations on the other. In any event, both cannot be considered equal, above all because rulemaking by International Organisations is usually devoid of democratic legitimation in comparison to parliamentary legislation in democracies. In the case of European integration, it would have been correct to introduce the terms “law” and “legislation”; according to the draft constitution, the “regulation” of Article 249 para 2 EC would have been renamed “European statute”, yet this failed the test of the French and Dutch referenda and was not taken up again in the Treaty of Lisbon (→ now Article 288 para 2 TFEU).32 No International Organisation – and above all not the international community as a whole – reaches the European Union’s level of integration including that organisation’s structures of legitimacy, so that one should speak of rule-making and leave aside the formal concept of legislation. 79 b) Typology of Rule-Making by International Organisations. aa) Treaties and International Organisations. International Organisations may use the various possibilities treaty law provides for rule-making. International agreements 28 See the typology developed by Goldmann, ‘Inside Relative Normativity: From Sources to Standard Instruments of the Exercise of International Public Authority’, 9 German Law Journal (2008), 1865 at 1879. 29 On global legal pluralism see Teubner, ‘’Global Bukowina’: Legal Pluralism in the World Society’, in: id. (ed.), Global Law Without a State, 1996, 3; and also – with a particular relation to hierarchical concepts Röhl/Röhl, Allgemeine Rechtslehre, 3rd edn. 2008, 308 f. 30 Cf Ruffert, ‘Rechtsquellen und Rechtsschichten des Verwaltungsrechts’, in: Hoffmann-Riem/ Schmidt-Aßmann/Voßkuhle (eds.), Grundlagen des Verwaltungsrechts, Vol. I, 2nd edn. 2011, § 17 paras 26 f. 31 Taking a critical stance towards this reasoning Klabbers, Introduction, 205 f. 32 Cf Ruffert, in: Calliess/id. (eds.), EUV/AEUV-Kommentar, 4th edn. 2011, Art. 288 AEUV, para 4.

34

II. Elements of an International Separation of Powers

not only comprise (mostly bilateral) exchange treaties but also (multilateral or even universal) rule-making instruments. In fact, the rising importance of international treaty law goes hand in hand with the rise of International Organisations. In the practice of International Organisations one may distinguish four categories of treaty rule-making: –

Initiative: International Organisations are able to initiate negotiations for 80 the elaboration of multilateral treaties by means of their institutional framework.33 The high density of diplomatic contacts within International Organisations makes this form of rule-making highly effective.34

–

Treaty conferences: Universal organisations, above all the United Nations, 81 employ their institutional framework to organise conferences which may lead to the conclusion of a multilateral international treaty. The attribution to the organisation may be arranged by various means, be it that the organisation provides the respective resources (secretariat), by installing special drafting committees or by the temporary founding of sub-organisations for the purpose of treaty-making.35 Most prominent examples from the recent past are the United Nations Conference on the Law of the Sea with the subsequent conclusion of the respective Convention (UNCLOS III 1982) as well as the Conference of States for the Negotiation and Elaboration of the Statute of Rome for the International Criminal Court in The Hague.

–

Elaboration of treaties by experts: This form of rule-making is also part 82 of the institutional framework of International Organisations. The most important example is the International Law Commission of the United Nations (ILC). The ILC was founded on the basis of Article 13 para 1 lit. a UN by a resolution of the General Assembly.36 Its 34 members are public international lawyers from all parts of the world.37 During its annual sessions that last several weeks the ILC deliberates on projects to codify rules of public international law and proposes corresponding drafts. If the Sixth (Legal) Committee of the General Assembly and subsequently the Assembly as such approve a draft such a text may be adopted as an international treaty by the States.38 The most important examples for this are the Vienna Conventions on Diplomatic Relations and on Consular Relations39 as well as the

Sands/Klein, para 11-028. Alvarez, 279 f., with many examples. 35 Ibid., 292 ff. 36 GA Res. 174 (II) of 21 November 1947 with the Statute of the ILC. 37 See the list available at: http://www.un.org/law/ilc/. 38 Koskenniemi, ‘International Legislation Today: Limits and Possibilities’, 23 Wisconsin Int’l L J (2005), 61. 39 Vienna Convention on Diplomatic Relations: 500 U.N.T.S. 95; Vienna Convention on Consular Relations: 596 U.N.T.S. 261. 33

34

35

§ 3 International Organisations within the Constitution of the International Community

Vienna Convention on the Law of Treaties.40 UNCITRAL plays a similar role in the area of international trade.41 83 –

Ratification of decisions: One institutional procedure of treaty-making particular to International Organisations is the ratification of texts that have been adopted by an organisation’s organs in accordance with the constitutional provisions of the Member States.42 Such a procedure is part of the work of the International Labour Organisation (ILO, → para 636) obliging the ILO members to initiate the ratification procedure (Article 19 para 5 ILO). It is in cooperation of the International Labour Conference and the Governing Body that convention texts are elaborated which are based on problem analyses of the Member States’ legal systems. In order to become binding a draft convention needs to be ratified by the Member States after its text was adopted by the International Labour Conference by a two-thirds majority (on the institutional structure of ILO → paras 634 f.).43 A certain number of other International Organisations apply similar procedures (e.g. FAO, UNESCO, IMO).44 The plenary assembly of WHO for instance may elaborate conventions subsequently need to be ratified by the Member States (Article 19 f. WHO).45

Multilateral international treaties may of course also be concluded outside of International Organisations. This, however, is not widely practiced. The technical complexity of the issues dealt with as well as the necessity for a structured balance of interests call for a broad institutional backing of the process of treaty rule-making. As members of International Organisations the States remain the co-actors of the emerging global legislative. In this context, the shift from sovereign self-obligation by the States to organised rule-making with substantial participation by the States is obvious. This shift becomes evident in the case of the fourth rule-making method in which the individual States’ rule-making capacity may be reduced to a veto position in the ratification process. 85 bb) Binding Secondary Rule-Making. (1) Specialised Agencies of the UN. In some UN specialised agencies the founding treaty empowers the organisation’s organs to make rules that are binding on the organisation as well as on its members. Nonetheless, the degree to which these rules are binding may differ. Some decision must undergo a particular procedure of assent within another organ before attaining binding force. Often individual Member States have the opportunity to opt out: the provision enters into force, its rules become binding on the 84

40 Vienna Convention on the Law of Treaties: 1155 U.N.T.S. 331. See in general Anderson, ‘Law-Making Processes in the UN System – Some Impressions’, 2 Max Planck U.N.Y.B. (1998), 23. 41 Herdegen, Internationales Wirtschaftsrecht, § 4 para 23. 42 Schermers/Blokker, paras 1281 f. 43 Alvarez, 332 f.; Aston, 139 f. 44 Alvarez, 333; Aston, 144 f. 45 On this see Aston, 142.

36

II. Elements of an International Separation of Powers

Member States – with the exception of those States that have made use of their opting-out capacity. Some examples may be helpful in explaining these rulemaking mechanisms: –

International Civil Aviation Organisation – ICAO: Civil aviation provi- 86 sions that have been passed by the ICAO Council as international standards and recommended practises by a two thirds majority are vested with binding force if they are not within three months rejected by a majority of Member States (Article 90 lit. a, second sentence IACO).46 47 The binding force extends to all Member States. Individual Member States, however, may declare the adopted standards to be either completely or partially impracticable to comply with and may thus prevent the rule from attaining binding force by unilateral notification (Article 38 ICAO). This means of opting out is inapplicable only to cases of rules concerning the airspace over the high seas.48 Examples for such international standards and recommended practises that are formally binding annexes of the ICAO-Convention are rules on aircraft safety, on the investigation of accidence or airports. Within the World Meteorological organisation WMO there is a similar procedure with reduced binding force of the legal provisions passed.49

–

World Health Organisation – WHO: According to Article 21 WHO, the 87 World Health Assembly of the World Health Organisation is entitled to pass by a two thirds majority Health Regulations which have a binding effect yet are subject to the Member States’ right of opting out (Articles 21 f. and 60 WHO).50 Until the present, the WHO has but rarely used this instrument – mainly in passing the important international Health Regulations of 1969 which were thoroughly revised in 2005.51 In this case the World Health Assembly did not accept a possibility of opting out concerning individual regulations but asked States to decide either in favour of or against the Regulations.52

46 Convention on International Civil Aviation (Chicago-Konvention), 15 U.N.T.S. 295; Buergenthal, Law-Making in the ICAO, 1969; Manin, L’Organisation de l’Aviation Civile Internationale, 1970; Abeyratne, ‘Law making and decision making power of the ICAO Council. A Critical Analysis’, 41 Zeitschrift für Luft- und Weltraumrecht (1992), 387; Ducrest, ‘Legislative and quasi-legislative functions of ICAO: toward improved efficiency’, 20 Annals of Air and Space Law (1995), 343. 47 Aston, 134. Doubted by Alvarez, 223, other categorization by Schermers/Blokker, para 1264 (international treaty). 48 Aston, 136 f. 49 Aston, 147 f. 50 Aston, 142. 51 International Health Regulations (1969): 764 UNTS 3; revision: http://www.who.int/csr/ihr/W HA58-en.pdf. See Bishop, ‘Lessons from SARS: why the WHO must provide greater economic incentives for countries to comply with international health regulations’, 36 Georgetown Journal of International Law (2005), 1173. 52 Cf. Aston, 142 f.

37

§ 3 International Organisations within the Constitution of the International Community 88 –

Union Postale Universelle – UPU and International Telecommunication Union – ITU: The Congress of the World Postal Union may adopt rules that are binding on the Member States – some even by a simple majority (a quorum of State representatives is required to be present). This applies mainly to the UPU’s General Regulations53 as well as to the Universal Postal Convention containing the substantive law on postal traffic.54 The Postal Operations Council’s Executive Orders on letters and parcels are, according to Article 22 paras 3 and 5 UPU, equally binding as are the Arrangements according to Article 22 para 4 UPU. The International Telecommunication Union is vested with similar punctual powers of rule-making.55

The described possibilities of rule-making are all rather technical and limited in substance. However, if one considers health or telecommunications regulations for instance, this does not necessarily imply that the regulations’ scope is limited. All of the illustrated rule-making powers were originally contained in the respective organisations’ founding treaties and were not developed from powers to take individual measures. 90 (2) Security Council. The Security Council’s rule-making activity, on the other hand, is relatively new. Its decisions have always been binding on the Member States according to Article 25 UN. However, this Article primarily refers to decisions that are taken on the basis of Chapter VII as a reaction to a threat to the peace or a breach of the peace implying non-military or – ultima ratione – military sanctions (Articles 41 and 42 UN, → paras 430 f..) as well as constituting measures for the respective conflict.56 91 By means of Resolutions 1373 (2001) and 1540 (2004), the Security Council began to follow a new path.57 Res. 1373 (2001) concerns the fight against terrorism. States are obliged to prevent and combat the financing of terrorist activities, to seize terrorists’ bank accounts and to punish terrorism and terrorist acts. In spite of the motive (terrorist acts of 11 September 2001) and of its clear aim, the resolution has rule-making character as it prospectively aims bringing about changes in the legal systems and practice of the UN Member States. Similar effects were caused by Res. 1540 (2004) with regard to the non-proliferation of weapons of mass destruction among non-state actors. 92 The Security Council’s power to engage in such rule-making activity needs to be discussed in two respects.58 First, such activity leads to a further broadening 89

611 U.N.T.S. 7. Ibid. 55 Ibid. 56 On practice Aston, 65 f. 57 See Alvarez, 199 f.; Aston, 68 f.; Talmon, ‘The Security Council as World Legislature’, 99 AJIL (2005), 175; Rosand, ‘The Security Council As “Global Legislator”: Ultra Vires or Ultra Innovative’, 28 Fordham Int’l LJ (2004), 542; Szasz, ‘The Security Council Starts Legislating’, 96 AJIL (2002), 901. 58 Summarised by Herdegen, Völkerrecht § 20 para 3. 53

54

38

II. Elements of an International Separation of Powers

of the interpretation of Article 39 UN since latent, ever changing situations may be considered a threat to or breach of the peace, which certainly holds true for international terrorism or the proliferation of weapons of mass destruction. Second, the acceptance of this activity further broadens the interpretation of Article 41 UN. If the establishment of territorial administrative institutions or the founding of tribunals for the punishment of serious crimes in armed conflicts are already part of the non-military measures to be taken by the Security Council, it would not be convincing to exclude from these powers a prospective rule-making competence to suppress dangers to peace and security. Consequently, on the same line as the one on which abstract dangers posed by terrorist activities may be considered threats to the peace according to Article 39 UN (→ paras 423 f. and 433), Chapter VII enables the Council to take general normative countermeasures. This legal situation, nevertheless, is not devoid of problems in terms of democratic legitimation and the attribution of powers (→ para 425). cc) Non-Binding Legal Provisions. The possibility to pass non-binding provi- 93 sions, often designated as recommendations, resolutions or opinions, has always been part of the repertoire of the organs of International Organisations.59 The non-binding quality serves as a means of protection against non-desired limitations of sovereignty.60 Given the merely recommendatory character of such actions, their rule-making capacity is limited but their importance should not be underestimated:61 Resolutions which are non-binding as such may indicate the emergence of 94 customary international law if the international community as a whole or a substantial part of it participated in their creation. This applies in particular to Resolutions of the United Nations General Assembly.62 The ICJ has explicitly recognised that a line of congruent resolutions may express the opinio iuris necessary for the creation of customary international law.63 Indeed, many of the General Assembly’s basic resolutions such as the Friendly Relations Declaration64 or the Definition of Aggression65 are the basis of customary international law. However, this needs to be closely assessed in every individual case. Therefore, the creation of “instant custom”,66 of spontaneous customary international law, by a resolution of the General Assembly is a rarity.67 Other concepts con-

Cf Sands/Klein, paras 11-043 f.; Schermers/Blokker, §§ 1217 f. Klabbers, Introduction, 201. 61 Cf also Amerasinghe, 175 f., according to whom they may create “a duty to consider, […] to cooperate, […] to comply, […] to assist, providing an authorization for action, […] a basis for implementation or […] evidence for one of the formal sources of law“ (177). 62 Cf Herdegen, Völkerrecht, § 20 para 2. 63 I.C.J., Military and Paramilitary Activities in and against Nicaragua, 1986 I.C.J Rep. 14, para 188; I.C.J., Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. Rep. 226, para 70 (but also para 73). 64 GA Res. 2625 (XXV),of 24. October 1970. 65 GA Res. 3314 (XXIX), of 14 December 1974. 66 Cf the explanation by Herdegen, Völkerrecht, § 16 para 4. 67 Also sceptical: Verdross/Simma, §§ 566 and 571. 59

60

39

§ 3 International Organisations within the Constitution of the International Community

sider resolutions of the General Assembly to be authentic interpretations of the UN-Charter or attempt to deduce State obligations to abide by these resolutions from the principle of good faith.68 These opinions, however, have not found their way into public international law. Beyond the creation of customary international law, Resolutions of the General Assembly of the United Nations are not binding.69 95 Furthermore, the effect of recommendatory resolutions by International Organisations should not be understated by using the term “soft law”.70 This holds true for the simple reason that “soft” recommendations that are only politically binding (“pré-droit”) may lay the ground for future binding rules. Besides, nonbinding legal provisions or measures may sometimes equal or even surpass binding norms in terms of effect as their prima facie non-binding character is less prone to provoke criticism and resistance. The OECD’s influence on politics within its Member States by merely conducting studies may serve as impressive proof of this function (example: PISA).71 The same applies to the reports of the International Panel on Climate Change (→ para 693). Other examples may be seen in the practice of the International Maritime Organisation (IMO)72 or in the recommendations of the International Labour Organisation (ILO),73 the World Health Organisation (WHO) 74 as well as of the International Atomic Energy Association (IAEA).75 The IMF’s Guidelines on conditionality passed without express empowerment – rules on obligations with the Member States wishing to draw on the IMF’s resources – must also be mentioned in this context.76 96 dd) Techniques of Reference. By employing elaborate techniques of reference, legal acts which are initially non-binding, either in general or with respect to the relevant organisation, may gain binding character. Norms that are not part of binding public international law or which do not create an obligation of the particular organisation (e.g. because it has not signed the respective treaty or is Cf Klabbers, Introduction, 206 f. with other references. Aston, 119 f. 70 See also the critical view by Goldmann, ‘Inside Relative Normativity: From Sources to Standard Instruments of the Exercise of International Public Authority’, 9 German Law Journal (2008), 1865 at 1869. 71 von Bogdandy/Goldmann, ‘The Exercise of International Public Authority through National Policy Assessments. The OECD’s PISA Policy as a Paradigm for a New Standard Instrument’, 5 International Organisations Law Review (2008), 241; Ruffert, ‘Rechtsquellen und Rechtsschichten des Verwaltungsrechts’, in: Hoffmann-Riem/Schmidt-Aßmann/Voßkuhle (eds.), Grundlagen des Verwaltungsrechts, Vol. I, 2nd edn. 2012, § 17 para 47. On OECD see also Klabbers, Introduction, 212. 72 Aston, 155. 73 Alvarez, 227 f. 74 Schermers/Blokker, § 1220. 75 Alvarez, 231. On the activity of the IAEA see further Johnson, ‘IAEA Treaty-Making Activities in 1997’, 2 Max Planck U.N.Y.B. (1998), 51. 76 Lowenfeld, International Economic Law, 2nd edn. 2008, 645 ff.; Boisson de Chazournes, ‘Treaty Law-Making and Non-Treaty Law Making: The Evolving Stucture of the International Legal Order’, in: Wolfrum/Röben (eds.), Developments of International Law in Treaty Making, 2005, 463 at 471 f.; Alvarez, 235 f. 68

69

40

II. Elements of an International Separation of Powers

unable to ratify it for legal reasons) can be incorporated into the organisation’s law by referring to them in legal acts of the respective organisation – whether generally in an abstract manner, by execution or by dispute resolution – and may thus become binding on the organisation and its members. This applies primarily to technical rules elaborated by experts.77 The most important example as well as the source of the method of reference is the reference to the Codex Alimentarius78 in WTO law, elaborated by an expert commission of FAO and WHO. Its binding character is highly questionable, but it is binding on the WTO and its members since the relevant WTO agreement refers to it and the dispute resolution body of the WTO has relied on this referral.79 Another example for the application of techniques of reference is the incorporation of technical standards by the United Nations Convention on the Law of the Sea (UNCLOS).80 c) Public International Law or New Legal Order? The variety of rule-mak- 97 ing opportunities of International Organisations deserves a look at the legal classification of the rules in question. It is no longer acceptable to consider this law as treaty law simply because the founding States consented to the founding treaty or because they cooperated in the rule’s elaboration.81 Consequently, it is often assumed that by establishing rules the organs of International Organisations create law that is separate from public international law leading to legal orders sui generis or, alternatively, that the law made by the organs of an International Organisation should be considered as an independent legal system.82 The background for distinguishing organisation-made rules from general public international law is the European Union’s development on the basis of the jurisprudence by the ECJ that began to classify the law of the organisation E(E)C as autonomous as early as the 1960 s. However, this particular development should not lead one to separate law cre- 98 ated by International Organisations from public international law. No such necessity is established by Article 38 para 1 ICJ as long as this provision is not considered as a complete enumeration of all sources of public international law but rather as a mere rule on the law the ICJ may apply (→ para 77). The said separation would at least cause practical difficulties as it would lead to different 77 See the overview: Edeson, ‘The Role of Technical Bodies’, in: Wolfrum/Röben (eds.), Developments of International Law in Treaty Making, 2005, 63 f. 78 Website: http://www.codexalimentarius.net/web/index_en.jsp. Cf Alvarez, 222. 79 Annex A (3) SPS-Agreement; Cf Herrmann/Weiß/Ohler, para 590; Gehring/Jessen, in: Hilf/ Oeter, § 21 para 16, as well as the decision by the WTO Appelate-Body EC-Hormones, paras 102 and 165. 80 Aston, 160 ff. 81 This was the position in: P.C.I.J., Railway Traffic between Lithuania and Poland (Railway Sector Landwarów-Kaisiadorys), 1931 P.C.I.J. (ser. A/B) No. 42, at 116; cf Klabbers, Introduction, 203 f. 82 Bernhardt, ‘Qualifikation und Anwendungsbereich des internen Rechts internationaler Organisationen’, 12 BerDGVR (1973), 7 at 9 f.; Miehsler, in id., 68 f.; Schmalenbach, ‘International Organizations or Institutions, General Aspects’, MPEPIL (2006), para 55. The former position that denied the quality of law (Pallieri, ‘Le droit interne des organisations internationals’, 127 RdC (1969-II), 1) is obsolete.

41

§ 3 International Organisations within the Constitution of the International Community

forms of rule-making (→ paras 77 f.) which would need to be subsumed under different headings depending on whether the organisation is establishing rules in the form of treaties or rather passing decisions the binding nature of which may vary.83 In practice it is also not viable to distinguish between internal and external rule-making as there are often mixed forms which would create new difficulties of classification.84 Apart from that, international legal principles provide practical rules of interpretation (cf. Article 31 VCLT).85 Moreover, law that International Organisations can make in accordance with their founding treaty would remain applicable before international bodies of dispute settlement as general international law, although the applicability before the ICJ would cause difficulties due to the narrow wording of Article 38.86 99 Establishing a categorical border between the founding treaty and the law derived from it by an organisation’s institutions is also impossible in theoretical terms as the founding treaty is the source and the basis of the validity of rules made by the institutions.87 Generally, the law created by international institutions is part of public international law. The example of the EU is an exception that underlines the existence of the rule and does not constitute a reason to deviate from it.88 In the case of the EU a practice established by its organs and lasting for decades has led to a separation of the organisation’s law from general public international law.89 It is decisive for this development that as early as in the founding treaties the Member States created a strong institution for the “conservation of the law” (now Article 19 TEU) and enabled it to interpret and apply the EU law to the Union/Community and to develop it with respect to this legal order.90 As a matter of principle, such a development could be effectuated in many International Organisations which are similar to the EU because of their membership or their institutional structure and their aims. Then it would be justified to speak of a new legal order sui generis in each individual case. 100 d) Unanswered Questions of Legitimacy. The question how democratic legitimacy of binding rule-making within International Organisations may be effec83 This becomes clear when considering the relevant legal literature; cf Klabbers, Introduction, 219, who considers the opting-out-procedure according to the Chicago-Convention as part of international treaty law (→ para 86). 84 Contrary to the position of Klein/Schmahl, in: Graf Vitzthum/Proelß, para 114, the problem does not stem from the law of International Organisations not being directed towards subjects of public international law. Divergent from the view taken here also Klabbers, Introduction, 200 f. 85 Klein/Schmahl, in: Graf Vitzthum/Proelß, para 116. 86 Aston, 217 f. 87 Klein/Schmahl, in: Graf Vitzthum/Proelß, para 115; Aston, 218; Meng, Das Recht der internationalen Organisationen – eine Entwicklungsstufe des Völkerrechts, 1979, 177 ff. 88 A different view is taken by Klein/Schmahl, in: Graf Vitzthum/Proelß, para 117, who consequently consider EU Law to be part of public international law. 89 More details: Ruffert, in: Calliess/id., Art. 1 AEUV paras 16 f. Also the most recent trends – public international law constructions as “substitute EU law” (this term coined by Lorz/Sauer, ‘Ersatzunionsrecht und Grundgesetz’, Die Öffentliche Verwaltung 2012, 573) apparently does not change the general direction of EU institutional law, as made clear by the ECJ in Case C-370/12, Pringle v. Ireland, judgment of 27 November 2012, nyr., paras 153 f. 90 Cf only Wegener, in: Calliess/Ruffert, Art. 19 EUV paras 9 f.

42

II. Elements of an International Separation of Powers

tively achieved largely remains unanswered. Even on the level of European integration severe legitimacy problems are discussed under the heading “democratic deficit”. On the international level problems are even greater: legitimacy is only established by government accountability – which is, nonetheless, indispensable91 –, parliamentary bodies are virtually non-existent and the heterogeneity of the States participating in International Organisations prevents the establishment of common standards of legitimacy. What legal scholarship can offer is nearer to approaches than to real solutions. The opportunities of new governance concepts (→ paras 703 f.) have not yet been fully analysed and the limits and dangers of models of “output”-legitimacy, i.e. such concepts of legitimacy that do not aim at creating a link to the subject of democracy (i.e. the people) as in concepts of “input”-legitimacy but rather rely on decision-making structures and their welfare effect have not yet been completely elaborated and compensated for (→ para 708). 3. Dispute Settlement and Adjudication

Traditionally, peaceful settlement of international disputes is used as the col- 101 lective term for various methods of resolving international disputes. Among several other forms this term includes judicial settlement by international courts and tribunals. The main purpose of dispute settlement consists in avoiding the escalation of disputes which might otherwise endanger international peace and security. This overall purpose is aptly expressed in Art. 33 UN which contains an obligation to seek peaceful settlement and refers to disputes „the continuation of which is likely to endanger the maintenance of international peace and security.” Judicial settlement is thus but one of several means (Art. 33 UN mentions negotiation, enquiry, mediation, conciliation, arbitration and regional arrangements or agencies) for the peaceful settlement of international disputes. The judicial settlement of international disputes is by no means self-evident. 102 In fact adjudication had, and continues to have, to overcome many obstacles. While the tradition of settlement by arbitration goes back to the 19th century (with some even earlier examples),92 these arbitral tribunals, because of their adhoc character, could not provide for institutional stability. At the beginning of the 20th century attempts for establishing a permanent international judiciary failed at the Second Hague Peace Conference. The reason for this failure, was essentially the lack of consent concerning the composition of the Court and the election of the judges. It was only after the end of the First World War that these difficulties could be overcome. In September of 1921 the Statute of the Perma-

91 The role of domestic institutions in democratic global governance is made very clear by Peters, ‘Dual Democracy’, in: Klabbers/id./Ulfstein (eds.), The Constitutionalisation of International Law, 2011, 263 at 286. 92 Cf. Brower II, ‘Arbitration’, in: Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, 2012, paras 9 ff.

43

§ 3 International Organisations within the Constitution of the International Community

nent Court of International Justice (PCIJ) entered into force.93 The failure of the League of Nations, the Second World War, and finally the creation of the United Nations as a new universal organisation for the maintenance of international peace and security led to the institution of a new judicial organ, the International Court of Justice (ICJ), in 1945. However, the new Court was to be closely tied to its predecessor. The idea of continuity between the two courts is expressed in Art. 92 UN, which expressly refers to the Statute of the PCIJ as basis for the Statute of the ICJ. A further expression of continuity between the two courts may be found in Art. 37 ICJ Statute, according to which declarations under the optional clause of the PCIJ Statute automatically remained in force under the new system of the ICJ.94 103 Formally, the ICJ was granted an enhanced role among the main organs of the United Nations by being referred to as the “principle judicial organ of the United Nations” in Art. 92 UN. However, there are no actual gains in competencies, which go along with this qualification. Under the rules of its Statute, which are still decisive for determining the scope of the Court’s jurisdiction, only states may be parties to a dispute (Art. 34 ICJ Statute). This excludes contentious proceedings of a constitutional character between organs of the United Nations.95 Furthermore, the obligatory character of international adjudication remains very limited. The Court’s jurisdiction is still primarily based on the principle of consent, which – very much in the tradition of peaceful settlement of international disputes in general – requires, in principle,96 the consent of all parties to a dispute in order to establish the jurisdiction of the ICJ.97 104 These obstacles notwithstanding, the judicial settlement of international disputes has witnessed an enormous increase in the almost 70 years since the establishment of the ICJ. This increase is, first of all, related to the ICJ itself. The number of pending cases has augmented considerably in recent years. Especially noteworthy is the increased number of cases from Africa and Latin America. Of great importance concerning the subject matters of the disputes, are the inclusion of highly political issues such as the use of military force,98 the establishment of

93 Cf. generally: Spiermann,‘Historical Introduction’, in: Zimmermann/Tomuschat/OellersFrahm (eds.), Commentary on the Statute of the International Court of Justice, 2nd edn. 2012, para 23. 94 The provision was applied 16 times in the history of the ICJ. For details cf. Simma/ Richemond-Barak, ‘Art. 37’, in: Zimmermann/Tomuschat/Oellers-Frahm (eds.), Commentary on the Statute of the International Court of Justice, 2nd edn. 2012, paras 7 ff. 95 → Para. 325. 96 For dispute settlement organs in International Organizations, cf. below § 9 paras 324 ff. 97 In more detail, cf.: Walter ‘Rechtsschutz durch den Internationalen Gerichtshof’, in: Ehlers/ Schoch (eds.), Rechtsschutz im Öffentlichen Recht, 2009, paras 31 ff. 98 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Rep. 1986, para 188; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ Rep. 2005.

44

II. Elements of an International Separation of Powers

the crime of genocide99 or the immunity of ministers100 and states in the context of war crimes.101 Also, the settlement of border disputes has become a major field of activity in recent years.102 A second major characteristic of the development since 1945 is the creation 105 of several specialized judicial or quasi-judicial bodies for the settlement of disputes in specific subject areas. Among those institutions are the International Tribunal for the Law of the Sea (ITLOS), the Panels and the Appellate Body under the WTO Dispute Settlement Understanding (DSU),103 the various human rights monitoring bodies,104 the international criminal courts (including the adhoc tribunals established by the Security Council for dealing with war crimes in the former Yugoslavia (ICTY) and in Ruanda (ICTR), and the International Criminal Court under the Rome Statute (ICC).Finally, the increasing importance of arbitration in international investment disputes also deserves mentioning.105 The development of these specialised jurisdictions is sometimes viewed as a 106 challenge for the unity of international law, and also for its consistent interpretation and, possibly, development by the judiciary. Jurisdictional conflicts have been discussed concerning the WTO mechanism and ITLOS concerning fisheries and the preservation of endangered species106 and between an arbitral tribunal established under the Convention on the Law of the Sea and the European Court of Justice.107 The ICTY and the ICJ (seemingly) disagreed on issues of attribution.108 Whether or not the “sectoralisation” of international law which is expressed in this development will lead to its “fragmentation“ has been a matter

99 ICJ, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007, para 297. 100 ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ Rep. 2002. 101 ICJ, Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), ICJ Rep. 2012. 102 Merrills, International Dispute Settlement, 5th edn. 2011, 148 ff. 103 → paras 509 ff. 104 For details → para 654. 105 Dolzer/Schreuer, Principles of International Investment Law, 2nd edn. 2012, 238 ff. 106 Neumann, ‘Die materielle und prozessuale Koordination völkerrechtlicher Ordnungen’, 61 ZaöRV (2001), 529. 107 ECJ C-459/03 Commission v. Ireland 2006 ECR I-4636, para 121; Kwiatkowska, ‘The Ireland v. United Kingdom (Mox Plant) Case: Applying the Doctrine of Treaty Parallelism’, 18 Int’l J. of Mar. and Coastal L. (2003), 1; Lavranos, ‘Regulating Competing Jurisdictions Among International Courts and Tribunals’, 68 ZaöRV (2008), 575; Wegener, ‘Familienstreitigkeiten nicht nach außen tragen?! Irlands Klage gegen die MOX-Anlage in Sellafield im Kompetenzstreit zwischen EuGH und Internationalem Seegerichtshof’, ZUR 2006, 582. 108 For the so-called effective control test: ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Rep. 1986, para 115; by contrast an overall control test is favoured by the ICTY: International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Prosecutor v Dusko Tadić, 15 July 1999, para 112 ff. (esp. para 145). http://www.icty.org/x/cases/tadic/acjug/en/tad-aj990715 e.pdf; cf. Cassese, ‘The Nicaragua and Tadic Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’, 18 EJIL (2007), 649.

45

§ 3 International Organisations within the Constitution of the International Community

of some debate and is still an unanswered question.109 While there are clear indications that the establishment of sectorally limited, strong and self-confident institutions favours fragmentation, international law has developed beyond a point where one single judicial institution, such as the ICJ, could be capable of dealing with the number of issues and, even more importantly, the number of cases. 107 An overall assessment must lead to the conclusion that the area of international adjudication is largely heterogeneous. Not all existing bodies may be qualified as “judicial” in the proper sense of the term. The WTO-mechanism is a hybrid construction including elements of arbitration and judicial settlement,110 many of the human rights treaty bodies are not qualified as courts, but their members enjoy independence similar to that of judges and their “opinions” come close to decisions or judgments by courts. Another element of diversity must be seen in the highly specialised character of some mechanisms, for instance the arbitral tribunals in international investment protection. Finally, the procedures applied and the subjects treated by the different bodies are highly diverse, ranging from classical inter-state disputes, over the protection of individual rights in international human rights litigation and investment protection, to individual criminal responsibility in international criminal courts. If one were to nevertheless pinpoint certain characteristics common to all of these diverse bodies, which could justify speaking of an “international judiciary“, the following could be mentioned: complete independence of all members of bodies with judicial or quasijudicial functions,111 decision-making in a formalised procedure112 and precisely according to rules of law.113 109 For details cf. ‘Fragmentation of International Law: Difficulties arising from the diversification and expansion of International Law’, Report of the Study Group of the International Law Commission, finalised by Koskenniemi, UN Doc. A/CN.4/L.682 13 April 2006, as well as the corresponding ‘Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law’, UN Doc. A/61/10, para 251, which was adopted by the UN General Assembly; see also Sauer, Jurisdiktionskonflikte in Mehrebenensystemen, 2007; Lavranos (n 16). 110 → Para 332. 111 Art. 2 ICJ Statute; Art. 2 para 1 Statute of the International Tribunal for the Law of the Sea; Art. 40 Rome Statute of the International Criminal Court; Art. 13 Statute of the ICTY; Art. 12 Statute of the ICTR; Art. 21 para 3 European Convention on Human Rights and Fundamental Freedoms; Art. 31 para 1 African Charter on Human and Peoples' Rights; Art. 8 para 2 WTO Dispute Settlement Understanding. 112 ICJ Rules of Court (1978); Arts. 24-34 Statute of the International Tribunal for the Law of the Sea; Rules of Procedure and Evidence for the International Criminal Court; Rules of Procedure and Evidence for the International Criminal Tribunal for the Former Yugoslavia; Rules of Procedure and Evidence for the International Criminal Court for Ruanda. 113 According to Art. 38 para 2 ICJ Statute the Court may decide a case ex aequo et bono if the parties so agree. Until now there have been no decisions exclusively based on this provision. While the ICJ decided several disputes concerning the delimitation of maritime zones “in accordance with equitable principles”, it stressed in all these judgments that they were not decisions ex aequo et bono, but remained within the legal framework of international law. Cf. ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), ICJ Rep. 1969 para 88; cf. also Pellet, ‘Art. 38’, in: Zimmermann/Tomuschat/OellersFrahm (eds.), Commentary on the Statute of the International Court of Justice, 2nd edn. 2012, para 153.

46

III. Effects of the Law of International Organisations at the Domestic Level

III. Effects of the Law of International Organisations at the Domestic Level 1. The Issue

The diverse nature of International Organisations’ activity in rule-making and 108 administration is able to cause legal effects at the domestic level. Nonetheless, such effects cannot be accurately described and explained by simply referring to a “classic” concept particularly since the “classic” concepts of monism and dualism could not yet be adopted to the situation of public international law in the 21st century following Fitzmaurice’s 50 years old criticism (“strictly beside the point”)114 which remains valid today. The actual effects in individual cases depend on two decisive factors: the constitutional situation in the relevant State and the design of the organisation’s founding treaty as well as the mode of rulemaking. 2. Constitutional Law (particularly in Germany)

The constitutional situation within the individual States is manifold. Pre- 109 cise rules refer to public international law in general or the traditional sources: treaty, custom and general legal principles.115 The rule-making by International Organisations must be compared with these constitutional rules. The German constitutional system is particularly friendly towards public in- 110 ternational law (“Völkerrechtsfreundlichkeit”) based on the openness of the Grundgesetz towards international law.116 For customary international law and general principles of law this becomes visible in the monist model of incorporation that is enshrined in Article 25 Grundgesetz117 which in its second sentence even provides for the dominance of public international law before simple statutory law and which is accompanied by the procedural provision of Article 100 para 2 Grundgesetz.118 For the law of International Organisations, though, it is Articles 24 paras 1 and 2 GG as well as Article 59 Grundgesetz that are of

114 Fitzmaurice, ‘The General Principles of International Law Considered From the Standpoint of the Rule of Law’, 92 RdC (1957-II), 1 ff. at 70. 115 Kunig, in: Graf Vitzthum/Proelß, paras 46 ff. 116 See the crucial book by Vogel, Die Verfassungsentscheidung des Grundgesetzes für eine internationale Zusammenarbeit, 1964. Comprehensively Hobe, Der offene Verfassungsstaat zwischen Souveränität und Interdependenz, 1998. 117 “The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.” – The translation of this and the following articles was accomplished by Christian Tomuschat, David P. Currie and Donald P. Kommers for the Deutscher Bundestag (https://www.btg-b estellservice.de/pdf/80201000.pdf). 118 “If, in the course of litigation, doubt exists whether a rule of international law is an integral part of federal law and whether it directly creates rights and duties for the individual (Art. 25), the court shall obtain a decision from the Federal Constitutional Court.”.

47

§ 3 International Organisations within the Constitution of the International Community

prime importance.119 The transfer of sovereign powers to International Organisations according to Article 24 para 1 Grundgesetz enables these institutions to exercise rule-making activity with direct legal effect on Germany. After Germany’s participation in the EU was given its own legal basis in Article 23 Grundgesetz in the course of the 1994 constitutional reform, the provision of Article 24 para 1 Grundgesetz is today only of punctual importance (Eurocontrol, European Atomic Energy Agency, Moselle Commission, Central Commission for the Navigation of the Rhine, European Patent Organisation, International Criminal Court and – which is disputed – NATO).120 Article 24 para 2 Grundgesetz opens the constitution to a comparable transfer of sovereign rights to systems of collective security. It may be doubted whether NATO constitutes such a system besides the UN but it is to be welcomed that an opinion is more and more advancing according to which NATO is vested with the quality of such a system of collective military security, that its former character as a defence alliance is replaced by this new idea and that, consequently, Article 24 para 2 Grundgesetz may also be applied to NATO.121 111 Article 59 Grundgesetz provides for the possibility for Germany to conclude international treaties. While until recently the theoretical evaluation of the effect international treaty law has on Germany remained relatively open, the Bundesverfassungsgericht in its Görgülü-decision opted for a dualist concept and ruled that obligations from international treaties are generally subject to transformation into domestic law by a corresponding statute under Article 59 para 2 Grundgesetz.122 According to this approach, legal acts of International Organisations cmay only on the basis of the German transformation statute develop legal effects within Germany.123 This approach is theoretically deficient as it is not able to tackle the interrelationship between the individual levels of the law with their complex relationships of hierarchy (either in validity or application), and in

119 Art. 24 “(1) The Federation may by a law transfer sovereign powers to international organisations. … (2) With a view to maintaining peace, the Federation may enter into a system of mutual collective security; in doing so it shall consent to such limitations upon its sovereign powers as will bring about and secure a lasting peace in Europe and among the nations of the world.” Art. 59 “(2) Treaties that regulate the political relations of the Federation or relate to subjects of federal legislation shall require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment of federal law. In the case of executive agreements the provisions concerning the federal administration shall apply mutatis mutandis.”. 120 See Streinz, in: Sachs (ed.), Grundgesetz, 6th edn. 2011, Art. 24 para 30; on NATO Germany: BVerfGE 68, 1, 80 f. and 93 ff..; Germany: BVerfGE 77, 170, 232; Germany: BVerfGE 90, 286, 350. 121 See only Pernice, in: Dreier (ed.), Grundgesetz, Vol 2, 2nd edn. 2006, Art. 24 paras 55-57 with references, as well as → para 493. 122 Germany: BVerfGE 111, 307, 318. 123 Cf. in detail Frenzel, Sekundärrechtsetzungsakte internationaler Organisationen, 2011, at 264 f.

48

III. Effects of the Law of International Organisations at the Domestic Level

practice it may well lead to Germany breaching obligations from international law.124 3. The Structure of Rule-Making and Administration of the Respective International Organisations

The individual legal acts of International Organisations are confronted with 112 this constitutional situation – in the individual States in general and in Germany in particular. As far as rule-making follows one of the forms of international treaties (→ paras 79 f.) the rules within the relevant constitutional law apply to the domestic effects of such treaties. In Germany, according to Article 59 para 2 Grundgesetz, it is decisive whether political relationships are at stake or whether the federal legislator has to take the responsibility for domestic transformation of the relevant treaty or not (in the latter case the treaty may be transposed as an administrative agreement according to Article 59 para 2, second sentence Grundgesetz without any participation of the legislator).125 In the cases of rulemaking by an organisation’s institutions it is crucial in how far the States have transferred rule-making capacity to the respective International Organisation: with or without binding force and with or without direct effect on interstate legal relationships (supranationality). With respect to its creation and reach, the law of International Organisations that stems from an institution follows the respective founding treaty. The same applies to executive activity of International Organisations. The example of “smart sanctions” by the UN Security Council shows that 113 the distribution of powers is also important in assessing supranational structures (→ para439).126 Various resolutions of the Security Council obligate the UN Member States to “freeze” bank accounts of individuals and companies that are listed in annexes to the respective resolutions. The list is continuously re-arranged by decisions of the relevant Sanctions Committee of the Security Council. According to Articles 75 and 215 TFEU, the Council (under Article 75 TFEU, together with Parliament) is competent for the sanctions’ implementation within the European Union – a task which it performs by issuing special regulations. These regulations have direct effect within the EU (cf. Article 288 para 2 TFEU) leaving no need for implementing statutes by the Member States. Difficulties arise primarily concerning judicial review since an individual’s standing

124 On the deficit in theory Ruffert,‘Perspektiven des Internationalen Verwaltungsrechts’, in: Möllers/Voßkuhle/Walter (eds.), Internationales Verwaltungsrecht, 2007, 395 ff. at 413; on the risk of a breach of international law id., ‘Die Europäische Menschenrechtskonvention und innerstaatliches Recht’, EGRZ 2007, 245 at 252 with references. The conflict has been avoided in later instances by a differentiated jurisprudence of the Bundesverfassungsgericht: BVerfGE 120, 180 (Caroline von Hanover); 128, 326 (Preventive detention). 125 Cf on these criteria Jarass, in: id./Pieroth, Grundgesetz, 12th edn. 2012, Art. 59 paras 12-14. 126 An older example would be the relationship between the WTO and EC/EU in the jurisprudence of the ICJ; cf only Hahn, in: Calliess/Ruffert (eds.), EUV/AEUV-Kommentar, 4th edn. 2011, Art. 207 paras 160 ff.

49

§ 3 International Organisations within the Constitution of the International Community

to bring an action against him or her wrongfully being listed in the resolution’s annex –practically impeding the economic potential of the individual or company concerned (→ para 439) – is still at an early stage.127 While the CFE merely pleaded for a limited control of such regulations by the standard of ius cogens, the ECJ reviews the respective regulations by applying the EU fundamental rights.128 114 The importance of correctly interpreting the powers of International Organisations and their institutions granted by the founding treaty is beyond question. This importance has become evident in the German controversy about the “Waldschlößchenbrücke” in Dresden, a bridge spanning the river Elbe to establish a road link considered to be important. Following a local referendum, the construction of a bridge across the Elbe was decided leading the World Heritage Committee, a UNESCO sub-organ, to list the Elbe valley near Dresden among items of cultural heritage in danger on the basis of the World Heritage Convention (cf. Article 11 para 4 World Heritage Convention) which meant the revocation of the world heritage status in case of the plans being carried out.129 The competent administrative court of appeal based its decision on the lack of transformation of the World Heritage Convention and thus decided in favour of construction without examining the effects of the decision by the World Heritage

127 Feinäugle, Hoheitsgewalt im Völkerrecht, 2011, 141 f., id., ‘The UN Security Council AlQuaida and Taliban Sanctions Committee: Emerging Principles of International Institutional Law for the Protection of Individuals? ’, 9 German Law Journal (2008), 1513; id., ‘Die Terrorlisten des Sicherheitsrates – Endlich Rechtsschutz des Einzelnen gegen die Vereinten Nationen’, ZRP 2007, 75; Faßbender, Targeted Sanctions and Due Process, 2006, available at: www.un.org/law/counsel/ Fassbender_study.pdf; Frowein, ‘The UN Anti-Terrorism Administration and the Rule of Law’, Festschrift Tomuschat, 2006, 785; Schmidt-Aßmann/Rademacher, ‘Rechtsschutzgarantien des internationalen Rechts’, 61 Jahrbuch des Öffentlichen Rechts der Gegenwart, neue Folge (2013), 61; Von Arnauld, ‘Der Weg zu einem „Solange 1 ½“’ Europarecht 2013, 236. Earlier views: Albin, ‘Rechtsschutzlücken bei der Terrorbekämpfung im Völkerrecht’, Zeitschrift für Rechtspolitik 2004, 71; Schmalenbach, ‘Normentheorie vs. Terrorismus. Der Vorrang des UN-Rechts vor EU-Recht’, JZ 2006, 349; Hörmann, ‘Völkerrecht bricht Rechtsgemeinschaft? Zu den rechtlichen Folgen einer Umsetzung von Resolutionen des UN-Sicherheitsrates durch die EG’, 44 AVR (2006), 267. 128 EU: Ct. First Instance, Case T-306/01 Yusuf (2005) ECR II-3533, paras 260 f..; Case T-253/03 Ayadi (2006) ECR, II-2139, paras 116 at 118 f.; followed by ECJ, Joint Cases C-402/05 and C-415/05 Kadi and Al Barakaat (2008) ECR, I-6531, and ECJ, Joint Cases C-584, 593 and 595/10 P, Kadi v. Commission and UK, judgment of 18 July 2013, nyr; cf Heun-Rehn, Kadi and Al Barakaat, ‘Der EuGH, die Gemeinschaft und das Völkerrecht’, ELR 2008, 322 at 327; Sauer, ‘Rechtsschutz gegen völkerrechtsdeterminiertes Gemeinschaftsrecht? Die Terroristenlisten vor dem EuGH’, NJW 2008, 3685; Ohler, ‘Gemeinschaftsrechtlicher Rechtsschutz gegen personengerichtete Sanktionen des UN-Sicherheitsrats’, Europäische Zeitschrift für Wirtschaftsrecht 2008, 630. 129 Convention Concerning the Protection of the World Cultural and Natural Heritage, 1037 U.N.T.S. 151; cf. Zacharias, ‘The UNESCO Regime for the Protection of World Heritage as Prototype of an Autonomy-Gaining International Institution’, 9 German Law Journal (2008), 1833. On the problems of ratification and transformation Hönes, ‘Zur Transformation des Übereinkommens zum Schutz des Kultur- und Naturerbes der Welt von 1972’, Die öffentliche Verwaltung 2008, 54; Wolf, ‘Weltkulturvölkerrecht und nationalstaatliche Umsetzung’, Natur und Recht 2008, 311.

50

III. Effects of the Law of International Organisations at the Domestic Level

Committee.130 The Bundesverfassungsgericht followed this simple reference to the “classic” transformation theory without considering that the Federal Republic of Germany would be in breach of Articles 4 and 5 para 4 World Heritage Convention if the bridge was built.131 This has now been done; the bridge was opened on 26 August 2013.

130 Sächsisches Oberverwaltungsgericht (Administrative Court of Appeal of Saxonia) Landesund Kommunalverwaltung 2007, 520 at 521 f. 131 BVerfG, Landes- und Kommunalverwaltung 2007, 509 at 510 f. In the same sense Fastenrath, ‘Zur Eilentscheidung des OVG Bautzen – 4 BS 216/06 – und zum Beschluss der 1. Kammer des 2. Senats des Bundesverfassungsgerichts – 2 BvR 695/07’, 5 Europäisches Umwelt- und Planungsrecht (2007), 142 at 147; id., ‘Der Schutz des Weltkulturerbes in Deutschland’, Die öffentliche Verwaltung 2006, 1017 at 1021 ff.; v. Bogdandy/Zacharias, ‘Zum Status der Welterbekonvention im deutschen Rechtsraum’, Neue Zeitschrift für Verwaltungsrecht 2007, 527 at 530.

51

§4 Treaty Basis, Creation, Extinction, and Succession Literature: Alvarez, ‘Constitutional interpretation in international organizations’, in: Coicaud/Heiskanen (eds.), The Legitimacy of International Organisations, 2001, 104; Chayes/Handler Chayes, The New Sovereignty, 1995; Chiu, ‘Succession in International Organisations’, (1965) 14 ICLQ, 83 ff.; Monaco, ‘Le caractère constitutionnel des actes institutifs d’organisations internationales’, in: Bastid et al. (eds.), Mélanges offerts à Charles Rousseau, 1974, pp. 153 ff.; Mosler, ‘Die Aufnahme in Internationale Organisationen‘, ZaöRV 19 (1958), 275 ff.; Myers, Succession between International Organisations, 1993; Ranjeva, La succession d’organisations internationales en Afrique, 1978; Peters, ‘Das Gründungsdokument internationaler Organisationen als Verfassungsvertrag’ (2013) 68 Zeitschrift für Öffentliches Recht 1; Sato, Evolving Constitutions of International Organisations, 1996; Simon, L’interprétation judiciaire des traités d’organisations internationales, 1998.

I. Founding Treaty 1. Participants

Usually, International Organisations are founded by at least two legal per- 115 sons of international law concluding an international treaty. All persons under international law are able to create International Organisations. In the vast majority of the cases an International Organisation’s founding is 116 effectuated by States. The ability of States to participate in institutionalised international relations is an essential expression of their sovereignty.1 Public international law does not limit the subject matter States may regulate (which might be different under national constitutional law). The ability to participate – as well as international legal personality – does not depend upon the respective State’s size. The debate on the status of “microstates” that are even smaller than the smallest EU members Malta, Luxembourg, or Cyprus (e.g. Andorra, Monaco, Liechtenstein, San Marino, Seychelles, St. Vincent and the Grenadines, and Tuvalu)2 has been as much as over since the Iraqi occupation of Kuwait 1990/1991 due to these microstates’ evident need for protection.3 This category of States is extensively discussed within the context of accession to an International Organisation, while playing a rather subsidiary role in the framework of an International Organisation’s founding; this goes even more for non-independent territories which are only seldom full members of International Organisations (→ para 242).

Seminal work: Chayes/Handler Chayes, The New Sovereignty, 1995. On micro-States cf. Schweisfurth, 1. Kap. paras 47 ff. 3 Cf. Schermers/Blokker, §§ 72-74.

1

2

55

§ 4 Treaty Basis, Creation, Extinction, and Succession

International Organisations may themselves participate in the founding of other International Organisations if their founding treaty allows for participation or membership and if the newly founded organisation accepts founding membership of other International Organisations. The best known example is the EC’s membership in the WTO which is founded on the EU’s power in Article 207 TFEU (formerly Article 113/133 ECT) and secured in Article XI WTO.4 Beyond that, the membership of International Organisations in other organisations is a rather common method of institutional cooperation.5 118 Public international law does not require homogeneity of the founding members, e.g. regarding their political nature, their economic orientation or other substantive criteria, unless the founding treaty does not provide rules to the contrary. On the political level, however, while not being a necessary precondition, parallels concerning the members’ basic orientation may indeed facilitate cooperation within the International Organisation. The pre-legal condition for institutional cooperation is at least a parallelism of interests in the respective field; if this is lacking the organisation is prone to fail politically rather than legally.6 117

2. Conclusion and Entry into Force 119

International Organisations are usually founded by an international treaty. This treaty lays down the founding modalities as well as the organisation’s basis are laid down. As a matter of principle, the rules of public international treaty law apply. Article 5 VCLT is explicit in this respect; however, this provision also underlines the particularities of an International Organisation’s founding treaty. As a constitution of the International Organisation (→ paras 61 ff.),7 the founding treaty claims superiority over the general rules of public international treaty law, Article 5 VCLT in fine.8 In the eyes of the so-called doctrine of the comprehensive act (Gesamtaktslehre), the sum of the founding States’ contributions constitutes a new entity that is not dependent on these individual contributions.9 This argumentation is primarily applied in the context of supranational organisations.10 Yet it fails to give reason for the international founding treaty’s abstraction from the single contributions. As always in public international law, the founding act’s actual designation is irrelevant (Article 2 lit. a VCLT).11 4 On that power cf. EuGH, Gutachten 1/94, Slg. 1994, I-5267 (WTO), more in detail Hahn in Calliess/Ruffert, Art. 133 EGV paras 20 ff. 5 Illustratively Schermers/Blokker, §§ 81 ff. 6 Schermers/Blokker, § 1617; Klein/Schmahl in Graf Vitzthum/Proelß, para 33. 7 Cf. Monaco, ‘Le caractère constitutionnel des actes institutifs d’organisations internationales’, in: Bastid et al. (eds.), Mélanges offerts à Charles Rousseau, 1974, 153. 8 Cf. Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies, 1968, 8. 9 Mosler, ‘Die Aufnahme in internationale Organisationen’, (1958) 19 ZaöRV, 305; Critically Köck, Der Gesamtakt in der deutschen Integrationslehre, 1978, 50 ff. 10 Seminal: Ipsen, para 1/21 ff.; cf. also Streinz, para 125. 11 Klein/Schmahl in Graf Vitzthum/Proelß, para 34.

56

I. Founding Treaty

The founding treaty primarily fixes rules on signature, ratification and entry 120 into force. The same applies for provisions on treaty modifications (→ paras 123 ff.).12 The depositary State of the ratification document is not necessarily the organisation’s host State; historical facts are decisive here, leading to the traditional depositary for amendments to the European Treaties being the Italian government (Article 54 TEU).13 The conditions for the entry into force depend upon the level of organisation. The more intense the integration, the greater the requirements of entry into force. It is common in supranational organisations that all contracting partners need to consent before the treaty may enter into force. This is due to the far reaching effect the organisation’s law has on the Member States’ legal systems. While this helps protect the Member States’ sovereignty, it can make the founding process cumbersome or even impossible on the universal level. The United Nations’ creation initially required only ratification by the permanent members of the Security Council and by a (simple) majority of the remaining members (Article 110 para 3);14 amending the treaty, on the other hand, is more difficult (→ para 125). Some treaties include substantive conditions in addition to the required number of ratifying members, e.g. a certain amount of funding.15 Before the treaty is signed (and before the subsequent ratification), it is nego- 121 tiated by the parties. After it has been signed, the organisation needs to be established and its organs need to take up their work. Some organisations are conceived on a level of complexity that necessitates a preparatory commission from the negotiating process until the commencement of activity. Thus, the International Criminal Court (→ paras 577 ff.) could only come into life after extensive preparatory work done by its preparatory commission (“PrepCom“). The interim commission for the World Trade Organisation which was to be erected in 1948 (→ para 642) even remained the GATT’s organisational basis until the World Trade Organisation was established in 1994. An organisation may also be established on a preliminary basis (as was done in the case of the OEEC, the OECD’s predecessor, → para 658).16 It is further possible to create an interim organisation (like the provisional International Civil Aviation Organization PI-

12 On deadlines cf. Yee, ‘The time limit for the ratification of proposed amendments to the constitutions of international organizations’, (2000) 4 MaxPlanck UNYB, 185. 13 Also for VerfEU: Article IV-447 para 1 2nd sentence. Cf. also Article 110 SVN: USA; Article 42 lit. a Council of Europe: United Kingdom. 14 The Statute of the Council of Europe even entered into force after seven ratifications: Art. 42 lit. b. 15 Art. 13 Section 3 IFAD (International Fund for Agricultural Development) – Art. 74 IMO The present Convention shall enter into force on the date when 21 States, of which seven shall each have a total tonnage of not less than 1.000.000 gross tons of shipping, have become parties on the Convention in accordance with Art. 71. 16 Cf. Article 24 lit b OEEC (1948): “Nevertheless, pending the coming into force of the Convention in the manner provided by the preceding paragraph, the Signatories agree, in order to avoid delay in its execution, to put it into operation on signature on a provisional basis and in accordance with their several constitutional requirements.”.

57

§ 4 Treaty Basis, Creation, Extinction, and Succession

CAO; regarding ICAO, → para 86).17 Another possibility to handle the founding situation is to make the treaty enter into force immediately but to postpone the legal effect of individual provisions. This rather concerns the substantive law of an International Organisation than the institutional provisions themselves. This way the Treaty of Rome of 1958 was partially postponed under Article 8 EECT. Current cases of accession to the EU are also handled in a similar manner. 122 There are some particularities regarding international treaty law considering the possibility to enter reservations when concluding the founding treaty.18 In the long run, such reservations may distinctively affect cooperation within the International Organisation in a negative way.19 Therefore, the substantive and procedural conditions for making reservations under the VCLT are particularly important regarding founding treaties of International Organisations. According to Article 19 para 2 VCLT, the reservation must be compatible with the treaty’s purpose and aim and under Article 20 para 3 VCLT the consent of the International Organisation’s competent organ is required. The power to evaluate the validity of reservations is sometimes claimed by treaty organs whose competence to do so is contested. This is particularly true for human rights treaties and human rights organisations. While the Human Rights Committee’s power to examine the validity of treaty reservations remains questionable under the ICCPR,20 the ECHR (→ paras 549 ff.) successfully asserted its power to do so (cf. Article 57 ECHR).21 An evasive strategy to prevent reservations from being made is making interpretive declarations when founding an International Organisation. Such declarations may be made by the entire founding conference or by individual States. In the latter case this may occur with express knowledge or even assent by the conference or by the organs that are already existent.22 3. Modifications and Amendments 123

When amending the founding treaty, the basic tensions between State sovereignty on one hand and the founding treaty’s constitutional character as well as the need to adopt the treaty to new situations on the other hand become particularly visible.23 Sometimes, the need for modification is so apparent from the beginning that the founding treaty provides for an express duty of revision after a certain time (cf. e.g. Article 109 para 3 UN). The more amendments move away from the Member States’ assumed or express will, the more pressing

Examples from Schermers/Blokker, § 1621. Examples from Schermers/Blokker, § 1152. 19 Cf. Klabbers, Introduction, 84 ff. 20 Human Rights Committee, General Comment No. 24 on Reservations to the International Covenant on Civil and Political Rights, HRLJ 15 (1994), 464; on criticism Klabbers, Introduction, S. 86. 21 ECHR, 20.4.1988, Ser. A, vol. 132, nos 41 ff. (Belilos/Schweiz). 22 Cf. e.g. the declarations of different States on the Treaty of Lisbon reforming the EU, O.J. 2007 No. C 306, 1 at 249. 23 Klabbers, Introduction, 79 ff. 17

18

58

I. Founding Treaty

becomes the issue of considering the interests of those members which find it difficult to accept the change. First of all, the complexity of the interests involved must be overcome in a 124 procedural way, i.e. the members must achieve a comprehensive settlement of interests within the amendment procedure. Usually, all of an International Organisation’s members as well as all of its organs become active during the amendment.24 The degree to which these actors become active during the amendment procedure depends on various factors such as the organisation’s density of integration as well as the number of its members. Organisations with far reaching (political) powers usually include their mem- 125 bers in the amendment procedure. The slowness of the amendment procedure in large universal organisations can only be handled by balanced rules of qualified majority voting.25 This is particularly obvious in the case of the United Nations. According to Article 108 UN an amendment enters into force if it is accepted by two thirds of the General Assembly’s members and is subsequently ratified by two thirds of the organisation’s members including the permanent members of the Security Council.26 A greater degree of integration and a lower number of members usually demands unanimity. This is primarily true for the supranational EU. Amendments need to be ratified by all members (Article 48 TEU).27 Amendments to the Statute of the Council of Europe require unanimity (Article 20 lit. a subsection v) or the majority of two thirds of the representatives in the Committee of Ministers (Article 20 lit. d) depending on the provision in question. In this context, some founding treaties distinguish between essential amendments creating new duties and such amendments that are merely technical. The latter type of amendments, like an amendment of the technical annex to an environmental organisation’s founding treaty (e.g. listing noxious substances), may be brought about in a simplified procedure.28 Finally, there are organisations which have completely transferred their amending powers to their institutions – even if exclusively to the general member organ (→ paras 295 ff.).29 In such cases, exceptions are only possible concerning particularly important amendments. As a special procedure for achieving a comprehensive balance of interests be- 126 fore a treaty reform, an organisation may institute a review conference of all its members. Article 109 UN provides for such a conference to be held prior to amending the Charter. In the case of the UN, the conference – deciding by a maKlein/Schmahl in Graf Vitzthum/Proelß, para 43. Faßbender, ‘The United Nations Charter as constitution of the international community’, 36 Colum.J.Transnat’l Law (1998), 529 at 578 f.; Klein/Schmahl in Graf Vitzthum/Proelß, para. 44; Klabbers, Introduction, 80. 26 Cf. Kunig, ‘Verfassungsänderung in der Staatengemeinschaft? – Rechtsfragen einer Reform der Satzung der Vereinten Nationen’, 1997 Jura, 337. 27 More in detail Cremer in Calliess/Ruffert, Article 48 EUV para 2 f. 28 Example from Klabbers, Introduction, 91 f. 29 Examples: Art. XXVIII lit. a IMF; Art. 41 lit. d Satzung Europarat; Art. 3 para 5, 4 para 5, 5 para 7 of the initial EFTA-Convention. More in detail Schermers/Blokker, §§ 1178 f. 24

25

59

§ 4 Treaty Basis, Creation, Extinction, and Succession

jority of two thirds of its members – is exclusively competent for making revisions. As was mentioned above, such a conference is also convened when revising the TEU and TFEU (→ para 125). This form of treaty revision was developed into a convention procedure for the EU. The basic idea of this procedure is that all participants’ interests should be comprehensively deliberated on in the sense of a constitution-giving process before the treaty is revised.30 The convention was established by the declaration of Laeken following the Treaty of Nice (post-Nice process).31 The European Convention (also called Convention on the Future of Europe or Constitutional Convention) comprised representatives of the European institutions and of the Member States’ governments and parliaments (including a representative of the German Bundesrat) as well as of the candidates for accession. This so called convention method is also included in Article 48 para 3 TEU under the Lisbon Treaty.32 Nevertheless, a “traditional” government conference followed and will follow the convention procedure (cf. Article 48 para 4 TEU). 127 If the procedure is organised in the way that a modification may enter into force without consent by all members, the question of the position of those members that have not consented is pertinent. What is important here is the necessity to find a viable balance between sovereignty on the one hand and the effectiveness, the constitutional character and the flexibility of the International Organisation and of its founding treaty on the other hand. Several models exist in the reality of International Organisations:33 128 –

Some organisations provide for the opportunity for Member States that do not agree with a modification to leave the organisation. An interpretive declaration shows that this applies for the United Nations.34 Such an option increases the political pressure on the States participating in the modification to not cause the exit of important members or even an “exit wave” by exaggerating the proposed changes.

30 More on this method and its background Lenaerts/Desomer, ‘New Models of ConstitutionMaking in Europe: The Quest for Legitimacy’, 39 CMLRev. (2002), 1217; Wessels, ‘Der Konvent: Modelle für eine innovative Integrationsmethode’, 2002 Integration, 83; Göler, Die neue europäische Verfassungsdebatte, 2002, 70 ff.; Klinger, Der Konvent, 2007. 31 In general Oppermann, ‘Vom Nizza-Vertrag 2001 zum Europäischen Verfassungskonvent 2002/2003’, DVBl. 2003, 1; Ruffert, ‘Schlüsselfragen der Europäischen Verfassung der Zukunft: Grundrechte Institutionen Kompetenzen Ratifizierung’, EuR 2004, 165 at 193 ff. with further references. 32 Consolidated version: O.J. 2012 No. C 326, 1. 33 Klabbers, Introduction, 81, rightly notes that the problem was nowhere dealt with “overly elegant“. 34 UNCIO Doc. 1086 (1945), Commission I, General Provisions, Committee 2, 267. Klabbers, Introduction, 89, fn. 35, only sees an indication in the travaux préparatoires.

60

I. Founding Treaty

–

Sometimes, instead of revising the existing treaty, a new treaty is concluded 129 which does not comprise all previous members. This method obviously risks leading to a lack of transparency.35

–

This procedure is similar to concluding additional treaties of limited scope. 130 The most prominent example is the system of plurilateral treaties within the framework of the old GATT (→ para 645): GATT members were also contracting partners of various additional treaties concluded within the GATT framework. Overcoming this non-transparent system by founding the WTO in 1994 (→ para 645) 36 was one of its greatest achievements in terms of organisation, because according to Article II para 2 WTO, the particular traderelated treaties are now binding on all WTO members as “multilateral trade agreements”. Nonetheless, two plurilateral trade agreements remain, the agreement on public procurement (GPA)37 and the agreement on trade with civil aircraft38 which are part of the WTO’s legal order for members that have adopted them (cf. Article II para 3 WTO).39

–

Some treaties restrict obligations of States that have not accepted an amend- 131 ment. In the League of Nations such a refusal could even lead to the State in question being expelled from the organisation.40 Other founding treaties provide that the respective States are bound only by the original treaty but not by the subsequent amendment.41 This constitutes the general rule of public international law which is highly inadequate for governing founding treaties of International Organisations.42

Cases of formal amendments not being accepted by all Member States are not 132 the only instances in which treaty practice may take a different path than the one foreseen by the founding treaty. This is basically true for all treaties – especially multilateral ones –, but it is particularly true for founding treaties of International Organisations as these may develop in a very dynamic way. The order established by the treaty is “put on wheels” as it were.43 This creates two connected problems. First, if the practice of the International Organisation’s institutions deClearly: Klabbers, Introduction, 81, naming the ITU as an example. Cf. only Krenzler in Prieß/Berrisch, A.I. para 32. 37 ABl. 1996 no C 256/2. 38 ABl. 1980 no L 71/58. 39 Two others went out of force in 1997: Weiß/Herrmann, Welthandelsrecht, 2003, para 107. 40 Art. 26 League of Nations: “Amendments to this Covenant will take effect when ratified by the Members of the League whose Representatives compose the Council and by a majority of the Members of the League whose Representatives compose the Assembly. No such amendments shall bind any Member of the League which signifies its dissent therefrom, but in that case it shall cease to be a Member of the League.” 41 Art. 94 ICAO, Art. XX FAO, Art. 28 WMO. 42 Schermers/Blokker, § 1188. 43 Metaphorical expression by Ress, ‘Verfassungsrechtliche Auswirkungen der Fortentwicklung völkerrechtlicher Verträge’, in: Fürst (ed.), Festschrift für Wolfgang Zeidler, 1987, 1775 at 1779. 35

36

61

§ 4 Treaty Basis, Creation, Extinction, and Succession

viates excessively form the lines drawn by the treaty without formally amending it they run the risk of losing acceptance and, finally, legitimacy.44 Nevertheless, as far as peacekeeping missions – which are not explicitly foreseen by the UNCharter – are concerned, the practise of UN members as well of the ICJ follows a generous line (→ paras 405 ff.). In addition, deviations may lead to Member States being unable to participate in the respective actions of the organisation because of constitutional obstacles within their internal legal system. In this respect, the Bundesverfassungsgericht had to decide the question whether NATO’s metamorphosis – having been founded along the lines of collective selfdefence – into an organisation conducting out-of-area operations – with or without UN mandate – would require the assent of the Bundestag under Article 59 para 2 GG. The court was split on the issue meaning that under the pertinent procedural rule (§ 15 para 4 3rd sentence BVerfGG) it could not establish the non-constitutionality of the lack of consent.45 Later, the Bundesverfassungsgericht decided that the further development of a system of collective security does not necessarily constitute a treaty amendment and does not always require the assent of parliament (Bundestag).46 133 Some scholars support the notion that explicit or even implicit modifications of the founding treaty that do not respect the amendment provisions should be considered treaty amendments under Article 39 VCLT or even treaty dissolutions conjoined with a new treaty’s conclusion under Article 54 VCLT.47 In cases of implicit amendments, however, the problem of national constitutional law acceptance becomes particularly relevant – therefore, it is far more convincing to consider the amendment provisions to be leges speciales under constitutional law.48 This is all the more true for supranational institutions like the EU.49 134 Finally, there is the question of peremptory elements within the founding statute of an organisation. The founding treaty’s constitutional character serves as argument for the existence of such a peremptory core which can neither be modified by the organisation’s organs nor by its Member States. Particularly in

Klabbers, Introduction, 91. BVerfGE 90, 286 at 359 ff. 46 BVerfGE 104, 151 at 199 ff. 47 In that sense Klein/Schmahl in Graf Vitzthum/Proelß, para 47; Frowein, ‘Are there Limits to the Amendment Procedures in Treaties Constituting International Organizations?’ in: Hafner et al (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern in honour of his 80th birthday, 1998, 201 at 204. 48 Sceptically as here Schermers/Blokker, § 1163. 49 Everling, ‘Zur Stellung der Mitgliedstaaten der Europäischen Union als „Herren der Verträge”’, in: Bayerlin et al. (eds.), Recht zwischen Umbruch und Bewahrung. Völkerrecht – Europarecht – Staatsrecht, Festschrift für Rudolf Bernhardt, 1995, 1161 at 1167 ff.; de Witte, ‘Rules of Change in International Law: How Special is the European Community?’, 25 NYIL (1994), 299 at 310 ff. The twice done change of the ECSC-Treaty (1956/57) against the expressly prohibition in Art. 95 para 2, 96 ECSCT (cf. Schermers/Blokker, § 1166 f.; Klein/Schmahl in Graf Vitzthum/ Proelß, para 47 in fine) concerned two exceptional situations and not the derivation of the changing procedere, but a absolute changing ban in the transitional period. It is not possible to argue with it in favour of a change of TEU/TFEU or VerfEU. 44

45

62

I. Founding Treaty

cases in which treaty amendments may be effectuated by majority decision such peremptory elements protect the States from excessive dynamics within the organisation’s structure. 50 In practice, the ECJ remains the only institution to have identified such peremptory elements for the EU, in particular with respect to its own competence when cooperating with third-party States and organisations. The task of interpreting Union law may not be transferred to a dispute settlement institution other than the ECJ (e.g. the EES court or the ECHR).51 In the UN context, the notion to derive from Article 109 UN an unlimited right of the conference to review the Charter contradicts that rule’s historic task of enabling the conference to review the major powers’ status after some time.52 4. Function, Legal Nature, Interpretation

a) The Founding Treaty as an Organisation’s Constitution. The founding 135 treaty’s constitutional character also becomes relevant when inquiring into its function and legal nature for interpretive purposes.53 The founding treaty is the organisation’s prime legal rule; often the term primary law is used in this respect. While institutionalised public international law as a whole may be analysed from a constitutional perspective (paras 61 ff.), a founding treaty may be considered the organisation’s constitutional document. The founding treaty’s constitutional character gives rise to three crucial and deeply connected questions.54 First: how does the organisation’s constitutionalised character allow for it to develop in order to better achieve its goals? Second: how far can this development separate the organisation’s internal legal order from general international law? Finally, third: how is the power to interpret the treaty distributed within the organisation – including the power to interpret in a developing way? b) The Organisation’s Constitution and Dynamics of Interpretation. The 136 point of departure for interpreting founding documents are the general rules of the VCLT. There is consensus as to the particular relevance of the purpose of an International Organisation’s founding treaty purpose (Article 31 para 1 VCLT in

50 Frowein, ‘Are there Limits to the Amendment Procedures in Treaties Constituting International Organizations?’ in: Hafner et al (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern in honour of his 80th birthday, 1998, 201 at 217 f. Another view is taken by Klein/Schmahl in Graf Vitzthum/Proelß, para 46 in fine. 51 EuGH, Gutachten 1/91, Slg. 1991, I-6079, para 37 ff. (EWR I); Gutachten 2/94, Slg. 1996, I-1763, para 34 (EMRK). 52 Cf. Frowein, ‘Are there Limits to the Amendment Procedures in Treaties Constituting International Organizations?’ in: Hafner et al (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern in honour of his 80th birthday, 1998, 201 at 207. 53 Cf. above all Peters, ‘Das Gründungsdokument internationaler Organisationen als Verfassungsvertrag’ 68 Zeitschrift für Öffentliches Recht (2013), 1 at 6 ff. and 10 ff. with further references. 54 Comprehensively Sato, Evolving Constitutions of International Organisations, 1996.

63

§ 4 Treaty Basis, Creation, Extinction, and Succession

fine).55 Founding document that apart from constitutional (i.e. charter) provisions contain provisions in which the founding members create rules in mutual exchange necessitate a differentiated interpretation: the organisation’s purpose and aim primarily enter into the interpretation of the constitutional rules.56 137 Accordingly, the law of International Organisations is dominated by an interpretive approach which places supreme value on the organisation’s effectiveness (effet utile). The degree to which this approach is employed depends upon the organisation’s organisational density. As is well known, the principle of effet utile was considerably developed within EU law.57 However, the principle of effet utile is also relevant for organisations that have not evolved into supranational entities. One of its particularities lies in the distribution of competences where individual powers are derived from the necessity to fulfil a given task task (implied powers, → paras 202 ff.). 138 The degree to which the negotiation documents – travaux préparatoires – are used for interpreting the founding act (cf. Article 32 VCLT) depends on the International Organisation.58 This interpretive method does not exist in the EU since the travaux préparatoires are classified.59 To some extent, this might change after the Treaty of Lisbon was now ratified and entered into force60 since this treaty relies on the constitutional treaty that was prepared by the European Convention and all the Convention documents were made publicly available.61 An organisation’s organisational density and the relevance of the travaux préparatoires are not interrelated.62 139 c) From Public International Law to a Legal Order sui generis. Depending on the intensity of the Member States’ integration within an International Organisation, the organisation’s evolution may lead to the legal relationships within the organisation being separated from general public international law. This is

55 Klein/Schmahl in Graf Vitzthum/Proelß, para 39; Ress, ‘Wechselwirkung zwischen Völkerrecht und Verfassung bei der Auslegung völkerrechtlicher Verträge’, 23 BerDGVR (1962), 7 at 13 ff. More reluctant IGH, Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organisation, ICJ Rep. 1960, 150 at 170 f. 56 Klein/Schmahl in Graf Vitzthum/Proelß, para 39; Alvarez, ‘Constitutional interpretation in international organizations’, in: Coicaud/Heiskanen (eds.), The Legitimacy of International Organisations, 2001, 104. Cf. IGH, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Rep. 1996, 66 at 75; above all diss. op. Weeramantry, 148. 57 Cf. Chalmers/Davies/Monti, European Union Law, 2nd edition 2010, 1015, n. 3 (not contained in 3rd edition 2014). 58 Schermers/Blokker, § 1348. For the UN Skubiszewski, ‘Remarks on the Interpretation of the United Nations Charter’, in: Bernhardt (ed.), Völkerrecht als Rechtsordnung, internationale Gerichtsbarkeit, Menschenrechte, Festschrift für Hermann Mosler, 1983, 891 at 895 f.; Peters, ‘Das Gründungsdokument internationaler Organisationen als Verfassungsvertrag’ 68 Zeitschrift für Öffentliches Recht (2013), 1 at 21. 59 Streinz in: id., Präambel EGV para 2 with further references. 60 O.J. 2007 C 306, 1. 61 Available at: http://european-convention.europa.eu/EN/doc_register/doc_register355 d.html?la ng=EN&Content=DOC. 62 On their application in UN law IGH, Case concering the aerial incident of 27 July 1955, ICJ Rep. 1959, 127 at 140 f.

64

I. Founding Treaty

particularly likely to happen if the organisation replaces the general interpretive approaches of public international law that are designed to protect State sovereignty by its own methods of interpretation. This far-reaching effect causes such instances to be rare. The central example remains the development of EU law. The ECJ early on identified an internal legal order sui generis that was accepted by the Member States step by step.63 It is from this source that supremacy and direct effect of Union law are derived. Concerning supremacy, Article I-6 EU-Constitution would only have articulated a previous development.64 However, there is no such provision in the Treaty of Lisbon. d) Interpretive Power. The power of interpretation is highly important. 140 Whether this power is attributed to an organ of the organisation or remains with the Member States is a core decision for the organisation’s development.65 If the organisation bestows an organ with the power to interpret the founding treaty as well as secondary law in a binding manner – perhaps by means of a special court (→ paras 324 ff.) – a certain dynamism of future developments becomes inevitable. The best example is again the EU.66 The dispute settlement system of the WTO is also able to lead to an evolution of the organisation (→ para 654). By contrast, the interpretive competence of the IMF’s board of governors is far more restricted (→ para 619).67 Article 31 para 3 lit. b VCLT provides that if the interpretive competence is 141 not explicitly transferred to an organ the organisation’s practise may be used as a guideline if that practice is accepted by the Member States. Insofar, this provision of the VCLT fulfils a bridging function.68 The ICJ has often attributed decisive relevance to the practise of the UN’s institutions. Accordingly, the organs are competent to interpret the rules that govern their actions. In the past, this rule has been applied concerning the veto power under Article 27 para 3 UN (in practise, abstentions are not considered as vetoes)69 and concerning the organisation’s budget under Article 17 para 1 UN (administrative and operational expenditures/peacekeeping missions are part of the budget).70 From a constitutional point of view this attribution of interpretive competence is one step of many 63 EuGH, Rs. 26/62, Slg. 1963, 1, para 10 (Van Gend en Loos/Administratie van der Belastingen); Rs. 6/64, Slg. 1964, 1141, para 8 (Costa/ENEL); BVerfGE 37, 271, 277 f.; 22, 293, 296 f.; 31, 145, 173 f. Cf. the critical few of Huber, § 7 paras 4 ff. with further references. 64 Cf. Ruffert, in: Calliess/id. (eds.), VerfEU, 2006, Art. I-6 para 19. 65 Cf. Klabbers, Introduction, 90 at 91 ff.; Exner, ‘Interpretation by Public International Organizations of their Basic Instruments’, 53 AJIL (1959), 341. 66 There, the ECJ is the only competent organ: EuGH, Rs. C-415/93, Slg. 1995, I-4921, para 136 (Bosman). 67 Simon, L’interprétation judiciaire des traités d’organisations internationales, 1981, 33 ff. But see Declaration no. 17 on Primacy together with the added opinion of the Council Legal Service. 68 Explicitely Klein/Schmahl in Graf Vitzthum/Proelß, para 41. 69 IGH, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), ICJ Rep. 1971, 16, no. 22. 70 IGH, Certain Expenses of the United Nations (Art. 17, Paragraph 2 of the Charter), ICJ Rep. 1962, 151, no. 160.

65

§ 4 Treaty Basis, Creation, Extinction, and Succession

as it merely transfers this competence from the Member States to the organ established by them. Constitutionalisation would be complete if a true interpretive and supervising competence of the dispute settlement organ – the ICJ – concerning the acts of the other organs were introduced (on this controversy → paras 357 ff.). II. Extinction and Succession 1. Extinction

Succession remains one of the most difficult problems of public international law as so many matters in this field are unsolved. The explicit rules on dissolving International Organisations themselves – although rare – are relatively easy to comprehend. Thus, the limitation of the ECSC according to Article 97 ECSC followed a clear rule. In 2002, 50 years after foundation of the ECSC as a nucleus of European integration, the organisation was extinct. Remaining tasks were transferred to the EC in accordance with a regulation.71 In this context, one must mention Article XXV ESA which makes the International Organisation’s continued existence dependent on a minimum number of members,72 as well as Article XXVII, 2nd section IMF envisaging liquidation of the IMF upon a decision of the board of governors.73 Based on these examples there is a debate on whether an organ of an International Organisation can have the power to dissolve the organisation – effectively removing the decision on the organisation’s continued existence from the grasp of its Member States.74 It would go too far to recognise a customary rule of international law providing for an organisation’s main organ being able to dissolve it.75 143 Very often founding treaties doe not contain provisions on the organisation’s extinction because founding treaties usually are concluded for fulfilling the organisation’s tasks on a long-term basis. In this situation it is permissible to ask whether the general rules of international law apply or if they are replaced by specific treaty provisions. There is no doubt that an International Organisation ceases to exist if there is only one remaining member – irrespective if the organisation’s founding treaty provides for dissolution or not.76 On the other hand, an organisation does not cease to exist if it is inactive for a long time as long as it does not give up its assets (personnel, budget etc.).77 A more difficult issue 142

71 Whealth and debt have demised to the EC by a protocol to the Treaty of Nice (protocol no. 34 concerning the financial consequences of the end of the ECSCT and the research fond of cole and steel, Abl. 2001 no. C 80/67); there has been a special rule between the end of the ECSC and the commencement of the Treaty of Nice (ABl. 2002 no. L 79/42, ber. ABl. 2002 no. L 196/64). 72 1297 UNTS 161. 73 Klabbers, Introduction, 294. 74 Klabbers, Introduction, 295. 75 This other fiew is taken by Sands/Klein, paras 15-121; Amerasinghe, 468. As here Klabbers, Introduction, 295. 76 Klein/Schmahl in Graf Vitzthum/Proelß, para 54. 77 Schermers/Blokker, § 1640; Klein/Schmahl in Graf Vitzthum/Proelß, para 54.

66

II. Extinction and Succession

concerns the question whether there is the possibility of termination under Article 54 lit. b VCLT.78 There has been dissolution by consensus in the cases of the IRO (1952)79 as well as of the Warsaw Pact and of Comecon (both 1991).80 Two organisations did not survive politically: CENTO/Bagdad Pact (a defence organisation founded in 1955 between Iraq, Turkey, Pakistan, Iran and the United Kingdom, following the example of NATO) and SEATO (a comparative organisation for Southeast Asia founded in 1954). The EU may also be dissolved. Article 53 TEU and Article 356 TFEU are no 144 obstacle. This is less due to the EU’s constitutional capacity81 than to the fact that the EU may be terminated by an act of the Member States which is backed by the Union’s citizens82 – although dissolution is neither politically desired nor aimed at (and politically impossible even in times of crisis), as the political will to expand the Union continues to exist.83 Generally, the legal perspective is always incomplete in these cases; political necessities of cooperation have always to be considered which at least require a “replacement organisation”.84 An International Organisation’s financial default does not lead to its extinc- 145 tion. Generally, the international law of succession in goods and debts is governed more by legal uncertainty than by certain knowledge.85 Consequently, questions of liability in cases of an International Organisation’s insolvency (→ para 217) are very complex. If an International Organisation is dissolved in a way that assets remain these must be distributed among the organisation’s Member States.86 2. Succession

There are no customary rules on succession in International Organisa- 146 tions.87 This holds particularly true for all provisions concerning the continued validity of legal acts issued by the prior organisation, whereas treaties concluded 78 Seidl-Hohenveldern, ‘Der Rückgriff auf Mitgliedstaaten in Internationalen Organisationen’, in: Bernhardt (ed.), Völkerrecht als Rechtsordnung, internationale Gerichtsbarkeit, Menschenrechte, Festschrift für Hermann Mosler, 1983, 881 at 884 f.; Fischer/Köck, 602. 79 International Refugee Organisation. The reason lay in the end of American funding of the refugee problem in Europe, cf. Schermers/Blokker, § 1624. Cf. also Jahn, ‘International Refugee Organisation’,EPIL II 1995, 1351 at 1352. 80 Cf. Sands/Klein, paras 15-109; Klabbers, Introduction, 320. 81 In that sense however Klein/Schmahl in Graf Vitzthum/Proelß, para 53. 82 Instead of all others Cremer in Calliess/Ruffert, Art. 48 EUV para 20; Schmalenbach ib., Art. 356 AEUV para 2 with further references. A different view is taken by Heintschel von Heinegg in Ipsen, para 10/7; Hilf in v. d. Groeben/Schwarze, Art. 240 EGV para 5. 83 Cf. Cremer, in: Calliess/Ruffert (eds.), EUV/AEUV, 4th edn. 2011, Art. 53, para 1. 84 Klein/Schmahl in Graf Vitzthum/Proelß, para 52. 85 On State succession Verdross/Simma, § 973: Succession as the most contested part of public international law. 86 Klein/Schmahl in Graf Vitzthum/Proelß, para 57. 87 Similarly Klein/Schmahl in Graf Vitzthum/Proelß, para 60. Partly different Sands/Klein, paras 15-120 ff. Cf. also Myers, Succession between International Organisations, 1993; Ranjeva, La succession d’organisations internationales en Afrique, 1978; Chiu, ‘Succession in International Organisations’, 14 ICLQ (1965), 83.

67

§ 4 Treaty Basis, Creation, Extinction, and Succession

in the framework of the organisation remain in force.88 Prime importance is therefore always attached to the founding treaty or explicit rules on succession.89 Because of the large variety of different cases it is very difficult to establish a structured typology of this field. 147 Often there is a step-by-step transition. The development from the League of Nations to the United Nations serves as the most illustrative example. The latter was founded in 1945, whereas the League of Nations was dissolved as late as April 1946.90 The League of Nations’ succession by the UN was basically a political one.91 The General Assembly reserved its right to determine whether obligations from the League of Nations’ Charter should be continued,92 and the Charter of the United Nations does not refer to the League of Nations. Neither obligations nor service relationships or other duties were accepted by the United Nations; a particular transition treaty was concluded for the League’s assets.93 Nonetheless, the UN succeeded the League of Nations in the mandate treaties which South Africa had concluded with the League of Nations concerning Namibia. This is due to the objective rule of the treaties with respect to South African territory as well as the supervisory function of the UN General Assembly.94 148 Another type of succession is the takeover of a moribund organisation’s activity by an existing one.95 There is some precedent by the transfer of the International Agricultural Institute to the FAO in 1948 or by UNESCO taking over the activity of the International Institute for Intellectual Cooperation in 1946/1956.96 149 Finally, the metamorphosis of individual organisations97 is often to be considered as a case of succession. This holds true e.g. for OEEC’s transformation into OECD, which took place parallel to the inclusion of the United States and Canada. According to Article 15 OECD, the OEEC is now continued within the OECD; nevertheless, legal acts of the OEEC organs need to be explicitly acceptSchermers/Blokker, §§ 1648 ff. (on Treaties §§ 1651 ff.). Rare example: Art. VI section 5 of the agreement on the International Bank for reconstruction and development; on this cf. Sands/Klein, paras15-111. 90 Critically Kelsen, The Law of the United Nations, 1951, 595. Cf. also Sands/Klein, paras 15-114. 91 On the ICJ succeeding the PCIJ Hudson, ‘The Succession of the International Court of Justice to the Permanent Court of International Justice’, 51 AJIL (1957), 569. 92 UN Doc. A/RES/24 (I) 12.2.1946, I/1. 93 More in detail Klein/Schmahl in Graf Vitzthum/Proelß, para 59. 94 ICJ Rep. 1950, 128 ff. (Südwestafrika-Gutachten). Klein, Statusverträge im Völkerrecht, 1980, 33 ff. Cf. also Lauterpacht, ICJ Rep. 1956, 48: “the most important example of succession in international organization“. 95 Correct terminology: Hahn, ‘International Organizations, Succession’, EPIL II 1995, 1340 at 1341. 96 Examples: Hahn, ‘International Organizations, Succession’, EPIL II 1995, 1340 at 1341. Compare there also the special case of an adoption of functions from a private organisation (Union internationale des organismes de tourisme) to an International Organisation (World Tourism Organisation). 97 Again correctly: Hahn, ‘International Organizations, Succession’, EPIL II (1995), 1340 at 1342. 88

89

68

II. Extinction and Succession

ed by the OECD Council.98 The transformation of the unsecure state of GATT into the WTO in 1994 also constituted a case of succession (→ para 643).

98 S. on this Klein/Schmahl in Graf Vitzthum/Proelß, para 58; Sands/Klein, paras 15-118 ff.; Schermers/Blokker, § 1626; Hahn/Weber, Die OECD, 1976, 57 ff., Hahn, ‘Die Organisation für Wirtschaftliche Zusammenarbeit und Entwicklung (OECD)’,22 ZaöRV (1962), 49 at 53 ff.

69

§5 Legal Personality Literature: Bederman, ‘The Souls of International Organizations: Legal Personality and the Lighthouse at Cape Spartel’, 36 Va.J.Int’l L. (1996), 275 ff.; Bekker, The legal position of intergovernmental organizations, 1994; Breuer, ‘Die Völkerrechtspersönlichkeit Internationaler Organisationen’, 49 ArchVR (2011), 4 ff.; Chiu, The capacity of international organizations to conclude treaties and the special legal aspects of the treaties so concluded, 1966; Duffar, Contribution à l’étude des privileges et immunités des organisations internationals, 1982; Gaillard/PingelLenuzza, ‘International Organisations and Immunity from Jurisdiction: To Restrict or to Bypass’, 51 ICLQ (2002), 1 ff.; Mosler, ‘Die Erweiterung des Kreises der Völkerrechtssubjekte’, 22 ZaöRV (1962), 1 ff.; Seyersted, Objective international personality of intergovernmental organizations, 1963; Singer, ‘Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns’, 36 Va.J.Int’l L. (1995), 53 ff.; Wenckstern, Handbuch des Internationalen Zivilverfahrensrechts. Die Immunität internationaler Organisationen, Bd. II/1, 1994; Wickremasinghe, ‘International Organiszations or Institutions, Immunities before National Courts’, MPEPIL (2009).

I. Foundations and Preconditions of International Legal Personality 1. General Remarks

It is only through recognition of their international legal personality that Inter- 150 national Organisations become institutions that are able to act in international relations. International legal personality is the ability to bear rights and duties under international law.1 International legal personality integrates International Organisations into relationships under international law as subjects of that law. Insofar it has to be strictly differentiated from legal capacity under domestic law ( → paras 176 f.). Both legal positions overlap with respect to the particularily close relationship between the organisation and the State where it has its (administrative) seat (→ paras 189 f.). It is today beyond question that International Organisations may possess legal 151 personality. Already in 1945 the ICJ recognised the international legal personality of the United Nations in the Reparations for Injuries Suffered in the Service of the United Nations Case. Even then the Court highlighted the growing importance of international organisations in international relations as well as the consequential enlargement of the circle of subjects under international law.2 1 See the differentiation by Schweisfurth, chap. 1 paras 4 ff., indicating the most current definitions. 2 ICJ Rep. 1949, 174 at 178. On the historical development → paras 53 ff., as well as Schermers/ Blokker, § 1562 f.On the legal personality of the League of Nations Fischer/Williams, Chapters on Current International Law and the League of Nations, 1929, 477 ff. Cf. also the analysis by Bederman, ‘The Souls of International Organizations: Legal Personality and the Lighthouse at Cape Spartel’, 36 Va.J.Int’l Law (1996), 275.

71

§ 5 Legal Personality

This seminal decision – an advisory opinion according to Article 96 para 1 UN upon request of the General Assembly3 – already addressed fundamental questions regarding the legal personality of International Organisations which are partly still problematic today, viz. the standard for the assessment of legal personality under international law, its specific criteria as well as the separation of legal personality and particular powers of International Organisations. The factual background of the decision is the murder of the Swedish count Bernadotte, who served as a mediator for the United Nations in the conflict in Palestine after the end of the Second World War, and the question whether the United Nations might themselves (apart from Sweden) request restitution from Israel for the damages caused. The possibility to bring claims under international law requires international legal personality. 2. Theoretical Approaches

Essentially, there are two possible approaches to determining international legal personality of a certain International Organisation: Either the will of the organisation’s founding members to bestow legal personality upon their creation4 is taken as a starting point, or objective standards are applied to an entity active in international relations and thus the perspective of the international community is taken. 153 The overwhelming majority applies the first approach (sometimes exaggerated as “theory of the will”).5 The decisive question, according to this approach, is whether the founding members intended to attribute legal personality under international law to the International Organisation.6 This is easy to answer if the founding treaty contains an explicit rule on international legal personality of the organisation as is the case for the EU (E[E]C) in the remarkably short formulation of Article 47 TEU (ex-Articles 281 or 210 E[E]CT): “The Union shall have legal personality.”7 Also the WTO possesses legal personality according to an explicit provision (Article VIII para 1 WTO).8 154 If such an explicit provision is missing, the founding treaty has to be interpreted with respect to the question of legal personality.9 As there is no such provision in the UN Charter the ICJ in the Reparations for Injuries Suffered in the Service of the United Nations Case proceeded in exactly this way: For the concrete manner by which tasks are transferred to the United Nations and for the 152

On these proceedings → para 327. On terminology Mosler, ‘Die Erweiterung des Kreises der Völkerrechtssubjekte’, 22 ZaöRV (1962), 1 at 23. 5 To mark a difference between I.O.s and States, many authors talk about ‘derived’ personality: Klein/Schmahl in Graf Vitzthum/Proelß, para 93, referring to Mosler, ‘Die Erweiterung des Kreises der Völkerrechtssubjekte’, 22 ZaöRV (1962), 1 at 25 f. 6 Instead of many cf. only Klein/Schmahl in Graf Vitzthum/Proelß, para 94. 7 Cf. Ruffert in Calliess/Ruffert Art. 47 TEU paras 1 f. 8 Cf. Tietje in Prieß/Berrisch, A.III. paras 9 f. 9 Schermers/Blokker, § 1565. 3

4

72

I. Foundations and Preconditions of International Legal Personality

organisation of their fulfilment, the attribution of legal personality is indispensable.10 The United Nations are a centre for harmonising the members’ efforts to attain the common ends (Article 1 para 4 UN) and as such are vested with particular organs and tasks. The Member States have the duty to assist the United Nations in implementing their measures and to accept and carry out the decisions of the Security Council (Article 2 para 5, 25 UN). The General Assembly can make recommendations to the Member States (Article 10). The organisation has capacity to act legally in the territories of the Member States and is vested with privileges and immunities (Article 104 f.). It can conclude treaties with the Member States. Its tasks are of political nature and of considerable importance (cf. Article 1). All in all: “It is difficult to see how such a convention could operate except upon the international plane and as between parties possessing international personality.”11 In principle – and under the condition of the existence of a respective power – there must be the possibility for the UN to bring own claims under international law in international relations. This analysis based on the founding treaty can also be transferred to other international organisations. The starting point for the opposite view is the performance of the organisa- 155 tion in international relations. In a similar way as recognition is not a necessary requirement for the emergence of new States, the activity of the organisation within the international community alone shall indicate its legal personality.12 This change of perspective stresses the constitutional structure of the international community, which constitutes itself above all in the fabric of international organisations. According to this doctrine, in extreme cases legal personality may even be bestowed upon an organisation against the will of its members.13 In practice, however, such extreme solutions are rare. It is more common to 156 take up elements of the objective perspective without abandoning the intention of the founding members as a starting point.14 This already happened in the Reparations for Injuries Suffered in the Service of the United Nations Case, where the ICJ concluded from the power of 50 States – at the time the overwhelming majority of the international community – to found an organisation, that the organisation’s personality under international law extended even to its relationship with third States.15 This proves that the international legal personality of International Organisations can indeed be considered with a view to the inICJ Rep. 1949, 174 at 178; to the following ibid. 178 f. ICJ Rep. 1949, 174 at 179. 12 This view was first proposed by Seyersted, Objective international personality of intergovernmental organizations, 1963; similarly: Rama-Montaldo, ‘International Legal Personality and Implied Powers of International Organizations’, 44 BYIL (1970), 111; White, The Law of International Organisations, 1996, 27 ff. 13 Cf. respectively Klabbers, Introduction, 48. 14 Klabbers, Introduction, 49; id., ‘Presumptive Personality: The European Union in International Law’, in: Koskenniemi, International Law Aspects of the European Union, 1998, 231; Schermers/Blokker, § 1565 f.; Faßbender, ‘Die Völkerrechtssubjektivität internationaler Organisationen’, 37 ÖZÖffRVöR (1986), 17; Amerasinghe, 86 ff. 15 ICJ Rep. 1949, 174 at 185. 10

11

73

§ 5 Legal Personality

tention of the founding members without disregarding the objective activity of the organisation in international relations. This has limited effects with respect to the relations of the organisations to non-member (→ paras 161, 174 f.). 3. Criteria for International Legal Personality

What is decisive for international personality of international organisations is the existence of central indicators that show the will of the founding members to make the organisation participate effectively in international relations and which at the same time prove that effective participation. It is above all the ability to conclude treaties, have diplomatic relations and the ability to bring claims (as well as being subject to claims) in international law, especially under the dispute resolution procedures of public international law.16 Apart from these indicators, the measure of organisational density is an important criterion for legal personality under international law. However, it is not completely unproblematic to have recourse to these indicators. Sometimes, there is the danger of circular reasoning as the powers named above, are at least partially also a consequence of legal personality under international law (→ paras 163 f.).17 For example, if one assumes that a certain organisation is liable under the law of international responsibility because it is a subject of international law, this international personality must also be deduced from criteria outside the law of responsibility to give the organisation’s legal personality a sound basis. In most cases it will only be few indicators that are doubtful. However, if they are entirely lacking, it is hardly possible to have recourse to specific international powers. If some indicators cannot be detected without doubt, the relevant conclusions may be drawn from the concreteness of the others. 158 The matter of international legal personality has been extensively discussed in the case of the European Union. Before the Lisbon Treaty with its Article 47 TEU entered into force, the division into EU and EC with the intergovernmental character of the EU lead to the respective debate.18 157

However, see below → paras 172 f. For this reason, Breuer, 49 ArchVR (2011), 4 at 6 f., rejects the notion that these consequences are inherent. 18 Legal personality of the pre-Lisbon EU was called into question by: Bleckmann, Europarecht, 6th edn. 1997, paras166 f.; Dörr, ‘Zur Rechtsnatur der Europäischen Union’, EuR 1995, 334 at 343 f.; Jacqué in: v. d. Groeben/Schwarze, Art. 1 EUV para 13; Klein, ‘Institutionelle Kohärenz in der Europäischen Union und der Europäischen Gemeinschaft’, in: Ruffert (ed.), Recht und Organisation, 2003, 119 at 125; Kokott in Streinz, Art. 47 TEU paras 1 ff.; Pechstein, ‘Das Kohärenzgebot als entscheidende Integrationsdimension der Europäischen Union’, EuR 1995, 247 at 249 f.; id., ‘Rechtssubjektivität für die Europäische Union? ’, EuR 1996, 137; Streinz, para 134 as well as BVerfGE 89, 155 at 195. Partly also Hilf, ‘Amsterdam – Ein Vertrag für die Bürger?’, EuR 1997, 347 at 359; id./Pache, ‘Der Vertrag von Amsterdam’, NJW 1998, 705 at 709. 16

17

74

II. Consequences of International Legal Personality

As we now know, the problem was one of transition.19 Today Article 47 159 makes sufficiently clear that the EU bears legal personality as a whole.20 The legal personality of some organs (e.g. ECB) or subunits (e.g. agencies) of the EU, however, is another question.21 Other international institutions, such as EEA, BENELUX22 and OAU,23 lack 160 the necessary organisational density. In the case of OSCE it is mostly assumed that it does not yet have legal personality but that it can “grow into” that legal personality by acting like an International Organisation and being accepted as such by the international community. In this case, once more, the objective perspective plays an important part (→ para 155).24 II. Consequences of International Legal Personality 1. Scope

Although International Organisations’ international legal personality is a re- 161 sult of the intention of the founding members it is also effective in relation to non-members. This is the core aspect of integrating objective elements into the concept focusing on the will of the States, as already done in the decision in the Reparations for Injuries Suffered in the Service of the United Nations Case.25 19 Legal personality of the EU was accepted before Lisbon by van der Hout, Die völkerrechtliche Stellung der Internationalen Organisationen unter besonderer Berücksichtigung der Europäischen Union, 2006, 206 ff.; von Bogdandy/Nettesheim, ‘Die Verschmelzung der Europäischen Gemeinschaften in der Europäischen Union’, NJW 1995, 2324 at 2327; id, ‘Die Europäische Union: Ein einheitlicher Verband mit eigener Rechtsordnung’, EuR 1996, 3 at 12 ff.; Trüe, Verleihung von Rechtspersönlichkeit an die Europäische Union und Verschmelzung zu einer einzigen Organisation – deklaratorisch oder konstitutiv?, 1997; Everling, ‘Von den Europäischen Gemeinschaften zur Europäischen Union. Durch Konvergenz zur Kohärenz’, in: Classen et al. (eds.), In einem vereinten Europa dem Frieden der Welt zu dienen, Liber amicorum Thomas Oppermann, 2002, 163 at 177; Schmitz, Integration in der supranationalen Union, 2001, 137 ff.; Schroeder, in: von Bogdandy (ed.), Europäisches Verfassungsrecht, 2003, 373 at 386 ff.; Tomuschat in v. d. Groeben/Schwarze, Art. 281 EGV para 66. 20 Schroeder, ‘Die Europäische Union als Völkerrechtssubjekt’, EuR 2012, 9. On the background of Art. 47 TEU (via Art. I-7 Constitution Treaty): Working Group “Legal Personality“, final report, CONV 305/02 of 1.10.2002, http://european-convention.europa.eu/pdf/reg/en/02/cv 00/ cv 00305.en02.pdf; Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’, CMLRev. 2003, 1347; Fassbender, ‘Die Völkerrechtssubjektivität der Europäischen Union nach dem Entwurf des Verfassungsvertrages’, 42 AVR (2004), 26; Wichard, in: Calliess/Ruffert (eds.), VerfEU, 2006, Art. I-7 paras 7 ff. 21 Cf. Ruffert, ‘Personality Under EU Law: A Conceptual Answer Towards the Pluralisation of the EU’, ELJ 2013, forthcoming. 22 Bleckmann, ‘Die Benelux-Wirtschaftsunion’, 22 ZaöRV (1962), 239 at 293. 23 Kunig, Jahrbuch für Afrikanisches Recht, volume 4, 1983, 81 at 82 f. 24 S. Seidl-Hohenveldern, ‘Internationale Organisationen aufgrund von soft law’, in: Beyerlin/ Bothe/Hofmann/Petersmann (eds.), Recht zwischen Umbruch und Bewahrung, Festschrift für Bernhardt zum 70. Geburtstag, 1995, 229. A differentiated view is taken by Wenig, Möglichkeiten und Grenzen der Streitbeilegung ethnischer Konflikte durch die OSZE, 1996, 77 ff. Sceptically Bortloff, Die Organisation für Sicherheit und Zusammenarbeit in Europa, 1996, 341 ff. at 372. → paras 464 ff. Cf. further van der Hout, Die völkerrechtliche Stellung der Internationalen Organisationen unter besonderer Berücksichtigung der Europäischen Union, 2006, 20 f. 25 ICJ Rep. 1949, 174.

75

§ 5 Legal Personality

The general recognition of international organisations as subjects under international law, gives the founding treaty effect with respect to third parties. This does not constitute a contract at the expense of third parties, which would be inadmissible (cf. Article 34 VCLT), but it manifests the necessary objectivation of the organisation’s legal status in constitutionalised international law.26 162 It is a striking characteristic of the legal personality of International Organisations that it is partial and functional.27 When a State is created, its personality is comprehensive and not limited in substance. International organisations, as the legal persons of international law,28 derive their legal personality from States. Their legal capacity is therefore limited by the founding treaties and by the powers and objectives bestowed upon them in that treaty. Due to the increased number, importance and organisational density of International Organisations, this difference compared to States is continuously being reduced to a divergence in the theoretical starting point without practical consequences. An organisation which is limited to certain issues and only vested with a few powers, may, however, be granted legal personality to the extent which is necessary for the exercise of its functions. The single aspects of international legal personality (power to conclude treaties – power to enter into diplomatic relations – international responsibility), however, always need a legal basis; they are not automatically granted. 2. Legal Capacity under International Law 163

a) Power to Conclude Treaties. According to Article 6 of the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organizations (Second Vienna Convention on the Law of Treaties – VCLT II),29 the power to conclude treaties is deduced from the provisions regarding the relevant organisation, i.e. the founding treaty. The discussion whether the abstract capacity to conclude treaties must be differentiated from a concrete competence was solved by consensus on this principle.30 The 26 Tomuschat, EG und Drittstaatsbeziehungen nach 1992, 1991, 139 at 140. Critically Klein/ Schmahl in Graf Vitzthum/Proelß, para 96. Cf also (considering the international bonum commune) Fischer/Köck, 566 ff.; Dapo Akande, ‘International Organizations’, in: Evans (ed.), International Law, 2003, 269 at 275 f. 27 Klein/Schmahl in Graf Vitzthum/Proelß, para 95; Klabbers, Introduction, 39 f.; Schermers/ Blokker, § 1570. On funcionality in this context Bekker, The Legal position of intergovernmental organizations, 1994. 28 Explicitely Seidl-Hohenveldern/Loibl, para 0309. From courts‘ practice cf. Cour d’Appel de Paris, 18.6.1968 (Klarsfeld/Office Franco-Allemand pour la Jeunesse), ILR 72, 191. 29 A/CONF.129/16/Add.1 (Vol. II); BGBl. 1990 II, 1414. On this cf. Schröder, ‘Die Kodifikation des Vertragsrechts Internationaler Organisationen’, 23 AVR (1985), 385; Nascimento e Silva, ‘The 1986 Vienna Convention and the Treaty-Making Power of International Organizations’, 29 GYIL (1986), 68; Bothe, ‘Die Wiener Konvention über das Recht der Verträge zwischen Staaten und internationalen Organisationen und zwischen internationalen Organisationen’, NJW 1991, 2169. 30 Klabbers, Introduction, 40 ff., having recourse to Chiu, The Capacity of International Organizations to Conclude Treaties and the Special legal Aspects of the Treaties so Concluded, 1966.

76

II. Consequences of International Legal Personality

power to conclude international treaties in general, which is by now recognised in customary international law, does not suffice. For every case, the organisation must also have the competence to conclude the relevant treaty with regards to its content.31 Some founding treaties contain explicit provisions on that power. According to Articles 43 and 105 UN, the United Nations may conclude agreements with their members on the military support of actions of the Security Council as well as on privileges and immunities. Articles 57 and 63 give the Economic and Social Council the power to conclude agreements with specialised agencies of the United Nations. Article VIII para 5 WTO allows the WTO to conclude a headquarters agreement, Article XII accession agreements. Explicit external competences of the EU are included in Article 216 TFEU.32 Many founding treaties of international organisations contain the power to conclude headquarters agreements. Apart from that, it is possible to detect the competence to conclude treaties by interpreting the founding treaty. Such an implicit capacity to conclude a treaty can most easily be determined if the functionality of the organisation were endangered without it; in so far the idea of implied powers influences the interpretation (→ paras 202 f.). Particularly in the EU, following the ERTA decision of the ECJ, the development of unwritten external competences from codified internal competences was long an accepted doctrinal concept and is now enshrined in Article 216 TFEU.33 If there is no general competence to conclude a certain international treaty, the member States may participate in concluding the treaty. By these means a combination of State competences and the power of the international organisation is achieved in a so called “mixed agreement”.34 For the EU this is a common procedure35 that was applied for example in the case of the foundation of the WTO; both the EU and the Member States are members of the WTO. If the international organisation transgressed its powers when concluding the treaty, that treaty would normally be void following the general rules (action “ultra vires”, → paras 206 f.). However, Article 46 para 2 VCLT II adopts the principle from Article 46 VCLT I, under which the treaty is valid in principle and the organisation can only claim its nullity if the transgression of competences is manifest and concerns a provision of fundamental importance. This protects the trust of the partners of an international organisation in the validity of

Schermers/Blokker, § 1748. Examples for other International Organisations: Schermers/Blokker, § 1749. 33 Starting from ECJ, Case 22/70, ERTA, ECR 1971, 263. A summary of the whole line of jurisprudence can be found in Schmalenbach, in: Calliess/Ruffert (eds.), Art. 216 para 10. 34 Cf. Schermers/Blokker, §§ 1756 ff. 35 Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and Its Members, 2001; Eeckhout, External Relations of the European Union, 2004, 191 ff. Verwey, The European Community, the European Union and the International Law of Treaties, 2004, 35 ff. 31

32

77

164

165

166

167

§ 5 Legal Personality

the treaty but it also broadens the opportunities of action for the relevant organisation.36 168 These principles also and most importantly apply for the internal conferral of the power to conclude a treaty to an organ of the organisation (on these organs → paras 286 f.). The power of the organ to conclude a treaty can normally be deduced from the provisions of the founding treaty. To give an example, it is only the Security Council that is empowered to conclude contribution agreements under Article 43 UN (on the practice → para 440). Another example is the differentiated allocation of the competences between Council and Commission following Articles 216 and 219 TFEU in trade agreements – the commission negotiates the agreements with third States, the council concludes them. In cases of a violation of the internal powers, the contracting partner is protected by the rules as described in para. 167. This means that only in cases of evident breaches of basic norms the nullity of a treaty can be claimed. 169 In the case of international treaties concluded by single organs the question arises who will be a party to the treaty and consequently who will be bound by it.37 In theory, only the particular organ could be a party and therefore bound by the agreement, as is the practice for UN subsidiary organs in domestic relations (e.g. when concluding contracts under private law).38 Normally however, the power to conclude international treaties is attributed to the relevant organisation, which acts through its organs, as is illustrated in Articles 57 and 63 UN. The same applies for the procedural provision of Article 218 TFEU. Finally, the ICJ has expressed the same opinion in the Effect of Awards of Compensation Made by the United Nations Administrative Tribunal Case.39 170 b) Participation in Diplomatic Relations. Normally, the power to enter into diplomatic relations (ius missionis) of an International Organisation is derived – similar to the power to conclude treaties – from functional considerations: If the organisation is to fulfil its tasks effectively, if the organs are to develop effective activities on the international level, there is the need to receive and to send diplomatic representatives, be it in permanent or temporary missions. The Vienna Convention on the Representation of States in their Relations with International Organisations of a Universal Character signed in 1975 and being uni-

36 Cf. also Klein/Schmahl in Graf Vitzthum/Proelß, para 98; Klein/Pechstein, Das Vertragsrecht internationaler Organisationen, 1985, 25 ff.; Schermers/Blokker, § 1784. Critically Tomuschat, EG und Drittstaatsbeziehungen nach 1992, 1991, 139 at 144. 37 Cf. Klabbers, Introduction, 287 ff. 38 On doubtful cases in practice Schermers/Blokker, § 1571. 39 ICJ Rep. 1954, 47 (53).

78

II. Consequences of International Legal Personality

versal in its scope has not yet entered into force.40 This, however, has no bearing on the fact that the exchange of diplomatic representatives between States and International Organisations as well as between international organisations has been common practice for decades. Already the League of Nations had accredited diplomatic missions of its members and this has been continued within the United Nations.41 In the context of international Organisations, the term “representation” or permanent representation is mostly used whereas the term “embassy” is mostly used in relations between States. The diplomatic representation of a State in International Organisations is thus normally not designated as an embassy. There are also many contacts to non-members, which may be alleviated by granting them observer status (→ paras 265 f.). 42 It is also possible that the representation of a State to an international organisation is at the same time the embassy of that State in the seat State or the representation to more than one organisation (e.g. in cities such as Geneva or Brussels).43 Finally, International Organisations actively send representatives to States and other organisations.44 The EU undertakes especially intensive diplomatic relations.45 A special 171 case in this regard are the permanent representations of Member States, which allow the States to effectively participate in the supranational decision process.46 Also non-members of the EU, States as well as International Organisations, are accredited in Brussels.47 On the other hand, the EU has its own diplomatic missions to States (members and non-members) as well as to some International Organisations;48 since the Lisbon Treaty they are part of the external service of the 40 16 AVR (1974/1975) 410. Cf. Fennessy, ‘The 1975 Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character’, 70 AJIL (1976), 62; Lang, ‘Das Wiener Übereinkommen über die Vertretung von Staaten in ihren Beziehungen zu internationalen Organisationen universellen Charakters’, 37 ZaöRV (1977), 43; ElErian/Lentz, ‘Vienna Convention on the Representation of States in their Relation with International Organizations of a Universal Character’, EPIL IV (2000), 1317; Staehelin, ‘Die Wiener Konferenz über die Vertretung der Staaten in ihren Beziehungen zu internationalen Organisationen’, 31 SZIER (1975), 52. The entry into forced failed because of the resistance of the most important headquarter states, which felt that they were being charged with an excessive burden: Schermers/ Blokker, § 1811. 41 Klein/Schmahl in Graf Vitzthum/Proelß, para 100; Schermers/Blokker, § 1804 (including details on the practice of accreditation within the UN); Klabbers, Introduction, 42; further Hambro, ‘Permanent representatives to International Organizations’, 30 YbWA (1976), 30. 42 Klein/Schmahl in Graf Vitzthum/Proelß, para 100. This partly also applies to organisations whose international legal personality or member status within the UN is insecure: Schermers/ Blokker, § 1805. Cf. Balekjian, ‘Der Rechtsstatus permanenter Missionen von Nichtmitgliedstaaten bei Internationalen Organisationen’, 27 ÖZöR (1976), 67. 43 Cf. Schermers/Blokker, § 1810. 44 Schermers/Blokker, §§ 1816 ff., also on the problem of coordinating activities of UN specialised agencies in developing countries. For the UN, there are also public information centres; Schermers/Blokker, § 1829. 45 Cf comprehensively Karalus, Die diplomatische Vertretung der EU, 2009. 46 Cf. in particular Schermers/Blokker, § 1812. 47 Overview: http://ec.europa.eu/external_relations/repdel/edelhrm/index.cfm. 48 Frid, The Relations between the EC and International Organizations, 1996, 30 ff.; Wouters/ Hoffmeister/Ruys, The United Nations and the European Union: An Ever Stronger Partnership, 2006; List of representations: http://eeas.europa.eu/delegations/index_en.htm.

79

§ 5 Legal Personality

EU under Article 27 para 3 TEU.49 This is a new development; the diplomatic missions of the EU can now fulfil diplomatic and consular functions together with the missions of the Member States. 50 172 c) Liability. As soon as an international organisation has the capacity to act, it is also able to breach international law. Therefore, international personality always brings with it the possibility to be subject to claims of international law. Whether certain acts were ultra vires is irrelevant in this respect. There is a special law of liability for this question as well as the question of the Member States’ liability (→ § 7). In the ILC, there are efforts to codify the rules on international liability of international organisations.51 173 The capacity to bring claims for international responsibility is one of the oldest questions regarding the recognition of international organisations’ legal personality. It was already deduced from the functional protection the UN provides for its employees in the case Reparations for Injuries Suffered in the Service of the United Nations52 with respect to a conciliatory mission in the Middle East and it is beyond doubt today.53 The capacity to bring claims before the ICJ is, however, excluded as Article 34 para 1 ICJ only enables States to bring such action.54 3. Relationship with Non-Member States 174

Given the limited objectivity of International Organisations’ legal personality in constitutionalised international law (→ paras 61 f.), the question of recognition is of limited importance. On the one hand, International Organisations may claim that personality towards the whole international community and all its members by virtue of the founding treaty. In the same way as the recognition of States is not constitutive (any more), an International Organisation does not have to be recognised to gain legal personality. Therefore, there is no duty to recognise: No State and no International Organisation is obliged to recognise another organisation. Thus, the EEC and the COMECON were subjects of international

49 Martenczuk, ‘Der Europäische Auswärtige Dienst’, EuR Beiheft 2/2012, 189; Schmalenbach, ‘Die Delegationen der Europäischen Union in Drittländern und bei internationalen Organisationen’, EuR Beiheft 2/2012, 205. 50 On the former legal situation MacLeod/Hendry/Hayatt, The External Relations of the European Communities, 1996, 208 ff. 51 Latest results: http://legal.un.org/ilc/summaries/9_11.htm. 52 ICJ Rep. 1949, 174 (185 f.). 53 Critically on extending this capacity beyond the UN Klein /Schmahl in Graf Vitzthum/Proelß, para 105, as well as Breuer, 49 ArchVR (2011), 4 at 9 f., having recourse to Bindschedler, ArchVR 1961/1962, 376 at 387 f.; Doehring, para 213; Hahn, 71 HarvLawRev (1957), 1001 at 1048 ff.; Mosler, 22 ZaöRV (1962), 1 at 32) Pescatore, 103 RdC (1961 II), 1 at 40 f.; Schmalenbach, ‘International Organiszations or Instituions, General Aspects’, MPEPIL (2006), para 23. 54 Klabbers, Introduction, 43 f. In terms of judicial policy Szasz, in: Muller (ed.), The International Court of Justice, 1997, 169. Critically Lauterpacht, Aspects of the Administration of International Justice, 1991, 60 ff.

80

III. Capacity to Act under Domestic Law

law despite them not recognising each other.55 Also the initial non-recognition of OPEC could not call into question the organisation’s international legal personality. The idea of constitutionalisation, may offer a viable explanation for the par- 175 ticular norm in Article 2 para 6 UN.56 At least regarding peacekeeping, the United Nations are the constitutional backbone for the international community. It is therefore convincing to formulate the task to guarantee world peace and international security so that it also includes non-member States. Because of Article 34 VCLT a direct duty for non-members cannot be deduced from that purpose. The effects of the objective consequences of the application of that norm follow from the role of the United Nations in the global constitutionalising process. After the accession of Switzerland as the last larger non-Member State, the practical importance of that provision has decreased considerably.57 III. Capacity to Act under Domestic Law

The capacity of international organisations to act under domestic law has 176 to be differentiated from their international personality.58 This capacity is about being able to bear rights and duties within the States, i.e. to conclude contracts (sale of goods, services, labour), to appear in front of domestic courts or to be registered in public registers (e.g. register of real estate). The underlying principle of the relevant rules is practicability: If every Member State of an organisation were free to decide on the organisation’s capacity under domestic law, this would consequently create the problem of recognition of that conferment by the other Member States, as well as questions of a duty to recognise.59 Therefore, many founding treaties of international organisations explicitly 177 provide for capacity under domestic law. The reach of these provisions is different depending on the treaty. Normally, capacity to act is conferred depending on 55 Butler, ‘Council for Mutual Economic Assistance’, EPIL I (1992), 839. An different view is taken by Klein/Schmahl in Graf Vitzthum/Proelß, para 96. Generally Link, Ungleiche Partner im europäischen Haus, 1990, 59 ff. 56 Kelsen, The Law of the United Nations, 1950, 107 ff. Cf. also Cahier; ‘Le problème des effets des traités à l’égard des Etats tiers’, 143 RdC (1974-III), 589 at 707. Soder, Die Vereinten Nationen und die Nichtmitglieder, 1956, 254 ff.; Falk, The Authority of the United Nations to Control NonMembers, 1965, 43 ff. (with a differentiation in terminology). Sceptically Scheuner, ‘VN und Nichtmitglieder’, in: Max-Planck-Institut (ed.), Völkerrechtliche und staatsrechtliche Abhandlungen, Carl Bilfinger zum 75. Geburtstag am 21. Januar 1954 gewidmet von Mitgliedern und Freunden des Instituts, 1954, 371. 57 Talmon in Simma, Art. 2 (6), para 10, paras 14 f., also on the historical interpretation of the provision (coming to a similar conclusion albeit by different reasoning). 58 Schlüter, Die innerstaatliche Rechtsstellung der internationalen Organisationen, 1972, 23 ff.; Beitzke, ‘Zivilrechtsfähigkeit von auf Staatsvertrag beruhenden internationalen Organisationen und juristischen Personen’, 9 BerDGVR (1969), 77. 59 Klabbers, Introduction, 44 ff.; Dominicé, ‘Observations sur la personnalité juridique de droit interne des organisations internationales’, in: Hafner et al. (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern in honour of his 80th birthday, 1998, 85. Cf. comprehensively Reinisch, International Organizations Before National Courts, 2000; Rensmann, ‘Internationale Organisationen im Privatrechtsverkehr’, 36 AVR (1998), 305.

81

§ 5 Legal Personality

functional necessity, following the example of Article 104 UN, which confers upon the organisation such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. The WTO, too, confers capacity on this basis (Article VIII para 1 WTO).60 The recognition of domestic capacity goes further in the EU: Following Article 335 TFEU the EU is granted the most extensive legal capacity to act in the member states’ legal systems; the functional limitation is omitted. Beyond explicit provisions in the founding treaties, many authors state that there is a customary duty of the member states to recognise the capacity to act of the organisation founded by them. This is in line with the continuous practice of all relevant international organisations. 61 178 Article 335 TFEU also enumerates in an exemplary way which consequences may follow from the capacity to act in the domestic sphere, viz. the possibilities to acquire or dispose of movable and immovable property and to be a party to legal proceedings. For legal relationships that are created in this framework, domestic law (and not public international law) is applicable.62 Regarding the question of the organisation’s capacity to act in the domestic sphere, it is irrelevant whether the organisation is acting within the scope of its international powers, however, actions ultra vires may have consequences for the respective legal act. If the relevant domestic law differentiates between private and public law, the organisation will normally have the position of a legal person under public law.63 179 Legal personality is bestowed upon the organisation as a whole; in domestic legal relations it is represented by one of its organs, and that organ may be explicitly named (e.g. the European Commission in Article 335 TFEU). It is also possible to confer internal capacity to act to single organs, as is the case for the ECB (Article 282 para 3, 1. sentence TFEU), and the EIB (Article 308 TFEU) and following Article 335 TFEU for institutions and agencies of the EU. Agencies are nearly always given domestic capacity following the founding regulation, e.g. Article 15 Regulation 2007/2004 (EU) (Frontex), Article 19 Regulation 1592/2002 (EU) (European Air Security Agency). Doctrine accepts this capacity to act under domestic law but it does not go so far as to confer personality under international law upon the agencies.64 A different result could be deduced from the practice of single seat states which have concluded a headquarters agreement with the agencies in their country, e.g. Austria with the European Agency for the Observation of Racism and Xenophobia (out of which 60 Further: Art. 16 FAO, 66 WHO, 12 UNESCO, 47 ICAO, 31 ITU, 12.1 WIPO, 10 (2) International Fund for Agricultural Development, VIII. 48 Organisation for the Prohibition of Chemical Weapons, 4.1 ICC Statue, 95 (2) Benelux, 133 OAS, 52 Latin American Integration Association. 61 Klein/Schmahl in Graf Vitzthum/Proelß, para 112; similarly Seidl-Hohenveldern/Loibl, para 0327. 62 This can cause practical problems: cf. Schermers/Blokker, §§ 1601 ff. on the problem of legal obligations deriving from building regulations. 63 Klein/Schmahl in Graf Vitzthum/Proelß, para 112. For the EEC: EuGH, Rs. 44/59, Slg. 1960, 1115, 1133 (Fiddelaar). 64 See above fn. 23.

82

IV. Privileges and Immunities

the European Fundamental Rights Agency developed) in 200165 or Denmark and the European Environmental Agency as early as 1995. The conclusion of such an agreement is in no way different from a classical agreement with international organisations and could thus be interpreted as the concession of international legal personality. 66 The transfer of capacity under domestic law to the organisation cannot be 180 binding upon states other than the Member States because of the prohibition to impose duties upon third States. On the other hand, third States are free to concede this position to the relevant organisation.67 This is consequently done by domestic legislation.68 The Federal Republic of Germany before 1973 and Switzerland before 2002 recognised the United Nations in their domestic legal system as a legal person, which was particularly important for the seat State Switzerland.69 In principle, this is a question of the private international law of the respective third State. In practice it has been discussed whether comity would demand such recognition; the House of Lords affirmed such a duty.70 However, that decision is not subject to generalisation, as it mostly argues on the level of English law rather than international law.71 IV. Privileges and Immunities

The legal position of international organisations in the domestic sphere is 181 strongly influenced by privileges and immunities under international law. Regardless of the exemplary character of the Convention on Privileges and Immunities of the United Nations (→ para 184) there is no comprehensive codification of this subject, so that the actual privileges and immunities of international

Österreichisches BGBl. 2001 III, 84. Schusterschitz, ‘European Agencies as Subjects of International Law’, 1 International Organizations Law Review (2004), 163 at 174 f.. Ruffert, ‘Personality Under EU-Law: A Conceptual Answer Towards the Pluralisation of the EU’ 20 ELJ (2014), 346. 67 On this common practice Schermers/Blokker, § 1598. 68 Schermers/Blokker, § 1592. If there was no respective provision in the founding treaty, such domestic legislation would be an opportunity for Member States to fulfill their duty under customary law (→ para 177). 69 For Germany: Verordnung über die Gewährung von Vorrechten und Befreiungen an die Vereinten Nationen vom 16.6.1970, BGBl. 1970 II, 669. 70 Arab Monetary Fund v. Hashim [1991] 2 WLR 729. Earlier decisions: Bezirksgericht Utrecht, UNRRA v. Daan (1949), 16 ILR 337-8; Tribunal Brüssel, UN v. B. ILR 19 (1950), 490;Corte di Cassazione (Italy), Branno v. Ministry of War, ILR 22 (1955), 756; to this cf. Schermers/Blokker, § 1595. 71 Cf. Klabbers, Introduction, 45 ff. 65

66

83

§ 5 Legal Personality

organisations must be inferred from a complicated mixture of sources.72 This makes this subject particularly difficult, especially in the state of the seat of the respective international organisation, where it is of high relevance. In contrast to state immunity, the existence and design of which all states have an interest in, it is the main group of seat states (USA, Switzerland, Austria, partially Netherlands, France, United Kingdom) that have the greatest influence on the privileges and immunities of international organisations.73 It is because their interests were not considered enough that the signature and entry into force of the Vienna Convention on the Representation of States in Their Relations to International Organisations of a Universal Character failed.74 182 At any rate, there is consensus on the doctrinal basis of immunity of international organisations. Whereas state immunity is rooted in sovereignty (par in parem non habet imperium) and partially perpetuates ideas of dignity as the basis of immunity, in the context of international organisations, it is the protection of functionality alone, i.e. the guarantee of the effective fulfilment of the organisation’s tasks.75 This is clarified by Article 105 UN, which confers privileges and immunities to the organisation as a whole (first section) as well as to its representatives (section two) for the fulfilment of the purposes of the UN and the independent exercise of their functions in connection with the organisation. 183 That source of immunity, however, has its weaknesses:76 In particular instances, it may be unclear which privileges are necessary for the effective realisation of the organisation’s purposes so that their concrete content may depend on the result of negotiations. This bears the risk of uncertainties, even if they are fixed in an international treaty, e.g. in a headquarters agreement (→ paras 193 f.). The functional starting point further bears the risk of excessive protection of the organisation’s interests compared to other purposes: The aim to protect the work of the organisation may incur upon individual and collective positions in seat States (to further development → para 188). In extreme cases it may justify even severe disturbances of public order or even human rights violations by in-

72 Klabbers, Introduction, 1137. Comprehensively Wenckstern, Handbuch des Internationalen Zivilverfahrensrechts. Die Immunität internationaler Organisationen, volume II/1, 1994; Duffar, Contribution à l’étude des privilèges et immunités des organisations internationales, 1982; further Gaillard/Pingel-Lenuzza, ‘International Organisations and Immunity from Juristdiction: To Restrict or to Bypass’, 51 ICLQ (2002), 1; Singer, ‘Juristdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns’, 36 Va.J.Int’l Law (1995), 53; Szasz, ‘International Organizations, Privileges and Immunities’, EPIL II (1995), 1325; Habscheid, ‘Die Immunität internationaler Organisationen im Zivilprozeß’, 110 ZZP (1997), 269. On the relevant case law Wickremasinghe, International Organiszations or Institutions, Immunities before National Courts, MPEPIL (2009). 73 Klabbers, Introduction, 145 f. 74 Klein/Schmahl in Graf Vitzthum/Proelß, para 107. 75 Klein/Schmahl in Graf Vitzthum/Proelß, para 106; Klabbers, Introduction, 146 f. Aus der Praxis Sep. Op. Shahabuddeen, : IGH, ‘Applicability of Art. VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations’, ICJ Rep. 1989, 177 at 219 – Mazilu. 76 On this cf. Klabbers, Introduction, 132 ff.

84

IV. Privileges and Immunities

ternational organisations (e.g. discriminations against employees).77 At any rate, the functional basis leaves no space for the differentiation between acta iure imperii/iure gestionis as it is common practice with respect to state immunity.78 If privileges and immunities are enshrined in an international treaty, this is in 184 most instances the founding treaty, as is the case with Article 105 UN, as well as Article 40 ILO, Article 12 UNESCO, Article 16 FAO, Article 133 OAS and Article 40 Council of Europe. More precise provisions on the rights of immunity are in most cases contained in special agreements such as the Convention on Privileges and Immunities of the United Nations (on the basis of Article 105 para 3 UN).79 As already mentioned, this convention serves as an example for many other immunity agreements, e.g. for the respective convention for UN special agencies80 or for the Protocol on Privileges and Immunities of the EU.81 In addition, headquarters agreements may contain privileges and immunities ( paras. 193 ff.). In contrast to state immunity, customary rules are rare, due to the functional basis of the immunity of International Organisations and functional needs of an organisation are always linked to concrete treaty law.82 The same applies for the guarantee of immunity by domestic law; there is no proof of uniform practice. In substance, privileges and immunities concern – from a simplified perspec- 185 tive – the organisation as such on the one hand and representatives in the context of the organisation on the other hand. In an exemplary fashion, Article II of the Convention on Privileges and Immunities of the United Nations lists the privileges of the UN: Immunity of all property and assets of the organisation, its premises and archives, and freedom from national taxation.83 The participation in court procedures is only possible in case of a waiver of immunity. In addition Article III also provides for free communication between institutions of the UN within state territory. Representatives of the Member States in an International Organisation enjoy comprehensive protection following the example of State oriented diplomatic law (Article IV) – always limited by functional necesCf. Klabbers, Introduction, 135 f., with practical examples. Higgins, Problems and Process – International Law and How We Use it, 1994, 93. Calling this into question Habscheid, ‘Die Immunität internationaler Organisationen im Zivilprozeß’, 110 ZZP (1997), 269. 79 1 UNTS 15; BGBl. 1980 II, 941. 80 33 UNTS 261; BGBl. 1954 II, 639; 1964 II, 187. Cf. Ahluwalia, The Legal Status, privileges and Immunities of the Specialized Agencies of the United Nations and Certain Other International Organizations, 1964. 81 ABl. 2006 no. C 321 E/317. See also the General Protocol on Privileges and Immunities of the Europarat SEV no. 2 (1949). From recent practice cf. ECJ, Joint Cases C-200 and C-201/07, ECR 2008, I-7929 (Marra/De Gregorio und Clemente). On the special case of European Schools cf. BVerfGE 182, 10 at 24 f. 82 Seidl-Hohenveldern/Loibl, paras 1905 ff. Other opinion: Schermers/Blokker, § 1611 (with reference to State immunity of the Member States); similarly Bothe, ‘Die Stellung der Europäischen Gemeinschaften im Völkerrecht’, 37 ZaöRV (1977), 122 at 131. 83 Cf. Schermers/Blokker, § 1606. For a more detailed account see Gerster/Rotenberg in Simma, Art. 105 paras 11 ff. On taxation Muller, ‘International Organisations and their Officials: To Tax or Not to Tax?’, 6 LeidenJ Int’l Law (1993), 47. 77

78

85

§ 5 Legal Personality

sity.84 Representatives of the organisation may also claim comprehensive protection (e.g. freedom from taxation) – often even against their own home country.85 Conversely, litigation with respect to the service relationship cannot be pursued in national courts.86 It is here that the personality of international organisations under international law and their protection by privileges and immunities becomes particularly clear. 186 It is the rules on the immunity of personnel that highlight the possibilities of abuse.87 Immunity is not automatically omitted if actions ultra vires88 are at stake. There may rather be a duty to wave immunity if a concrete action does not lead to the realisation of purposes or the fulfilment of the tasks of the organisation. 187 A particular problem is the immunity of international organisations in operative (military or administrative) activities in crisis areas or in territories to be governed by the international community. The application of the provisions on immunity is often held to be unsatisfactory if members of the United Nations or of military units under their control (“blue helmets”; paras. 405 f., 440) are involved in human rights violations.89 188 The higher the level of constitutionalisation of an organisation, the higher the density of the organisation and the further the influence on the domestic sphere, the more privileges and immunities, which are created for the “classical” diplomatic relationships, may be contrary to elementary requirements of the rule of the law. This tendency is a challenge for the functional approach. For these very reasons the immunity of the highly integrated EU is limited in many areas (cf. e.g. Article 274 TFEU), to avoid a lack of legal protection for subjects of the law in the EU; for good reasons, however, legal protection is concentrated within the

84 Cf. Art. IV Section 14: „Privileges and immunities are accorded to the representatives of Members not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connexion with the United Nations…”. 85 Cf. ICJ, Applicability of Art. VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, ICJ Rep. 1989, 177 (Mazilu), where a special envoy of the UN was granted immunity who was not even in a permanent service relationship. 86 Seidl-Hohenveldern, Die Immunität Internationaler Organisationen in Dienstrechtsstreitfällen, 1981. 87 Cf. Klabbers, Introduction, 143 ff., as well as the cases referred to in para 308 in fine (fn. 48) and the report in 104 AJIL (2010), 281. 88 In the UN, it is the Secretary-General, not national authorities, that is competent to designate the powers of representatives: IGH, Difference relating to immunity from legal process of a special rapporteur of the Commission of Human Rights (Cumaraswamy), ICJ Rep. 1999, 62 (Cumaraswamy), no. 50 ff. Cf. Fox, ‘The advisory opinion on the difference relating to immunity from legal process of a special rapporteur of the Commission of Human Rights who has the last word on judicial independence?’, 12 LeidenJ Int’l Law (1999), 889 at 911 ff.; Wickremasinghe, ‘Recent Cases: Difference Relating to Immunity from Legal process of a Special Rapporteur of the Commission on Human Rights’, 49 ICLQ (2000), 724. 89 Rawski, ‘To Waive or not to Waive: Immunity and Accountability in U.N. Peacekeeping Operations’, 18 Conn.J.Int’l Law (2002), 103; Lüder, Völkerrechtliche Verantwortlichkeit bei Teilnahme an „Peace-keeping”-Missionen der Vereinten Nationen, 2004; Hermsdörfer, ‘Zur Immunität der Angehörigen einer Friedenstruppe der Vereinten Nationen’, NZWehrr 1997, 100.

86

V. Relation to the Host State

ECJ.90 Quite rightfully the adoption of immunity rules for international organisations for the European police organisation EUROPOL has caused an intensive debate.91 V. Relation to the Host State 1. Seat

The seat of International Organisations is the place where the organs, in par- 189 ticular the secretariat and comparable institutions (→ paras 307 f.) are localised. An international organisation may have one or more seats and respectively seat States. The seat can be agreed upon in the founding treaty, as is the case for the Council of Europe (Article 11 of the Charta: Strasbourg), the International Seabed Authority (Article 156 para 4 UNCLOS: Jamaica) and the International Tribunal for the Law of the Sea (Article 1 para 2, Annex VI to UNCLOS: Hamburg).92 Often, however, such a fixed rule is omitted. Being the seat of an international organisation is usually quite attractive for the respective state, so that the discussion about the seat could be an obstacle to the successful foundation of the organisation. Therefore, neither the UN nor the WTO has a fixed seat by treaty, although New York and Geneva as the classic seats are beyond dispute.93 Furthermore there are the seats of the many subsidiary and special organs, organisations and agencies. The EU/EC did not achieve a permanent rule on its seat until the Treaty of 190 Amsterdam (1997), although the protocol in force since then bears the character of a compromise. This is particularly apparent with respect to the seat of the parliament, which is divided between Strasbourg, Brussels and Luxembourg and the meetings of the council divided between Brussels and Luxembourg.94 Article 341 TFEU leaves further questions regarding the seat open to the consensus of the member states; the relationship of loyalty between the EU and the member states requires a finding a balance between the functionality of the organs on the one hand and the interests of the member states concerned on the other hand.95 It is neither forbidden nor even unusual that headquarters are placed in a non- 191 Member State. Most commodity agreements are localised in London – with exception of OPEC (seat: Vienna). Switzerland was a non-member state of the

Cf. Art. 1 of the Protocol on Privileges and Immunities of the European Union. Overview on the debate and its end by a new regulation: Suhr, in: Calliess/Ruffert (eds.), EUV/AEUV, Art. 88, para 27, with further references in Fn. 83 and 84. 92 Art. 45 ICAO-Convention leaves the question to the Member States. 93 For the UN: A/RES/100 I (New York). Cf. generally Jenks, The Headquarters of International Institutions, 1945. According to Art. 7, 1st sentence of its Covenant, the seat of the League of Nations was Geneva. 94 ABl. 1992 no. C 341/1. To this cf. Ruffert in Calliess/id., Art. 341 AEUV para 4. 95 EuGH, Rs. 230/81, Slg. 1983, 255 (Luxemburg/EP); Rs. C-345/95, Slg. 1997, I-5215 (Frankreich/EP). 90

91

87

§ 5 Legal Personality

United Nations until 2002 but it has ever been its second most important seat state.96 192 If there is no express treaty rule, the organisations are free in the choice of their seat. However, the particular interests of the seat state to maintain that status and the reciprocal relationship of trust between the seat State and the organisation, as laid down in the headquarters agreement (→ para 139), make a change of seat without prior cooperative negotiation with the seat state not admissible under international law.97 2. Headquarters Agreement

The relationship of the international organisation and the seat State is regulated in a headquarters agreement.98 That agreement must find a balance between the interests of the organisation in effective work on the one hand and the economic and security interests of the seat state of the other hand. In the view of the most important seat states, the Vienna Convention of 1975 (→ para 181) failed to reach that balance because it placed too big burdens on them. Consequently it did not enter into force so that currently a multitude of bilateral agreements are the relevant legal sources. The most important of them is the UN Headquarters Agreement of 26 June 1947 between the UN and the USA,99 which is to be read in close connection with the Convention on Privileges and Immunities.100 194 These agreements aim above all to guarantee efficient work of the relevant organisation by protecting the premises and representatives of the organisation and guaranteeing the representatives of the organisation, as well as State representatives with the organisation, the free movement to and from the headquarters.101 Dispute settlement provisions guarantee the peaceful settlement of conflicts resulting out of the agreement. Further, international organisations are exempt from taxes in the seat state.102 The most spectacular infringement of a headquarters agreement was the refusal of entrance to Yassir Arafat in 1988 193

Examples according to Schermers/Blokker, § 1689. IGH, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, ICJ Rep. 1980, 73, paras 43 ff. see also Herbst, ‘International Organizations or Institutions, Headquarters‘, MPEPIL (2009). 98 Cf. Muller, International Organizations and their Host States, 1995, 25 ff.; Schütz in Wolfrum, 772 ff. 99 11 UNTS 147. 100 Cf. Schermers/Blokker, §§ 1606-1612. Further do Nascimento e Silva, ‘Privileges and Immunities of Permanent Missions to International Organizations’, 21 GYIL (1978), 9. 101 Cf. Schermers/Blokker, §§ 327 ff., as well as Goy, ‘Le droit d’accès au siège des organisations internationales’, 66 RGDIP (1962), 357. 102 Arbitration award referring to the interpretation of the „seat agreement“ of the European Laboratory of Molecular Biology from 29.6.1960; Kunz-Hallstein, ‘Privilegien und Immunitäten internationaler Organisationen im Bereich nicht hoheitlicher Privatrechtsgeschäfte’, NJW 1992, 3069; Hailbronner, ‘Völkerrechtliche und staatsrechtliche Aspekte fiskalischer Immunität in Sitzstaatsabkommen des Europäischen Laboratoriums für Molekularbiologie’, 22 GYIL (1979), 313. From the new practice US SC; Permanent Mission of India to the United Nations v. City of New York, 551 U.S. (2007), 127 S.Ct. 2352. 96

97

88

V. Relation to the Host State

by the USA, which forced the General Assembly to meet in the League of Nations Palace in Geneva to allow Arafat to deliver his speech.103 Furthermore, in the seat agreement the headquarters district is fixed. The UN have the duty to prevent abuse of the special status of that district. In addition, there are practical regulations; e.g. all security staff are holders of a weapon permission issued by the City of New York.104

103 US Department of State, Statement on the visa application of Yassir Arafat, 83 AJIL (1989), 253. On this matter cf. Reisman, ‘The Arafat Visa Affair: Exceeding the Bounds of Host State Discretion’, 83 AJIL (1989), 519; id., ‘An International Farce, The Sad Case of the PLO Mission 14’, 14 YaleJ.Int’l Law (1989), 412; Sadiq Reza, ‘International Agreements: United Nations Headquarters Agreement – Dispute over the United States Denial of a Visa to Yasir Arafat’, 30 Harv.Int’l LJ (1989), 536. The decision in ICJ, Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1974, ICJ Rep. 1988, 12, only concerned the obligation of dispute resolution and not the factual issue of the infringement of the headquarters agreement (cf. para 33 of the decision). In United States v. Palestine Liberation Organization, 82 AJIL (1988), 83 (SDNY 1988), a court of New York did not consider it necessary to shut down the PLO-Mission in New York based on American anti-terrorist legislation (to this cf. Fitschen, ‘Closing the PLO Observer Mission to the Untited Nations in New York’, 31 GYIL (1988), 595). In Klinghoffer et al. v. Achille Lauro, 816 F.Supp. 930 (SDNY 1993), an American Federal Court refused the PLO immunity based on its observer status under New York law. 104 For further examples see Schermers/Blokker, § 1690, fn. 8.

89

§6 The Doctrine of Powers Literature: Cannizzaro/Palchetti, ‘Ultra vires acts of international organizations’, in: Klabbers/Wallendahl, Research Handbook on the Law of International Organizations 2011, 365 ff.; Deshman, ‘Horizontal Review Between International Organisations: Why, How, and Who Cares About Corporate Regulatory Capture’, 22 EJIL (2011), 1089 ff.; Engström, ‘Reasoning on powers of organizations’, in: Klabbers/Wallendahl, Research Handbook on the Law of International Organizations, 2011, 56 ff.; Makarczyk, ‘The International Court of Justice on the Implied Powers of International Organizations’, in: id. (ed.), Essays in International Law in Honour of Judge Manfred Lachs, 1984, 501 ff.; Obsieke, ‘The Legal Validity of Ultra Vires Deicions of International Organizations’, 77 AJIL (1983), 239 ff.; Rouyer-Hameray, Les compétences implicices des organisations internationales, 1962; Sarooshi, International Organizations and their Exercise of Sovereign Powers, 2005; Weiß, Kompetenzlehre internationaler Organisationen, 2009.

I. Concept

The doctrine of powers is a theoretical centre of gravity in the law of Interna- 195 tional Organisations. It combines basic approaches of public international law with influences of federalism theory. Its concrete doctrinal shape indicates the state of public international legal scholarship in general as well as the current degree of institutional autonomy International Organisations enjoy. It highlights nothing less but the reach of the concept of constitutionalisation in public international law. How should basic notions of powers and competences be developed – based on public international law or (by way of a methodological analogy) on the law of the most important federal States? What is the basis of public international law – State consensus towards coordination, a pragmatic intent to cooperate or rather constitutionalisation aimed at integration? In English terminology these reflections revolve around the concept of “pow- 196 er”, while the term “competence” is nearer to continental legal thought. Whatever the term employed, the central issue is enabling International Organisations to act vis-à-vis its Member States as well as third party States (→ paras 197 f.).1 Attributing a power to a particular organ of the Organisation – a subcategory of the question at hand – is a matter of internal organisation (→ paras 268 f.). At this point it becomes clear that the distinction made in federal theory between the competences of an entity and those of an organ is not completely taken up by scholarship on the law of International Organisations. There are only few reflections on the competences of International Organisations vis-à-vis each other within the international community (→ paras 210 f.).2 1 2

Cf. Klabbers, Introduction, 60 f. On terminology: Schermers/Blokker §§ 1718 f.

91

§ 6 The Doctrine of Powers

II. Basic Principles of the Attribution of Powers 1. The Principle of Specialty

a) The Principle. The undisputed starting point of the theory of competences in the law of International Organisations is the principle of specialty or doctrine of attributed powers.3 In essence, International Organisations are vested only with such powers as are attributed to them by their constitutive treaty. The powers are always related to the organisation’s tasks, as these tasks set the frame for the powers’ execution. Tasks of the organisation and specific powers are often inseparable if – as in Article 1 lit. d Council of Europe – a certain policy area is explicitly excluded from the scope of the organisation’s tasks. An organisation that is attributed a broad array of tasks (as is the case with Article 1 UN), on the other hand, is likely to have broad powers.4 The attribution of powers can develop in a dynamic way and produce spill-over effects if the relationship to other policy fields demands an enlargement of powers at a later time. The best example is the development of political cooperation from economic relationships within the EC. 198 The doctrine of attributed powers is fixed in a number of founding treaties of International Organisations, ranging from specialised agencies of the UN (e.g. FAO) to regional organisations (e.g. OAS or ECOWAS) including the wellknown wording in Article 5 para 1 TEU.5 199 The principle gains particular impact when negatively formulated from the point of view of the International Organisation’s Member States. This is the model of Article 2 para 7 UN which excludes the domaine réservé, the sum of the Member States’ inherent competences, from the UN’s access (e.g. fundamental political decisions or the establishment of constitutional values).6 This provision, however, is only able to regulate powers if the content of the domaine réservé is determined by international law. Were it to be otherwise, individual Member States would have the ability to limit the reach of the organisation’s powers. This matter was in fact settled by the PCIJ’s early jurisprudence.7 One should, however, not overlook the fact that this constitutes a certain deviance from the concept of attributed powers. If the domaine réservé limits the UN’s powers and public international law develops in a way to reduce the domaine réservé’s scope, this may mean an extension of the organisation’s powers. This has long since been the case within the UN (apart from Chapter VII which Article 2 para 7 expressly excludes): violating peremptory norms of international 197

Klein/Schmahl in Graf Vitzthum/Proelß, para 189. Klein/Schmahl in Graf Vitzthum/Proelß, para 188. 5 Art. XVI (1) FAO, Art. 1 (2) OAS, Art. 88 (2) lit. a ECOWAS. Cf. Klabbers, Introduction, 65. 6 Klein/Schmahl in Graf Vitzthum/Proelß, paras 195 f. 7 Leading case: PCIJ, ‘Nationality Decrees Issued in Tunis and Morocco (French Zone) on November 8th’, PCIJ 1921, Ser. B, no. 4 (1923), 7 at 24. 3

4

92

II. Basic Principles of the Attribution of Powers

law, above all the respect for human rights, places an act outside the domaine réservé and activates the UN’s powers.8 b) Doctrinal Background. The validity of the principle of specialty is undis- 200 puted in the law of International Organisations. It was first developed by the PCIJ concerning the powers of the ILO9 and spelled out in a decision on the European Danube Commission: “As 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 fulfilment of that purpose, …”.10 The principle has not been reiterated in that precision by the ICJ.11 However, the provisions on the attribution of competences that are found in founding treaties (→ para 197) are based on the principle of attributed powers in its strictest, one might even say classical, form. The PCIJ’s wording cannot be viewed isolated from the development of international law at the time: in the 1920 s the positivist view that was based on State sovereignty and was famously expressed in the Lotus-dictum12 dominated international law.13 This perspective is easy to place in the development of public international law: following the creation of a large number of new States by peoples realising their right to self-determination, the preservation of State sovereignty served as a bulwark against new hegemonic tendencies. From a modern point of view, howevern this starting point appears anachronistic since the traditional concept of sovereignty was replaced by new models of cooperation and integration (→ paras 702 f.). The principle of specialty’s predominance should be viewed in light of this aspect of doctrinal history. In doing so, tendencies to reduce its impact (including, in a way, the predominant view on the domaine réservé) are plausibly explained. 8 On human rights as a matter of international concern cf. already Verdross/Simma, § 265. Nolte in Simma, Art. 2 (7) paras 38 f. is taking a differentiated view. 9 PCIJ, ‘Competence of the ILO to Regulate the Conditions of Labour of Persons Employed in Agriculture’, PCIJ 1922, Ser. B, no. 2, 9 at 21 f.; ‘Competence of the International Labour Organization in regard to examination of proposals for the organization and development of the methods of agricultural production and other questions of a like character’, PCIJ 1922, Ser. B, no. 3, 49 at 53 f.; ‘Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employer’, PCIJ 1925, Ser. B., no. 13, 6. 10 PCIJ, ‘Jurisdiction of the European Commission for the Danube between Galatz and Braila’, PCIJ 1927 Ser. B, no. 14, 5 at 64, highlighted by the authors. 11 The most prominent application is the case of the WHO’s quest for an advisory opinion on the legality of the use of nuclear weapons which was considered to be outside that organisation’s powers: ICJ, ‘Legality of the use by a state of nuclear weapons in armed conflict’, ICJ Rep. 1996, 66, para 20. 12 PCIJ, ‘The Case of the S.S. Lotus’, PCIJ Rep. Ser. A, no. 10, 18: „International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these coexisting independent communities or with a view to the achievement of common aim. Restrictions upon the independence of States cannot therefore be presumed.”. 13 Instructively Klabbers, Introduction, 64. Cf. also Engström, ‘Reasoning on powers of organizations’, in: Klabbers/Wallendahl, Research Handbook on the Law of International Organizations (Edward Elgar, 2011), 56.

93

§ 6 The Doctrine of Powers

2. Interpreting Power-Conferring Provisions 201

These tendencies become visible when interpreting the founding treaty and its provisions that confer powers. The strict attribution of powers has the disadvantage of not being capable of adequately anticipating later developments – the contracting States are not all-knowing.14 Therefore, the law of International Organisations recognises the importance of the teleological method of interpretation in this point. The principle of effet utile as expressed by Article 33 para 4 VCLT is particularly relevant in interpreting provisions on powers: one must choose the interpretation which most effectively gives effect to the organisation’s aim.15 If the broad teleological interpretation that is oriented towards the organisation’s aim implies a change in the organisation’s political orientation, conflicts of competence become inevitable.16 With regard to NATO and its refocusing away from defence against the defunct Warsaw Pact, Georg Ress illustratively named this effect “treaty on wheels” (“Vertrag auf Rädern”).17 This approach causes problems not so much on the level of public international law as concerning the new interpretive practice’s reach in internal law.18 3. The Doctrine of Implied Powers

The most visible modification, if not breach, of the doctrine of specialty is the doctrine of implied powers. This doctrine supplements the international law based on State cooperation which is at the base of the doctrine of specialty by a doctrinal figure from federal theory. The doctrine of implied powers stems from American federal theory and practice and postulates that the attribution of a general power to a federation implies that all powers that are necessary to execute that general power shall be attributed to the federation as well.19 For the law of International Organisations this means that an organisation must have all powers necessary for the fulfilment of the tasks fixed in the founding treaty.20 203 In public international legal practice the doctrine of implied powers has long since been recognised.21 Thus, the ICJ as early as 1948 deduced the UN’s legal personality from the organisation’s power to bring claims against third States in 202

Klabbers, Introduction, 74. Having recourse to public international law ECJ, Case 8/55, ECR 1954-6, 292 at 312; Fédéchar/High Authority. 16 Klein/Schmahl in Graf Vitzthum/Proelß, para 190. 17 Ress, ‘Verfassungsrechtliche Auswirkungen der Fortentwicklung völkerrechtlicher Verträge’, in: Fürst (ed.), Festschrift für Wolfgang Zeidler, 1987, 1175 f. at 1179. 18 On this → para 110. 19 Classical text: Madison, Federalist no. 44, „wherever a general power to do a thing is given, every particular power necessary for doing it is included.”. 20 Klein/Schmahl in Graf Vitzthum/Proelß, para 191. 21 On allusions in the jurisprudence of the PCIJ Klabbers, Introduction, 67. Cf. also the explanations by van der Hout, Die völkerrechtliche Stellung der Internationalen Organisationen unter besonderer Berücksichtigung der Europäischen Union, 2006, 103 f., on treaty-making powers. 14

15

94

III. Consequences of Ultra Vires Acts

its own name.22 On the same line, the ICJ also implicitly recognised the UN’s power to establish an administrative court since the organisation’s principles would not permit cutting off access to domestic courts without at the same time providing effective remedies within the organisation itself.23 In some instances the implied powers doctrine was also used concerning powers of individual organs.24 Given the great dynamics of European integration, the implied powers doc- 204 trine was particularly important for the European Community in its early days.25 It was consequently laid down in the treaties: first in Article 235 E(E)CT, later Article 308 ECT, now Article 352 TFEU.26 Following many treaty amendments which introduced a great number of powers to the treaties, the importance of the implied powers doctrine in European law and of Article 352 TFEU substantially decreased – against all assumptions and fears to the contrary.27 Its origins in federal theory notwithstanding, the implied powers doctrine con- 205 tinues to be linked to an organisation’s founding treaty and thus to the intentions of the founding members. The theory of inherent powers goes one step further. In the same way as it derives an organisation’s legal personality from its factual situation and its factual needs (→ para 155), it asks which powers the organisation needs to effectively perform its tasks.28 Consequently, it does not rely on interpreting the relevant norm of the founding treaty but on the needs of the actual situation. As there are no general normative criteria for describing an organisation’s tasks, this theory was not widely accepted. Article 352 TFEU is linked to the implied powers doctrine as well as it expressly refers to the union’s tasks.29 III. Consequences of Ultra Vires Acts

Assessing the consequences of ultra vires action is the most delicate point not 206 only of competence theory but also of the entire law of International Organisations. There are two connected questions: the substantial question whether an organisation’s act is within its powers and the formal/procedural question of which institution is entitled to make that assessment as well as on which level this institution is to be placed – on the level of the organisation or on that of the Member States. 22 ICJ, ‘Reparation for Injuries Suffered in the Service of the United Nations’, ICJ Rep. 1949, 174 at 182; → para 154. 23 ICJ, ‘Effect of Awards of Compensation Made by the United Nations Administrative Tribunal’, ICJ Rep. 1954, 47 at 57. 24 Seidl-Hohenveldern/Loibl, paras 0921 f. 25 Most illustrative of this is ECJ, Joint Cases 281 and 283 to 285/85, ECR 1987, 3203, paras 28 f. (Germany v. Commission). On this case law generally Calliess in: id./Ruffert, Art. 5 EUV paras 16-19. 26 On the function of this provision Bungenberg, Art. 235 EGV nach Maastricht, 1999. 27 Cf. only Rossi in Calliess/Ruffert, Art. 352 AEUV para 19. 28 Seyerstedt, Objective international personality of intergovernmental organizations, 1963, 28. 29 Rossi in Calliess/Ruffert, Art. 352 AEUV paras 25 f.

95

§ 6 The Doctrine of Powers

The ultra vires issue is primarily pertinent within the organisation. Externally, it constitutes an issue of protecting legitimate expectations: an International Organisation’s contracting partner or any other subject of international law that comes in contact with the organisation needs to be able to rely on an organ’s acts to be within the boundaries of the organisation’s powers except in cases of evident ultra vires action: Article 46 para 2 VCLTIO correctly spells out this general rule for the law of treaties (→ para 164).30 208 The real problem arises when a breach of an organisation’s powers by one of its organs is claimed by a Member State. It is relatively seldom that the organisation itself provides that one of its organs – e.g. the dispute settlement organ – is competent to decide upon the breach of powers and its consequences. This role is for instance attributed to the ECJ under Article 19 TEU. The ECJ’s jurisprudence has often been criticised as being too friendly towards integration and there have been calls for a new court of competences.31 This point of view, however, is not convincing. In federal States as well the dispute settlement organ that decides upon competences and powers is a federal organ (as opposed to a State organ) – this does not necessarily result in centralist tendencies as the recent jurisprudence of the Bundesverfassungsgericht and even the ECJ prove.32 Where a rule like Article 19 TEU exists, decisions by the competent organ are exclusive and Member States cannot unilaterally avoid their duty of compliance by claiming that these acts transgressed the organisation's powers.33 Consequently, the Bundesverfassungsgericht restricted its scrutiny of ultra vires acts to situations in which an EU institution is “manifestly in breach of competences and the impugned act leading to a structurally significant shift to the detriment of the Member States in the structure of competences.”34 According to the same case law, a preliminary reference to the ECJ must be made before a breach may be claimed at the domestic level. 209 If there is no institution to solve such disputes, the conflict between the organisation’s claim of possessing the power in question and the self-assessment by the Member State is practically unsolvable. Two theoretical views oppose each other:35 while one party claims that Member States cannot evade their obligations by claiming a breach of powers,36 opponents view Member 207

Cf. generally Klein/Schmahl in Graf Vitzthum/Proelß, para 193. Broß, ‘Bundesverfassungsgericht – Europäischer Gerichtshof – Europäischer Gerichtshof für Kompetenzkonflikte’, 92 VerwArch (2001), 425 at 429; Goll/Kenntner, ‘Brauchen wir ein Europäisches Kompetenzgericht? – Vorschläge zur Sicherung der mitgliedstaatlichen Zuständigkeiten’, EuZW 2002, 101; Koenig/Lorz, ‘Stärkung des Subsidiaritätsprinzips’, JZ 2003, 167 at 172. 32 BVerfGE 106, 62 (Altenpflege); EuGH, Rs. C-376/98, Slg 2000, I-8419 (Tabakwerbung I). Vgl. Ruffert, ‘Schlüsselfragen der Europäischen Verfassung der Zukunft’, EuR 2004, 165 at 191. 33 Cf. also Klein/Schmahl in Graf Vitzthum/Proelß, para 194 with further references to EU-law. 34 BVerfGE 126, 286 – Honeywell (English translation from www.bundesverfassungsgericht.de). The Bundesverfassungsgericht has now made the first preliminary reference http:// www.bundesverfassungsgericht.de/pressemitteilungen/bvg14-009.html 35 Cf. Klein/Schmahl in Graf Vitzthum/Proelß, para 194, and – in extenso – Obsieke, ‘The Legal Validity of Ultra Vires Deicions of International Organizations’, 77 AJIL (1983), 239. 36 Sep. op. Morelli, ICJ Rep. 1962, 216 at 224. 30

31

96

IV. Distribution of Competences between International Organisations

States as the only instance capable of preventing an excessive extension of the organisation’s powers.37 The theoretical conflict impressively shows that if an organisation wants to avoid crisis or even blockade it requires dispute settlement organs for solving such conflicts. IV. Distribution of Competences between International Organisations 1. Institutional Differentiation within the International Community as a Problem

As of today, there are no fixed rules for distributing competences between In- 210 ternational Organisations. This leads to collisions not only if organisations are in a hierarchical relationship, e.g. by an organisation or all or the majority of its members being a member of another organisation. Also and particularly in cases in which International Organisations of equal rank have parallel access to a particular field of policy, be it on the global or on a regional level, there may be conflicts. Examples include the EU’s membership in the WTO as well as the parallel claims to questions of environmental or social protection that are raised by the WTO and by environmental organisations or the ILO.38 The solutions offered by treaty law are often insufficient. As an example, the 211 lex posterior rule that is behind the VCLT’s collision rules may easily be overcome by re-founding an organisation as happened in 1994 in the case of the GATT 1947.39 2. Coordinating Mechanisms

Often the problem is dealt with by coordinating between International Orga- 212 nisations.40 Negative coordination tries to avoid double activity by several organisations (e.g. in the area of development).41 Positive coordination aims at harmonising International Organisations’ activities if their founding treaties’ regimes overlap. This also includes hierarchical elements, which is particularly 37 Explicitly Diss. op. Winarski toICJ, ‘Certain Expenses of the United Nations (Art. 17, Paragraph 2 of the Charter)’, ICJ Rep. 1962, 151, 227 at 232. According to Gros (Seperate Opinion to ICJ, ‘Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt’, ICJ Rep. 1980, 73, 99 at 104) this shall also be valid in case of an unanimous decision within the relevant organ because a breach of powers cannot be overcome even by unanimity. Cf. Klein/ Schmahl in Graf Vitzthum/Proelß, para 194 with fn. 591, Cannizzaro/Palchetti, ‘Ultra vires acts of international organizations’, in: Klabbers/Wallendahl, Research Handbook on the Law of International Organizations (Edward Elgar, 2011), 365 at 376 f. 38 On this whole issue Ruffert, ‘Zuständigkeitsgrenzen internationaler Organisationen im institutionellen Rahmen der internationalen Gemeinschaft’, 38 AVR (2000), 129 at 133 f. 39 McRae, ‘The Contribution of International Trade Law to the Development of International Law’, 260 RdC (1996), 99 at 190 f.; Schreuer, ‘The Waning of the Souvereign State: Towards a New Paradigm for International Law?’, 4 EJIL (1993), 447 at 458. Particularly on GATT Schmidt/ Kahl, ‘Umweltschutz und Handel‘, in: Rengeling (ed.), EUDUR II/2, 2nd edn. 2003, § 89 paras 101 f. 40 Cf. Schermers/Blokker, §§ 1702 f. On the co-ordination of treaties Matz, Wege zur Koordinierung völkerrechtlicher Verträge, 2005. 41 Schermers/Blokker, § 1705.

97

§ 6 The Doctrine of Powers

true of Article 103 UN postulating the Charter’s supremacy with respect to all of its members other international treaties. In reverse perspective this also goes for Articles 350 and 351 TFEU calling for supremacy of BENELUX and other treaties as well as for Article 1 lit. c Council of Europe prohibiting interference by membership in the Council of Europe with cooperation in other organisations, and finally for Article 131 OAS recognising the supremacy of the UN Charter. 213 More commonly organisations introduce obligations of coordination for diplomatic practice as in Article 58 UN, Article 278 UNCLOS, Article III para 5/V para 1 WTO or Article 220 TFEU. Establishing common organs may considerably intensify coordination and cooperation.42 Such common organs may be established for coordination purposes only, e.g. the joint committee of the Council of Europe and OECD,43 the International Trade Centre of WTO and UNCTAD or the IPCC of WTO and UNEP.44 UN special agencies may also conclude coordination agreements, as was done between the World Bank and FAO or between UNESCO and WHO.45 Such agreements create the UN family consisting of the UN and its specialised agencies.46 Finally, there are organs of International Organisations whose main task it is to coordinate activities of other organisations. Within the UN family, this task is attributed to ECOSOC (Articles 60, 63 para 2 and 64 UN)47 which concludes international agreements with special agencies requiring approval by the General Assembly (Article 63 para 1 UN)48 and which has also created special coordinating organs (Committee for Programming and Coordination, CPC; at the administrative level: United Nations System’s Chief Executives Board for Coordination following the Administrative Committee on Coordination).49 These provisions, however, reach their limits if the respective coordination efforts fail. 3. Further Developments of Competence Theory 214

The aim of scholars’ efforts in this area must be to detach the doctrine of powers from its fixation on State sovereignty and to establish it as a principle of competence distribution between International Organisations. What is true for powers must be applied to competences. The theoretical starting point is the derived international personality of International Organisations (→ para 151). The international community must respect the State-made distribution of comSchermers/Blokker, §§ 1721 f. Agreement between Council of Europe and OECD, Council of Europe Resolution (62) 4, quoted by Schermers/Blokker, § 1722, fn. 132. 44  Para 693. Seminal book: Bolle, Das IPCC, 2011. 45 Meng in Simma, Art. 60 para 21. 46 Schermers/Blokker, §§ 1692 f. also → para 53. 47 Cf. already Jenks, ‘Co-Ordination in International Organization: An Introductory Survey’, 28 BYIL (1951), 29 at 52 f. 48 Verdross/Simma, § 297. 49 Meng in Simma, Art. 60 paras 13 f.; Art. 63 paras 44 f.; Schermers/Blokker, § 1723. On renaming ECOSOC Decision 2001/321 – 24th of October 2001. 42

43

98

IV. Distribution of Competences between International Organisations

petences between individual organisations.50 It is States which in the founding treaties attribute competences to organisations. Choosing this point of departure, however, creates subsequent problems which have not yet been solved: it is by no means a matter of course that States when engaged in negotiations on the founding or the reform of an International Organisations consider the relationship to other organisations. Above all, compromise solutions concerning the relationship of organisations amongst each other that are found in the context of such founding or reform negotiations are often incompatible with the attribution of competences corresponding to the organisations’ tasks or to the substantial relationship of the underlying rules of international law. The efforts of international legal scholarship will have to concentrate upon undesired consequences. Yet, at the heart of the matter, due to the central role occupied by States such consequences are unavoidable in the law of International Organisations.

50 On all this extensively Ruffert, ‘Zuständigkeitsgrenzen internationaler Organisationen im institutionellen Rahmen der internationalen Gemeinschaft’, 38 AVR (2000), 129 at 163. Critically van der Hout, Die völkerrechtliche Stellung der Internationalen Organisationen unter besonderer Berücksichtigung der Europäischen Union, 2006, 146. Cf. also the interesting analysis on “crosscontrol” of International Organisations by Deshman, ‘Horizontal Review Between International Organisations: Why, How, and Who Cares About Corporate Regulatory Capture’, 22 EJIL (2011), 1089.

99

§7 Responsibility and Liability Literature: Blatt, ‘Rechtsschutz gegen die Vereinten Nationen’, 45 AVR (2007), 84 ff.; Blokker, ‘Preparing Articles on responsibility of international organizations: Does the International Law Commission take international organizations seriously? A mid-term review’, in: Klabbers/Wallendahl (eds.), Research Handbook on the Law of International Organizations, 2011, 313 ff.; Giegerich, ‘Verantwortlichkeit und Haftung für Akte internationaler und supranationaler Organisationen’, 104 ZVglRWiss (2005), 163 ff.; Ginther, Die völkerrechtliche Verantwortlichkeit internationaler Organisationen gegenüber Drittstaaten, 1969; Hartwig, ’International Organizations or Institutions, Responsibility and Liability’, MPEPIL (2011); Klein, La responsabilité des organisations internationales, 1998; Möldner, ‘Responsibility of International Organizations – Introducing the ILC’s DARIO’, 16 Max Planck Yearbook on United Nations Law (2012) 281 ff.; Mujetinovic Larsen, ‘Attribution of Conduct in Peace Operations: The ‘Ultimate Authority and Control’ Test’, 19 EJIL (2008), 509 ff.; Schmalenbach, Die Haftung internationaler Organisationen, 2004; Wellens, Remedies against international organisations, 2002; Wenckstern, ‘Die Haftung der Mitgliedstaaten für Internationale Organisationen’, 61 RabelsZ (1997), 93 ff.

I. Responsibility in International Law, Liability and the Law of International Organisations

The responsibility for own activities (in breach of international law) corre- 215 sponds to International Organisations’ personality in international law.1 It illustrates the constitutionalisation of the respective organisation as well as that of International Organisations in general. Furthermore, without having responsibility for breaches of international law, the international community’s objectives cannot be organised within the framework of the rule of law on a global level. On this basis, the International Law Association (ILA) passed a report on “Accountability of International Organisations” which develops the said responsibility from general principles.2 For a long time, there was insecurity as to the theoretical foundation of the 216 international responsibility subjects of international law – not only the States – bear; now, however, responsibility is recognised as a principle of customary law.3 Nonetheless, the Draft Articles on State Responsibility presented by the ILC in 2001 and adopted by the UN General Assembly have still not given way to an international treaty, and – given the continuing controversies (e.g. on coun1 Illustratively Salmon, ‘Réponses et observations des membres de la Commission’, 66 Annuaire de l’IDI (1995/I), 336; Cf. Bettati, ‘Setting up and legal personality of international organizations’, in: Dupuy (ed.), Manuel sur les organisations internationales, 2nd. ed 1998, 33 at 58 f. 2 International Law Association, Accountability of International Organizations, Report of the Seventy-First Conference, 2004, 164. 3 Leading case: PCIJ, Case Concerning the Factory at Chorzów (claim for indemnity), Jurisdiction, PCIJ, Ser. A, no. 8 (1927), 21.

101

§ 7 Responsibility and Liability

termeasures) – it is highly doubtful whether this can be achieved. Meanwhile, the ILC’s codification efforts concerning the responsibility of International Organisations were successful as far as the relevant draft articles were endorsed by the General Assembly in 2012.4 217 The number and importance of cases in which the responsibility or liability of International Organisations is brought into play has nevertheless risen in recent times. While the 1980 s saw the insolvency of the International Tin Council, an International Organisation, give rise to discussions in scholarship and practice concerning the consequences for its creditors’ claims as well as for the legal position of its Member States (→ paras 232 ff.), it is currently the responsibility of the United Nations or that of military alliances engaged in peace-keeping missions (→ paras 223 ff.) that causes debate. The victims of Srebrenica’s action brought against the United Nations as well as against the Netherlands may serve as a most topical example (→ para 226 in fine). 218 International responsibility primarily means accountability for breaches of international law. The breach of a primary duty under international law brings into play secondary norms that compensate for the breach. This does not only mean damages but also immaterial compensation. The secondary obligation may only be enforced by countermeasures (in conformity with international law). The usual term “responsibility” or “liability” merely describes a small part of the opportunities that follow from international responsibility. Therefore, an International Organisation breaching international law does not necessarily result in a duty to pay damages but may also cause an obligation for the organisation to end a violation of human rights. The organisation may further be required to provide a remedy for such a violation or may be forced to tolerate countermeasures (e.g. the suspension of rights from a headquarters agreement). The limited meaning of the term “liability” also applies to responsibility for actions that conform to international law yet lead to a breach. The importance of such cases is constantly increasing. 219 The core problem of the responsibility of International Organisations – apart from problems of responsibility in general – is whether to attribute responsibility to the organisation or to its Member States. The degree of organisational density is mirrored by the scope of responsibility. Consequently, there are complex questions of attribution that are linked to immunity problems. At the same time, there is the possibility of the Member States’ incurring complementary responsibility next to that of the International Organisation in the sense of a (parallel or subsidiary) direct responsibility (→ below III.). In addition to these core questions one needs to differentiate between several sources of responsibility. Apart from bearing responsibility under international law, an International Organisation may be liable under domestic law because of its legal personality. 4 GA Res. 66/100. Commentaries: Yearbook of the International Law Commission, 2011, Vol. II, Part Two. On this draft Möldner, ‘Responsibility of International Organizations – Introducing the ILC’s DARIO’, 16 Max Planck Yearbook on United Nations Law (2012), 281.

102

II. Responsibility and Attribution

II. Responsibility and Attribution 1. Action by Organs and Personnel of an Organisation

If an organisation’s organ (→ paras 295 ff.) breaches international law while 220 acting on behalf of the organisation, this will give rise to international responsibility of the organisation.5 The same applies to an International Organisation’s personnel. Usually, an action’s illegality under international law is a precondition to responsibility meaning that extraordinary responsibility for acts that conform to international law must be expressly fixed in a treaty, as was done in Articles VI and VII of the Space Treaty6 and Article XII of the Convention on the International Responsibility for Damages by Objects in Outer Space of 1972.7 It is imperative that the organs and personnel act in exercise of their functions 221 within the organisation. The scope of their tasks is fixed by the organisation’s internal law, particularly by its founding treaty as well as by its practices. A possible transgression of internal limits on its powers does not preclude responsibility of an International Organisation’s personnel acting for the organisation.8 2. State Action for International Organisations

As International Organisations’ resources may be insufficient to fulfil their 222 tasks or because a cooperative relationship between the Member States and the organisation is intended by the founding treaty, organisations do not seldom have access to their Member States’ institutions. The ILC Draft on the Responsibility of International Organisations reflects the predominant position and practice insofar (Article 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.” What is decisive is effective control. It is this control that determines the attribution of responsibility to the State which provides its institutions or the receiving International Organisation respectively. The central problem applying this principle of attribution are actions by na- 223 tional military contingents provided to the United Nations in the context of peace-keeping operations. Actions violating international law, e.g. encroachments upon civilians which may even amount to war crimes, are as a rule exclu-

Art. 4 ILC-Draft. Art. VI Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Celestial Bodies, 610 UNTS 205. 7 Art. XXII Convention on International Liability for Damage Caused by Space Objects, 961 UNTS 187. 8 Art. 8 ILC-Draft. On this also Klabbers, Introduction, 308. 5

6

103

§ 7 Responsibility and Liability

sively9 attributable to the UN, if the UN has command and control over the troops in question. Insofar it is justified to speak of a customary rule, as most scholars do.10 It is considerably more difficult to prove that such command and control was in fact exercised by the UN; interpreting the arrangements that provide the troops to the UN plays a certain role, though UN peace-keeping troops are usually under such control acting as subsidiary organs of the United Nations.11 Within their internal relationship with the sending State the United Nations regularly negotiate an agreement on the basis of a model agreement, under which the United Nations accepts responsibility towards third parties, except in cases of gross negligence or severe misconduct by the troops.12 In such cases the United Nations may claim compensation from the respective State. 224 This rule applies to all types of peace-keeping operations, even to those in which the peace-keeping units are vested with a “robust” mandate to apply military force by a resolution under Chapter VII (→ para 406). If, however, in case of a threat to or a breach of the peace the Security Council empowers individual States or the international community as a whole under Chapter VII to intervene by military force (→ para 440), this does not constitute peace-keeping and the responsibility solely lies with the States acting under the mandate of the Security Council.13 225 A further precondition for responsibility, particularly for that of the United Nations, is that the International Organisation to which an action is attributed is bound by the primary rule of international law the breach of which triggers the secondary obligation of responsibility. In most instances, International Organisations are not formal parties to the relevant treaties that in most cases may only be signed and ratified by States, such as the treaties in humanitarian international law. However, the United Nations subjected their peace-keeping troops to these treaties.14 9 Klein/Schmahl in Graf Vitzthum/Proelß, para 102. Differentiating Wickremasinghe/Verdirame, ‘Responsibility and Liability for Violations of Human Rights in the Course of UN Field Operations’, in: Scott (ed.), Torture as Tort, 2001, 465 at 487. 10 Schmalenbach, Die Haftung Internationaler Organisationen, 2004, 248 ff., 580 ff.; Mujetinovic Larsen, ‘Attribution of Conduct in Peace Operations: The ‘Ultimate Authority and Control’ Test’, 19 EJIL (2008), 509. 11 Cf. the Commentaries to the Draft Articles (supra note 4), Art. 7, note (9). On their status as subsidiary organs Jaenicke in Simma, Art. 7 para 17. 12 Art. 9 S. 2 of the model agreement (Model Memorandum of Understanding between the United Nations and [Participating State] Contributing Resources to [the United Nations Peacekeeping Operation]) in annex to UN Doc. A/50/995, revised in UN Doc. A/51/967. 13 Cf. the differentiating assessment of the ECHR, decision of 2nd May 2007, nr. 71412/01 and 78166/01, Behrami et al./France, Germany and Norway, NVwZ 2008, 645 at 648, no. 128 ff. 14 Cf. above all the Secretary-General’s Bulletin Observance by United Nations forces of international humanitarian law, to this Saura, ‘Lawful Peacekeeping: Applicability of International Humanitarian Law to United Nations Peacekeeping Operations’, 58 Hastings Law Journal (2007), 479. On the whole cf. also Schmalenbach, Die Haftung Internationaler Organisationen, 2004, 348 ff., and further Wills, ‘Military Interventions on Behalf of Vulnerable Populations: The Legal Responsibilities of States and International Organizations engaged in Peace Support Operations’, Journal of Conflict & Security Law 2004, 387.

104

II. Responsibility and Attribution

Due to the immunity of International Organisations in domestic courts and 226 dispute settlement institutions (→ paras 181 ff.), bringing actions of liability, e.g. against the United Nations, is rather difficult for individual victims. In practice, the UN has under Article VII § 29 of the Convention on Immunities and Privileges developed a series of internal dispute settlement procedures for specific peace-keeping operations which aim in part at reaching settlements and in part at obtaining court-like decisions. After this opportunity is exhausted the victim may still request diplomatic protection from its State of nationality.15 Furthermore, in cases of severe breaches of international law there is always the question of whether the respective action is covered by immunity. This was the applicants’ core argument in the proceedings before a Dutch court that concerned the immunity of the United Nations to which the actions of Dutch peacekeeping troops during the massacre of Srebrenica were to be attributed.16 Nonetheless, the court did not follow this argument but avoided to call into question the UN’s immunity since interpreting the criterion “necessary” in Article 105 para 1 UN was deemed to be beyond the scope of national courts.17 The number of territories governed by International Organisations, particu- 227 larly by the United Nations, has recently risen (Kosovo until 2008, East Timor until 2002), after the precursors of that model of international administration of territories had failed (e.g. plans for Trieste or Jerusalem).18 The international responsibility and liability of International Organisations administering a territory follows that territory’s legal system which is based in international law but is related to the territory.19 Nonetheless, if the principles explained above are applied, the United Nations cannot evade responsibility for a territorial administration acting as its subsidiary organ (→ paras 223 ff.). 3. Attribution of Private Action

Although International Organisations often employ private individuals for the 228 fulfilment of specific tasks (e.g. transport or security services), there is no rule for attributing the actions of private companies to the organisation, e.g. to the United Nations. Therefore, such private individuals or companies do not participate in the organisation’s immunity.20

15 Schmalenbach, Die Haftung Internationaler Organisationen, 2004, 304 ff.; Blatt, ‘Rechtsschutz gegen die Vereinten Nationen’, 45 AVR (2007), 84 at 103 ff. Generally Wellens, Remedies against international organisations, 2002. 16 Applicants‘ memorial, nos. 447 ff. 17 Rechtbank ’s-Gravenhage, judgment of 10 July 2008, 295247/HA ZA 07-2973, nos. 5.9 ff. (in particular 5.14). 18 On the whole issue Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond, 2008; Ruffert, ‘The Administration of Kosovo and East-Timor by the International Community’, 50 ICLQ (2001), 613. 19 Schmalenbach, Die Haftung Internationaler Organisationen, 2004, 460 ff. 20 Cf. Klabbers, Introduction, 308 f., with reference to partially deviant older practice.

105

§ 7 Responsibility and Liability

III. Complementary Responsibility of the Member States 1. Member States’ Responsibility under International Law

Related to the question of attributing an activity to an International Organisation is the problem of additional, parallel or at least subsidiary responsibility of the Member States if the action is in violation of international law. It is of considerable and increasing practical relevance: are NATO Member States responsible for a breach of international law during a NATO led military action?21 Are the EU Member States liable for supranational action in breach of GATT? What is their responsibility with respect to human rights violation by the EU? Is there Member States’ liability in the context of the implementation of UN sanctions?22 230 In spite of all relevant differences between individual International Organisations’ constitutional documents as well as between different legal assessments of the actions in question, two basic rules can be detected: first, Member States of International Organisations cannot avoid responsibility for actions taken in the course of the implementation of that International Organisation’s politics by referring responsibility to the organisation alone. The derivative nature of International Organisations’ international personality (→ para 162) becomes visible here at the secondary level.23 Second, there is neither a customary basis nor a general principle of law which automatically leads to Member States’ responsibility for actions of the organisation’s organs, if the organisation is solely acting through its organs without participation by its members.24 A borderline case is the assessment of the contribution of a Member State representative in the activity of an organ – in this case the Member States’ responsibility usually remains in place.25 – A separate question is the assessment whether protective standards of domestic law create a parallel responsibility by the Member States next to the acting International Organisation’s responsibility. Hence, the fundamental rights of the German Grundgesetz prevent a complete referral of responsibility to an International Organisation and thus an “escape into international law” by the Federal Republic of Germany as Germany remains bound by 229

On this Schermers/Blokker, § 1590. Extensively Giegerich, ‘Verantwortlichkeit und Haftung für Akte internationaler und supranationaler Organisationen’, 104 ZVglRWiss (2005), 163. 23 In that sense Klein/Schmahl in Graf Vitzthum/Proelß, para 103. From practice cf. the ICCaward in the Westland Helicopters-case 23 ILM (1984), 1071 at 1084. 24 Explicitely Art. 6 (a) of the Resolution of the Institut de Droit International „Les conséquences juridiques pour les États members de l’inexécution par des organisations internationales de leurs obligations envers des tiers“ (Lissabon 1995)); on this Higgins, ‘The legal consequences for member states of the non-fulfilment by international organizations of their obligations toard third parties’, 66-I Annuaire de l’IDI (2995), 251. See also Hartwig, ‘International Organizations or Institutions, Responsibility and Liability’, MPEPIL (2011), paras 30-32. 25 Cf. Amerasinghe, 446. 21

22

106

III. Complementary Responsibility of the Member States

these fundamental rights despite its membership in an International Organisation and the corresponding transfer of competences.26 Particularities and special provisions may modify the basic rules of responsi- 231 bility under public international law. Parallel responsibility of an International Organisation’s Member States can scarcely be denied if both the organisation and the Member States are parties to an international treaty which is deemed to have been breached (main example: EU/EC and Member States as members of the WTO). On the other hand, an explicit liability rule may completely shift responsibility to the organisation if the violation is attributable to the organisation. This is particularly true for Article 340 para 2 TEU.27 Treaties, finally, may exclude Member State responsibility; such a provision, however, cannot be relied on to the detriment of actors which are not party to the treaty in question (pacta tertii nec nocent nec prosunt, Articles 34, 35 VCLT).28 Ultimately, as International Organisations cannot be held accountable before the ICJ according to Article 34 para 1 ICJ Statute, Member State responsibility is often invoked for formal or procedural reasons as was the case when Yugoslavia brought parallel actions against the NATO States.29 Member State responsibility is also invoked concerning the responsibility of EU Member States for breaches of the ECHR, as the EU is not (yet) party to the ECHR.30 Finally, Member States are virtually unable to avoid responsibility towards States that have not recognised the organisation of which the first State is a party.31 2. Member State Direct Responsibility for Economic Activity

Liability in a strict sense may further arise from a combination of internation- 232 al and domestic legal rules within a domestic legal system.32 This was primarily

26 Cf. Walter, ‘Grundrechtsschutz gegen Hoheitsakte internationaler Organisationen’, 129 AöR (2004), 39 at 43 ff., following BVerfGE 89, 155 at 175. Cf. also the reflections in BGHZ 169, 348 at 359 f., and BVerfG, EuGRZ 2013, 563 – Varvarin. 27 On that provision Ruffert in Calliess/id., Art. 340 AEUV paras 5 ff. 28 Examples Art. IV (9) IBRD (International Bank for Reconstruction and Development); Art. 3 (3) IFAD (International Fund for Agricultural Development); Art. 2 (3) IDA (International Development Association); Art. 2 (6) IIC (Inter-American Investment Corporation); Art. 6 (6) CIC (Caribbean Investment Corporation). The pacta tertiis-rule however may be opposed against Member States‘ responsibility for action of organisations legally separate from them, cf. Amerasinghe, 414 ff. On the difficulties in limiting liability towards third States Klabbers, Introduction, 316. 29 Cf. e.g. ICJ, Legality of Use of Force (Serbia and Montenegro v. Germany), ICJ Rep. 2004, 720 ff. 30 A draft agreement was reached on 5 April 2013 (COE Press Release DL041(2013)). 31 Klein/Schmahl in Graf Vitzthum/Proelß, para 104. 32 Cf. Rensmann, ‘Internationale Organisationen im Privatrechtsverkehr’, 36 AVR (1998), 305 at 337 ff.; further Ebenroth/Fuhrmann, ‘Die zivilrechtliche Haftung internationaler Organisationen und ihrer Mitgliedstaaten’, JZ 1989, 211; Seidl-Hohenveldern, ‘Liability of Member States for Acts or Omissions of an International Organization’, in: Schlemmer-Schulte/Tung (eds.), Liber amicorum Ibrahim F. I. Shihata: international finance and development law, 2001, 727; Hirsch, The Responsibility of International Organizations Toward Third Parites: Some Basic Principles, 1995, 149 ff.

107

§ 7 Responsibility and Liability

discussed in the context of the Tin Council cases.33 Since the 1970 s, the establishment of commodity funds with so called buffer stocks has been part of development policy measures for the support of the economies of a number of developing countries against the risks of fluctuating prices on the world markets – today, drawing on the experience from said cases, these funds are used less frequently. Therefore, International Organisations were founded by industrialised States to purchase certain commodities (e.g. cocoa, sugar, natural rubber) on the global market when prices were falling and to sell the buffer stocks when prices were rising in order to fund development activities.34 Consequently, because of the continuously falling market price of tin, the International Tin Council, ITC, was insolvent relatively quickly. 233 Following that insolvency, the creditor banks brought actions against the ITC, its Member States as well as the EEC (also a member of the ITC). Several scholarly constructions of direct liability under English law (as the ITC was constituted in London under English law) failed inter alia a contractual duty by the Member States to effectuate emergency payments to the ITC as well as a joint and several liability by ITC and its Members. There was neither a basis nor an appropriate forum for direct liability under public international law.35 The ECJ did not pronounce itself on the EEC’s liability because the case was settled.36 234 Not least because of the experience from the Tin Council cases, Member States today seek to limit their liability within private law relationships. 37 Because of this fact and because of the decreasing importance of commodity agreements as instruments of development policy, generalisations on the basis of 33 From academic writing: McFadden, ‘The Collapse of Tin: Restructuring a Failed Commodity Agreement’, 80 AJIL (1986), 811; Hartwig, Die Haftung der Mitgliedstaaten für Internationale Organisationen, 1993, 307 ff., Pernice, ‘Die Haftung internationaler Organisationen und ihrer Mitarbeiter’, 26 AVR (1988), 406; Herdegen, ‘Bemerkungen zur Zwangsliquidation und zum Haftungsdurchgriff bei internationalen Organisationen’, 47 ZaöRV (1987), 537; Haltern, ‘Die Haftung von Mitgliedstaaten für Verbindlichkeiten Internationaler Organisationen’, 93 ZVglRWiss (1994), 221; Kevenig, ‘Der Internationale Zinnrat – Ein Lehrstück des Wirtschaftsvölkerrechts’, RIW 1990, 781; Hoffmann, ‘Der Durchgriff auf die Mitgliedstaaten internationaler Organisationen für deren Schulden – Haftung aufgrund völkerrechtlicher und bundesrechtlicher Bestimmungen’, NJW 1988, 585; Müller, ‘Trau schau wem! Oder: Von der zivilrechtlichen Verantwortlichkeit der Mitgliedstaaten internationaler Organisationen’, NJW 1991, 2175. 34 On that mechanism Herdegen, Internationales Wirtschaftsrecht, para 11/4. 35 Standard Chartered Bank v. ITC and others, (1986) 3 All ER 257; Re ITC, (1987) All ER 890; Arab Banking Corporation v. ITC and others, (1988) 77 ILR 1; Maclaine Watson & Co. Ltd. V. Dept. of Trade and Industry (1988) 3 WLR 1033 (C.A.) In Re ITC (1988) 3 WLR 1159 (C.A.); Maclaine Watson & Co. Ltd. v. ITC (1988) 3 WLR 1169 (C.A.); Maclaine Watson & Co. Ltd. v. ITC (No. 2), (1988) 3 WLR 1190 (C.A.); J.H. Rayner (Mincing Lane) v. Department of Trade and Industry, (1989) 3 WLR 969 (H.L.). Summarising Sands, ‘The Tin Council Litigation in the English Courts’, 34 NILR (1987), 367; Kaye, ‘Die Insolvenz des „International Tin Council” vor englischen Gerichten’, IPRax 1989, 179; Sadurska/Chinkin, ‘The Collapse of the International Tin Council: A Case of State Responsibility?’, 30 Va.J.Int’l Law (1990), 845. 36 ECJ, Case C-241/87, ECR 1990, I-1797. Cf. Ebenroth/Fuhrmann, ‘Die Haftung der EG anläßlich der Zahlungsunfähigkeit des Internationalen Zinnrates’, RIW 1989, 593. 37 This applies to the agreements on cacao, oil/olives, natural rubber, sugar and coffee; cf. Schermers/Blokker, § 1589 with fn. 103. More extensively Wenckstern, ‘Die Haftung der Mitgliedstaaten für Internationale Organisationen’, 61 RabelsZ (1997), 93 ff.

108

IV. Perspectives

these constellations are scarcely possible. It is always the respective organisation as well as the conditions that are agreed upon regarding its activity within private law relationships that are relevant. IV. Perspectives

The rules on responsibility of International Organisations are far from coher- 235 ent and consistent. Condensing them to an integrated system of liability in the way the ILC draft intended would only be the second step. Currently, it is paramount that those damaged by activities of International Organisations, be it States, other International Organisations or particularly individuals, are not deprived of their rights by being directed from the International Organisation to its members and back. The law of International Organisations allows for the avoidance of such liability gaps by means of advance agreements, even though this would threaten to complicate the legal situation.

109

§8 Membership Literature: Czerwinski, Das Universalitätsprinzip und die Mitgliedschaft in internationalen universalen Verträgen und Organisationen, 1974, 140 ff.; Ginther/Oppermann, ‘Grundfragen der Mitgliedschaft in Internationalen Organisationen,’ 17 BerDGVR (1975); Franck, ‘Admission of a State to Membership in the United Nations (Advisory Opinion)’, MPEPIL (2006); Klein, ‘Zur Beschränkung von Mitgliedschaftsrechten in den Vereinten Nationen’, 23 Vereinte Nationen (1975), 51 ff.; Makarczyk, ‘Legal Basis for Suspension and Expulsion of a State from an International Organization’, 25 GYIL (1982), 476 ff.; Mower, ‘Observer Countries: Quasi-Members of the United Nations’, 20 Int Org (1966), 266 ff.; Osieke, ‘Admission to Membership in I.O.: Namibia’, 51 BYIL (1980), 189 ff.; Rensmann, ‘International Organizations or Institutions, Observer Status’, MPEPIL (2007); Schermers/Blokker, ‘International Organizations or Institutions, Membership’, MPEPIL (2008); Suy, ‘The Status of Observers in International Organizations’, 32 Current Legal Problems (1979), 143 ff.; Zeh, Recht auf Beitritt? Ansprüche von Kandidatenstaaten gegen die Europäische Union, 2002.

Only parties to the founding treaty of an International Organisation may 236 claim rights of membership. The conditions for becoming a member as well as the legal position of members are laid down in the founding treaty. Specific problems may arise in case of State succession, since the rules on State succession also govern succession into membership. I. Becoming a Member

Depending on whether membership is achieved by being a founding member 237 of an organisation or at a later stage, original (or founding) members may be distinguished from admitted members. 1. Original Members

Original members of an International Organisation are such States or Inter- 238 national Organisations that participated in the founding conference, or at least signed and ratified the founding treaty before its entry into force (cf. Art. 3 UN; Art. XI WTO). The UN-Charter does not accord a specific legal position to original members. The distinction, therefore, merely reflects the logical truism that it is impossible to imagine the founding of an International Organisation without having original members who bring about the founding act.1 Within the United Nations the importance of the distinction between original membership and accession is further reduced by the universal aspiration of the organisation. While the San Francisco Conference rejected the idea of automatic accession, the threshold for admission nevertheless remained low. Similarly, other or1 Fastenrath in Simma, Art. 3 para 2; Klein/Schmahl in Graf Vitzthum/Proelß, para 62; Klabbers, Introduction, 104 f.

111

§ 8 Membership

ganisations make no distinction between original membership and accession once a candidate has been admitted to the organisation. However, given the rather complicated and lengthy procedure of admission to, e.g., the WTO or the EU, original membership may have practical and political advantages. 2. Accession

a) Right to Admission? International Organisations do not provide a legal entitlement to accession. The decision on admission thus, in principle, rests with the founding members as an act of political discretion. For this reason, accession clauses cannot be read as treaties providing rights for third parties according to Art. 36 VCLT.2 However, as far as the United Nations are concerned, the ICJ considered the political discretion of the founding members to be legally reduced. In its advisory opinion on the admission of new members to the UN, the Court held that admission may not be made subject to conditions which are not set out in Art. 4 UN (in the case at hand, the simultaneous admission of other candidates).3 Inspite of this general prohibition of creating new conditions for admission to the UN, the ICJ was well aware of the vague nature of the criteria laid down in Art. 4 UN (“peace-loving state” and “able and willing to carry out the obligations contained in the Charter”). The Court decided on a broad margin of appreciation: “Article 4 does not forbid the taking into account of any factor which it is possible reasonably and in good faith to connect with the conditions laid down in that Article. The taking into account of such factors is implied in the very wide and very elastic nature of the prescribed conditions; no relevant political factor that is to say, none connected with the conditions of admission is excluded.”4 In this context, the law must be aware of political realities: trying to enforce admission to an International Organisation by order of a court against the express will of the existing members does not seem to be a sound political strategy and attempts to create a strict legal obligation of admission have therefore remained without practical relevance.5 240 Irrespective of the negative result concerning a right to admission, the general principle of mutual respect between sovereign and equal States argues for an application for admission to be at least considered by the competent authorities, unless it is obviously futile or abusive. With regard to the WTO, such a 239

2 Klein/Schmahl in Graf Vitzthum/Proelß, para 63; d’Argent in Corten/Klein (eds.), The Vienna Conventions on the Law of Treaties – A Commentary, 2011, Art. 36 para 6; similarly Magliveras in Klabbers/Wallendahl, 86. 3 ICJ, Admission of a State to the United Nations (Charter, Art. 4), ICJ Rep. 1948, 56 at 62 f. 4 ICJ (n 3) at 63. 5 Kolb, paras 71 f.; with a different view regarding the accession of the GDR to the United Nations: Czerwinski, Das Universalitätsprinzip und die Mitgliedschaft in internationalen universalen Verträgen und Organisationen, 1974, 140 ff.; Graefrath, Deutsche Außenpolitik 1966, 664 ff.; Oppermann, ‘Grundfragen der Mitgliedschaft in Internationalen Organisationen’, 17 BerDGVR (1975), 53 at 71 f.

112

I. Becoming a Member

right to have an application at least considered has been voiced in scholarship.6 Furthermore, some authors propose a right to an unbiased and rational decision on the application.7 It seems doubtful, however, whether principles of administrative law governing the relationship between an individual applicant and the administration (where such a right to an unbiased and rational decision on an application is derived from) can be simply transferred to the international interstate context. b) Conditions for Admission. Founding treaties of International Organisations 241 contain formal and substantive conditions for admission. aa) Formal Conditions. The most prominent formal condition of admission 242 to many International Organisations concerns statehood. The UN-Charter (Art. 4) and the Statute of the Council of Europe (Art. 4), for instance, restrict admission to “States”. Constituent entities of a federation do not fulfil this condition. The individual membership of Byelorussia and Ukraine in the United Nations was a political compromise of 1945.8 It seems highly unlikely that the other members would have accepted a later admission based on Art. 4 UN.9 This implies that full membership in the organisation will only be granted to sovereign and independent States. According certain rights of participation to a freedom or liberation movement (PLO) or even a territorial entity (Palestine) does not contradict this analysis, since such rights of participation remain below the level of formal membership.10 In the case of the WTO, “separate customs territories” are also eligible for 243 accession (Art. XII WTO-Agreement). According to Art. XXIV:2 GATT, “separate customs territory” means “any territory with respect to which separate tariffs or other regulations of commerce are maintained for a substantial part of the trade of such territory with other territories.”11 A further condition explicitly mentioned in Art. XI WTO-Agreement is that the territory in question must possess “full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement and the Multilateral Trade Agreements.” This is the case if it possesses the capacity to independently and 6 Hermann/Weiß/Ohler, para 171; Parenti, ‘Accession to the World Trade Organisation: A Legal Analysis’, 27 LIEI (2000), 141 at 150. 7 Zeh, Recht auf Beitritt? Ansprüche von Kandidatenstaaten gegen die Europäische Union, 2002, 74 with additional references; cf. in a similar direction Schermers/Blokker, para 91; Claude, Swords into plowshares, 4th edn. 1971, 85 f. 8 Byelorussia and Ukraine were, together with Argentina and Denmark, among the few later members, who participated in the UN founding conference but did not sign the Declaration by the United Nations of 1 January 1942, cf. Fastenrath in Simma, Art. 3 para 12; cf. also Reinalda, Routledge History of International Organizations, 2009, 281 ff.; Khan, ‘History’ in Simma, paras 42-44; Hazard, ‘Soviet Republics in International Law’ in Wolfrum (ed.) MPEPIL; Grant, Admission to the United Nations, 2009, Chapter 2, 2.2 ’The Argentine Controversy’, 25 ff.; Kolb, § 70 ‘Founding Members and Subsequently Admitted Members’, 107 ff. 9 Klein/Schlmahl in Graf Vitzthum/Proelß, para 66. 10 cf. below para 266 on participation rights of the PLO. 11 Thomas/Meyer, The New Rules of Global Trade – A Guide to the WTO, 1997, 65; Stoll/ Schorkopf, WTO- World Economic Order, World Trade Law, 2006, para 135.

113

§ 8 Membership

autonomously establish and change its tariffs and to enter into contractual obligations, the latter condition requiring it to have international legal personality.12 These conditions are intended to ensure that the entity in question, though lacking the formal qualification of statehood, be in a position to honour the commitments entered into under the WTO system. Until today, the EU remains the single example of a regional organisation that acquired membership as a “separate customs territory”.13 244 In addition to States and/or International Organisations, some International Organisations also list private subjects as members. Taking into account such a hybrid structure, the question arises whether it is possible to speak of a governmental organisation at all. An example in point is the International Union for the Conservation of Nature (IUCN) which was founded as a private association under Swiss law, but is treated almost like a governmental organisation in several countries.14 In the United States, for example, IUCN enjoys immunity under the International Organisations Immunities Act.15 245 A further formal condition is sometimes imposed concerning membership in another International Organisation. Membership in the World Bank, for instance, is conditioned by membership in the IMF (Art. II, sect. 1 IBRD). A similar approach is taken within the World Bank group: membership in the Multilateral Investment Guarantee Agency (MIGA), the International Development Association (IDA) and the International Finance Corporation (IFC) is conditioned by membership in the IBRD.16 246 bb) Substantive Conditions. The various founding documents contain quite different substantive conditions. Generally, a candidate for membership must be able and willing to carry out the obligations of membership (cf. Art. 4 UN). These obligations vary, of course, according to the organisation in question. Even with regard to membership in the United Nations, which comes with only limited concrete obligations, the question may be asked whether a certain size is a necessary condition for membership. However, the practice of the United Nations clearly rejects such a proposition.17 During the process of decolonisation, a number of micro States were admitted to the organisation. Monaco,18 Nauru,19 12 Parenti (n 6) at 145; Schorkopf in Wolfrum/Stoll/Kaiser, Art. XII para 5; Herrmann/Weiß/ Ohler, para 164. 13 It should be noted, however, that for political reasons of the Chinese “One China”-policy Taiwan was admitted to the WTO only as a Separate Customs Territory named Chinese Taipei and consisting of Taiwan, Penghu, Kinmen and Matsu, cf. Schorkopf in Wolfrum/Stoll/Kaiser, Art. XII para 8. 14 Robinson, ‘IUCN as catalyst for law of the biosphere’, 35 Environmental Law (2005), 249 at 298 ff. 15 US Code, Title 22, Chapter 7, Subchapter XVIII – Privileges and Immunities of International Organizations, § 288f-4. 16 Art. II, sect. 1 IDA, Art. II, sect. 1 IFC and Art. 4 MIGA (which also allows for an accession by Switzerland); cf. financial sector → § 13 paras 629 f. 17 Amerasinghe, 106 f. with additional references. 18 Population: 35.000; Size: 2.02 sqm. 19 Population: 10.000; Size: 21,20 sqm.

114

I. Becoming a Member

Tuvalu20 and San Marino21 are among the UN’s smallest Member States. The League of Nations, by comparison, in 1922 rejected an application for membership by Liechtenstein on the grounds that the country was too small to meet its obligations under the Covenant.22 Geographical requirements may be situated at the border between substan- 247 tive and formal requirements. They contain a substantive element in cases where the geographical requirement is another way of circumscribing a cultural or historical closeness, such as is the case with the requirement of a “European State” in Art. 4 Statute of the Council of Europe or in Art. 49 TEU.23 The Council of Europe proceeds on the basis of a rather broad interpretation and accepted not only Ukraine, but also Armenia and Azerbaijan, the European character of which had been disputed.24 The notion of an “Arab” State, a condition for membership in the Arab League, needs to be interpreted in a similar way. By contrast, approaches in other regions and on other continents are often less loaded with cultural or historical values. Under such conditions, geographical requirements are more of formal nature.25 In some cases, regional organisations for economic and political integration 248 require candidates for membership to adapt their internal legal order to the necessities of membership in the organisation before a decision on accession is taken. This has notably been continous practice in the context of the European Union. Today, this practice has its legal basis in Article 49 TEU, according to which “any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union.” The reference to Article 2 TEU comprises fundamental principles such as respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. These principles were spelled out in detail in the socalled Copenhagen criteria of 1993 even before the Treaty of Lisbon entered into force.26 The Copenhagen criteria are essentially threefold. A candidate needs Population: 10.000; Size: 26 sqm. Population: 32.000; Size: 60.57 sqm. 22 Cf. speech from the throne of the former heir to the throne of Liechtenstein, Hans Adam, of 18 March 1989 – available at (German), accessed 24 February 2014. 23 Conclusion of the Parliamentary Assembly of the Council of Europe of 16 June 1992, available at , accessed 24 February 2014; Cremer in Calliess/Ruffert, Art. 49 EUV para 8; Vedder in Grabitz/Hilf/ Nettesheim, Art. 49 EUV para 10. 24 Klein/Schmahl in Graf Vitzthum/Proelß, para 67; Vedder in Grabitz/Hilf/Nettesheim, Art. 49 EUV, para 14 with additional references. 25 Epping in Ipsen, § 6 paras 236 ff.; Seidl-Hohenveldern/Loibl, paras 2201-2205, 2220; Fischer/ Köck, at 484, 511 and 519. 26 European Council, Declaration of Copenhagen 21/22 June 1993, Conclusions of the Presidency, DOC/93/3 Bulletin of the EU 6/1993 at 13; Williams, ’Enlargement of the Union and Human Rights Conditionality: a Policy of Distinction?’, 25 European Law Review (2000), 601 at 606 f; Craig/de Búrca, EU Law, Text, Cases, and Materials, 5 edn. 2011, 21; Inglis, ‘Accession Treaties: Differentation versus Conditionality’, in: Ott/Vos, Fifty Years of European Integration: Foundations and Perspectives, 139-145. 20

21

115

§ 8 Membership

to fulfil political and institutional criteria (“stability of institutions guaranteeing democracy, the rule of law, human rights, respect for and protection of minorities”), economic criteria (“existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union”), and membership related criteria (“ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union”). The obligations of membership include acceptance of the so-called acquis communautaire, i.e. the complete body of existing EU law.27 The process of amendments is monitored by the EU Commission.28 249 In the early 1990 s, the Parliamentary Assembly of the Council of Europe used, in a manner quite similar to the one just described concerning admission to the EU, the procedure for admission to the Council of Europe, to enforce minimum standards of rule of law and human rights in the internal legal orders of candidate countries in Central and Eastern Europe after the end of the Cold War.29 250 c) Admission Procedure. The admission procedure differs significantly between the different organisations depending on the respective criteria for admission. Due to the universal aspiration of the organisation, the UN’s admission procedure is relatively simple. The Charter limits itself to regulating the respective roles of the Security Council and the General Assembly. (Art. 4 para 2 UN). The admission procedure is initiated by a letter from the candidate country’s head of State or government to the UN Secretary-General.30 This letter must contain a declaration that the candidate is able and willing to carry out the obligations stemming from the Charter. The decision on admission requires majorities both in the Security Council and in the General Assembly. UN practice interprets Art. 4 para 2 UN as granting a right of initiative to the Security Council implying that the General Assembly is barred from deciding on an application for membership without a prior positive decision by the Security Council. 251 In its practice, the Security Council has consistently applied the veto procedure under Article 27 para 3 UN to decisions on admission. This practice caused a factual halt on admissions during the Cold War period when the Soviet Union and the United States blocked the admission of candidates which were

27 Boos/Forman, ‘Enlargement: Legal and Procedural Aspects’, 32 Common Market Law Review (1995), 126 ff.; Meng in v. d. Groeben/Schwarze, Art. 49 EUV para 69 ff.; Cremer in Calliess/ Ruffert, Art. 49 EUV para 6; Craig/de Búrca, (n 26), 14; Aust, Handbook of International Law, 2nd edn. 2010, 444; cf. also Com Op of 22 February 2005 on the applications for accession to the European Union by the Republic of Bulgaria and Romania (OJ L 157/3), paras 7-8. 28 Schermers/Blokker, para 1410; Blockmans, ‘Raising the Threshold for further EU Enlargement’, in: Ott/Vos, Fifty Years of European Integration: Foundations and Perspectives, 2009, 208. 29 Parliamentary Assembly, Order No. 488 (1993), on the Honouring of Commitments Entered into by New Member States, Strasbourg, 29 June 1993; Parliamentary Assembly, Order No. 508 (1995), on the Honouring of Obligations and Commitments by Member States of the Council of Europe, Strasbourg, 26 April 1995. 30 Rule No. 134 RoP of the General Assembly and Rule No. 58 of the provisional RoP of the Security Council.

116

I. Becoming a Member

considered to belong to the opposite camp. This mutual blockade resulted in only 9 out of 31 applications being accepted during the first ten years of the organisation (Afghanistan, Ireland, Sweden, Thailand, Pakistan, Yemen, Burma, Israel and Indonesia). This triggered a debate about whether to interpret Art. 4 para 2 UN as containing an exclusive right of the General Assembly to decide on admissions.31 However, such propositions were early on rejected by the ICJ.32 In principle, both the Security Council and the General Assembly may create accession committees for a single application. However, such an approach is only rarely taken in practice.33 In 1955, the deadlock was overcome by a compromise (the so-called package deal) leading to the admission of 16 new members.34 Under the package deal, the Security Council held separate votes for each State on the issue of whether the admission criteria were met. The decision on admission itself was then, however, taken en bloc. On the basis of this voting procedure, the admission of each of the 16 candidates was de facto dependent on the acceptance of all other candidates. This disregarded the ICJ’s 1948 Advisory Opinion and was also inconsistent with the majority legal opinion on the matter, but it enabled the United Nations to further advance towards universal membership.35 Accession to membership in the WTO is subject to a comprehensive proce- 252 dure during which the conditions for admission are individually negotiated with each candidate.36 According to Article XII of the WTO Agreement, accession is conditioned by “terms to be agreed” between the candidate country and the WTO. This implies that willingness and ability to honour the commitments from the multilateral trade agreements is not sufficient in order to be admitted to the WTO. Rather, each candidate must accept additional commitments upon accession. Usually transitional periods are necessary to implement legislative or structural changes. During the negotiation process, the WTO creates a temporary “working party on accession” which operates as a sub-organ of the General Council. Furthermore, in addition to the multilateral negotiations with the WTO, the candidate country is obliged to enter into bilateral negotiations on concessions and commitments on market access for goods and services with interested 31 Broms, The United Nations, 1990, 96 ff.; Jacobs/Poirier, ‘The Right to Veto Untied Nations Membership Applications: The United States Veto of the Viet-Nams’, 17 Harv.Int’l LJ (1976), 581 at 593 f.; Jaenicke, ‘Die Aufnahme neuer Mitglieder in die Organisation der Vereinten Nationen’, 13 ZaöRV (1950), 291 at 373 ff.; Kelsen, The Law of the United Nations, 1950, 61 ff.; Fischer/ Köck, 209 f. 32 ICJ, Competence of the General Assembly for the admission of a State to the United Nations, ICJ Rep. 1950, 4 at 7 f.; in favour of an exclusive right of admission of the General Assembly: Judge Alvarez, Dissenting Opinion, ICJ Rep. 1950, 4 at 12 ff. 33 Fastenrath in Simma, Art. 4 para 31. 34 Shaw, 1088. 35 On the whole subject: Fastenrath in Simma, Art. 4 paras 6 ff. 36 Cf. the following WTO-documents: Accession to the World Trade Organization, Procedures for Negotiations under Article XII, Note by the Secretariat (WT/ACC/1 of 24 March 1995); Technical Note on the Accession Process, Note by the Secretariat (WT/ACC/10/Rev. 3 of 28 November 2005).

117

§ 8 Membership

WTO members. The results of these negotiations are condensed into the socalled “accession package” consisting of a “Report of the Working Party” that contains a summary of proceedings as well as conditions of entry, a “Protocol of Accession” and schedules of market access commitments in goods and services agreed upon between the candidate country and individual WTO Members. The final decision on admission is made by the Ministerial Conference (Art. XII:2 WTO). As of December 2012, there were ongoing negotiations on accession with 24 candidate countries.37 The complexity of the procedure has triggered a debate on possible disadvantages for least developed countries, which, at least if they are an original member, are granted a privileged status (cf. para 262). 253 The EU maintains the most complex and lengthy accession procedure. Only the most essential steps of this procedure are regulated in Art. 49 TEU. The procedure is divided into an introductory phase, a negotiations phase and a final phase.38 It begins with an application by the candidate country. This application is a unilateral declaration requiring no specific form. It may be revoked until the instrument of ratification has been deposited.39 During this early stage the Commission issues an opinion on the candidate country’s legal, political and economic situation. It is on the basis of this opinion that the Council decides whether to grant the status of applicant State. This status is a precondition for entering into the negotations phase. However, entering into formal accession negotiations requires a separate Council decision. Though of considerable political importance, neither the decision to grant the status of applicant State nor the decision to enter into negotiations prejudice the final decision on admittance.40 254 Article 49 TEU does not deal with the Union’s representation during the negotiations. In the early years, the Member States’ governments themselves conducted the negotiations. Since a Council decision of 9 June 1970, however, it is the Council which acts as negotiator for the Union. The Commission participates. In terms of distribution of political power this indicates that the Member States – via their position in the Council – remain the decisive force during the negotiations. Once the negotiations have come to terms, the Commission is formally consulted and Parliament needs to give its consent. The requirement of formal consent implies an effective position of co-decision for the European Parliament. This position is underlined by the fact that in recent practice the European Parliament was continuously kept up to date throughout the negotia-

37 Cf. the diagram at , accessed 21 February 2014. 38 Oppermann/Classen/Nettesheim, § 42 paras 14 ff.; Vedder in Grabitz/Hilf/Nettesheim, Art. 49 EUV paras 24 ff.; similarly, but qualifying it as a two-phase procedure: Cremer in Calliess/ Ruffert, Art. 49 EUV paras 2 ff.; similar Inglis, (n 26) 139 ff. 39 Vedder in Grabitz/Hilf/Nettesheim, Art. 49 EUV para 24; cf. (n. 38) above. 40 Vedder in Grabitz/Hilf/Nettesheim, Art. 49 EUV para 33; Cremer in Calliess/Ruffert, Art. 49 EUV para 4.

118

II. Membership Status

tion process.41 The final decision on admission requires a unanimous vote in the Council. The results of the negotiations are laid down in an accession treaty to which 255 the EU is not formally a party, the treaty being concluded by the existing members on the one side and the applicant State on the other. Nevertheless, given the clear requirement of a unanimous vote in the Council in Art. 49 para 1 TEU, the conclusion of such a treaty by the Member States without the required Council decision would be illegal.42 This twofold procedure (consent by the Union organs and consent by the Member States through ratification of the accession treaty) protects the interests of both the Union and its Member States. II. Membership Status 1. Rights and Obligations

In the absence of contrary provisions, the complete catalogue of rights and 256 obligations that is provided for in the founding treaty becomes binding on the acceding State when the accession treaty enters into force. Particularly organisations of regional integration such as the European Union provide for transitional arrangements in order to allow for adaptation processes among old and new members.43 It follows from the principle of sovereign equality of States that, in principle, 257 all members of an International Organisation enjoy the same rights and are subject to the same membership obligations. The exact scope and content of these rights and obligations naturally depends on the respective organisations. These questions are dealt with in the substantive part of this book.44 Apart from such specific membership obligations, an organisation has a gen- 258 eral duty of respect and loyalty towards its members and vice versa. Such a duty also exists amongst the members concerning their actions within the organisation. The idea behind this obligation of loyalty is defined in Art. 4 para 3 TEU as a duty of “sincere cooperation” and may be generalised as generally applying in the context of International Organisations.45 This is also emphasised by the ICJ’s advisory opinion relating to the transferral of the WHO’s regional office from Alexandria in Egypt. In its advisory opinion the Court argued that mutual obligations between Egypt and the WHO resulted from the country’s longtime membership in the organisation: “The very fact of Egypt's membership

Vedder in Grabitz/Hilf/Nettesheim, Art. 49 EUV para 27. Meng in v. d. Groeben/Schwarze, Art. 49 EUV para 92. 43 Cf. regarding transitional rules: Brechmann in Calliess/Ruffert, Art. 45 AEUV, para 27; Inglis, (n 26) 147 ff. 44 Cf. → § 11 paras 396 ff. (peacekeeping); → § 12 paras 501 ff. (human rights); → § 13 paras 603 ff. (economy and development) and → § 14 paras 671 ff. (environment). 45 Klein/Schmahl in Graf Vitzthum/Proelß, para 74; cf. also Schermers/Blokker, para 156 with additional references. 41

42

119

§ 8 Membership

of the Organization entails certain mutual obligations of cooperation and good faith incumbent upon Egypt and upon the Organization.”46 259 Until today, the duty of loyalty among the Member States has become relevant with respect to the mutual recognition as States. In principle, simultaneous membership in an organisation does not automatically imply a duty of recognition as a State or the establishment of diplomatic relations. At the same time, at least membership in the United Nations, the Charter of which speaks of “sovereign equality of all its Members” (Art. 2 para 1 UN), cannot remain completely insignificant. This was one of the reasons why the Federal Republic of Germany and the German Democratic Republic were only simultaneously admitted to UN membership47 and after the Grundlagenvertrag (Treaty on the Basis of Intra-German Relations) had been concluded.48 Today, the issue is of relevance as far as the relationship between Israel and its neighbours and towards Palestine is concerned.49 2. Graduated Membership

The principle of Member States’ sovereign equality that is applicable in the context of the United Nations generally applies to other International Organisations as well. Therefore, in principle, the members of other International Organisations enjoy the same rights and are subject to the same obligations as well. However, the general principle may be modified by the organisation’s founding treaty. The veto position accorded to the permanent members of the UN Security Council by Art. 27 para 3 UN, for example, constitutes a privilege regarding voting rights. 261 Further organisations that differentiate between different legal positions held by their members are the financial institutions IMF and World Bank, which – apart from a rather small contingent of basic votes that are accorded to all members alike – weight voting rights according to each member’s economic productivity. In the European Union, a member’s voting rights both in the Council and in the European Parliament are determined by the size of its population.50 262 Article XI:2 WTO modifies membership obligations by granting certain privileges to least developed countries (LDCs). Three criteria were developed to determine whether a country belongs to the group of least developed countries: 260

46 ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, ICJ Rep. 1980, 67 at 93. 47 Cf. Fastenrath in Simma, Art. 4 paras 33 f.; for more details on the accession of the GDR and the FRG cf. Neugebauer, ‘UN Policy, German Democratic Republic’ in: Volger, A Concise Encyclopedia of the United Nations, 2nd edn. 2010, 770 ff. 48 Treaty concerning the basis of relations between the Federal Republic of Germany and the German Democratic Republic, BGBl. 1973 II, 423 ff; translated in 12 ILM (1973), 16. In this treaty West Germany and East Germany recognised each other as sovereign states for the first time. Cf. Simma, ‘Legal aspects of the East-West German Relations’, 9 Maryland Journal of International Law & Trade (1985), 98 at 101 ff. 49 Klein/Schmahl in Graf Vitzthum/Proelß, para 74. 50 Cf.→ § 9 paras 335 ff.

120

II. Membership Status

the low-income criterion measuring the population’s average income, the human assets index indicating the population’s situation regarding nutrition, health and education, and the economic vulnerability index collecting data on the country’s economic stability. Currently, the list maintained by the office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States contains 49 countries.51 On the basis of Article XI:2 WTO, LDCs were granted, amongst other things, larger timeframes for the performance of their obligations under the WTO agreements.52 Furthermore, in December 2002 the WTO’s General Council, on the basis of the Doha Ministerial Declaration of 14 November 2001, formulated “Guidelines on Accession of Least-Developed Countries”,53 which were complemented by additional recommendations in July 2012.54 Flexible solutions are further facilitated by the individual negotiation process for accession to the WTO which takes into account a candidate country’s specific situation. Where such modifications are agreed upon, they lead to the country concerned enjoying a different status as far as its obligations from WTO membership are concerned. 3. Associate Membership

Associate membership constitutes a specific level of membership that exists 263 in several International Organisations. Article 5 Statute of the Council of Europe, for instance, provides for the status of an associate member. The rights a member is entitled to under this status are by and large comparable to full membership with the exception that participation in the Council of Ministers, the most important political organ of the Council of Europe, is not possible. In its practice, the Council of Europe used the status of associate membership as a pre-stage to full membership. Comparable possibilities have been created with a number of UN Specialised Agencies. There, in contrast to the solution adopted within the Council of Europe, associate members have a general right of participation, but lack the possibility to vote or to hold office within the organisation’s organs. However, the UN itself has not created the possibility for such a form of “membership light”.55 This type of associate membership in an International Organisation granting 264 genuine –though limited – participation rights must be distinguished from association agreements known in EU law. An association agreement is an international treaty between the EU and a third country establishing specific forms of cooperation, particularly in the area of tariffs but also concerning free trade in general. The legal basis for the conclusion of association agreements by the EU is provided by Article 217 TFEU. Sometimes association agreements create inThe list is available at: , accessed 21 February 2014. Schorkopf in Wolfrum/Stoll/Kaiser, Art. XI, para 16 f. 53 WT/L/508 of 20 January 2003. 54 WT/L/508 Add.1 of 30 July 2012. 55 Schermers/Blokker, para 73.

51

52

121

§ 8 Membership

dependent organs for their purposes (e.g. the EU-Turkey Association Council).56 However, in contrast to associate members in other organisations, an association agreement does not provide for any form of participation in the EU as an International Organisation. 4. Oberserver Status

Many International Organisations may grant observer status which provides certain participation rights but does not include membership as such. The reason behind this policy is that it often serves a mutual interest of both the organisation and the third party to allow the third party to participate in the work of the organisation. Particularly NGOs are often granted observer status. In the case of the United Nations this is regulated by Art. 71 UN.57 Apart from governing NGO participation, observer status is often also used to handle politically difficult situations regarding candidates who for various reasons may not achieve membership. The United Nations, for instance, granted observer status to divided States which was seen as an interim solution pending the clarification of the concerned entities’ status.58 The Holy See is also listed as a non-member State observer, although, irrespective of its traditional status as a subject of international law, it is far from clear whether the Holy See can be considered a State.59 266 National liberation movements are another example where delicate political issues are handled by granting observer status. As is the case of divided States, a (sometimes long-during) transitional problem requires an interim solution. Granting a national liberation movement observer status in the United Nations implies international recognition of the right to self-determination, while at the same time leaving open the question of statehood. This approach was taken, for example, in the cases of the Palestinian Liberation Organization (PLO) as well as the South-West Africa People’s Organization (SWAPO). The PLO was granted permanent observer status in 1974 as a non-State actor representing the Palestinian people.60 When Palestine’s formal application for admission to the UN as a State failed in the Security Council because of the American veto, the GA “upgraded” Palestine to a “non-member observer State”, thus recognising Palestinian statehood in the absence of admission to the UN.61 267 A final group of institutions with observer status is constituted by regional and other International Organisations. The United Nations has a long-stand265

56 Brechmann in Calliess/Ruffert, Art. 45 AEUV paras 35 f.; Schmalenbach in Calliess/Ruffert, Art. 217 AEUV para 17; according to the jurisprudence of the ECJ the decisions of this Association Council may be directly applicable, cf. ECJ C-192/89 Sevince 1990 ECR I-3497, para 15; ECJ C-12/86 Demirel 1987 ECR I-3719, para 7. 57 On the legal status of NGOs, § 1 paras 11 and 20 ff. 58 Cf. for more details: Fastenrath in Simma, Art. 4 para 47. 59 Fastenrath in Simma, Art. 4 para 47. 60 GA Res. A/RES/3237 (XXIX) of 22 November 1974. 61 GA Res. A/RES/67/19 of 4 December 2012.

122

II. Membership Status

ing practice of granting regional organisations that fulfil the requirements of Chapter VIII UN-Charter and other International Organisations observer status.62 Other organisations also follow this practice of allowing International Organisations to cooperate as observers, notably if formal membership is limited to States.63 5. Limitation of Membership Rights as a Sanction

Many organisations provide for the possibility of limiting membership rights 268 in case violations of certain fundamental rules. According to Art. 19 UN, for instance, Member States automatically loose the right to vote if they are in arrears with their financial contributions and if the amount of their arrears equals or exceeds the amount of the contributions they were due during the preceding two years. Even though the Charter provides for the automatic loss of the right to vote, the General Assembly may in practice suspend this effect.64 A further form of sanction is provided for in Art. 5 UN. According to this provision, the General Assembly may suspend membership rights of States against which the Security Council has adopted measures under Chapter VII UN-Charter, on the condition that the Security Council issues a recommendation to this effect and that this recommendation is approved of by a majority in the General Assembly. This provision has never been applied in practice. Given the high degree of integration within the European Union, the issue of 269 limitation of membership rights in case of a serious breach of certain fundamental Union values is of specific importance. Under the Treaty of Amsterdam which entered into force on 1 May 1999, the EU Treaty law provided for a mechanism that allowed the adoption of sanctions against a Member State if there was a “serious and persistent breach” of certain key principles (freedom, democracy, rule of law). The issue became more or less immediately relevant when in Austria, following the elections of 3 October 1999, a coalition government was established which included the right wing party FPÖ under its then chairman Jörg Haider. In reaction, the other 14 EU Member States adopted sanctions against Austria outside the then-existing legal mechanism. These sanctions included the suspension of all bilateral contacts between the 14 governments and

Fastenrath in Simma, Art. 4 para 49. Seidl-Hohenveldern/Loibl, paras 810 ff.; e.g. the EU enjoys the status of a permanent observer in the OAS cf. , accessed 21 February 2014. 64 GA Res. A/RES/53/406 C of 7 April 1999; GA Res. A/RES/53/36 F of 28 Juli 1999; GA Res. A/RES/55/5 A of 26 October 2000; GA Res. A/RES/58/1 of 16 October 2003; GA Res. A/RES/61/2 of 1 November 2006, operative clauses 5 and 6 concerning the inability of eight members (the Central African Republic, the Comoros, Georgia, Guinea-Bissau, Liberia, the Niger, Somalia and Tajikistan) to pay their contributions; cf. also: GA Res. A/RES/67/2 of 11 October 2012 concerning the failure of five members (the Central African Republic, the Comoros, Guinea-Bissau, Sao Tome and Principe and Somalia) to pay their contributions. 62

63

123

§ 8 Membership

the Austrian government.65 The measures by the other Member States were highly problematic as they deliberately operated outside the procedure provided for under Art. 7 EU-Treaty. As a result, the Treaty of Nice amended the procedure provided for in Art. 7 EU-Treaty in order to allow action prior to the existence of a „serious and persistent breach“, i.e. when the fundamental principles of freedom, democracy or rule of law were not yet breached but clearly endangered.66 270 According to Art. 8 Statute of the Council of Europe, a member may be suspended from its rights of representation. It may even be requested by the Committee of Ministers to withdraw from membership, and, if it does not comply with this request, the Committee may decide that it has ceased being a member of the Council. This provision was complemented in 1995 by an internal mechanism established by the Council of Europe’s Parliamentary Assembly adding to its general monitoring mechanism the possibility of adopting sanctions ranging from the non-ratification of a national parliamentary delegation’s credentials to a recommendation to the Committee of Ministers requesting it to take the appropriate action provided for in Article 8 of the Statute of the Council of Europe.67 On the basis of this provision, the Parliamentary Assembly took practical action in the context of the Russian military intervention in Chechnya and regarding the Crimea crisis.68 The alleged irregularities during the Ukraine national elections of 2004 also led the Parliamentary Assembly to warn the country that it may request the Committee of Ministers to suspend Ukraine’s membership in the Council of Europe in accordance with Article 8 of the Statute of the Council of Europe.69 III. Termination of and Succession to Membership 1. Grounds for Termination 271

There are, in principle, four grounds for termination of membership: 1) dissolution of the organisation, 2) withdrawal from the organisation (denunciation), 3) extinction of a Member State, and 4) expulsion from the organisation.

65 For a detailed analysis and documentation on this issue cf. Schorkopf, Die Maßnahmen der XIV EU-Mitgliedstaaten gegen Österreich, 2002. 66 For further details concerning the procedure cf. Schorkopf in Grabitz/Hilf/Nettesheim, Art. 7 EUV paras 13 ff.; cf. also Art. 7 TEU. 67 Parliamentary Assembly, Order No. 508 (1995) on the honouring of obligations and commitments by Member States of the Council of Europe, Strasbourg, 26 April 1995; cf. request of a group of twenty-four members of the Parliamentary Assembly of the Council of Europe for the reconsideration of the previously ratified credentials of the Russian delegation to PACE on substantial grounds at: , accessed 21 February 2014. 68 Concerning Chechnya: Recommendation 1456 of 6 April 2000 and Resolution 1221 of 29 June 2000; Concerning the Crimea: Resolution 1990 (2014) of 10 April 2014 (suspending, among others, the Russian delegation’s voting rights until the end of the 2014 session). 69 Resolution 1364 of 29 January 2004.

124

III. Termination of and Succession to Membership

a) Dissolution of the Organisation. International Organisations are, in principle, founded for an indeterminate period of time. For that reason their dissolution only occurs in rare cases which, nevertheless, do exist in practice. The dissolution may be brought about in several ways. If the founding treaty is limited in time, the organisation is automatically dissolved with the expiration of that time period. Thus, the European Coal and Steel Community which, according to Art. 97, was founded for a period of 50 years, ceased to exist on 23 July 2002 when this time had run. However, most of the topics covered by the ECSCTreaty were transferred to the European Community on that date meaning that, in addition to the dissolution of the ECSC, there was a simultaneous act of succession.70 Some founding treaties contain express provisions dealing with the issue of dissolution. For instance, Art. XXV para 1 s 2 ESA-Convention provides for mandatory dissolution of the agency if the number of Member States becomes less than five. It also allows the agency’s dissolution at any time its members agree upon dissolution. According to Art. XXVII, para 2 of the IMF articles of agreement, the IMF may only be liquidated by a decision of the Board of Governors. A similar regulation is in place regarding the World Bank and its subsidiary organisations.71 The express regulation may in these cases be explained by the concerned organisations’ considerable assets the distribution of which in case of a liquidation was, according to the will of the founders, not to be left unregulated.72 Even if an organisation’s founding document contains no express provision governing its dissolution the organisation may always be dissolved by a consensus of its members according to general principles of treaty law (Art. 54 lit b) VCLT). These provisions would also apply for the dissolution of the European Union. While it is true that the respective treaties have been concluded for an “unlimited period” (Art. 356 TFEU, Art. 208 Euratom und Art. 53 TEU), this does not imply that they may not be terminated.73 The prevailing view is that dissolution by consensus of all Member States is always possible as actus contrarius to the organisation’s founding.74 (→ § 4 para 143). There is no specific procedure for an International Organisation’s consensual dissolution. Above all, there is no necessity to respect the founding treaty’s provisions concerning amendments. Furthermore, at least from the perspective of international law, an organisation’s dissolution does not require ratification

70 Klein/Schmahl in Graf Vitzthum/Proelß, para 59; Cf. Obwexer, ’Das Ende der Europäischen Gemeinschaft für Kohle und Stahl’, 13 EuZW (2002), 517 at 523 f.; similarly Schermers/Blokker, para 1662; cf. also § 4 paras 142 and 146 ff. in this volume. 71 Art. VI sect. 5 IBRD; cf. Amerasinghe, 466. 72 Fischer/Köck, 601. 73 Cf. Cremer in Calliess/Ruffert, Art. 53 EUV para 1. 74 Cremer in Calliess/Ruffert, Art. 53 EUV para 1; Dörr in Grabitz/Hilf/Nettesheim, Art. 50 EUV para 44.

125

272

273

274

275

§ 8 Membership

by Member States’ national parliaments.75 The League of Nations, for instance, was on 19 April 1946 dissolved by a decision by the Assembly and not by the Member States.76 (→ § 4 para 147). What is more, not even all Member States were present at the decisive session. The fact that none of the absent members protested is interpreted as a tacit consensus on the League’s dissolution.77 Although this solution seems plausible from a practical and a political point of view, it is legally deficient since the dissolution by an organ of the organisation does not constitute an actus contrarius to its founding by the Member States. 276 Insolvency does not in and of itself provoke an organisation’s dissolution. On the contrary, the organisation continues to exist as long as its Member States so desire. Until today, the sole example of an International Organisation’s insolvency, the financial breakdown of the International Tin Council, confirms this principle.78 In addition to the above example of a treaty provision providing for the organisation’s dissolution in case of the number of members falling below a certain threshold,79 an organisation is said to automatically cease to exist once it has lost all its members.80 However, on the basis of the above definition, according to which an International Organisation requires at least two members, the organisation will already cease to exist once there is only one member left. 277 b) Withdrawal. Many International Organisations allow the withdrawal of Member States. Usually, the withdrawal will only take effect with a certain delay.81 Furthermore, all of the withdrawing State’s contractual obligations within the organisation, notably its financial contributions, need to be met before the withdrawal takes effect. With the exception of the WHO, all of the UN’s specialised agencies expressly allow members to withdraw. The same holds true for the Council of Europe.82 This option has been used several times in various specialised agencies.83 Even the IAEA-Treaty, which in view of the agency’s purpose is particularly dependent on universal membership, allows for withdrawal, a possibility which was used by the Democratic People's Republic of Korea in 1994.84 It should be noted, however, that the obligations under the IAEA-Treaty Fischer/Köck, 602; Seidl-Hohenveldern/Loibl, para 609. Printed in 1 International Organization (1947), 246 ff. and in Kelsen, (n 31) 594 f. 77 Amerasinghe, 468; see also Kelsen, (n 31) 595. 78 Cf. → § 7 para 232. 79 Cf. → para 273. 80 Klein/Schmahl in Graf Vitzthum/Proelß, para 54. 81 This was, for example the regulation concerning the League of Nations which expressly provided for the possibility to withdraw from the organisation, Art. 1, para 3 League of Nations Covenant; cf. Broms, (n 31) 8. 82 Amerasinghe, 116; Art. 7 Statute of the CoE. 83 E.g. declaration of withdrawal of several Eastern Block Countries from the WHO and the UNESCO, cf. Amerasinghe, 120 f. with additional references; Seidl-Hohenveldern/Loibl, para 531; cf. temporary withdrawal of the USA from the ILO from 1977-1980 available at: , accessed 21 February 2014; cf. withdrawal of the USA (1996), the UK and Northern Ireland (2012) from the UNIDO , accessed 21 February 2014. 84 The declaration of withdrawal is available at , accessed 21 February 2014; cf. also Amerasinghe, 118. 75

76

126

III. Termination of and Succession to Membership

and under the Non-Proliferation Treaty are legally distinct. While Art. III para 1 Non-Proliferation Treaty refers to safeguard agreements to be concluded under the auspices of the IAEA, these safeguard agreements have autonomous legal existence which does not depend on the respective country’s membership in the IAEA.85 Where an International Organisation’s founding document does not express- 278 ly allow for withdrawal the question arises whether, and if so under which conditions, a Member State may renounce its membership. The problem was intensely discussed concerning the EU for many years86 before the Lisbon-Treaty finally87 provided for an express possibility of withdrawal in Art. 50 TEU. The question also arises regarding the United Nations. The San Francisco Conference deliberately omitted an express regulation in order to underline the organisation’s universal aspirations. However, an interpretative declaration considered the option of unilateral withdrawal possible ”under exceptional circumstances”.88 The circumstances envisaged concerned Charter amendments which, according to Art. 108 UN, may in principle enter into force against a Member State’s will. In this case, an objecting member was considered to be allowed to leave the organisation (opt-out solution).89 It may generally be said that the issue of unilateral withdrawal is subject to legal regulation only in a limited way. Enforcing membership against the clear will of a State is usually no sound political option.90 Furthermore, the provision in Art. 6 UN which allows a Member State’s expulsion shows that there are limits to the idea of universality.91 The general duty of loyalty owed to the organisation and the other members, however, requires a State that wishes to renounce its membership to consult the organisation’s plenary organ in the matter and to observe a certain delay for the withdrawal to take effect in order to allow the organisation and the other members to adapt to the new situation.92 Until now, Indonesia remains the sole State to have formally declared its in- 279 tent to leave the United Nations. The reason for this declaration was the elec85 This reflects at least the legal opinion of the Security Council, cf. SC Res. S/RES/1718 of 14 October 2006, Op. 6; for more details on this topic cf. Asada, ‘Arms Control Law in Crisis? A Study of the North Korean Nuclear Issue’, 9 Journal of Conflict & Security Law (2004), 331 ff. 86 Bruha/Nowak, ‘Recht auf Austritt aus der Europäischen Union?‘, 42 AVR (2004), 1 ff.; Cremer in Calliess/Ruffert, Art. 50 EUV para 2; Götting, Die Beendigung der Mitgliedschaft in der Europäischen Union, 2000; Dörr in Grabitz/Hilf/Nettesheim, Art. 50 EUV paras 1-3. 87 The right to withdraw from the organisation had already been introduced in Art I.-60 of the Treaty establishing a Constitution for Europe (which never came into force). This provision was later taken up in Art. 50 TEU. 88 The full text of this declaration may be found in: Kirgis, International Organisations in Their Legal Setting, 2nd edn. 1993, 240. 89 For further details cf. Witschel in Simma, Art. 108 para 41. 90 But cf. Feinberg, ‘Unilateral Withdrawal from an International Organization‘, 39 BYIL (1963), 215; Bindschedler, Rechtsfragen der Europäischen Einigung, 1954, 40 ff.; Cf. also concerning this problem: Schermers/Blokker, paras 123 ff. 91 Klein/Schmahl in Graf Vitzthum/Proelß, para 79. 92 Supporting the necessity of consultations, Amerasinghe, 119; differently, however, Witschel in Simma, Art. 108 para 41, who seems to accept withdrawal with immediate effect.

127

§ 8 Membership

tion of Malaysia to the UN Security Council. Given that elections to the Security Council are a normal constitutional procedure within the UN system, an individual State’s election can hardly be viewed as “exceptional circumstance”. Indonesia later decared its willingness to “resume full cooperation with the United Nations” leading to the period being qualified as a “cessation of cooperation” intead of a formal withdrawal. Hence, there was no necessity for a new accession of the country. While the legal qualification of the Indonesian action is subject to debate,93 its pratical treatment within the General Assembly does not support the view that the country formally withdrew from the organisation.94 280 c) Expulsion. As illustrated above, Art. 6 UN allows for a member’s expulsion from the organisation if it has persistantly violated its fundamental principles. Such an expulsion may only proceed on the basis of a Security Council recommendation subject to the veto power of the five permanent members. There have been attempts in the practice of the organisation to apply the provisions on expulsion concerning South Africa during the apartheid regime and Israel.95 South Africa was prevented from making use of its membership rights during the apartheid regime by means of a – legally highly problematic – practice by the Credentials Committee.96 Similar action against Israel was prevented by the United States.97 Until now, no country has been formally expelled from the United Nations. 281 At least as far as organisations with a universal approach are concerned, it may be generally said that expulsion is an ambivalent means for sanctioning a country’s behaviour. While in expelling the perpetrator the organisation sends a clear message that it does not tolerate the action in question, it must not be overlooked that with the expulsion becoming effective, the country is freed from all obligations stemming from membership in the UN. This certainly is an undesired effect of expulsion. The main purpose of provisions like Art. 6 UN is therefore a preventive one. They rely on the deterring effect of a threat that hopefully will not have to be realised. Once this preventive effect has failed, the realisation of the threat is more of a symbolic value. 282 d) Extinction. The last possibility for a State’s membership in an International Organisation to end is the State’s extinction. It is a logical necessity that any rights and duties of a subject of international law cease to exist with its extinc93 Blum, ‘Indonesia's Return to the UN’, 16 ICLQ (1967), 522 at 525 ff.; Kirgis, International Organisations in Their Legal Setting, 2nd edn. 1993, 241; Schwelb, ‘Withdrawal from the United Nations: The Indonesian Intermezzo’, 61 AJIL(1967), 661 ff.; Seidl-Hohenveldern/Loibl, para 531. 94 In literature it is either based on a temporarily inactive membership or the declaration of withdrawal being considered null and void, cf. Fastenrath in Simma, Art. 4, para 41. 95 UN Doc. S/3519 (1955); GAOR (XVI), 1165th Plenary meeting; UN Doc. S/PV.1808 (1974), 17 f.; cf. also in more detail: Halberstam, ‘Excluding Israel from the General Assembly by a Rejection of its Credentials‘, 78 AJIL (1984), 179 ff. 96 Cf. (n 95) above; cf. also Magliveras, Exclusion from Participation in International Organisations, The Law and Pratice behind Member States’ Expulsion and Suspension of Membership, 1999, 209-222. 97 For more details cf. Magliveras, (n 96) 223-229.

128

III. Termination of and Succession to Membership

tion. Thus, the rights and duties the former GDR had within the United Nations were considered to have disappeared with the country’s merger into the Federal Republic of Germany.98 Similarly, the dismemberment of former Czechoslovakia into the Czech and the Slovak Republics resulted in the disappearence of the former’s membership rights in the United Nations. Consequently, the successor States requested admittance to the UN as new members. In the case of the former Yugoslavia, the succession of the Federal Republic of Yugoslavia (and later the Republic of Serbia and Montenegro) to the Yugoslav membership in the United Nations was controversial for a long time99 but was finally decided in favor of admitting the Federal Republic of Yugoslavia as a new member.100 It is unclear if (and if so as of which date) this implies the extinction of the former Yugoslavia as a subject of international law. The ambivalent practice of the United Nations has led the ICJ to speak of the former Republic of Yugoslavia having enjoyed sui generis status within the UN in the period between 1992 and 2000.101 It may generally be said that the issue of the original Member State’s succes- 283 sion largely determines the answer to the question of membership: if the analysis finds that the former Member State ceased to exist its rights and duties will also disappear and any new emerging State will have to request admittance as a new member. Whenever the international legal personality of a Member State is continued by one of its successor subjects, however, the issue of its succession to the former’s membership will arise. 2. Membership Succession

Thus, the question of membership succession needs to be addressed. The is- 284 sue is not unproblematic since automatic membership succession would confront the organisation’s other members with a new member without them having had a chance to decide whether they want to enter into treaty obligations with the new State. For this reason, there is no automatic membership succession in cases of State succession.102 The UN practice concerning the dismemberment of the former Soviet Union was problematic in this regard. The express mention of the Soviet Union as a subject of international law in Art. 23 para 1 UN and the 98 Schweisfurth, Chapter 11 para 37 with reference to a letter dated 17 December 1990 from the German ambassador at the UN to the Secretary-General of the UN, printed in 53 ZaöRV(1993), 1095. 99 Zimmermann, Staatennachfolge in völkerrechtliche Verträge, 2000, 303 ff.; cf. also Bühler, State Succession and Membership in International Organizations, 2001, 248 ff. 100 GA Res. A/RES/55/12 of 10 November 2000. 101 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), ICJ Rep. 1996, 595 at 610; ICJ, Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Yugoslavia v. Bosnia and Herzegovina), ICJ Rep. 2003, para 71. 102 For a detailed analysis on the practice of the United Nations: Zimmermann, (n 99) 589 at 611 f.; see also: Bühler, (n 99) 187.

129

§ 8 Membership

ensuing veto position in the Security Council implied that Russia was to succeed into the Soviet Union’s membership rights if it were to retain the latter’s rights without a Charter amendment. In practice, the problem was solved by a declaration by Russia that it would continue the Soviet Union’s membership rights in the Security Council and in all other UN organs.103 The other Member States did not protest this position or did even, as was the case with the Federal Republic of Germany,104 formally acknowledge the Russian position. Whether this practice may be interpreted as Russia having legally retained the fomer Soviet Union’s membership identity is open to debate.105 285 The practice concerning the reverse situation in which two formerly independent Member States are unified may be assessed as not requiring the new State to request admittance as a new Member State even if its international legal personality is separate from both previously existing States.106 This rule is expressed in Art. 5 OAS-Charter which requires ratification of the organisation’s founding treaty by the new subject but does not provide for a new decision on admittance. Given possible changes in the political power of the organisation’s members, this approach may have negative side effects concerning the remaining members.107

For more details cf. Zimmermann, (n 99) 595 f.; Bühler, (n 99) 160 f. BT-Drs. 12/2052, Answer of the German Federal Government to Question No. 15. 105 For the different positions cf. Zimmermann, (n 99) 598; Bühler, (n 99) 165 f.; Klein/Schmahl in Graf Vitzthum/Proelß, para 71; Schweisfurth, ‘Ausgewählte Fragen der Staatensukzession im Kontext der Auflösung der UdSSR‘, 32 AVR (1994), 99 at 117 ff. 106 For examples of the UN practice cf. Ginther in Simma, Art. 4 para 39. 107 Klein/Schmahl in Graf Vitzthum/Proelß, para 72. 103

104

130

§9 Organs and Decision Making Literature: Amerasinghe, The Law of the International Civil Service, vol. II, 2nd edn. 1994; Ameri, Politics of Staffing the UN Secretariat, 1996; Conrady, Wandel der Funktionen des UN-Generalsekretärs, 2009; Eldar, ‘Vote-trading in International Institutions’, 19 EJIL (2008), 3 ff.; Kaufmann, United Nations Decision Making, 1980; Macarczyk, ‘The International Court of Justice on the Implied Powers of International Organizations’, in: Macarczyk (ed.), Essays in International Law in Honour of Judge Manfred Lachs, 1984, 501 ff.; Meron, ‘Charter Powers of UN Secretary General with regard to the Secretariat’, 42 ZaöRV (1982), 731 ff.; Pellet/ Ruzié, Les fonctionnaires internationaux, 1993; Schermers/Blokker, ‘International Organizations or Institutions, Voting Rules and Procedures‘ in Wolfrum (ed.), MPEPIL; Wachs, Die Funktion des Sekretariats der Spezialorganisationen der Vereinten Nationen im Verhältnis zu seinen politischen Führungsorganen am Beispiel der Weltorganisation für Meteorologie, 1981; Wolfrum, ‘Neue Elemente im Willensbildungsprozess internationaler Wirtschaftsorganisationen’, 29 VN (1981), 50 ff.

In order to allow them to take action independently from their Member 286 States, International Organisations need at least one organ. However, most International Organisations possess more than one organ. While the exact structure of an International Organisation varies according to the specific needs of each organisation concerned, some general features, which are applicable to all organs, may nevertheless be distinguished. These will be dealt with in a first section (I.). The following sections will analyse the different types of organs (II.) and present their respective decision making procedures (III.). The chapter ends with considerations relating to the necessity of an institutional balance between the different organs and regarding the importance of the principles of rule of law and separation of powers (IV.). I. General Features 1. Functions and Types of Organs

The exact institutional structure of an International Organisation depends on 287 the specific tasks which are entrusted to it. Thus, for example, an organisation like the International Criminal Court – which is indeed an independent International Organisation endowed with distinct international legal personality according to Art. 4 para 1 Rome Statute1 – requires an organisational structure which differs from that of most other International Organisations.2 Apart from such atypical organisations there is a typical structure, which takes into account the Schabas, An Introduction to the International Criminal Court, 3rd edn. 2007, 342 and 344. Article 34 of the Rome Statute enumerates the following organs of the ICC: the Presidency, an Appeals Division, a Trial Division and a Pre-Trial Division as well as the Office of the Prosecutor. This constitutes a typical court structure. 1

2

131

§ 9 Organs and Decision Making

necessity to provide for an adequate representation of the interests of Member States while at the same time allowing the organisation to develop and utter an independent and autonomous position. As a result, practically every International Organisation features the following two organs: a plenary organ, serving as an assembly of all members, and a secretariat, providing for the necessary administrative support and representing the organisation internationally. 288 According to the specific tasks of each organisation additional organs supplement these general types. The plenary organ is usually cumbersome and thus unable to provide for swift action and immediate decisions. Hence many organisations provide for a smaller executive organ which is entrusted with decisionmaking in the periods between the sessions of the plenary organ or – as is the case with the UN Security Council under Chapter VII of the UN Charter – even possesses autonomous competences. In so far as a comprehensive cooperation between all members is intended or when enhanced legitimation is warranted because of the specific powers attributed to the organisation – as is the case with the European Union – a parliamentary organ may be instituted. Furthermore, a dispute settlement organ may facilitate the settlement of disputes relating to the activities of the organisation. In addition to that, it is possible to create further organs entrusted with specific tasks. The United Nations are an example in point: The Economic and Social Council (ECOSOC) is an organ specifically designed for this area of UN activities. Similar considerations resulted in the creation of the Trusteeship Council, which today is generally considered as having become superfluous and irrelevant.3 289 On the basis of the characteristics just presented, the following three analytic perspectives on the organs of International Organisations may be distinguished: it is possible to look at the interests represented in the different organs (interestoriented perspective), the organs may also be categorised following their functions within the overall institutional structure of the organisation (functional perspective), and, finally, the focus may be placed on the tasks with which they are entrusted (task-oriented perspective). 2. Levels of Organs (Main Organs and Subsidiary Organs) 290

Generally, two levels of organs may be distinguished: the organs provided for in the founding treaty of the organisation are usually referred to as main organs.4 It is necessary to distinguish from these main organs subsidiary organs, which are created by the main organs on the basis of competences attributed to them in the founding treaty.5

3 This was one of the issues consented to in the reform discussions of 2005; cf. Report of the High-level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’ UN Doc A/59/565 of 2 December 2004. 4 Cf. Art. 7 para 1 UN, which uses the slightly different terminology “principal organs”. 5 Cf. for instance Arts. 7 para 2, 22 and 29 UN.

132

I. General Features

In this context, a debate has arisen on the issue of whether there are limits re- 291 garding the scope and extent of delegation of competences from the main organ to its subsidiaries. The question became relevant when the General Assembly of the United Nations created an Administrative Tribunal by way of a resolution.6 While it was argued that lacking judicial competences itself, the GA was barred from creating a judicial organ, the ICJ finally took the opposite position in an Advisory Opinion rendered on the question of the legal effects of judgments by the UN Administrative Tribunal. According to the ICJ the decisive criterion is that the creating organ does not transgress the limits of its own competences.7 This is convincing. It is only possible to assess the permissibility of subsidiary organs on the basis of the general competences attributed to the main organ. Functional distinctions on the basis of separation of powers are irrelevant in this regard. The institution of ad-hoc criminal tribunals by the Security Council confirms this consideration. Here again, the main organ does not possess judicial competences. Nevertheless, the creation of criminal tribunals is comprised by the general competence of the Security Council in the maintenance of international peace and security. The establishment of criminal tribunals by the Security Council may thus be based on Chapter VII and Arts. 39, 41 UN.8 The existing subsidiary organs vary considerably, both regarding their com- 292 position and their tasks. In some cases they are composed of independent experts (cf. the International Law Commission dealing with the codification and development of international law),9 but usually they consist of representatives of the governments of the Member States. These representatives are usually nationals of the Member States present in the main organ. Usually subsidiary organs are smaller in size than the respective principal organ, requiring the members to be elected by the main organ.10 Typical examples of subsidiary organs are commissions and committees. Yet also judicial organs may be created as subsidiary organs. Again, one may refer to the ad-hoc international criminal tribunals on the former Yugoslavia and on Rwanda or the Administrative Tribunal of the UN,11 which according to an Advisory Opinion of the ICJ, qualifies as a subsidiary organ of the UN GA.12 Furthermore, observer missions and peacekeep-

6 GA Res A/RES/351 A (IV) of 24 November 1949 and GA Res A/RES/782 B (VIII) of 9 December 1953. 7 ICJ, Effect of awards of compensation made by the UN Administrative Tribunal, ICJ Rep. 1954, 47 ff. 8 Cf. the decision of the ICTY Appeals Chamber in Prosecutor v. Dusko Tadic, 35 ILM (1996), 32, paras 32 ff. 9 GA Res A/RES/174 (II) of 21 November 1947. 10 Cf. also Paulus/Lippold in Simma, Art. 7 paras 30 ff., with additional references mentioning amongst others the special case of Switzerland which used to participate solely in the ECE before it has finally been admitted as a full member of the UN in 2002. 11 Cf.→ para 332 and § 10 para 393. 12 ICJ (n 7) 53 f.; Koh, The United Nations Administrative Tribunal, 1966, 62 ff.

133

§ 9 Organs and Decision Making

ing forces of the United Nations are often qualified as subsidiary organs (usually of the UN Security Council).13 293 When independence is essential for the proper fulfilment of the task entrusted to them, subsidiary organs are free from directions from their main organ. Thus, the ICJ considered in its Advisory Opinion on the UN Administrative Tribunal that the General Assembly was bound by the decisions of the Tribunal.14 In all other areas subsidiary organs depend on the main organ which created them. Decisions which are binding on Member States can only be taken by subsidiary organs of the UN Security Council when their creation was based on Chapter VII UN Charter and their decisions where granted binding force by the SC. Again, the criminal tribunals for Yugoslavia and Rwanda are examples in place. 294 Some authors distinguish a third level of organs beyond main and subsidiary organs.15 The purpose of distinguishing a third level is to highlight the degree of independence from the creating main organ. This allows the distinctive qualification of quasi-autonomous programmes within the United Nations, which in many cases, although being formally part of the United Nations, come close to separate International Organisations, for instance by comprising a separate internal organisational structure.16 Examples for this type are UNCTAD,17 UNDP18 and UNEP.19 If subsidiary organs of this kind were to be treated on the same footing with commissions or committees as the usual types of subsidiary organs, this would neglect their quasi-autonomous existence and thus exclude important characteristics of these organs from the analysis. Nevertheless, from a strictly formal legal point of view the distinction between formal independence based on a distinct international personality and a subsidiary programme, which lacks such formal independence, should not be blurred. None of the programmes mentioned above enjoys autonomous international personality. For that reason, the distinction of a third organisational level for such programmes is of descriptive, but not of normative value.

13 At the same time they are institutionally intergrated into the UN Secretariat, cf. Bothe, ‘Peacekeeping’ in Simma, paras 17 f. 14 ICJ (n 7) 57 ff. 15 Bernárdez, ‘Subsidiary Organs’, in: Dupuy, A Handbook on International Organisations, 2nd edn. 1998, 109 f. 16 Cf. Paulus/Lippold in Simma, Art. 7 para 33. 17 GA Res A/RES/2029 (XX) of 22 November 1965; → Cf. § 13 para 640; cf. also Taylor, United Nations Conference on Trade and Development (UNCTAD), 2007. 18 GA Res A/RES/1995 (XIX) of 30 December 1964; → Cf. § 13 para 639; cf. also Klingebiel, Effectiveness and Reform of the United Nations Development Programme (UNDP), 1999. 19 GA Res A/RES/2997 (XXVII) of 15 December 1972; → Cf. § 14 para 672; cf. also Gödel, Das Umweltprogramm der Vereinten Nationen (UNEP) und seine Rolle im System der International Environmental Governance, 2006.

134

II. Types of Organs

II. Types of Organs 1. Plenary Organ

The plenary organ has a number of different names in the various organisa- 295 tions: General Assembly (UN), Health Assembly (WHO), General Conference (IAEA; UNESCO, UNIDO, ILO) or simply Conference (FAO). Nevertheless, the functions and tasks with which these organs are entrusted are largely similar, irrespective of the different names. Usually they relate to the fundamental decisions concerning the organisation as such, e.g. admittance of new members20 or the adoption of the budget.21 Often they also comprise a general competence to deal with all matters falling within the competence of the organisation.22 It is rare, however, that plenary organs are granted legislative powers comparable to those of national parliaments. The example which comes closest are “regulations” which the WHO Assembly may adopt, and which become binding for all Member States which do not object within a certain period of time.23 The EU must be considered a special case within this general scheme. From a 296 functional perspective the Council of the European Union corresponds best to the plenary organ, because all governments of the Member States are represented in the Council. This leads to the Council being qualified as the “most important institution in the decision making process”.24 In contrast to plenary organs in other International Organisations, the Council of the European Union is not limited to recommendations and suggestions but is vested with genuine legislative competences, which, however, it has to share with the EU Parliament.25 Within the UN the General Assembly enjoys a certain priority over other 297 organs given that it is the only organ in which all members are represented. In addition to that, the Charter expressly states with regard to the Economic and Social Council and the Trusteeship Council that they operate “under the authority of the General Assembly” (Art. 60 and Art. 87 UN). However, this quasi-hierarchical position does not entail any right of direction of the General Assembly. A similar situation exists in other organisations where the plenary organ sometimes is not characterised by the universality of the members but rather by the prominent position of the representatives, i.e. minsters or even heads of State or government.26

20 Blokker, ‘International Organizations or Institutions, Decision-Making Bodies‘, in Wolfrum (ed.), MPEPIL para 9. 21 Klabbers, Introduction, 155; Blokker (n 20) para 9. 22 Klabbers, Introduction, 155; Rittberger/Zangl, Internationale Organisationen, 2003, 89 ff. 23 Klabbers, Introduction, 187; cf. Fidler, ‘The Future of the World Health Organization: What Role for International Law?’, 31 Vanderbilt JTL (1998), 1079 at 1086 ff. 24 Chalmers/Davis/Monti, European Union Law, 2nd edn. 2010, 68. 25 Craig/de Búrca, EU Law, Text, Cases, and Materials, 5th edn. 2011, 44 f. 26 Seidl-Hohenveldern/Loibl, paras 1152 f.; e.g. the Ministerial Conference of the WTO according to Art. IV para 1 WTO; for the importance of the Council of the European Union in the EU law-making process, Chalmers/Davis/Monti, European Union Law, 2nd edn. 2010, 68.

135

§ 9 Organs and Decision Making

The rules of procedure of several plenary organs provide for internal subdivisions. Thus, the General Assembly of the UN is divided into six Main Committees:27 The Disarmament and International Security Committee (First Committee), the Economic and Financial Committee (Second Committee), the Social, Humanitarian and Cultural Committee (Third Committee), the Special Political and Decolonisation Committee (Fourth Committee), the Administrative and Budgetary Committee (Fifth Committee) and the Legal Committee (Sixth Committee). Such subdivisions help in structuring the work of the organisation and in preparing the plenary meetings. Where such subdivisions are not already mentioned in the founding treaty, they may be justified by the principle of autonomous internal organisation granted to each organ. In UN practice the Main Committees are viewed as subsidiary organs of the General Assembly according to Art. 22 UN.28 299 The plenary meetings usually take place in periodically scheduled sessions. The UN General Assembly meets annually. Apart from the regular sessions there is the possibility of special or emergency sessions. Emergency sessions of the General Assembly are a consequence of the Uniting for Peace-Resolution in which they were introduced as an emergency mechanism. The mechanism has been regularly used in times of crisis.29 In contrast to extraordinary meetings they are not expressly mentioned in Art. 20 UN. However, there is no question that they constitute a lawful form of extraordinary sessions established in UN practice.30 300 The plenary organs of most International Organisations are composed of State representatives chosen by their respective governments. An important and early exception is the tripartism established within the ILO according to which representatives of employers and employees are equally represented alongside the governments (→§ 13 para. 634). In order to ensure parity of State and non-State representatives and of employers and employees, each country sends a total of four representatives, two being nominated by the government, one by the employers and one by the employees (Art. 3 ILO). A certain deviation from the principle of a government’s right to freely choose its representative is also applicable in the WHO, where according to Art. 11 WHO a qualification in the field of health is desired. Similarly, the international financial institutions IMF and World Bank have established a firm practice of choosing either the president of the national central bank or the minister of finance as representatives, although, formally, the respective founding treaties leave the choice to the government of the Member State concerned (cf. Art. 5 Sect. 2 a) IBRD und Art. XII Sect. 2 a) IMF).31 298

Fitschen in Simma, Art. 21 para 29 with additional references. Khan in Simma, Art. 22 Annex. 29 For further details on the Uniting for Peace-Resolution cf. → § 11 para 410. 30 For references cf. Eick in Simma, Art. 20 para 26. 31 Lowenfeld, 601 f.

27

28

136

II. Types of Organs

2. Executive Organs of Limited Membership and Specialised Organs

Most International Organisations possess an executive organ of limited membership in order to ensure swift and effective decision procedures and action. Again, the denomination varies: Governing Body (ILO), Council (FAO), Executive Board (WHO, UNESCO, IMF) Industrial Development Board (UNIDO) and Executive Directors (IBRD). There is no legal relevance attached to the different terminology. In the following, the term executive organ of limited membership is applied to all organs which operate as a substitute in the period between the ordinary sessions of the plenary organ. In addition, sometimes specialised organs are established with a specific focus on certain tasks. This is, for instance, the structure of the United Nations, where the Security Council (Art. 23 ff. UN, international peace and security), the Economic and Social Council (Art. 61 ff. UN; matters relating to economy and social policy) and the Trusteeship Council (Arts. 86 ff. UN, matters relating to territories under UN trusteeship) each have their own areas of activity. The necessity for such specialised organs largely depends on the breadth of the organisation’s activities in general. Most organisations have a clear focus on a specific subject matter and thus do not need any further specialisation among their main organs. Usually the specialised organs are smaller in size than the plenary organ. Within the UN and its family of UN Specialised Agencies this principle applies without exception. An important exception concerns the WTO, where the specialised organs are open to all members of the organisation (→ cf. para. 309). In contrast to the plenary organ, in which by definition all members of the organisation are represented, the members of executive organs of limited membership and of specialised organs need to be elected. For this purpose different procedures have been established. Regarding the UN Security Council a mixture of determination in the Charter itself and an election by the General Assembly was chosen: The Charter provides for permanent membership of the United States, the United Kingdom, France, China and Russia32 (Art. 23 UN). In addition there are, today, 10 non-permanent members, which are elected for two years on the basis of a regional proportional system by the General Assembly. The criterion “contributions to the maintenance of international peace and security”, which is also mentioned in Art. 23 UN, does not play any role in practice.33 Originally, the Charter provided for only six non-permanent members. The current figure of ten is the result of an amendment of the Charter, which took effect as of 31 August 1965. The intention behind the amendment was to take into account the changing international situation triggered by the process of decolonialisation. Today, this composition is again considered to constitute an inadequate representation of the international order. The reform proposal dis32 Formally still the Soviet Union, cf. Art. 23 UN; for the legal succession of Russia → cf. § 8 para 284. 33 Geiger in Simma, Art. 23 para 16.

137

301

302

303

304

§ 9 Organs and Decision Making

cussed in 2005 would have resulted in an augmentation of membership in the Security Council to 24 members. It would also have provided either for new permanent seats (albeit without a right of veto) or for a new category of non-permanent membership.34 305 In order to avoid a complete change of composition of the non-permanent members every two years, five new non-permanent members are elected every year.35 According to Art. 18 para 2 UN a majority of two-thirds is required in the General Assembly. From time to time this has led to delays. These delays, however, remain unproblematic as long as the necessary quorum for decision-making in the Security Council (9 members according to Art. 27 para 2 UN) is still met.36 306 As already mentioned, in the case of the WTO the executive organ of “limited” membership (the General Council) is not smaller in size than the plenary organ (the Ministerial Conference). In fact, membership in the General Council is open to all members of the organisation (Art. IV:2 WTO). The distinction between the Ministerial Conference and the General Council thus does not relate to the size of the organs but to their composition. While in the Ministerial Conference – as indicated by its denomination – the Member States are represented at the high level of ministers, the General Council is composed of the Permanent Representatives of the Member States with the organisation in Geneva.37 There is an additional characteristic of WTO institutional law as far as the specialised organs are concerned. The two specialised organs of the WTO (Dispute Settlement Body and Trade Policy Review Mechanism) are identical with the General Council in their composition (Art. IV:3 and Art IV:4 WTO),38 only the name of the organ changes. In addition, the WTO agreement provides for the institution of special councils dealing with the most important aspects of world trade (Art. IV:5 WTO: Council for Trade in Goods or Goods Council; Council for Trade in Services or Services Council; Council for Trade-related aspects of intellectual property rights or TRIPS-Council). In contrast to the General Council the composition of the specialised councils is not determined by the WTOAgreement itself, but is “open to representatives of all members”. This means in practice that usually only the major trade nations are present in these councils. In so far as so-called Plurilateral Trade Agreements (i.e. agreements, to which not all WTO-members are parties, cf. Art. II:3 WTO) provide for additional organs, such organs are not qualified as WTO-organs. Consequently, such organs oper-

34 Report of the High-level Panel (n 3); Geiger in Simma, Art. 23 para 29; Zimmermann in Simma, Art. 27 paras 255 f. 35 Rule 142, Rules of Procedure of the General Assembly (A/520/Rev. 15). 36 E.g. at the end of 1979, it was only after no less than 154 ballots that the General Assembly succeeded in determining to whom the fifth non-permanent seat in the Security Council should be allocated. Finally, in the 155th ballot, Mexico was elected, for further details Reisman, ‘The Case of the Nonpermanent Vacancy’, 74 AJIL (1980), 907 at 908, 910, 912. 37 Stoll/Schorkopf, WTO – World Economic Order, World Trade Law, 2006, para 26. 38 Herrmann/Weiß/Ohler, para 178.

138

II. Types of Organs

ate in complete independence from any directions by the General Council (Art. IV:8 WTO). This is a logical consequence of the fact that not all members of the WTO are parties to the plurilateral agreements concerned.39 3. Permanent Administrative Organs

In contrast to the organs described and analysed above, in which primarily the interests of the Member States are aggregated, permanent administrative organs, which exist in every International Organisation, are best suited for establishing and defending interests of the organisation as such. However, the secretariats have only gradually taken up this function and it is, still today, developed to varying degrees between the different organisations. In some cases mere administrative functions are still predominant. Administrative organs are usually composed of an administrative body – referred to as “Secretariat” – with a leading figure at the top, usually named Secretary-General (UN),40 but sometimes also (Managing) Director (IMF)41 or President (IBRD).42 a) Secretary-General. In contrast to the League of Nations, where the Secretary-General was conceived as a mere administrative organ, the UN Charter deliberately opted for a political role of its Secretary-General. His or her distinctive political role is evidenced in Art. 99 UN, which provides for specific competences in the area of international peace and security. At the same time, the UN Secretary-General has kept the administrative functions already for provided under the League of Nations. He or she is thus the head of the Secretariat’s administration (Arts. 97 and 101 para 1 UN). The administrative function comprises, among other tasks, supporting the other organs by preparing their meetings. Further tasks of the Secretary-General relate to the preparation of the budget and the external representation of the organisation, both of which also have important political dimensions. The political and the administrative functions of the UN Secretary-General have continuously remained in a certain tension. Depending on their different personalities and the varying circumstances of world politics the – until now: eight – Secretaries-General took different approaches to their office and used it differently.43 It can hardly come as a surprise that during the early years, but also in the period following the Congo crisis, when the Soviet Union pressed for a troika solution as an alternative to the single Secretary-General,44 a certain caution in political matters prevailed. In more recent years, the Secretaries-General acted in an openly political manner. Notably concerning the future of the Stoll,‘World Trade Organization’, in Wolfrum (ed.), MPEPIL para 13. Cf. Chapter XV, Arts. 97 ff. UN. 41 Cf. Art. XII Section 4 IMF. 42 Cf. Art. V Section 5 IBRD. 43 For an overview cf. Urquhart, ‘The Evolution of the Secretary General’, in: Chesterman, Secretary or General, 2007, 15 ff; Chesterman in Simma, Art. 99 paras 26 ff. 44 Göcke/von Mohr, ‘United Nations Secretary-General’, in Wolfrum (ed.), MPEPIL para 41. 39

40

139

307

308

309

310

§ 9 Organs and Decision Making

organisation they adopted an active and sometimes even programmatic approach. The predominance of the political part in the Secretary-General’s role is evidenced by the creation, in 1998, of the office of a Deputy Secretary-General, upon whom most of the administrative functions were transferred. 311 Starting with the programmatic report “An Agenda for Peace” submitted by Secretary-General Boutros-Ghali in 1992, the Secretaries-General have from time to time presented reports containing proposals for fundamental reforms of the organisation. This also holds true for the last general debate on reforming the United Nations, which was prepared by a “High-level Panel on Threats, Challenge and Change” called together by UN Secretary-General Kofi Annan.45 It led to, at least in part, a Declaration of Heads of State and Government on the occasion of their first formal meeting in 2005.46 Important institutional changes resulting from this process were the substitution of the Human Rights Commission by the Human Rights Council (cf. below § 12 para. 513) and the creation of the Peacebuilding Commission as a focal point for operations relating to international peace and security (cf. below § 11 para. 415 ). 312 The head of the Secretariat is usually appointed by the plenary organ (cf. Art. VII para 1 FAO; Art. 31 WHO and Art. VI:2 WTO). There are, however, exceptions from that rule. Thus, for example the election of the UN SecretaryGeneral is dependent on a recommendation by the Security Council (Art. 97 s 2 UN) and consequently subject to a veto of the permanent five members of the Security Council. Under the ILO Constitution the Director-General is appointed by the Governing Body, and hence by the executive organ of limited membership and not by the plenary organ (Art. 7 para 3 ILO). The special procedure for the election of the UN Secretary-General may be explained by his or her potentially eminent political role. The election procedure in the ILO is, by contrast, controversial even within the organisation itself and considered functionally questionable.47 There are different positions in the literature as to the determination of the body which is to be considered the organ: the Secretariat or the Secretary-General? Referring to the wording of Art. 7 UN, which mentions the Secretariat but not the Secretary-General, most authors see the Secretariat as the organ.48 Others, by contrast put more emphasis on the central and politically leading role of the Secretary-General within the Secretariat, and deduce that the Secretary-General and not the Secretariat should be considered among the principal organs mentioned in Art. 7 UN.49 The debate is of little practical relevance.

Report of the High-level Panel (n 3). GA Res A/RES/60/1 of 16 September 2005. 47 Möllers, Gewaltengliederung, 2005, 295. 48 Chesterman in Simma, Art. 97 para 5; Paulus/Lippold in Simma, Art. 7 para 12; Kille, The UN Secretary-General and Moral Authority: Ethics and Religion in International Leadership, 2007, 9; Gordenker, The UN Secretary-General and Secretariat, 2005, 6. 49 Conrady, Wandel der Funktionen des UN-Generalsekretärs, 2009, 13 ff.; Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems, 136; Froehlich, Political Ethics and the United Nations: Dag Hammarskjöld as Secretary-General, 2007, 16 f. 45

46

140

II. Types of Organs

The eminent position of the Secretary-General, his or her authority of direction and organisation within the Secretariat (cf. Art. 101 UN) and the practice of the United Nations favour the view which qualifies the Secretary-General him- or herself as the organ mentioned in Art. 7 UN. b) Secretariat. Art. 101 UN vests the Secretary-General with the power of 313 organisation of the Secretariat. This was a matter of debate at the San Francisco Conference given the fact that administrative services have to be offered to all other organs. An alternative would have been to attribute a separate adminstrative unit to each organ.50 In contrast to such dispersed administrative service bodies, the Secretariat as a single administrative organ for the entire organisation underlines the independence of the Secretariat (and thus, by necessary implication, also the independence of the Secretary-General). Currently the Secretariat is organised in the following manner: In order to 314 cope with broad range of highly diverse subject-matters, the Secretariat is divided into departments, each of which is headed by an Under-Secretary-General. The Under-Secretaries-General are directly responsible to the Secretary General.51 The departments are divided into: the Department of Political Affairs, the Office of Disarmament Affairs, the Department of Peacekeeping Operations, the Department of Field Support, the Office for the Coordination of Humanitarian Affairs, the Department for Economic and Social Affairs, the Department for General Assembly and Conference Management, the Department of Public Information as well as for the Department of Safety and Security and the Department of Management. There are additional subsections of the Secretariat such as the Executive Office of the Secretary-General, the Office of Legal Affairs, the Office of Internal Oversight Services, as well as the Office of the Special Advisor on the Prevention of Genocide.52 The Secretary-General also exercises personal sovereignty. He or she ap- 315 points all civil servants and has authority of direction. The employment relations are determined by Staff Regulations which were decided by the General Assembly53 and by Staff Rules adopted by the Secretary-General on the basis of the more general Staff Regulations.54 Disputes relating to the employment relations are dealt with on first level by the UN Dispute Tribunal the decisions of which may be appealed to the UN Appeals Tribunal.55 In the absence of an express provision in the Charter the ICJ based the competence to establish such a judi-

Stöckl in Simma, Art. 101 paras 9 f. Chesterman in Simma, Art. 97 para 7. 52 For the latter cf. Dolfe/Etling/Papenfuß, ‘Personalien’, 4 VN (2007) 168 at 169; SG/A/1070 of 29 May 2007; , accessed 21 February 2014. 53 GA Res A/RES/590 (VI) of 2 February 1952 – has been changed several times, for the current version cf. Staff Regulations of 2 September 2010, UN Doc. ST/SGB/2010/6. 54 Stöckl in Simma, Art. 101 paras 27 f. 55 Cf. Hwang, ‘Reform of the Adminitration of Justice System at the United Nations’, 9 The Law and Practice of International Courts and Tribunals (2009), 181 ff.; cf. also → § 10 para 393. 50

51

141

§ 9 Organs and Decision Making

cial body upon implied powers considerations.56 A judicial or at least quasi-judicial mechanism of appeal is warranted by considerations of rule of law if one takes into account that civil servants in International Organisations lack access to the national courts of the Member States for reasons of immunity of the organisation.57 316 From the three perspectives mentioned in the introduction to this chapter, the role of the Secretaries-General and the Secretariats may be described as follows: an interest-oriented analysis highlights the role of Secretariats and SecretariesGeneral as representatives of the community interest of the organisation (as opposed to the national interests of the Member States). In terms of tasks their administrative and – sometimes – political character is relevant, while from a functional perspective a parallel to the executive branch under national constitutional structures may be drawn. 4. Parliamentary Organs

It is possible to trace back theoretical conceptions for a world parliament to the second half of the 19th century.58 An early predecessor may be seen in the foundation of the Interparlamentary Union in 1889. At the beginning, the Interparliamentary Union was a purely private association of deputies elected into national parliaments without formal attachment to any International Organisation.59 In a sense, these parliamentarians were establishing a “parliamentary foreign policy“, which was designed to counterbalance the then existing secret diplomacy of the governments.60 However, neither the League of Nations nor the United Nations were endowed with a parliamentary organ. Even today, an overall assessment must lead to the conclusion that they are rather atypical organs in International Organisations, even though their creation has increased in recent years, notably in Africa and in the Americas.61 318 The first International Organisation to be formally endowed with a parliamentary organ was the Council of Europe. Arts. 22 ff. Statute of the Council of Europe provides for a “Consultative Assembly” which, in 1974, changed its name 317

ICJ (n 7) 56 f.; for more details on the doctrine of implied powers cf. → § 6 para 202 ff. The European Court of Human Rights deals with this question in his decisions concerning the European Space Agency ESA ECtHR, Appl. Nr. 26083/94 (Waite and Kennedy); ECtHR, Appl. Nr. 28934/95 (Beer and Regan). 58 Cf. Kennedy, The Parliament of Man, 2006, 3 ff. 59 Sterzel, The Inter-Parliamentary Union, 1968, 11 ff.; cf. Arndt, ‘Inter-Parliamentary Union’, in Wolfrum (ed.), MPEPIL para 1. 60 Kuper, ‘Transnationale Versammlung und nationales Parlament – Einige Überlegungen zu Funktion und Leistung des Parlamentarismus in den internationalen Beziehungen’, 22 ZParl (1991), 620 at 635 f. 61 Art. 17 of the Treaty establishing the African Union; for an overview of the functioning of the Pan-African Parliament cf.: accessed 21 Feburary 2014; cf. Cilliers/Mashele, ‘The Pan-African Parliament’, 13 African Security Review (2004), 73 ff.; Andean Parliament, Additional Protocol to the Treaty Establishing the Andean Parliament available at: , accessed 21 February 2014. 56

57

142

II. Types of Organs

autonomously and without formal amendment of the Statute into “Parliamentary Assembly”. While the new denomination correctly reflects the composition of the organ (it consists of national parliamentarians elected into the parliaments of the Member States) the original terminology was inspired by the relationship between the different organs of the Council of Europe. In contrast to the Committee of Ministers, which is composed of the national executives, the role of the assembly was purely deliberative. Nevertheless, the Parliamentary Assembly has achieved, initially against opposition from the Committee of Ministers, which until 1994 refused to use the new denomination, an independent and autonomous role within the Council of Europe.62 It may generally be said that the Parliamentary Assembly made clever use of the situation of change which was created by the end of the Cold War and thus succeeded in enhancing its role within the institutional system of the Council of Europe, even though, formally, its position remained unchanged. In this sense it has in fact to some extent acquired the role of a “political conscience” in Europe,63 albeit without having been granted formal rights of decision. The role of parliamentary organs in providing for democratic legitimation of 319 decisions taken by International Organisations is most extensively debated in the context of the European Union. To the extent that powers of legislation are transferred to an International Organisation, as is the case concerning regulations and, at least in part, also concerning directives of the EU under Art. 288 TFEU, such legislation requires democratic legitimation. There is an indirect democratic legitimation based on the national parliamentary responsibility of the ministers deciding in the Council of the European Union. The more developed and intense the legislation of International Organisations becomes, the more understandable are calls for direct democratic legitimation.64 Among the existing parliamentary organs the European Parliament enjoys a comparably high level of legitimation given that it results from direct elections in the Member States and is granted co-decision powers according to Art. 294 TEU in many areas of EU action.65 As a rule, and thus in contrast to the situation of the European Parliament, 320 parliamentary organs of International Organisations, are composed of members who are – indirectly – elected among the members of their national parliaments (cf. Art. 25 Statute of the Council of Europe; Art. 5 Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Par-

62 Klebes, Die Rechtsstruktur des Europarats und insbesondere der Parlamentarischen Versammlung, 1996, 20 f. 63 Kleinsorge, ‘Chapter 2: The Parliamentary Assembly: Europe's Motor and Conscience’ in: Kleinsorge, The Council of Europe, 2010, 73 ff. 64 For the two strands of legitimacy cf. 89 BVerfGE, 155 at 185 f. – Maastricht. 65 For a democratic deficit concerning elections in the EU cf. Weiler/Halter/Mayer, ‘European Democracy and its Critique’, in: Hayward (ed.), The Crisis of Representation in Europe, 1995, 32 f.; Follesdal/Hix, ‘Why there is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’, 44 JCMS (2006), 533 ff.

143

§ 9 Organs and Decision Making

liament;66 Art. 2 Additional Protocol to the Treaty establishing the Andean Parliament, providing for direct elections which, however, are only taking place in Venezuela, Ecuador and Peru due to the limited number of ratifications).67 321 In so far as they are composed of members of national parliaments, parliamentary organs represent – similar to plenary organs – the interests of the Member States. In contrast to plenary organs, however, parliamentary organs do not represent government positions, but the respective national electorate, i.e. the people in the Member State concerned. When analysed from the perspective of tasks and functions important differences and distinctions compared to national legislative organs become visible: With the exception of the European Parliament no parliamentary organ of an International Organisation is endowed with genuine law-making powers. Parliamentary organs possess powers of consultation, recommendation and information. This shows that they mainly fulfil a communicative function with soft legitimising effects. They transport information on the activities of the International Organisation and their relevance directly into the national parliaments of the Member States. Conversely, the positions of national parliaments are communicated into the International Organisations. This helps in the creation of a better mutual understanding. The parliamentary organs’ power of forming the policies of the respective International Organisation remain, however, rather limited because of their mainly consultative character. In the same manner and for the same reason, their role in monitoring and controlling the activities of the organisation remains also rather limited.68 322 Apart from the institutional developments just described, the Interpaliamentary Union continues to exist as an International Organisation. It abandoned its purely private character and was transformed into an international body for the cooperation of national parliaments (Art. 1 IPU Statutes). In addition to over 140 national parliaments also regional parliamentary institutions such as the European Paliament, the Parliamentary Assembly of the Council of Europe or the Andean Parliament are members of the IPU. From a strictly legal point of view it must be stressed, however, that the IPU, not being based on a formal international treaty between States or other subjects of international law, is limited to the status of a nongovernmental organisation. Until now, attempts to transform the IPU into a parliamentary organ of the United Nations,69 have not been successful, and will, in all likelihood, remain unsuccessful in the near future. An amendment of the UN Charter formally transforming the IPU into a parliamen-

66 Cf. , accessed 21 February 2014. 67 Cf. Additional Protocol to the Treaty Establishing the Andean Parliament, available at , accessed 21 February 2014. 68 Cf. Habegger, Parlamentarismus in der internationalen Politik – Europarat, OSZE und Interparlamentarische Union, 2005, 111 ff. 69 BT-Drs. 15/5690 of 15 June 2005; BT-Drs. 15/3711 of 22 September 2004; cf. also BTDrs. 14/5855 of 6 April 2001, 5 and 14/1567 of 9 September 1999.

144

II. Types of Organs

tary organ of the UN is politically unlikely given the failure of the 2005 efforts on reforming the Charter. Furthermore, even if the UN were to be endowed with a parliamentary organ its legitimising effects would remain limited. First and foremost, they would depend on the concrete competences of the new organ. Without codecision powers it would remain limited to the communicative functions described above. Finally, in view of the limited fields of action of the UN, a parliamentary organ of the organisation could not serve as a “world parliament”, at least not in the sense in which the term is used in the national constitutional setting. Current international governance is characterised by sectorially limited international regimes which operate independently from one another. Under such structural conditions, adding a parliamentary organ to only one regime, even if it is the most important, will not produce a relationship of legitimation and responsibility, as it is known from national parliamentary systems.70 The Nordic countries Denmark, Finland, Iceland, Norway and Sweden have 323 developed a closer parliamentary cooperation within the Nordic Council. The organisation was founded on 23 March 1962 in Helsinki and essentially organises a specific form of inter-parliamentary cooperation between the national parliaments of its Member States and three autonomous territories (Faroe Islands, Greenland, Åland Islands).71 Apart from this, the Nordic Council of Ministers allows for cooperation of the respective governments. A common secretariat ensures close cooperation between the two organisations thus providing for a specific form of legislative and governmental cooperation. 5. Dispute Settlement Organs

In many, although by far not in all, International Organisations dispute settle- 324 ment organs are provided for. It should be noted, however, that the scope and type of dispute settlement envisaged, varies considerably. The starting point of the development may be seen in the creation of the Permanent Court of International Justice and its close affiliation with the League of Nations. However, this Court was not designed for the settlement of organisational disputes involving the organs of the League. Quite similarly, and in spite of its qualification in Art. 92 UN as the “principal judicial organ of the United Nations”, the successor of the PCIJ, the ICJ, solely acts as a judicial body for the settlement of disputes between States. Inter-organ disputes are excluded by Art. 34 ICJ Statute. Other dispute settlement mechanisms have a stronger focus on the necessities of their respective organisations. The WTO dispute settlement mechanism may be mentioned as an example. a) PCIJ and ICJ. The Second Hague Peace Conference of 1907 was unable 325 to agree on judicial settlement of disputes beyond the creation of the Permanent 70 Walter, ‘Vereinte Nationen und Weltgesellschaft – Zur Forderung nach Einrichtung einer parlamentarischen Versammlung (UNPA)‘, in: v. Schorlemer (ed.), Globale Probleme und Zukunftsaufgaben der Vereinten Nationen, 2006, 218 at 235 f. 71 For details cf. , accessed 21 February 2014.

145

§ 9 Organs and Decision Making

Court of Arbitration. In 1919, however, Art. 14 of the League of Nations Covenant provided for the creation of a permanent international court, which was established in 1921/22. Irrespective of its formal attachment to the League of Nations in Art. 14, the PCIJ, in contrast to the later ICJ, was not conceived as an organ of the League. The ICJ, on the other hand, is not only mentioned among the principal organs of the UN in Art. 7 UN but also qualified as “the principal judicial organ of the United Nations” in Art. 92 UN. As already mentioned, this special institutional qualification does not change the clear legal limitation contained in Art. 34 ICJ Statute, which limits litigation in the Court to States and thus excludes inter-organ disputes or disputes between a State and the organisation (for instance concerning rights of membership)72 from the jurisdiction of the Court. The term “principal judicial organ” should therefore be viewed not with respect to the organisation of the United Nations, but to the international community of States. 326 The ICJ Statute is open to all States irrespective of the membership in the United Nations. In that sense it is correct to refer to the ICJ as a judicial organ of the whole international community of States.73 However, the role of the Court as the principal judicial organ of the United Nations could be considerably enhanced if its competences regarding disputes concerning institutional matters were extended beyond the status quo. Apart from inter-organ disputes or disputes between a Member State and the organisation, the recent practice of the Security Council in the area of smart sanctions has created lacunae in the area of legal protection which are all the more deplorable since they concern legal positions of individuals for which no adequate legal remedy is currently available.74 327 Within the system of the United Nations the possibility of Advisory Opinions is of particular relevance. According to Art. 96 UN the General Assembly and the Security Council may ask the ICJ to give an Advisory Opinion on any legal question. Furthermore, other organs and UN Specialised Agencies may be granted the same right regarding questions within the scope of their activities (Art. 96 para 2 UN). The General Assembly has made use of this possibility generously: With the exception of the Universal Postal Union all Specialised Agencies under Art. 63 UN were granted the right to ask for Advisory Opinions.75 Also the Economic and Social Council and the Trusteeship Council were given this right,76 even though the latter never made use of it and has become inactive as of

72 For the exclusion of South Africa from the General Assembly cf. Suttner, ‘Has South Africa been illegally excluded from the United Nations General Assembly?’, 17 The Comparative and International Law Journal of Southern Africa (1984), 279 ff.; Magliveras, Exclusion from Participation in International Organisations, 1999, 221. 73 Oellers-Frahm in Simma, Art. 92 para 31. 74 → Cf. § 3 para 92, § 11 para 443 § 12 paras 583 ff. 75 Oellers-Frahm in Simma, Art. 96 para 18. 76 Meng in Simma, Art. 63 paras 30 f.; Frowein/Oellers-Frahm in: Zimmermann/Tomuschat/ Oellers-Frahm (eds.), Commentary on the Statute of the International Court of Justice, 2nd edn. 2012, Art. 65 para 12.

146

II. Types of Organs

2005.77 Relying on the wording of Art. 96 para 1 UN and Art. 65 ICJ Statute the ICJ considers that it remains within its discretion whether or not to render the requested Advisory Opinion. Art. 65 ICJ Statute expressly states that the Court “can” render an Advisory Opinion. However, until now, it has never declined a request for an Advisory Opinion on that ground. b) Other Mechanisms for the Settlement of International Disputes (notably 328 WTO Dispute Settlement and ITLOS). The Law of the Sea Convention (UNCLOS) and the WTO Agreement (including the Dispute Settlement Understanding) provide for mechanisms which are specifically designed for the purposes of the organisations concerned. The creation of the International Tribunal for the Law of the Sea (ITLOS) must be seen in the context of the difficult North-South negotiations at the Law of the Sea conference in general, but notably concerning technological transfer in the area of deep seabed mining. It has, however, taken until 2012 for the first case – an Advisory Opinion – relating to the system of deep seabed mining established under Chapter XI of the Convention to be decided by ITLOS. The developing countries intended to create a forum of dispute settlement which was less dominated by the industrialised countries, than this was in their perception the case with the ICJ.78 According to the dispute settlement system provided for in the Convention, submitting a case to ITLOS is only one of several means for the settlement of disputes relating to the law of the sea. In principle, States are free to choose other mechanisms of dispute settlement than ITLOS, including the ICJ (Art. 287 UNCLOS). The WTO system, by contrast, does not allow for such flexibility. The proce- 329 dure provided for in the Dispute Settlement Understanding (DSU) is obligatory for all members of the WTO, since the DSU belongs to the Multilateral Trade Agreements which according to Art. II:2 WTO-Agreement are mandatory for all members. The procedure provided for in the DSU may be qualified as a mixture of adjudication and of arbitration. In organisational terms the Dispute Settlement Body (DSB), which is formal- 330 ly conceived as an autonomous organ of the WTO, makes binding decisions relating to the settlement of international trade disputes. Irrespective of this legally distinct qualification the composition of the DSU is identical to that of the General Council (→ § 13 para. 651). The decisions of the DSB are prepared in a quasi-judicial procedure which consists of two phases. During the first phase a panel (usually composed of three members) drafts a report. If none of the parties to the dispute decides to appeal against the report to the Appellate Body, the DSB will decide on the adoption of the report. For this decision the so-called negative consensus rule applies, which means that the report will be adopted unless there is a consensus to the contrary (Art. 16.4 DSU). In practice this means that the reports are always adopted. Hence, substantially the dispute is decided Cf. above → para 288. Wolfrum, ‘Das Streitbeilegungssystem des VN-Seerechtsübereinkommens’, in: Graf Vitzthum (ed.), Handbuch des Seerechts, 2006, Chapter 6, para 45. 77

78

147

§ 9 Organs and Decision Making

upon by the Panel, even though, formally, the decision is taken by the DSB. If the Panel report is appealed, the Appellate Body, which is limited to considerations of law, will draft a second report, which again is submitted for decision to the DSB. Again, the negative consensus rule applies. (Art. 17.14 DSU). 331 The procedures before the Panels and the Appellate Body differ from one another in so far as the parties to the dispute have a certain, albeit limited, influence on the composition of the Panels, which are composed ad-hoc of persons from a list kept in the Secretariat of the organisation (Art. 8.4 and 8.6 DSU) for each submitted dispute. In this respect, the Panel procedure bears some resemblance to international arbitration where the parties also choose the arbitrators.79 An important difference exists, however, regarding the decision-making. In contrast to arbitral tribunals the Panels do not formally decide on the dispute but must leave that decision to the DSB. Since the Appellate Body is a standing body consisting of seven members any influence of the parties to the dispute on its composition is excluded. Accordingly, the Appellate Body Procedure resembles international adjudcation, again with the difference that the Appellate Body does not formally decide the dispute. 332 Because of the specific character of the disputes decided by them, International Administrative Tribunals need to be distinguished from the dispute settlement bodies dealt with so far. Such tribunals are affiliated with the UN and the ILO. Their task is to decide disputes between civil servants and their organisation. The first of these tribunals was instituted within the UN system. It has been replaced by the Dispute and Appeals Tribunals in 2009 (for further details cf. § 10 para 393). The Administrative Tribunal established within the ILO serves the same purpose but it is not limited to disputes relating to the ILO. It was conceived as general means of redress open to all other International Organisations which do not possess theit own judicial control in employment matters. Currently there are 59 International Organisations which have accepted the jurisdiction of the ILO Administrative Tribunal regarding their employment relations.80 III. Composition of the Organs

There are several general principles governing the composition of the organs of International Organisations. Usually the plenary organ and the executive organ of limited membership as well as specialised organs are composed of government representatives, thereby reflecting the inter-governmental character of cooperation in International Organisations. 334 There are, however, important exceptions from that rule. Where organs have been ascribed a specific function requiring a specific composition they are com333

79 For International Arbitration cf. Rubino-Sammartano, International Arbitration Law and Practice, 2001, 417. 80 For an overview cf. , accessed 21 February 2014.

148

IV. Decision-Making Procedures

posed according to these specific needs. Thus, parliamentary organs are, as already mentioned, composed either of directly elected parliamentarians or of members of national parliaments chosen as representatives in the international parliamentary organ. Judicial bodies are composed of independent judges. Further exceptions concern independent experts entrusted with tasks of monitoring and enforcement of international obligations. A good example is the expert group operating as a suborgan of the UN Human Rights Council: While the Human Rights Council is composed of government representatives, the expert group is composed of independent experts in order to allow an effective and neutral assessment of the complaints. IV. Decision-Making Procedures

The decision-making procedures are of central importance for the distribu- 335 tion of power and influence within International Organisations. There are different instruments for determining the influence of Member States: A fundamental question concerns the weight which is attached to each vote (1.). Furthermore, of course, the relevant majorities are of importance (2.). Finally, in some cases special decision-making procedures have been developed. In practice States frequently trade votes or enter into arrangements prior to the formal voting. This practice, undesirable as it may seem from a strictly normative point of view, is politically inevitable and sometimes even necessary in order to reach a compromise on controversial issues.81 1. Weighted Voting

a) Equality of Votes (“One State, One Vote”). In its traditional understanding 336 international law is based on the sovereign equality of States. Sovereign equality directly leads to the general principle of equality of votes (“one State, one vote”), which is applicable in most International Organisations. Under this principle neither size nor political or economic power are of any relevance. The principle is expressed, for example, in Art. 18 para 1 UN, which grants each Member State one vote. It should be noted that the limitation to one vote applies irrespective of the number of representatives, which can vary according to Art. 9 para 2 UN (“not more than five”). The principle of equality of votes remains by and large unproblematic where 337 the activities of the International Organisation are limited to the inter-State context. Yet even there tensions may arise, for example when the financial burdens on the one side and the political influence on the basis of voting rights are too unevenly distributed. The situation becomes even more problematic when the International Organisation adopts decisions which produce effects in the Member States’ internal legal order. Insofar as such decisions are factually or even 81 Eldar, ‘Vote-trading in International Institutions’, 19 EJIL (2008), 3 ff. with a surprisingly results-oriented approach.

149

§ 9 Organs and Decision Making

338

339

340

341

legally binding for the national legislature, a democratic problem arises. The inherent tension between sovereign equality of States and democratic representation is well known from the EU context.82 Voting based on considerations of proportionality according to the number of inhabitants would solve the democratic problem, but this would come at the price of marginalising small Member States. The EU treaty system has opted for an intermediate solution which opens the equality principle for elements of weighted voting (thus paying tribute to considerations of democratic representation), while at the same time avoiding a strict proportionality principle based on the number of inhabitants (thus respecting the equality in Statehood of small Member States).83 In case of membership of one International Organisation in another International Organisation the principle of “one State, one vote” leads to the consequence that the International Organisation is granted a number of votes equal to its members (cf. Art. IX:1 WTO concerning the EU).84 b) Weighted Voting on the Basis of Population. Weighted voting on the basis of population was provided for as the practically regular mode of voting in the Council of the EU under the treaties of Maastricht, Amsterdam and Nice. Under these treaties the Member States were given a number of votes depending on the size of their population. For example under the last formula, which is applicable until 31 October 2014 (cf. Art. 235 para 2 TFEU, Art. 16 para 4 TEU, Protocol Nr. 36 on Transitional Provisions) Germany, France, the United Kingdom and Italy are granted 29 votes, Poland and Spain 27, Romania 14, the Netherlands 13, Greece, Portugal, Belgium, the Czech Republik and Hungary, 12, Sweden, Austria and Bulgaria 10, Denmark, Slovakia, Finland, Ireland and Lithuania 7, Latvia, Slowenia, Estonia, Cyprus and Luxemburg 4, and finally Malta posseses 3 votes. Weighting under this formula, however, does not lead to a representation proportionate to the number of inhabitants.85 Under the Treaty of Lisbon the weighting of votes will gradually, after the expiry of a complicated transitory phase, be replaced by a quorum based on the representation of EU population. Under the new system the majority in the Council will always have to represent at least 65% of the EU population. (Art. 16 para 4 TEU). Formally the new voting rules have abandoned the concept of weighted voting. However, in practice the necessary quorum of representation will be reached much easier with the participation of the big Member States. Thus, in practice, their position in the voting process has not changed. c) Weighted Voting on the Basis of Economic Strength. Within the IMF system, voting rights are accorded on the basis of a quota86 which is expressed in an artificial currency called Special Drawing Rights.87 The quota is determined on Cf. Craig/De Búrca (n 25) 149 ff. For details cf. below → para 339 f. 84 This does not apply in the UNCLOS, cf. Art. 159 para 6. 85 Craig/de Búrca (n 25) 52. 86 Lowenfeld, 610. 87 For details cf. Lowenfeld, 618 ff.

82

83

150

IV. Decision-Making Procedures

the basis of macro-economic data. It is adjusted according to the economic development at least every five years (Art. III, para. 2 a IMF). The last adjustments, outside the 5-year circle, took place in 2007 and 2008. The two rounds of ad hoc increases for 54 States (the first round included only China, Korea, Mexico and Turkey)88 were followed by the 14th General Review of Quotas in December 2010, which will become effective in 2014 once it has been accepted by 85% of the total voting power. At the same time the 15th General Review of Quotas, which would have regularly been scheduled for December 2015 has been brought forward by about two years to January 2014.89 The voting power in the IMF is determined by the quota. Each member has 342 an equal share of basic votes (corresponding to 5.502% of the total of votes) in the Board of Governors. One additional vote is granted for 100,000 special drawing rights (Art. XII para 5 IMF). On that basis the United States currently (as of 7 October 2013) possess 421,961 votes, which correspond to 16.75% of the total of votes. Palau by contrast possesses 768 votes (corresponding to 0.03% of the total of votes), Germany holds 146,392 votes (corresponding to 5.81% of the total of votes). The directors each possess as many votes as the total of their electors (Art. XII Sect. 3 i IMF). The votes have to be cast uniformly. The World Bank Institutions (IBRD, MIGA, ICSID and IFC)90 follow a com- 343 parable principle. The sole difference lies in the fact that the votes are not calculated on the basis of a quota determined by special drawing rights, but are dependent on the shares of each country. According to Art. V sect. 3 IBRD there is a basis voting power of each member which is determined by an equal distribution of 5.55 percent of the aggregate sum of the voting power among all members. The remaining voting power is distributed among the members by allotting one vote for each share of stock held. The difference in calculation leads to slight differences in the voting power when compared to the situation in the IMF. This difference is, however, without practical significance.91 Germany has 93,095 votes (equivalent to 4,62% of the overall votes), the U.S. has 306,783 votes (15,24%) and Palau holds 610 votes (0,03%).92 2. Required Majorities

The founding treaties may provide for different majorities depending on the 344 subject matter and the interests of the parties. The possibilities range from unanimity over different quora (2/3, 3/4 etc.) to the consensus procedure, under which a formal vote does not take place at all. The voting rules under Art. 27

, accessed 21 February 2014. , accessed 21 February 2014. 90 For details cf. → § 13 para 629 f. 91 Lowenfeld, 749 f. 92 , accessed 25 February 2014. 88

89

151

§ 9 Organs and Decision Making

para 3 UN constitute a specific combination of different rules, leading to a privileged position of the permanent members. 345 a) Unanimity. Unanimity requires positive consent of all members. At least with regard to the bigger International Organisations the unanimity requirement may lead to blockage and thus endanger the capability of the organisation to take swift and effective action. The broader and the more heterogenous the group of members is, the less probable becomes their unanimity on issues to be decided. Experience under the former GATT dispute settlement has shown that unanimity may in fact seriously obstruct the whole mechanism. Therefore, unanimity is usually only required concerning issues of fundamental importance to all members. Important examples for unanimity are decisions concerning the EU CFSP (Art. 31 para 1 TEU), the dispositive powers provided by Art. 325 TFEU and the decision on admittance of new members according to Art. 49 para 1 s 3 TEU.93 346 An alternative which also provides each Member State with a veto position is the so called “constructive abstention” which is, for instance, provided for in the CFSP of the EU (Art. 31 para 1 TEU). The advantage of this procedure is that Member States which, usually for reasons of internal politics, are unable to formally consent to a proposed action, may abstain without thereby blocking the decision. Similar effects are produced by Art. 10 NATO-Treaty concerning the admittance of new members, and the cumbersome formulation of Art. 20 para 1 of the Statute of the Council of Europe, which also opens the possibility for abstention (by non-participation) without preventing unanimity (of all delegates present).94 Finally, it should be noted that the practice of the Security Council according to which – contrary to the wording of Art 27 paras 2 and 3 UN – abstentions do not hinder the adoption of a decision is based on the idea of constructive abstention.95 347 b) Majority Decisions. The usual mode of voting in International Organisations is a majority requirement. The necessary quora vary among the different organisations and depend on the subject matters concerned. The Assembly of Heads of State and Government of the AU, for example, decides, if no consensus can be reached, by a majority of 2/3 of its members. According to Art. 18 para 2 UN decisions on “important questions” require a 2/3-majority of members present and voting, while decisions on other issues, notably questions of procedure may be decided by a simple majority. According to the Rules of Procedure of the GA members which abstain from voting are “considered as not voting”.96 Art. 18 para 2 (non exhaustively) lists examples for important ques93 Further examples are Article 16 OECD-Convention, Article 6 para II of the Pact of League of Arab States, Article 9 ECOWAS-Treaty. 94 The provision reads in its relevant parts: “Resolutions of the Committee of Ministers relating to the following important matters, namely: […] require the unanimous vote of the representatives casting a vote, and of a majority of the representatives entitled to sit on the Committee”. 95 → Cf. para 349 ff. 96 Rule 86 of the Rules of Procedure.

152

IV. Decision-Making Procedures

tions: recommendations with respect to the maintenance of international peace and security, the election of the non-permanent members of the Security Council, the election of the members of the Economic and Social Council, the election of members of the Trusteeship Council, the admission of new members to the United Nations, the suspension of the rights and privileges of membership, the expulsion of members, questions relating to the operation of the trusteeship system and budgetary questions. From a political perspective it is important to recognise that the industrialised nations are unable to reach even a blocking minority, let alone a simple majority.97 Other International Organisations are even more nuanced in the determination 348 of the quora. The system of quora is particularly elaborate within the WTO. Under this system highly important issues such as the binding interpretation of the WTO-Agreement or of one of the Multilateral Trade Agreements or decisions on waivers require a majority of ¾ of all members (Art. IX:2 and Art. IX:3 WTO). The usual quorum, in the absence of consensus, is a simple majority of votes cast. A majority of 2/3 of all members is required concerning decisions on financial regulations and the annual budget, (Art. VII:3 WTO-Agreement), the admittance of new members (Art. XII:2 WTO-Agreement) and for amendments to the WTO-Agreement or one of the Multilateral Trade Agreements (Art. X:1, X:3, X:4 und X:5 WTO). It should be noted, however, that amendments enter into force only for the members having accepted the amendment. Finally, there are a number of Multilateral Trade Agreements which, for reasons either of uniformity or of minority protection, strictly stick to the requirement of consensus.98 c) The Specific Situation of the Veto in the Security Council. The veto pos- 349 ition of the five permanent members of the UN Security Council can be analysed as a specific combination of different voting modes. The drafting history clearly shows that the veto position of the five permanent members was an essential condition for the creation of the United Nations.99 According to Art. 27 para 3 UN decisions on all matters which are not procedural matters within the meaning of Art. 27 para 2 UN require affirmative votes of a total of nine members, including all permanent members. In its practice the Security Council almost from the beginning of its work treated (voluntary) abstentions100 by permanent members as not constituting an exercise of their veto right,101 even though the wording of the provision quite clearly speaks of “affirmative vote”, a formu97 Cf. concerning the majorities of the General Assemly with regards to the UN-Budget Ingadóttir in Klabbers/Wallendahl, 115. 98 For examples (negative consensus in WTO dispute settlement and decisions of the Committee on Sanitary and Phytosanitary Measures) cf. Stoll/Schorkopf (n 37) para 40. 99 Zimmermann in Simma, Art. 27 para 41. 100 For mandatory abstentions of conflict parties cf. Art. 27 para 3 UN. 101 The ICJ explicitly considered this admissible, ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Rep. 1971, 6 at 22; for a detailed analysis of the development cf. Zimmermann in Simma, Art. 27 paras 182 ff.

153

§ 9 Organs and Decision Making

lation which was understood by the drafters as implying a positive vote. The positions in literature on the issue remain divided. The most convincing approach argues with object and purpose of the provision: If the provision is meant to assure that no decision in the Council can be taken against the will of a permanent member, this goal is also reached by the current practice. In that sense, the practice since the late 1940ies can be seen as a “subsequent practice” of the parties within the meaning of Art. 31 para 3 lit b) VCLT.102 350 It has been argued that the veto position of the permanent members could be characterised as an example of weighted voting.103 However, this characterisation neglects the fact that the votes of the permanent members are not weighted but are equal to those of all other members as far as the quorum of nine members is concerned. It is more convincing, for that reason, to characterise the regulation in Art. 27 para 3 UN as an inclusion of a (partial) unanimity requirement into a majority rule. In principle, the decision under Art. 27 para 3 UN remains a majority decision requiring a quorum of 3/5 (9 out of 15). This majority rule is combined with a unanimity requirement relating to the five permanent members (allowing for constructive abstentions according to the practice of the Security Council as mentioned above). 351 In order to distinguish procedural issues, which are according to Art. 27 para 2 UN not subject to the veto, and “other issues” as referred to in Art. 27 para 3 UN, the practice of the Security Council has developed a “double veto” procedure. In case of a dispute over the procedural character of a matter, the decision on its qualification as substantive or procedural is taken by the Security Council under Art. 27 para 3 UN. This allows the permanent five members to prevent the qualification as procedural by using, if necessary, the veto position for a first time. Once the issue is thus qualified as substantive, the floor is open for a second veto to avoid an undesired decision on the substance of the matter.104 It should be noted, however, that the double veto is of little relevance in the current practice of the Security Council. It has not been used since 1959, which is largely due to an informal agreement which specifies the main issues to be qualified as procedural.105 Finally, it should be noted that an arbitrary use of the double veto would be excluded under the concept of abuse of rights. In that sense, the limits of what can arguably be considered as non-procedural may not be transgressed.106 352 A specific problem relating to the veto right has arisen in the context of economic sanctions adopted under Chapter VII UN Charter. In principle, the voting procedure of Art. 27 para 3 UN applies both to the adoption of sanctions and to their termination. This may lead to the paradoxical situation that a sanction In this sense Zimmermann in Simma, Art. 27 paras 186 f. and 191 f. Klabbers, Introduction, 210 f. 104 For details cf. Zimmermann in Simma, Art. 27 paras 135 ff. 105 For details cf. Zimmermann in Simma, Art. 27 para 159. 106 For details cf. Zimmermann in Simma, Art. 27 paras 142 ff. and 160.

102 103

154

IV. Decision-Making Procedures

regime is being maintained even though the majority which was necessary for its adoption has eroded in the meantime. This effect, which has been described as “reverse veto”, distorts the function of the veto, which is to give the permanent members a veto position with regard to the adoption of coercive measures, not concerning their termination. The problematic effects of a “reverse veto” have become particularly relevant concerning the sanctions against Iraq after the 1990/91 Gulf War. Here, the reverse veto has delegitimised the sanctions regime.107 As a consequence the Security Council has started to include sunset clauses into its sanctions, thus requiring a new decision under Art. 27 para 3 UN for the continuation of the sanctions.108 d) Consensus. Notably within the WTO context, but also in many other Inter- 353 national Organisations formal vote is being replaced by consensus. In the UN General Assembly consensus was used for the first time during the 19th session in 1964/65. The reason for this practice was that important Member States, such as France and the Soviet Union, but also some other members had formally lost their right to vote according to Art. 19 UN because they were in arrears with their financial contributions. In order to avoid the necessary consequences the General Assembly decided to forego formal voting and to rely on consensus instead.109 Under Art. IX:1 WTO consensus is even established as the primary form of 354 decision-making. Formal voting is only to take place when no consensus can be reached. Also, consensus is defined in a footnote to Art. IX:1 WTO as having been reached, “if no Member, present at the meeting when the decision is taken, formally objects to the proposed decision.” Consensus differs from unanimity in two important respects: First, consensus does not refer to all members, but only to those present. Secondly, it is politically easier for Member States to tacitly accept by absence or abstention decisions with regard to which they have some reservations, but which are not vital to their national interest. While the consensus procedure thus avoids certain disadvantages of the unanimity principle, it must not be overlooked that it leaves each Member State a veto position.110 It merely reduces the probability that the veto is actually used. In practice consensus is reached by negotiating until the president of the or- 355 gan or body concerned is of the opinion that a solution has been reached which is acceptable to all members. In that case he or she will formulate the solution and ask whether anyone objects to it. If this is not the case, the proposal has been adopted by consensus. It is obvious that under this form of negotiation and adoption the president becomes a key figure in the whole process. Success or failure both depend to a large part on his or her diplomatic skills. Consensus Krisch, ‘Introduction to Chapter VII: The General Framework’ in Simma, paras 63 f. SC Res S/RES/1737 of 23 December 2006, op. 24; SC Res S/RES/1747 of 24 March 2007, op. 13. 109 Wolfrum in Simma, Art. 18 para 31. 110 Cf. Fitschen in Simma, Art. 21 para 77. 107

108

155

§ 9 Organs and Decision Making

procedures also often lead to package deals in which consent to some elements of the compromise will have to be “paid for” in other areas. Where the negotiations in question aim at the codification of customary international law such a practice may become problematic. Such a package deal might link consent to the codification of existing customary rules with consent to the development of international law beyond the already existing custom. In consequence, the resulting treaty would not adequately reflect existing (and thus binding) customary law anymore. Hence, the adopted treaty provision should not be seen as indicative of the existence of an independent customary law.111 356 A procedure which is comparable to adoption by consensus is the so-called adoption without a vote. This procedure is slightly different in that the president will simply ask whether a proposed text shall be adopted or not without expressly stating that a consensus has been reached. It seems that the political advantage of such a procedure is seen in the fact that texts adopted without a vote are considered politically less binding than texts which have been adopted by a consensus. From a terminological point of view the distinction is understandable. The notion of consensus implies that negotiations have taken place and were successful (because a consensus was reached). Under the adoption without a vote it is possible to argue that a consensus was never reached. From a legal point of view the distinction is irrelevant. The normative value of the text depends on its qualification as an international treaty, a binding or a non-binding resolution or a mere recommendation etc. In fact, the procedure of adoption without a vote usually refers to non-binding documents, such as resolutions of the UN General Assembly. V. Separation of Powers and Institutional Balance

Irrespective of the role of International Organisations in a multilevel system of governance including national and international elements,112 the relationship between the different organs requires a systematic analysis. Given the fact that at least parliamentary and judicial organs are well known to national systems, it is tempting to draw parallels to the principle of separation of powers which is well known to national constitutional systems. At the same time, there are equally obvious limits to such parallels. Thus, for instance, parliamentary organs in International Organisations have only limited law-making functions, a fact which clearly distinguishes them from parliaments in the national setting.113 358 The ECJ uses the term “institutional balance” with regard to the relationship between the different organs of the EU.114 This takes up one of the founding ideas which stand behind the principle of separation of powers, namely that the 357

Klabbers, Introduction, 208. → For details cf. § 15 para 703 ff. 113 For the European Parliament e.g. Craig/De Búrca (n 25) 52. 114 ECJ, C-65/93, (European Parliament/Council of the European Union) 1995 ECR I-668, para 21. 111

112

156

V. Separation of Powers and Institutional Balance

distribution of power among several organs serves the purpose of limiting power. This idea finds its classical expression in the notion of a system of checks and balances which is used in order to describe the relationship between the executive, the legislative and the judicial power in American constitutional law.115 The ECJ primarily used the idea of an “institutional balance” in order to enhance the rights of participation of the European Parliament in the legislative process of the Union.116 Another element of “institutional balance” may be seen in the different instruments of monitoring and control which the TFEU grants the European Parliament in order to survey the activities of the Commission (Committees of Inquiry, Art. 226 TFEU; right of interpellation, Art. 230 para 2 TFEU, motion of censure, Art. 234 TFEU). To a much more limited extent it is also possible to detect similar mechan- 359 isms of balancing and control in the relationship of the organs of other International Organisations. The Parliamentary Assembly of the Council of Europe has assumed the role of a “European conscience”117 and in doing so it exercises control over the activities of Committee of Ministers. Mechanisms of dispute settlement by their very nature have the function to limit and control the activities of other actors.118 However, given their primary function concerning disputes between States, their role in a concept of institutional balance remains rather limited. Neither the ICJ119 nor the WTO120 dispute settlement mechanism gives access to individuals. Inter-organ disputes are dealt with only indirectly, and even then only on extremely rare occasions.121 As far as the UN Specialised Agencies are concerned it may be plainly stated that an institutional balance between the organs is virtually non-existent. Given the fact that their law-making does not result in norms which are directly applicable within the internal legal orders of the Member States (it basically remains limited to acts which either require ratification or, at least, are open to objection),122 the (formally) autonomous national decision may to some extent be seen as a functional corrective for a structure which is problematic from the perspective of separation of powers.123 It cannot be overlooked, however, that such a corrective will be less and less effective or even become purely theoretical, the more factual pressure is

Cf. Kommers/Finn/Jacobson, American Constitutional Law, 2nd edn. 2004, 109 ff. ECJ C-65/93, (European Parliament/Council of the European Union,) 1995 ECR I-660, para 21; ECJ C-21/94,(European Parliament/Council of the European Union) 1995 ECR I-1845, para 17; ECJ C-138/79 (SA Roquette Frères/ Council of the European Communities) 1980 ECR I-3333, para 33; Craig, ‘Institutions, Power and Institutional Balance’, in: Craig/de Búrca (eds.), The Evoultion of EU Law, 2nd edn. 2011, ch 3. 117 Cf. (n 60). 118 Uerpmann, ‘Internationales Verfassungsrecht‘, 56 JZ (2001), 565 at 568 f. 119 McCorquodale in Evans, 293. 120 With regard to WTO dispute settlement, however, claims brought by States may be initiated or sponsored by individually affected companies, cf. McCorquodale in Evans, 297 f. 121 Cf. Cannizzaro/Palchetti in Klabbers/Wallendahl, 384 ff. 122 → Cf. § 3 para 85 ff. 123 Möllers (n 47) 310. 115

116

157

§ 9 Organs and Decision Making

put on the respective national bodies to transform the standards set in and by International Organisations into national law.

158

§ 10 Finance and Personnel Literature: Francioni/Gerson/Cardenas, ‘Unilateral Pick and Pay in UN Financing’, 11 EJIL (2000), 43 ff.; Hahn, ‘Völkerrechtliche Darlehens- und Garantieabkommen’, in: Böckstiegel (ed.), Völkerrecht, Recht der internationalen Organisationen, Weltwirtschaftsrecht, Festschrift für Ignaz Seidl-Hohenveldern, 1988, 173 ff.; Henrichs, ‘Das Dienstrecht der Internationalen Organisationen und Einrichtungen’, ZBR (1991), 365 ff.; Higgins, ‘Legal Consequences for member States of the non-fulfilment by International Organizations of their obligations towards third parties’, 66 (I) Ann IDI (1995), 251 ff.; Hüfner, Die Finanzierung des VN-Systems, 1971-2003/2005, 2006; Klein/Schmahl, ‘Die Finanzierung Internationaler Organisationen’, in: Graf Vitzthum/Proelß (eds.), Völkerrecht, 6th edn. 2013, paras 212 ff.; Nelson, ‘International Law and U.S. Withholding of Payments to International Organizations’, 80 AJIL (1986), 973 ff.; Pellet, ‘Budgets et programmes aux Nations Unies – quelques tendances récentes’, 22 AFDI (1976), 242 ff.; Schermers, ‘Liability of Member States for Debts by International Organisations’, 23 LIEI (1996), 15 ff.; Schermers/Blokker, ‘International Organizations or Institutions, Financing of’, MPEPIL (2008); Seidl-Hohenveldern, ‘Mißliche Finanzlage der VN’, in: Weber (ed.), Währung und Wirtschaft: Das Geld im Recht, Festschrift für Hugo J. Hahn zum 70. Geburtstag, 1997, 555 ff.; Schlesinger, ‘Finanzierung und Finanzkrisen der Vereinten Nationen’, in: Cede/Sucharipa-Behrmann (eds.), Die Vereinten Nationen, 1999, 267 ff.; Tomuschat, ‘Die Beitragsverweigerung in Internationalen Organisationen’, in: Flume/ Hahn (eds.), Internationales Recht und Wirtschaftsordnung, Festschrift für F.A. Mann zum 70. Geburtstag am 11. August 1977, 1977, 439 ff.; Ullrich, ‘Personalvertretungsrechte bei internationalen Organisationen’, ZBR (1990), 337 ff.; id., Das Dienstrecht der Internationalen Organisationen, 2009.

Financial issues are issues of distribution of power. There is no difference in 360 that regard between International Organisations and public finances in the national context. For that reason, regulating the finances of International Organisations serves two purposes: First, International Organisations depend on adequate funding and personnel in order to fulfil their functions properly. Therefore, the financial regulations must ensure adequate funding. Second, decisions on finances have a strong influence on the core areas of activity of an International Organisation, and most importantly, they distribute the financial burdens among the member States. In most International Organisations, the voting power is distributed equally („one State, one vote → § 9 para 336 ff.). At the same time there are, however, undeniable differences in terms of political and economic power. Thus, tensions resulting from discrepancies between carrying the financial burdens and limitations in political influence are inevitable. Powerful States only reluctantly accept that others may decide on how to spend “their” contributions. Issues of personnel are also issues of political influence and power. Conse- 361 quently Member States invest much effort and considerable ressources in order to place their own nationals in key positions in International Organisations. 159

§ 10 Finance and Personnel

All this illustrates that issues of finance and personnel are only seemingly of a technical character. It is the perspective of (power) politics, which highlights their practical importance. I. Finances 1. The Budget and the Principle of Completeness in Earnings and Expenditures

The national budget and the budget of International Organisations are similar in that both are established by a formal legal decision of a competent organ. The budget serves the purpose of determining income and expenditure for a limited period of time. An important difference, at least with regard to German national budgetary law, concerns the principle of unity and completeness. Under German national law parallel budgets are largely excluded by the requirement that all earnings and all expenditures must be included in one single budget.1 Within the United Nations, by contrast, over the years a system of parallel budgets for different purposes has been created. The most important distinction relates to the regular budget (programme budget) and the peacekeeping budget. Both are situated within Art. 17 UN, i.e. they are adopted by the General Assembly, but different scales of assessment are used.2 For other programmes and funds even mechanisms outside the General Assembly’s competence under Art. 17 UN have been adopted.3 The programme budget for the biennium 2014-2015 amounts to 5.53 billion Dollar.4 363 The trigger for disaggregating the unified budget originally existing also in the UN system must be seen in the UN peacekeeping missions. Already the first UN mission (UNEF I) in 1956 provoked opposition from the developing countries against the treatment of such “operative costs” under the ordinary regulations on sharing the financial burdens of the organisation. Even though the ICJ, in its Certain Expenses Advisory Opinion, refused to distinguish between different types of expenditures and opted for the inclusion also of operative costs into the notion of “expenses of the organisation” contained in Art. 17 para 2 UN,5 in practice separate budgets for different tasks were created. The political advantage of such a development must be seen in negotiating the distribution of the financial burden of different tasks separately, taking into account the interest of the different stakeholders. For that reason, today, most operative costs are treat362

1 82 BVerfGE, 159 at 179; accessed 19 May 2014; Jarass, in: Jarass/Pieroth (eds), GG, 11th edn. 2011, Art. 110 para 3 with further references. 2 → Cf. below para 376 ff. 3 Woeste/Thomma in Simma, Art. 17 para 69. 4 GA Res A/RES/68/248 A-C of 16 January 2014. In comparison to that the annual (!) budget of the EU in 2014 comprised 142.64 billion Euro. 5 ICJ, Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) ICJ Rep. 1962, 151 at 157 ff.

160

I. Finances

ed in separate budgets. With regard to peacekeeping, a fixed scale of assessment has been established, which differs from the general scale to the detriment of the permanent members of the Security Council.6 2. Income

The income of International Organisations consists of mandatory or voluntary 364 contributions made by the Member States, gifts and voluntary contributions by private persons, retributions for services rendered, own resources, and borrowing. Most International Organisations are financed through mandatory contribu- 365 tions paid by their Member States. Only very few International Organisations have opted for a principle of equal contributions for all members (OPEC, Mercosur and the East African Community).7 All other organisations distribute the financial burden according to different scales of assessment, the most obvious and the most important being a member’s capacity to pay. While the ITU and the WIPO allow their members to make the necessary classification themselves,8 most other International Organisations define abstract criteria. Only few organisations determine the contributions on the basis of their members’ population size.9 Some organisations use the members’ interest in the work of the organisation as the decisive factor. While the interest is not always easy to quantify, there are certain areas where quantification is possible quite easily: The Convention for the Establishment of an Inter-American Tropical Tuna Commission uses a member’s fishing quota as reference.10 Similarly, the International Hydrographic Organization relies on the tonnage of its members’ fleets.11 In other cases different scales and references are combined. For example, the Intergovernmental Organisation for International Carriage by Rail refers to the UN quota combined with a scaling in proportion to the length of the members’ railway lines.12 The central factor for determining a country’s capacity to pay is the gross 366 national income (GNI).13 While the GNI has been used in the UN right from the Woeste/Thomma in Simma, Art. 17 paras 78 ff. Art. 37 C OPEC-Statute; Art. 132 No. 4 East African Community Treaty; Art. 45 Mercosur Protocol of Ouro Preto (1994); for further details cf. Schermers/Blokker, para 967; until the accession of Spain and Portugal in 1990 the WEU, which was dissolved in 2011, also operated on the basis of equal contributions. 8 Art. 11.4 lit. b WIPO-Convention, Art. 28 para 3 ITU-Constitution. 9 Cf. for example Art. XXVI OILM-Convention. 10 Art. 1.3 Convention for the Establishment of an Inter-American Tropical Tuna Commission. 11 Art. XIV Convention on the International Hydrographic Organization; for details cf. Schermers/Blokker, para 980. 12 Art. 26 paras 1-4 COTIF 1999. 13 The change in denomination from gross national product (GNP) to gross national income (GNI) does imply a, albeit limited, change in assessing the income, cf. UN Doc A/64/11, Report of the Committee on Contributions, Sixty-ninth session (1-26 June 2009), 13; cf. Woeste/Thomma in Simma, Art. 17 para 101; on the small differences between GNP and GNI, cf. also Lipsey/Chrystal, Economics, 12th edn. 2011, 349; cf. also Schermers/Blokker, para 977, fn 130. 6

7

161

§ 10 Finance and Personnel

beginning, it has remained controversial throughout the years what other factors should be taken into account when assessing the capacity to pay. Especially the period of reference was subject to changes over the years. The most obvious argument in favour of a short period (one year) is that a short period serves as the most exact reference for the current capacity to pay. Even short-term changes would be taken into account. However, the disadvantage of a short period of reference is that short-term fluctuations immediately have repercussions on the distribution of finances, an effect which might endanger the planning security of the organisation. The Committee on Contributions, which is composed of 18 independent experts,14 discussed a number of possible amendments in its report of 2007 and later in 2010.15 However, no consensus on any of them could be reached. According to the Annex to the latter report an averaging over a period of three and six years takes place (2005–2007 and 2002-2007). The result of this averaging may then be adjusted on the basis of several factors (debt-burden, low per capita income adjustment, minimum and maximum assessment rates, etc.).16 The share of the United States currently is capped at 22%.17 With a share of 10.833% Japan has the second biggest share. Germany contributes 7.141%, France (5.593%), the UK (5.179%) and China (5.148%) are the following biggest contributors.18 Taken together, the shares of all 28 Member States of the EU cover about 35% of the total UN budget. 367 Only few founding documents regulate the financing of International Organisations through loans and bonds. A limited exception concerns Art. VII IMF, which contains an authorisation for borrowing a member’s currency if the Fund deems such borrowing “appropriate to replenish its holdings of [that] member’s currency in the General Resources Account needed in connection with its transactions”. However, this type of borrowing is not primarily intended for financing the budget of the IMF, but rather related to the organisation’s functions in ensuring a stable international monetary order. 368 In practice loans and bonds are also used by other organisations. For example, the construction of the UN headquarter building in New York was financed on

14 GA Res A/RES/14 (I) A of 1 February 1946, operative clause 3; Rules of Procedure of the GA A/ 520/Rev. 15 of 31 December 1984, Rules 158 ff. 15 Cf. Report of the Committee on Contributions, Sixty-seventh session (11-29 June 2007), UN Doc A/62/11 and Report of the Committee on Contributions, Seventieth session (7-25 June 2010), UN Doc A/65/11. 16 The current minimum level of assessment rate is 0,001%, the maximum assessement rate is 22%, for more details cf. GA Res A/67/238 of 11 February 2013; cf. also Woeste/Thomma in Simma, Art. 17 paras 98 ff. 17 In the early years of the UN the US paid between 30% and almost 40% of the budget. The 22% ceiling was introduced after Congress had threatened to unilaterally cap the contributions at 25%; for details cf. Schermers/Blokker, paras 993 and 994. 18 Cf. UN Doc ST/ADM/SER.B/889 of 27 December 2013.

162

I. Finances

the basis of a loan with no interest.19 Furthermore, the UN overcame an extensive financial crisis in 1961 by issuing bonds.20 Especially the issuing of bonds by the UN raises the question of general competence of the organisation to incur debts.21 Where the issue is discussed at all, scholars assume an implied power competence of the UN.22 There is a comparable debate with regard to the EU. Where no specific competence for borrowing is available, Art. 352 TFEU is used as a legal basis.23 However, given its limitation to the internal market, this competence is still quite specific. While the overall necessity of an adequate financial endowment of International Organisations cannot be reasonably denied, nevertheless the limited practice just described is not indicative of a general implicit competence of International Organisations to incur debts in order to ensure their capacity to act. The possible consequences of such a competence would be too far-reaching given the inherent dangers of public debt, which have been highlighted by the financial crisis of the recent years. It was therefore certainly not without reason that the UN General Assembly, when issuing the bonds in 1961, highlighted the exceptional character of the measure and tried to ensure that no precedence was created for future borrowing. A general competence for borrowing as a means of covering financial needs can therefore only be assumed where the founding treaty expressly provides so. However, not even Art. VII IMF provides for such a broad competence. Voluntary contributions by Member States and donations or gifts from 369 private persons are further means of financing International Organisations.24 However, these forms of income are problematic with respect to autonomous decision-making by the organisation. Thus, Art. 57 WHO stipulates that any conditions made in connection with gifts or donations must be “acceptable and compatible with the aims and policies of the organisation.” This express limitation indicates that allowing for conditions in connection with gifts or donations may jeopardise the independent operation of the organisation. Similar problems arise with regard to voluntary contributions by Member States. Again, there is a danger that such contributions might be used as instruments for indirectly influenc19 GA Res A/RES/ 242 (III) of 18 November 1948, preambular clause 2; cf. also the section ‘February 1948’ on the website: , accessed 12 May 2014. In 2003/04 the same way has been chosen for the renovation of the building but proved to be futile, cf. also the press release GA/AB/3649 available at: accessed 19 May 2014. 20 GA Res A/RES/1739 (XVI) of 20 December 1961. 21 Salmon, ‘L’emprunt de 200 millions de dollars de l’Organisation des Nations Unies’, 8 AFDI (1962), 556 at 559 ff. 22 Klein/Schmahl in Graf Vitzthum/Proelß, para 219. 23 In more detail Gesmann-Nuissl, Die Verschuldungsbefugnis der Europäischen Union, 1999, 94 ff.; Oppermann/Classen/Nettesheim, § 8 para 52. 24 Cf. especially the donation of Ted Turner of 1 billion US-Dollar to the UN, accessed 19 May 2014; on this issue cf. Growe, ‘Zehn Jahre ›United Nations Foundation‹’, 2 VN (2008), 84 f; Ingadóttir in Klabbers/Wallendahl, 123; cf. also Lachenmann/Wolfrum in Wolfrum, MPEPIL, ‘United Nations Budget’, para 20.

163

§ 10 Finance and Personnel

ing or even determining the policy of the organisation.25 Nevertheless, the UN introduced in 2006 a separate peacekeeping fund, which is entirely dependent on voluntary contributions by Member States, in order to ensure the financing of post-conflict peacebuilding.26 Furthermore, contributions intended to finance specific activities of the organisation may result in its factual dissolution into separate sub-programmes with separate modes of financing. This danger is enhanced when the organisation does not operate with a single budget, but allow for a confusing system of parallel budgets with separate modes of financing, as is the case with the UN (→ Paras 362 ff.). Under such conditions, the forming of consensus on certain policies and coherent decision-making as well as the overall organisational interest is pushed into the background, while particular interests of specific groups predominate. Organisations pursuing integration can only accept such tendencies up to a certain point. 370 Self-support is limited to a few exceptional cases. Some organisations generate their own income by charging retributions for goods or services they offer. The UNICEF sale of Christmas cards is a well-known example of this type. However, only few International Organisations are able to cover a substantial part of their expenditure on this basis. This is the case for WIPO, which charges fees for the registration of certain intellectual property rights and thereby, according to its own assessment, covers about 90% of its financial needs.27 A general right to levy taxes only exists in rare cases.28 Apart from that it is common practice of most International Organisations to tax their civil servants.29 371 The most elaborate system of charges was developed within the European Coal and Steel Community (ECSC). According to Art. 49 ECSC the High Authority, the principal decision-making organ of the ECSC, was entitled to impose levies on the production of coal and steel.30 The European Union operates on the basis of a “system of own resources of the Union” (Art. 311 TFEU). These own resources consist of 1) levies, premiums, additional or compensatory amounts, additional amounts or factors, Common Customs Tariff duties and other duties relating from trade with non-member countries, customs duties on products under the expired Treaty establishing the European Coal and Steel Klabbers, Introduction, 126. Report of the Secretary General, UN Doc A/60/984, Annex No. 7 of 22 August 2006. 27 WIPO, An Overview, 2011 edition, 24; available at: accessed 27 May 2014. 28 Cf. e.g. Arts 65-68 Treaty for East African Cooperation of 6 June 1967, based on which the East African Community was founded. This Community became inactive in 1977 (cf. Schermers/ Blokker, para 1082) but was revived in 2000 under the Treaty for the establishement for the East African Community; cf. accessed 27 May 2014; however by contrast to the 1967 Treaty, the financing provisions of the 1999 Treaty (Arts 132 f.) do not provide for a system of taxation. 29 In more detail, Schermers/Blokker, paras 1070 ff.; this staff levy can hardly be seen as taxes; as the assessments are neither used for social purposes nor increase the wealth of the organisation, they are rather classified as “bookkeeping income”. 30 In more detail, Meermagen, Beitrags- und Eigenmittelsystem – Die Finanzierung inter- und supranationaler Organisationen, insbesondere der Europäischen Gemeinschaften, 2002, 122 ff. 25

26

164

I. Finances

Community as well as contributions and other duties provided for within the framework of the common organisation of the markets in sugar; 2) a share from the value added tax (VAT) imposed by the Member States; and 3) a uniform rate to the sum of the Member States’ GNI.31 Even if it cannot be denied that the system of own resources did provide the EU with a certain budgetary autonomy with regard to its Member States, it should not be overlooked that the autonomy only relates to the type of revenue and its amount. The collection of the own resources remains within the hands of the Member States’ fiscal administration, which receive, by way of collection costs, 25 % of the amounts resulting from the levies, premiums etc. referred to above.32 3. Expenditure

The table printed on p. 166 f. gives an overview of the size of the regular 372 budgets of the organisations belonging to the UN family between 1996 and 2011.33 With regard to the UN itself it is necessary to bear in mind the practice of separate budgets. For instance, the expenditures for peacekeeping contained in the programme budget amount to 113,454,400 USD.34 The overall expenditures for all peacekeeping operations, by contrast, amount to 7,831,650,000 USD.35 In addition, it is possible to distinguish operative and administrative costs 373 of the organisation. However, according to the ICJ in its Advisory Opinion in the Certain Expenses case, the distinction does not have any budgetary relevance. The Court held that, in principle, also operative costs, such as the costs of peacekeeping operations are expenses “of the organisation” as referred to in Art. 17 para 2 UN.36 Typical administrative costs are the costs for personnel, maintenance of buildings and the technical organisation of the meetings of the respective organs and bodies of the organisation.37

31 Art. 2 para 1 Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the European Communities’ own resources (OJ L 163/17); for more details cf. Streinz, paras 716 ff. 32 Art. 2 para 3 Council Dec (n 31)). 33 UN Doc A/65/187 Table 1. 34 Cf. GA Res A/RES/68/248 A-C of 16 January 2014. 35 Cf. the compilation in UN Doc A/C.5/68/21 of 23 January 2014. 36 Cf. above → para 363. 37 In more detail Schermers/Blokker, paras 956 ff.

165

166

10-47337

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

48 417 000

289 750 000

30 261 111

29 362 068

ILO

IMOf

IOM

766 609 000

48 680 700

60 000 000

847 952 000

48 680 700

259 222 500

UNAIDS

UNDPg

UNEPh

UNESCO

259 222 500

60 000 000

272 183 625

52 916 600

757 229 000

60 000 000

84 289 000

84 289 000

PAHO

84 289 000

142 725 860

142 740 090

ITU

142 740 090

20 400 000

23 328 767

28 893 221

240 525 000

51 812 000

85 876 000

14 232 716

54 596 000

221 370 000

325 000 000

58 439 522

ITC

25 229 630

31 123 957

289 750 000

51 285 000

48 587 000

35 430 000

IFADe

52 191 000

ICTY

50 340 000

ICAO

221 992 000

325 000 000

13 201 670

219 017 000

27 928 327

ICGEB

325 000 000

IAEAd

173 600

272 183 625

52 916 600

694 355 000

60 000 000

84 289 000

142 725 860

18 200 000

24 861 314

30 052 421

240 525 000

53 573 000

85 876 000

13 464 000

52 578 000

227 245 000

325 000 000

74 741 146

272 183 625

59 617 150

645 230 000

70 000 000

88 568 000

104 597 800

16 800 000

21 287 500

30 234 849

233 735 000

53 868 000

107 318 500

12 222 600

53 765 000

226 327 000

325 000 000

79 949 100

272 183 625

59 617 150

660 720 000

70 000 000

88 568 000

104 597 800

17 900 000

21 806 707

30 907 525

233 735 000

53 300 000

107 318 500

12 361 950

55 174 000

229 984 000

325 000 000

83 499 500

272 183 625

59 938 000

670 353 000

95 000 000

93 400 000

103 520 525

22 100 000

21 287 500

27 498 525

217 020 000

55 262 000

144 161 000

12 348 300

56 743 000

243 260 000

325 879 000

85 091 100

272 183 625

59 938 000

769 883 000

95 000 000

93 400 000

103 520 525

24 600 000

26 383 453

30 508 875

217 020 000

59 196 000

144 161 000

14 717 900

57 584 000

248 875 000

325 879 000

88 581 700

305 000 000

65 000 000

842 148 000

135 250 000

93 400 000

126 489 230

28 400 000

29 695 200

37 592 368

264 795 000

70 238 000

154 152 500

16 669 500

60 456 000

273 359 000

374 550 000

94 548 700

305 000 000

65 000 000

925 147 000

135 250 000

93 400 000

126 489 230

26 100 000

32 848 672

39 553 115

264 795 000

78 036 000

154 152 500

17 822 210

64 669 000

284 083 031

374 550 000

103 722 956

305 000 000

72 000 000

952 500 000

203 350 000

93 900 000

129 555 345

27 300 000

30 425 410

42 522 025

297 155 000

83 260 000

174 489 500

20 883 062

65 820 000

323 721 944

382 850 000

106 622 493

242 410 000

98 783 000

129 041 200

31 093 000

31 184 426

52 794 621

320 865 000

120 150 000

194 444 000

24 027 269

69 522 609

401 926 501

464 920 000

123 687 292

242 410 000

98 783 000

129 041 200

31 093 000

32 275 881

54 903 900

320 865 000

121 760 000

194 444 000

25 632 806

69 639 130

392 778 458

464 920 000

120 017 344

242 410 000

103 200 000

150 865 419

30 834 000

49 979 990

363 360 000

138 260 000

145 143 000

74 353 913

386 196 050

500 263 000

116 817 194

242 410 000

103 200 000

145 604 278

30 834 000

50 919 500

363 360 000

145 143 000

80 361 468

402 022 164

500 263 000

119 586 940

305 000 000

72 000 000

315 500 000

76 000 000

315 500 000

76 000 000

326 500 000

87 500 000

326 500 000

87 500 000

952 500 000 1 097 126 968 1 014 809 497 1 100 000 000 1 250 000 000

203 350 000

93 900 000

129 555 345

26 600 000

31 184 426

44 506 000

297 155 000

91 954 000

174 489 500

23 059 356

66 511 000

362 317 252

382 850 000

114 876 661

1 171 592 550 1 171 592 550 1 088 194 150 1 088 194 150 1 112 671 250 1 112 671 250 1 289 424 050 1 289 424 050 1 613 096 200 1 613 096 200 1 878 855 200 1 878 855 200 2 156 532 200 2 156 532 200 2 319 503 800 2 319 503 800

1996

b

FAO

CTBTOc

United Nations

Organization

(in United States dollars)

Table 1 Approved regular budgets (1996-2011)a

§ 10 Finance and Personnel A/65/187

7

UNFCCC

600 050 000

109 549 390

11 321 500

8 802 000

30 211 638

421 327 000

118 636 047

53 620 690

89 684 886

UNICEFl

UNIDOm

UNRWA

UNWTOn

UPU

WHO

WIPO

WMO

WTO

81 473 838

53 620 690

107 775 000

421 327 000

30 815 948

9 297 000

11 321 500

97 256 140

600 050 000

22 115 000

4 258 800

285 000 000

7 824 800

1997

82 254 504

42 842 466

135 753 546

421 327 000

27 628 169

8 851 000

10 610 900

67 682 384

578 200 000

23 305 000

6 395 150

275 000 000

9 727 100

1998

76 852 484

42 842 466

120 385 220

421 327 000

28 714 788

9 248 000

10 610 900

65 524 500

578 200 000

23 259 000

6 395 150

249 900 000

11 618 600

1999

72 555 119

39 669 810

116 393 466

421 327 000

22 312 500

8 724 000

10 833 950

67 179 050

657 750 000

19 596 000

6 645 050

260 700 000

12 548 000

2000

79 811 673

38 227 270

121 936 012

421 327 000

22 312 500

9 386 000

10 833 950

67 179 050

657 750 000

20 423 000

6 645 050

268 671 000

12 738 000

2001

96 060 302

42 332 215

222 009 468

427 827 000

21 250 000

9 309 000

12 414 200

60 288 070

618 100 000

21 021 000

5 888 950

260 112 000

16 065 200

2002

119 195 654

48 519 231

221 909 118

427 827 000

21 250 000

9 658 000

12 414 200

60 288 070

626 100 000

28 227 000

5 888 950

292 281 000

16 771 900

2003

141 909 211

48 911 462

280 175 439

440 055 000

27 461 538

14 444 000

16 901 100

91 123 570

790 450 000

27 750 000

6 909 900

327 698 000

17 495 346

2004

128 781 221

48 911 462

243 816 794

440 055 000

27 461 538

13 536 000

19 037 600

91 123 570

793 450 000

38 534 000

6 909 900

365 848 000

22 085 799

2005

144 628 223

48 332 137

202 671 756

457 657 500

29 504 132

15 326 000

17 592 400

90 746 302

919 000 000

31 458 354

8 263 900

389 322 000

26 873 070

2006

33 853 600

9 219 550

469 478 000

27 032 460

2008

46 030 758

9 219 550

486 431 000

26 999 124

2009

39 640 800

11 141 700

475 000 000

31 928 720

2010

41 364 700

11 141 700

475 000 000

31 277 422

2011

162 478 973

48 332 137

202 671 756

457 657 500

29 504 132

18 246 000

17 592 400

95 338 208

165 081 696

56 500 000

297 596 558

479 420 000

31 315 789

17 379 000

19 138 400

94 884 079

168 980 000

56 500 000

305 884 466

479 420 000

18 704 000

20 290 200

98 153 421

167 521 157

67 307 692

300 291 262

472 557 200

17 941 000

24 262 700

112 579 729

171 161 140

67 307 692

300 291 262

472 557 200

18 423 000

24 482 000

116 716 300

919 000 000 1 278 500 000 1 278 500 000 1 318 300 000 1 318 300 000

37 043 250

8 263 900

457 131 000

26 628 513

2007

This table shows the amounts of the estimated expenditure actually approved under regular budgets plus any approved supplementary estimates, net of staff assessment. No adjustments are made in the figures. In this context, the term “regular budget” is broadly interpreted as “regular resources” regardless of a corresponding “assessment” in the legal sense. Where the estimates approved make provision for undistributed reserve, the amount is excluded from the figures, so that the comparisons relate to effective working budgets. Estimated expenditure for the support of extrabudgetary activities is included where and to the extent that it is integrated into the regular budget. Estimated budgetary reimbursements to accounts drawn upon to finance expenditure under the budget or supplementary authorizations are reported in the period of reimbursement. Figures for biennial budgets are divided into two equal annual amounts (unless specified by year); supplementary estimates are reported according to the years to which they relate.

b-n omitted.

a

b

5 451 232 670 5 351 558 140 5 271 588 680 5 185 658 224 5 229 609 319 5 276 585 512 5 607 147 030 5 811 186 251 6 816 124 264 6 943 265 799 7 571 585 753 7 730 551 510 8 929 407 218 8 856 517 936 9 173 658 326 9 215 230 566

25 304 000

UNHCR

Total

6 992 400

325 000 000

8 505 500

1996

UN-Habitatk

UNFPAj

i

Organization

I. Finances

A/65/187

8

10-47337

167

§ 10 Finance and Personnel

4. Budget Competence and Budget Decision Making

a) Budget Competence. In most International Organisations the plenary organ is entrusted with taking the final decision on the adoption of the budget. Thus, (usually equal) representation and participation of all members in “legislating” the budget is ensured (cf. Art. 17 UN; Art. 13 para 1 lit. c ILO; Art. 9 No. 1 lit. f AU; Art. IX No. 2 UNESCO; Art. IV No. 2 in connection with Art. XVIII FAO). 375 There are, however, important exceptions from the general budgetary competence of the plenary organ, where this is justified by specific structural or factual circumstances. The high degree of integration and the broad range of competences of the EU have led to a gradual increase of participation of the EU Parliament in the adoption of the budget.38 Other International Organisations have entrusted their executive organ of limited membership (→ § 9 para 301 ff.) with the substantive decision on the composition of the budget. Thus, within the IAEA system, the Board of Governors proposes the budget and the General Conference is expressly precluded from making any amendments (Art. XIV IAEA). This procedure can only be understood against the background of the specific role the IAEA accords to the nuclear powers. By entrusting the Board of Governors with the substantive decision on the budget, their specific influence is also ensured regarding the budget. According to Art. 22 lit. i of its Charter, the Andean Community – at the exclusion of the Andean Parliament – empowers the Commission with the decision on the budget. Thus, in the Andean Community, the main executive organ decides authoritatively on the budget of the organisation. This is an important deviation, both from the traditional principle under which the adoption of the budget is the most prominent right of parliament, and from the usual approach of most other International Organisations which rely on Member State representation in the adoption of the budget (“no taxation without representation”). 376 Also with regard to the United Nations the overall competence of the General Assembly as the main plenary organ is not as evident as it seems at first sight. The fact, that sometimes the competence to take costly decisions is not with the General Assembly but with another organ creates some difficulties. Thus, the Security Council occasionally decided that the costs for certain measures which it adopted under Chapter VII of the Charter were to be borne by the regular budget of the organisation, i.e. not by voluntary contributions for financing the specific measure in question. Examples are the creation of the ICTY for the prosecution of crimes committed in the former Yugoslavia39 or the decision on the financing of the peacekeeping mission UNFICYP in Cyprus.40 In both cases the General Assembly expressed its consent, while at the same time stating 374

→ Cf. below para 382. Art. 32 ICTY-Statute; SC Res S/RES/827 of 25 May 1993, operative clause 1. 40 SC Res S/RES/831 of 27 May 1993, operative clause 1.

38

39

168

I. Finances

that the Security Council “did not respect the role of the General Assembly as set out in Article 17 of the Charter.”41 It seems that under such conditions only a consensual decision by both organs can provide for an adequate solution of the problem. It is neither acceptable that the budgetary competence of the General Assembly is used in order to infringe upon the substantive prerogative of the Security Council in the maintenance of international peace and security. Nor may the Security Council use its substantive competences in the area of international peace and security in order to circumvent the budgetary competence of the General Assembly. In other words: The General Assembly must respect Art. 24 para 1 UN when deciding on the budget and the Security Council is limited by Art. 17 para 1 UN when deciding under Chapter VII. The difficulty just described mirrors to a certain degree the legal dispute be- 377 tween the General Assembly and the Security Council on the financing of the first UN peacekeeping mission. The dispute resulted from the fact that the General Assembly in view of the Security Council’s inactivity decided to establish peacekeeping missions in the Middle East (UNEF, 1956) and in the Congo (ONUC, 1960). Given the refusal of several members of the Security Council to contribute to the financing of these missions, it became necessary to determine whether the costs were covered by Art. 17 para 2 UN and thus to be included in the regular budget. As already mentioned, the ICJ refused to distinguish between administrative costs and operative costs and decided that all expenses incurred in the course of activities within the purposes of the organisation are “expenses of the organisation” as referred to in Art. 17 para 1 UN. The Court held that peacekeeping missions fall within the purposes of the organisation as determined by the Charter. Thus, the expenses were to be included into the regular budget, irrespective of whether or not the General Assembly internally, i.e. with regard to the powers of the Security Council under Art. 24 para 1 UN, had the competence to establish peacekeeping missions.42 In contrast to what the wording of Art. 17 UN might suggest, the General As- 378 sembly is not completely free in its decision on how to spend the budget. In case of a dispute concerning the implementation of a judgement by the UN Administrative Tribunal, the ICJ decided in an Advisory Opinion for which the General Asembly had asked, that to the extent that an “expenditure arises out of obligations already incurred by the Organization […] the General Assembly has no alternative but to honour these engagements.”43

41 GA Res A/RES/47/235 of 14 September 1993, operative clause 3 and GA Res A/RES/47/236 of 14 September 1993, operative clause 2. 42 ICJ, Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), ICJ Rep. 1962, 151 at 167 f. 43 ICJ, Effect of awards of compensation made by the U.N. Administrative Tribunal, ICJ Rep. 1954, 47 at 59: “[…] the function of approving the budget does not mean that the General Assembly has an absolute power to approve or disapprove the expenditure proposed to it; for some part of that expenditure arises out of obligations already incurred by the Organization, and to this extent the General Assembly has no alternative but to honour these engagements.”

169

§ 10 Finance and Personnel

b) Budget Procedure. The budgetary procedure is normally not determined in the founding treaty but regulated by internal acts of the organisation.44 While some organisations operate with annual budgets,45 the UN opted for a biennial budget as of 1974.46 The ILO and the WHO followed this example.47 The FAO and the UNESCO had already introduced a biennial system before.48 The main advantage of the biennial schedule is the time saving, because the preparation of the budget is time consuming and labour-intensive. In addition, the extended period of time provides for enhanced planning security. 380 The preparation of the budget is a highly complex process which reflects the inherent conflict between financial and policy priorities. It is inevitable that decisions on the allocation of ressources have a major influence on political priorities and vice-versa. In the UN budgetary process this interdependence is taken into account by preparing the budget in several steps which apart from establishing the budget also cover medium-term planning. Initially the planning phase covered four years and preceded the budget preparation. Secretary-General Kofi Annan characterised the overall process in 2002 as “seriously flawed”, “complex, protracted, disjointed, time-consuming and rigid”, adding that especially the “medium-term plan, with a four-year planning horizon, is particularly cumbersome and impractical.”49 This led to a reform which streamlined the mediumterm planning and established an overlap between the planning phase covering two years and the preparation of the budget, which again covers two years. The medium-term plan was replaced by the “Strategic Framework” consisting of two parts, the plan outline (Part one) and a collection of plans for the currently 28 different programmes (Part two). The “Strategic Framework” is adopted by a resolution of the General Assembly50 and then consolidated into a single document entitled “Biennial programme plan and priorities for the period”.51 At the same time a “Budget Outline” for this period is adopted which contains a preliminary estimate of the ressources needed.52 One year later the General Assembly decides on the “Programme Budget”, i.e. the regular budget for the period.53 379

Cf. for the UN, Rules 152 to 157 Rules of Procedure of the General Assembly. On the EU < http://europa.eu/pol/pdf/flipbook/en/budget_en.pdf>, accessed 27 May 2014; on the IAEA, cf. the Resolution of the General Conference GC(51)/RES/7 of 20 September 2007. 46 Woeste/Thomma in Simma, Art. 17 paras 27 f.; cf. for example: GA Res A/RES/60/247 A-C of 23 December 2005. 47 E.g. ILO: , accessed 13 May 2014; WHO: , accessed 27 May 2014; FAO: , accessed 13 May 2014; UNESCO: , accessed 13 May 2014. 48 Schermers/Blokker, para 1101. 49 UN Doc A/57/387 of 9 September 2002, paras 157 and 160. 50 Cf. GA Res A/RES/67/236 of 24 December 2012 for the planning period 2014/15. 51 Cf. UN Doc A/67/6/Rev. 1 of 15 February 2013 covering the planning period 2014/15. 52 Cf. GA Res A/RES/67/248 of 24 December 2012 “Programme budget outline for the biennium 2014–2015”. 53 Cf. GA Res A/RES/68/248 of 27 December 2013 “Programme budget outline for the biennium 2014-2015”. 44

45

170

I. Finances

As far as planning is concerned, the Committee on Programme and Coordination (CPC) is involved in the preparation of the proposals. This Committee is the main subsidiary organ of the ECOSOC and the General Assembly for the planning and coordination of UN activities.54 In respect of the budgetary issues, i.e. preparation of the “Budget Outline” and the “Programme Budget”, the Advisory Committee on Administrative and Budgetary Questions (ACABQ), which was created as the main advisory body in this regard already in 1946 and consists today of 16 independent experts, exercises its advisory functions.55 Since 1986 the UN have decided the budgetary issues by consensus in order 381 to alleviate concerns of the major contributing States that they might be outvoted in a formal voting on the budget, where they are in a structural minority.56 As of 2006 there have been tendencies to threaten the major contributing States with a vote on budgetary matters.57 The growing differences between developing and developed countries regarding the priorities of UN policies in general, inevitably also have repercussions on the budgetary negotiations, which have become much more difficult in recent years. As far as the European Union is concerned, the participation of the European 382 Parliament is a major difference in comparison to most other International Organisations. The budgetary role of the European Parliament was gradually increased over the years, with Council and Parliament now operating on an equal footing as far as the adoption of the budget is concerned.58 Similar to the situation described regarding the UN also the EU experienced the necessity of a medium- and even long-term planning in order to coordinate political priorities and decisions on the allocation of resources. Before the entry into force of the Treaty of Lisbon this goal was pursued on the basis of an interinstitutional agreement between the European Parliament, the Council and the Commission, in which an agreement on the main budgetary priorities for a period of several years was laid down (financial perspectives system). With the Treaty of Lisbon this financial perspectives system was included into Art. 312 TFEU under the new name multiannual financial framework. Just as the former financial perspectives system, the new multiannual financial framework serves the double purpose of enhancing planning security while at the same time limiting the growth of the budget. Therefore, the annual budget has to remain within the financial limits set by the multiannual financial framework (Art. 312 para 1 TFEU).

54 For details on the CPC, which has been existing since 1962, cf. Woeste/Thomma in Simma, Art. 17 para 19. 55 On the history and development of the functions of this committee cf. Woeste/Thomma in Simma, Art. 17 para 17. 56 On the role of GA Res A/RES/41/213 of 19 December 1986 and the later developments cf. Woeste/Thomma in Simma, Art. 17 paras 51 ff. 57 Woeste/Thomma in Simma, Art. 17 paras 55-59. 58 For further details cf. Waldhoff in Calliess/Ruffert, Art. 314, para 13.

171

§ 10 Finance and Personnel

5. Auditing

Given the fact that most International Organisations lack parliamentary organs, parliamentary control of budgetary discipline is more or less excluded. For this reason administrative mechanisms of auditing and controlling are of particular relevance. This is reinforced by the fact that several organisations, including the UN themselves, have suffered scandals of waste of public funds or even corruption.59 In 1993 the Office for Inspections and Investigations was created,60 which was transformed in 1994 into the Office for Internal Oversight Services (OIOS).61 The office exercises the functions of internal control and monitors compliance with the relevant financial and administrative rules of the organisation. Following the “oil for food”-scandal the General Assembly decided on a comprehensive reform of its public procurement rules.62 According to the new rules, among several other changes, all staff involved in procurement activities, including at the senior levels, is required to file financial disclosure statements annually. 384 Already at its first session, the General Assembly established the United Nations Board of Auditors to audit the accounts of the organisation.63 In 2007 the General Assembly established the “Independent Audit Advisory Committee of the United Nations” (IAAC) as an independent expert body to advise the General Assembly when exercising its control functions.64 In contrast to the OIOS, which operates under the responsibility of the Secretary General, the IAAC is a subidiary organ of the General Assembly. The Committee is thus independent of the Secretariat and the Board of Auditors. Its purpose is to oversee the overseers, not to review directly the management of the organisation and thus operate as an additional auditing body.65 383

II. Personnel 1. The Political Importance 385

Given their broad international network, which provides them with an advantage compared to national governments, senior employees of International Organisations may exercise considerable influence on the policies of the organisation.66 It is not rare that the staff of International Organisations commission external studies on possible fields of action, which are then taken up in reports and 59 Cf. New York Times of 18 March 1984, available at: , accessed 12 May 2014. 60 UN Doc ST/SGB/262. 61 GA Res A/RES/48/218 B of 23 December 1993. 62 GA Res A/RES/61/246 of 7 March 2007. 63 GA Res A/RES/74 (I) of 7 December 1946. 64 GA Res A/RES/61/275 of 29 June 2007. 65 Woeste/Thomma in Simma, Art. 17 para 25. 66 Rittberger/Zangl/Kruck, International Organization, 2012, 95.

172

II. Personnel

presented to the respective organs for consideration. These reports are often the basis for decision-making in the political bodies of the organisation. Consequently, the staff of an International Organisation holds considerable power when it comes to setting the organisation’s agenda. Where the member States have not yet reached a position on the issue in question, the staff of the organisation, in addition to its agenda setting powers, may even take the lead regarding possible options for decisions. In that sense they have an, albeit limited, possibility for initiative.67 Within the UN there are important examples of agenda-setting by the Secretaries-General: The famous reports “An Agenda für Peace” by Secretary-General Boutros-Ghali68 and “In Larger Freedom” by Secretary-General Kofi Annan69 are an illustration of this power of initiative, which is not limited to the level of the Secretaries-General only. 2. Statistical Information and Criteria of Selection

The UN system, including all Specialised Agencies and related entities of the 386 UN family employs roughly 75,000 civil servants, about 42,900 are located in the UN Secretariat.70 Following Art. 101 para 3 UN, the decisive factors for selection are efficiency, competence, and integrity.71 Art. 101 para 3 s 2 UN on the other hand only requires that “[d]ue regard shall be paid to the importance of recruiting the staff on as wide a geographical basis as possible“. Nevertheless, the geographical, and thus also the national origin of the staff, is a criterion of great practical relevance.72 In order to ensure a fair distribution among its members, the UN, among other factors, takes into account a country’s population and its contribution to the budget of the organisation. Within the staff of the Secretariat there are 188 nationalities represented (out of a total of 193 member States). It is obvious that tensions arise between the different criteria for selection. 387 Notably there seems to be a difficulty in ensuring a geographically as broad as possible representation while at the same time deciding on the basis of competence and qualification. Currently, only 45% of the senior staff have the nationality of a developing country, while developing countries cover 78% of the world population. Western Europe (23 %) and North America (20%) have an

67 Rittberger/Zangl/Kruck, International Organization, 2012, 95; especially on the EU-Commission Pollack, 3 European Integration online Papers (1999), No. 6, available at: , accessed 12 May 2014. 68 UN Doc A/47/277 of 17 June 1992. 69 ‘In Larger Freedom: Towards Development, Security and Human Rights for all’, Report of the Secretary-General, UN Doc A/59/2005 of 21 March 2005. 70 Cf. Composition of the Secretariat: Staff demographics, UN Doc A/67/329 of 28 August 2012. 71 Cf. also the corresponding rule in Art. VII Nr. 3 of the FAO-Constitution; those criteria have recently been applied by the General Assembly in order to determine the members of the Independent Audit Advisory Committee, cf. GA Res A/RES/61/275, annex I, No. 3. 72 For a more detailed analysis on the concept of geographical distribution cf. Goodrich, ‘Geographical Distribution of the Staff of the UN Secretariat’,16 International Organization (1962), 720 ff.

173

§ 10 Finance and Personnel

above average quota among the senior staff. With a total of 2714 employees the United States have the biggest share. During the early years of the organisation the US, Canada and several Western European States even provided for more than 80% of the staff.73 Such obvious inequalities in representation may put into question the acceptance of the organisation among its member States.74 For this reason the criterion of geographical representation sometimes becomes more important than qualification or competence. However, this is problematic from a legal point of view since according to Art. 101 para 3 UN the geographic factor is only of secondary relevance, i.e. after the criteria mentioned in Art. 101 para 3 s 1 UN (efficiency, competence, and integrity).75 388 In order to overcome possible inequalities, the General Assembly decided already in 1947 that an over- or underrepresentation exists when the quota of a member among the staff exceeds or undercuts the countries contribution to the budget by 25% or more.76 This formula was revised in 1962 and 1987 in order to add a population factor which takes into account the size of the member States.77 The formula is still applicable today. However, the General Assembly in 2007, in a resolution on “Human Resources Management” requested the reconsideration and improvement of the existing recruiting procedures.78 Upon a further request by the General Assembly79 to submit a feasibility study, the Secretary-General reported on a “human resources management reform”.80 The General Assembly adopted the report in resolutions of 2011 and 201381 so that the reform can be considered to be under way. 389 Today, selection and appointment usually are autonomous decisions by the International Organisations without formal participation of the member States. To some extent this general rule is set aside by the practice of seconding national civil servants to the administration of International Organisations, either for budgetary reasons or with the purpose of increasing the number of a member’s nationals among the organisation’s personnel. Also, the original practice of the 19th century technical organisations was to place the administration (“bureaux”) under the supervision of one of the member States. This tradition survived until 1985 concerning the Central Office of International Carriage by Rail, which was then replaced by the Intergovernmental Organisation for International Carriage

Stöckl in Simma, Art. 101 para 119 with further references. In 2002 the FAO published a comprehensive study on its internal distribution procedures according to which the strong orientation towards the contributions of the members leads to massive geographic imbalances cf. accessed 28 May 2014. 75 For details cf. Schermers/Blokker, para 503. 76 GA Res A/RES/153 (II) of 15 November 1947. 77 GA Res A/RES/42/220 A III of 21 December 1987; in more detail Stöckl in Simma, Art. 101 para 119. 78 GA Res A/RES/61/244 of 30 January 2007. 79 GA Res A/RES/63/250 of 10 February 2009. 80 UN Doc A/65/305 of 2 September 2010. 81 GA Res A/RES/65/247 of 17 March 2011; GA Res A/RES/67/255 of 30 May 2013. 73

74

174

II. Personnel

by Rail (OTIF). Apart from that, international civil servants are independent from any direction by their respective governments. Usually in-house applications are preferred over external job advertisements.82 This is an issue which was taken up by Secretary-General Kofi Annan, who promoted external applications in order to avoid a certain paralysis which may result from too extensive internal recruitment (→ para 395). This “principle of non-discrimination against external recruitment” has found its way into the General Assembly resolutions on human resources management reform.83 3. Law Governing the Service and Legal Position of International Civil Servants

The service is governed by so-called “staff regulations”, i.e. internal provi- 390 sions regulating the rights and obligations of civil servants in the exercise of their service.84 Among these provisions there are regulations setting out obligations of loyalty towards superiors and the organisation in general, notably the obligation not to seek or accept instructions from any government or from any other source external to the organisation. An important distinction relates to the permanent or temporary character of appointment. Temporary appointments are less attractive, which makes it more difficult to find qualified candidates. Where temporary positions are filled on the basis of secondment by member States problems of loyalty may arise. For this reason, the general policy of the Organisation for the Prohibition of Chemical Weapons not to employ permanent personnel but to operate on the basis of contracts lasting a maximum of seven years is subject to criticism.85 To a certain, albeit limited, degree, international civil servants enjoy privi- 391 leges and immunities (→ § 5 paras 181 ff.). In order to enable them to carry out their functions efficiently and independently they may not be completely subjected to the national jurisdiction of the organisation’s host State. The principles relating to privileges and immunities are usually regulated partly in the respective headquarter or seat agreements or in separate conventions, such as the Convention on the Privileges and Immunities of the United Nations of 1946.86 A complete assimilation of status of international civil servants and of diplomats is not necessary, given the fact that international civil servants are not envoys of their home State who reside temporarily in their host State. Civil servants with a permanent position will become long-term or even permanent residents in the host country. From this results a functionally limited immunity referring to their Schermers/Blokker, para 495. Cf. GA Res A/RES/65/247 of 17 March 2011, para 19; GA Res A/RES/67/255 of 30 May 2013, para. 54. 84 The latest version of UN Staff Regulations entered into force as of 1 July 2009 (UN Doc ST/SGB/2009/6); for further details cf. Schermers/Blokker, paras 516 ff. 85 Schermers/Blokker, para 518. 86 Adopted by the General Assembly on 13 February 1946; entered into force on 17 September 1946, 1 UNTS 15. 82

83

175

§ 10 Finance and Personnel

official action (→ § 5 paras 185 ff.). There is, in general, no need to grant immunity for matters unrelated to the official functions. Therefore, except for the executive head of an International Organisation, e.g. the UN Secretary-General, no personal immunity is granted.87 Sometimes the question may arise whether a civil servant acted in his or her official capacity or whether he or she transgressed his or her mandate. Under such circumstances the Secretary-General may act in support of the civil servant and clarify the purpose of the mission.88 392 The difference between personal and functional immunity became relevant when the United States arrested and prosecuted the then Managing Director of the IMF Dominique Strauss-Kahn for alleged sexual assault in a hotel in New York. Since the Convention on the Privileges and Immunities of the Specialized Agencies of 1947, which would have granted personal immunity to the IMF Managing Director, was not applicable, Strauss-Kahn was not protected against prosecution in the US. The only applicable provision was Art. IX section 8 IMF which, however, limits immunity to actions in official capacity. Irrespective of the concrete accusation (Strauss-Kahn was later acquitted), the case illustrates the difficulty of separating the proper exercise of official functions from private comportment. At the occasion, Strauss-Kahn was on his way to a meeting with the Ministers of Finance of the European Union in order to solve the financial crisis triggered by the difficult financial situation of Greece. The arrest in New York prevented his participation and thus undoubtedly obstructed the participation of the IMF in the meeting. Therefore, it seems preferable to assimilate the immunity of the administrative heads of International Organisations to the immunity granted to Heads of State or Government and Foreign Ministers, i.e. personal immunity during the term of office.89 393 Legal protection for staff members appealing against administrative decisions of the organisation which they believe to violate their rights under the applicable staff regulations is not easy to organise. Given the immunity of International Organisations there is no possibility to bring such cases before the national courts of the host State where the organisation has its headquarters. This risks unduly limiting access to courts in such cases. Apart from internal appeals to independent review bodies, which have been established within the administration of most International Organisations, some organisations have also established their own courts for this purpose. Following the precedent of the ILO and the League of Nations, these courts are often named “Administrative Tribunal”. In 87 Cf. Art. V section 19 of the Convention on the Privileges and Immunities of the United Nations; Schermers/Blokker, para 534 with further references; for the Benelux states: Karelle/ Kemmeter, Le Benelux Commenté, 1962, 159. 88 ICJ, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, ICJ Rep. 1999, 62 at 87 f., concerning Art. VI, section 22 b) of the Convention on the Privileges and Immunities of the United Nations covering independent experts in their missions. 89 Cf. ICJ, Arrest Warrant of 11 April 2000, ICJ Rep. 2002, 3; cf. also Gallo, ‘The Immunities of the International Monetary Fund’s Executive Head: The Quest for Legal Certainty in the “StraussKahn Affair”’ 9 Int. Org. Law Rev. (2012), 227 ff.

176

II. Personnel

2009, the UN reformed their system and replaced the former Administrative Tribunal with the “UN Dispute Tribunal”.90 At the same time, the existing different ombudspersons for the Secretariat and several UN programmes were merged into a single integrated and geographically decentralized structure, named “Office of the Ombudsman for the United Nations Secretariat, funds and programmes.”91 The Administrative Tribunal of the ILO is of particular importance. It is the 394 heir of the Administrative Tribunal of the League of Nations, which was established already in 1927 to hear complaints concerning the League’s Secretariat and the International Labour Office. What is more important is that it serves as Administrative Tribunal for similar disputes relating to about 60 International Organisations which have recognised the jurisdiction of the Tribunal for that purpose. 4. Efforts for Reform within the UN

In order to enhance the efficiency of the Secretariat former Secretary-Gen- 395 eral Kofi Annan included a number of reform proposals into his report “In Larger Freedom”. The proposals notably aim at the recruitment of new and innovative staff. Furthermore, he pledged to improve the transparency and accountability of the Secretariat.92 The General Assembly accepted the proposals in 2007. At the same time, it urged the Secretary-General to provide for further proposals relating to a review of the staff selection system with a particular emphasis on enhancing the performance of the Secretariat.93

90 GA Res A/RES/61/261 of 30 April 2007, operative clause 19 ff.; and GA Res A/RES/62/228, of 6 February 2008 at 4 ff.; for further details cf. → para 315. 91 GA Res A/RES/61/261 of 30 April 2007, operative clause 11 ff.; and GA Res A/RES/62/228 of 6 February 2008 at 25 ff. 92 Report of the Secretary-General (n 69), paras 190 ff. 93 Cf. above → para 388 f.

177

§ 11 Peace and Security Literature: Aston, ‘Die Bekämpfung abstrakter Gefahren für den Weltfrieden durch legislative Maßnahmen des Sicherheitsrats’, 62 ZaöRV (2002), 257 ff.; Bothe, UN Peacekeeping, 1999; Cassese, ‘Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’, 10 EJIL (1999), 23 ff.; Charney, ‘Anticipatory Humanitarian Intervention in Kosovo’, 100 AJIL (2006), 357 ff.; Dinstein, War, Aggression and Self-Defence, 5th edn. 2011; Farrall, United Nations Sanctions and the Rule of Law, 2007; Franck, Recourse to Force, 2009; Frowein, ‘Zwangsmaßnahmen von Regionalorganisationen’, in: Beyerlin (ed.), Recht zwischen Umbruch und Bewahrung: Völkerrecht, Europarecht, Staatsrecht. Festschrift für Rudolf Bernhardt, 1995, 57 ff.; Grey, International Law and the Use of Force, 3rd edn. 2008; Hilpold, ‘Duty to Protect and the Reform of the United Nations’, 10 Max Planck UNYB (2006), 35 ff.; Körbs, Die Friedenssicherung durch die Vereinten Nationen und Regionalorganisationen, 1997; Malanczuk, Humanitarian Intervention and the Legitimacy of the Use of Force, 1993; Martenczuk, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrats, 1996; Simma, NATO, the UN and the Use of Force, 10 EJIL (1999), 1 ff.; Walter, Vereinte Nationen und Regionalorganisationen, 1996; de Wet, The Chapter VII Powers of the United Nations Security Council, 2004; Wolfrum, ‘Der Beitrag regionaler Abmachungen zur Friedenssicherung’, 53 ZaöRV (1993), 576 ff.

In an indirect manner any form of international cooperation contributes to the 396 maintenance of peace and security. The drafting history and the wording of the Charter of the United Nations reveal, however, that the United Nations were construed as the central institution for the maintenance of international peace and security on the universal level (cf. Art. 1 para 1 UN). Yet, similar to its predecessor, the League of Nations Covenant, the UN Charter does not intend to monopolise the maintenance of international peace and security at the universal level. Rather, the universal system and regional mechanisms are meant to be coordinated into a coherent overall system. I. The System of Collective Security of the United Nations 1. General Principles

Collective security refers to collective mechanisms directed against possible 397 aggressors from outside or from among the Member States. Such systems of collective security are to be distinguished from treaties providing for collective self-defense, which are directed exclusively against external threats. This distinction has analytical merits and allows for systemising different concepts and instruments for preserving international peace and security, but it is not mandatory from a legal point of view.1 1 Cf. the in this respect generous interpretation of the term collective security under Art. 24 GG, 90 BVerfGE, 286 at 349.

181

§ 11 Peace and Security

The system of collective security established by the UN is based on three fundamental principles: The first is the obligation of all Member States to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State and to settle their disputes peacefully. The second is the introduction of a collective enforcement mechanism in case of a violation of these obligations by a Member State. The third consists of the possibility for collective military measures which – below the threshold of military enforcement action – contribute to the maintenance of international peace and security (i.e. peacekeeping forces established with the consent of the parties to the dispute). 399 a) Peaceful Settlement of International Disputes and the Prohibition of the Use of Force. The general obligation to settle international disputes peacefully is contained in Article 2 para 3 UN Charter and spelled out in more detail in Chapter VI (Articles 33 ff.) UN Charter. Further details are contained in the Friendly Relations Declaration (GA Res. 2625 (XXV) of 24 October 1970 and in the Manila-Declaration (GA Res. 37/10 of 15 November 1982), the latter specifying in Part 1 the obligations of States and in Part 2 the competences of the United Nations Organs relating to the peaceful settlement of international disputes. 400 Under the League of Nations Covenant, the obligation to peacefully settle international disputes was conceived as a procedural step prior to legally resorting to war. Today, Art. 2 para 4 UN is designed as a comprehensive ban on the use of force. If the obligation to peaceful settlement of international disputes were merely meant to exclude the use of non-peaceful means, this would simply double the obligations already inherent in the prohibition of the use of force. For this reason, the general understanding of the obligation to settle disputes peacefully is that it obliges the parties involved to certain behavior, albeit not to achieve a certain result.2 Under the UN Charter, the prohibition of the use of force and the obligation to peacefully settle international disputes must be understood as complementary obligations. The most important instruments for the peaceful settlement of international disputes are enumerated in Art. 33 UN: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements and other peaceful means of the parties’ own choice which are not further specified.3 There is no hierarchy of the means mentioned. All of them are equal and the parties to a dispute are free in their choice. 401 In addition to the general obligation to peaceful settlement of disputes, the UN Charter specifies certain competences of the Security Council with regard 398

Further evidence: Tomuschat in Simma, Art. 33, paras 15 ff. Although Art. 33 lists all of the internationally known forms of dispute settlement mechanisms, it deliberately has been left open-ended in order not to prejudge a possible subsequent practice (Tomuschat in Simma, Art. 33 para 34). A good example for a hybrid form, a combination of different dispute settlement mechanisms, is the dispute settlement system, which is provided by WTO law (→ § 9 paras 328 ff.; Shaw, 1036 f.). 2

3

182

I. The System of Collective Security of the United Nations

to peaceful settlement. Among them are the right to investigation under Article 34 UN, the Council’s competence to make recommendations under Article 36 UN regarding the procedures of settlement. Going beyond the procedural level, under the condition of agreement by all parties to the dispute, the Council also has the possibility to make recommendations for the substantive settlement (Article 38 UN Charter). b) Collective Enforcement Measures and Self-defence. The collective mechanism established by Chapter VII must be considered as the central pillar of the system of collective security established by the Charter. It comes into operation in the case of a threat to the peace, a breach of the peace, or an act of aggression. The mechanism operates on a two–step basis. The first step consists of a Security Council decision declaring the existence of one of the three situations mentioned in Article 39 (threat to the peace, breach of the peace, act of aggression). This determination is the precondition for the second step, i.e. action under Articles 41 and 42 UN Charter (non-military and military enforcement action). Since it opens the road for mandatory Security Council action, the determination under Article 39 UN Charter is of central importance for the overall system.4 The general idea of collective security consists in the exclusion of unilateral use of force and the establishment of a monopoly of force in an internationally legitimised organ, the UN Security Council. To ensure both its legitimacy and its practical effectiveness such a system, in principle, should be given a military power which renders it capable of dealing with any possible aggressor. Furthermore, the credibility of the system is largely dependent on the political will among the members of the Security Council. In that regard, the collective system established by the UN underwent considerable change since the end of the Cold War.5 Even States which are, in principle, willing to entrust their security to a collective system, will not do so unless there is a substitute mechanism to which they may resort in case of failure of the collective system. Such a mechanism is provided for in Article 51 UN Charter, which preserves the right to individual and collective self-defence. This function as a means of last resort of Article 51 UN Charter is visible both in its wording and in its drafting history.6 c) Peacekeeping Forces. An additional instrument for the maintenance of international peace and security has been developed in the practice of the United Nations. Peacekeeping forces, or blue helmets as they are often called, are not expressly mentioned in the UN Charter, but have become the probably most im-

4 Further information on the determination of the requirements of Art. 39 UN, cf. Krisch in Simma, Art. 39 paras 45 ff. 5 → paras 416 ff. 6 For the drafting history of Art. 51, cf. Randelzhofer/Nolte in Simma, Art. 51 paras 1 ff.

183

402

403

404

405

§ 11 Peace and Security

portant and certainly most frequently used instrument in the practice of the Security Council.7 406 The original concept of peacekeeping forces envisages the establishment of the force based on the consent of the parties. The original concept thus lacks elements of coercion, meaning that the action in question cannot be taken against the will of the addressee. Under this concept peacekeeping forces were basically used to monitor armistice lines and to ensure compliance with provisional agreements reached by the parties to the dispute. However, by adding coercive elements to the mandate of UNPROFOR the Security Council blurred the previously quite clear lines between peacekeeping and peace enforcement under Article 42 UN Charter. This enhanced concept, which was later labelled as “robust peacekeeping”, has met extreme difficulties in practice because the forces were not properly equipped to fulfil an enforcement mandate.8 The village of Srebrenica has become a symbol for the failure of the concept in the Bosnian crisis. Apart from the specific problems related to robust peacekeeping, peacekeeping has generally become an effective instrument for the maintenance of international peace and security and must be considered as a highly valuable addition to the measures expressly envisaged in the UN Charter. The fact that the UN blue helmets were awarded the Nobel Peace Prize in 1988 is evidence of this success. 2. Competences within the United Nations

According to Article 24 para 1 UN Charter, the Security Council bears the primary responsibility for the maintenance of international peace and security. This primary responsibility of the Security Council is complemented by the competences which the Charter accords the General Assembly and the Secretary-General. In addition to this, a new suborgan, the United Nations Peacebuilding Commission was founded in 2006 by identical resolutions adopted by the Security Council and the General Assembly. The respective competences of these organs will be addressed in the following sections. 408 a) Security Council and General Assembly. As far as the relationship between the General Assembly and the Security Council is concerned, the notion of “primary responsibility” contained in Article 24 para 1 UN Charter, is specified in more detail in Article 12 para 1 UN Charter. According to this provision the General Assembly is blocked from making recommendations concerning disputes or situations in respect of which the Security Council is exercising the functions assigned to it. According to the wording of the provision and the UN practice based on it, the General Assembly is merely blocked from making 407

For an overview of the single missions cf. Bothe in Simma, ’Peacekeeping’ paras 7 ff. In detail: Khan, ‘United Nations Peace-Keeping in Internal Conflicts’, 4 Max Planck UNYB (2000), 543 at 546 ff. 7

8

184

I. The System of Collective Security of the United Nations

“recommendations”. It is therefore not excluded that Security Council and General Assembly simultaneously deal with the same dispute or situation.9 Even with regard to recommendations, the General Assembly is only blocked 409 when the Security Council “exercises the functions assigned to it”. The correct interpretation of this condition contained in Article 12 para 1 UN Charter has been a matter of controversy since the late 1940ies when the frequent use of the veto power accorded to the permanent five members started to paralyse the Security Council. Today, there is largely consensus that the mere inclusion of an item on the agenda of the Security Council does not mean that the Council already exercises its functions.10 What is at least required is some kind of substantive action.11 Nevertheless, the question remains whether the continued paralysation of the Council by some of the veto powers may trigger a substitute mechanism by the General Assembly. In its famous Uniting-for-Peace-Resolution of 1950 the General Assembly, at the peak of the Korean crisis, claimed such a right. The legality of this claim remains, however, controversial even today.12 An assessment of the legality of the Uniting-for-Peace-Resolution must start 410 with the veto position of the five permanent members of the Security Council contained in Article 27 para 3 UN Charter. This provision expressly provides a right to veto Council decisions. Given the clear wording of Article 27 para 3 UN Charter, the mere fact that the veto power is used in a specific situation cannot, as such, be qualified as abusive. In consequence the Uniting-for-Peace-Resolution must be limited to situations where the Council is systematically blocked by the use of the veto power. But even in case of a systematic inability of the Council to properly exercise the functions assigned to it, the question remains, which specific types of action are available for the General Assembly. The argument of the Security Council’s disability to exercise its functions merely disposes of the condition contained in Article 12 para 1 UN Charter. It does not enhance the powers granted to the General Assembly by the Charter. This also seems to be the legal position of the General Assembly since the Uniting-forPeace-Resolution only speaks of the possibility “to recommend” action to be taken by the Member States. The General Assembly does not assert to make mandatory decisions under the Uniting-for-Peace-Resolution. What, then, is the legal impact of such “recommendations”? Security Council 411 resolutions under Chapter VII UN Charter provide – because of their mandatory force for all members of the United Nations – for a justification of the measures adopted by the Security Council also with regard to their addressee. This means that action taken by Member States on the basis of a Chapter VII resolution, which would otherwise be illegal in their bilateral relationship, is jusKlein/Schmahl in Simma, Art. 12 paras 19 f. ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Rep. 2004, paras 27 f. 11 Cf. Klein/Schmahl in Simma, Art. 12 paras 9 f. 12 Cf. Hilpold, ‘The Duty to Protect and the Reform of the United Nations – A New Step in the Development of International Law?’, 10 MaxPlanck UNYB (2006), 35 at 51 f. 9

10

185

§ 11 Peace and Security

tified by the Security Council resolution under Chapter VII. Nowhere does the Charter accord a similar force to “recommendations” adopted by the General Assembly. For that reason, Security Council resolutions under Chapter VII of the Charter cannot completely be substituted by recommendations of the General Assembly. 412 b) The Secretary-General. In addition to his administrative functions as head of the Secretariat the UN Charter assigns a specifically political role to the Secretary-General, especially concerning the maintenance of international peace and security.13 The legal basis for this political role may be found in Article 99 UN Charter. The founders of the United Nations were well aware of the fact that in creating this provision, they accorded a special political role to the SecretaryGeneral. The respective report of the Preparatory Commission states that “the Secretary-General may have an important role to play as a mediator and as an informal adviser of many governments, and will undoubtedly be called upon from time to time, in the exercise of his administrative duties, to take decisions which may justly be called political. Under Article 99 UN Charter, moreover, he has been given a quite special right which goes beyond any power previously accorded to the head of an International Organisation, viz: to bring to the attention of the Security Council any matter (not merely any dispute or situation) which, in his opinion, may threaten the maintenance of international peace and security. It is impossible to foresee how this Article will be applied; but the responsibility it confers upon the Secretary-General will “require the exercise of the highest qualities of political judgement, tact and integrity.”14 413 The different Secretaries-General have naturally interpreted their political role differently. The competence created by Art. 99 UN was only twice used formally: Secretary-General Dag Hammarskjöld relied on it during the 1960 Congo crisis and so did Secretary-General Kurt Waldheim after the U.S. embassy personnel had been taken hostage in 1979.15 Most of the other SecretariesGeneral of the early period of the UN understood the competence as relating to concrete situations or crises. However, since the report “An Agenda for Peace“ presented by Secretary-General Boutros-Ghali on 17 June 1992 the Secretaries-General of the more recent phase have made use of their competence in order to present conceptual and strategic proposals in the area of international peace and security. One of the last initiatives of this kind resulted in a High Level Panel, which proposed reforms of the institutional structure dealing with international peace and security. With the establishment of the Peacebuilding-Commission these proposals have at least partly been implemented in practice.16 Cf. → § 9 paras 308 ff. Report of the Preparatory Commission of the United Nations (PC/20) of 23 December 1945, Chapter VIII, sect. 2, para 16. 15 Chesterman in Simma, Art. 99 paras 21 ff.; Shaw, 1222 f.; Whitfield, ‘Good offices and “groups of friends”’, in: Chesterman (ed.), Secretary or General?, 2007, 87. 16 Cf. → para 472 (under c). 13

14

186

I. The System of Collective Security of the United Nations

Apart from the strategic and conceptual activities just mentioned, the UN 414 Secretaries-General have always been diplomatically active in the peaceful settlement of international disputes. Secretary-General Perez de Cuellar, for instance, was nominated as arbitrator in the dispute between New Zealand and France, concerning the sinking of the Greenpeace ship “Rainbow Warrior” by members of the French secret service.17 UN Secretary-General Kofi Annan acted as mediator when in 1998 an escalation of the conflict concerning the access of UN arms controls to certain objects in Iraq threatened to escalate.18 c) Peacebuilding Commission. The Peacebuilding Commission was estab- 415 lished by identical resolutions of both the General Assembly and the Security Council following a political decision taken at the World Summit 2005.19 “The main purpose of the Peacebuilding Commission is to bring together all relevant actors to marshal resources and to advise on and propose integrated strategies for post-conflict peacebuilding and recovery.”20 Experience shows that in almost 50% of all conflicts which have been pacified at some point, violence recurrs within five years.21 The Commission is supposed to meet in various configurations consisting of a standing Organizational Committee and country-specific meetings. The Organizational Committee is composed of 31 members that are elected on the basis of a specific allocation formula divided into five groups: Seven members of the Security Council, including the five permanent members, form the first group. The second group consists of seven members of ECOSOC elected from regional groups. The five top providers of assessed contributions to United Nations budgets and of voluntary contributions to the United Nations funds, programmes and agencies, including a standing peacebuilding fund, that are not selected among the first two groups are selected by and from the ten top providers, forming the third group. The fourth group consists of the five top providers of military personnel and civilian police to United Nations missions that are not among members selected in groups 1-3. The remaining seven members are elected by the General Assembly giving due consideration to representation from all regional groups in the overall composition of the Committee.22 The main function of the Peacebuilding Commission is advising the Security

UN-Chronicle XXIII (1986) No. 5, 75. Malone, The International Struggle Over Iraq: Politics in the UN Security Council 1980-2005, 2006, 158 ff. 19 SC Res S/RES/1645 of 20 December 2005; GA Res A/RES/60/180 of 30 December 2005. 20 GA Res A/RES/60/1 of 16 September 2005, para 98. 21 Cf. Weinlich,, ‘Weder Feigenblatt noch Allheilmittel. Die neue Kommission für Friedenskonsolidierung der Vereinten Nationen’, 54 VN (2006), 2; similarly speaking of 44% risk of returning to conflict within five years, cf. Collier et al., Breaking the Conflict Trap: Civil War and Development Policy, vol. 1, 2003, 83; speaking of 44 % risk of returning to conflict within the next decade cf. also Payne/Sand, Gulf War Reparations and the UN Compensation Commission, 2011, 222 with further references. 22 Cf. SC Res S/RES/1645 of 20 December 2005; GA Res A/RES/60/180 of 30 December 2005; for further analysis cf. Baetens/Kohoutek, ‘UN Peacebuilding Commission‘, in Wolfrum, MPEPIL. 17

18

187

§ 11 Peace and Security

Council concerning all issues of post-conflict peacebuilding and recovery.23 In order to fulfil that purpose the Peacebuilding Commission is meant to bring together all relevant actors and to collect and provide recommendations and information to improve the coordination of all actors relevant for post-conflict peacebuilding within and outside the United Nations.24 By contrast, the Peacebuilding Commission was not given an autonomous institutional role regarding prevention. While such a possibility had been discussed in preparation for the World Summit 2005, it was finally not retained in the Outcome Document.25 3. The Legal Structure of Chapter VII UN Charter

a) Threat to the Peace, Breach of the Peace and Act of Agrression. Art. 39 UN distingushes three alternative preconditions for action by the Security Council based on Chapter VII: a situation under consideration must qualify either as a threat to the peace, or a breach of the peace, or an act of aggression. These alternatives are hierarchical according to the degree of dangerousness of the situation in question. A threat to the peace constitutes the lowest degree and is therefore the qualification most frequently resorted to in practice. A breach of the peace, already according to the literal meaning of the term “breach”, presupposes a violation of an international legal obligation, e.g. the obligation of peaceful settlement of international disputes. The notion of aggression is intrinsically linked to the prohibition of the use of force. According to the General Assembly in its resolution 3314 (XXIX), which defines the notion of aggression, aggression is “the most serious and dangerous form of the illegal use of force”. Since both the notion of breach of the peace and of aggression, thus imply a qualification of certain actions as illegal, the Security Council operates with great caution in that regard. Even the invasion of Iraq into Kuwait, which quite obviously occurred in contravention of the prohibition of the use of force in Art. 2 para 4 UN, was merely qualified as breach of the peace.26 In consequence, for all practical purposes the notion of threat to the peace is the most important term in Art. 39 UN. 417 b) The Development of the Notion of “Peace”. The notion of “international peace and security” is used in several provisions of the Charter.27 At the beginning, the clear connex between the terms “peace” and “security” was used in order to develop a more limited notion of peace, which was also inspired by the prohibition of the use of force in Art. 2 para 4 UN. This led to a definition according to which peace is characterised by the absence of the use of military force between States (“negative peace”).28 This definition was criticised as too 416

Wolter, A United Nations for the 21st Century, 2006, 310. GA Res A/RES/60/180 of 30 December 2005, Op 2; SC Res S/RES/1645 of 20 December 2005, Op 2. 25 Wolter (n 23) 309, 313. 26 SC Res S/RES/660 of 2 August 1990. 27 Cf. for instance the preamble, Art. 2 paras 3 and 6, Art. 11 paras 1 and 2, Art. 12 para 2 UN. 28 Cf. Wolfrum in Simma, Art. 1 para 8. 23

24

188

I. The System of Collective Security of the United Nations

limited, both in literature and in UN practice, because it does not reflect the social and cultural preconditions necessary for a peaceful co-existence. In order to include these preconditions, a positive notion of peace was developed which refers to soft factors such as disarmament, respect for human rights and even the material well-being, development and progress of countries.29 While the extension of the notion of peace to these soft preconditions for 418 peaceful co-existence does not create any difficulties in the more general parts of the Charter, the development is somewhat problematic as far as Art. 39 UN is concerned. Art. 39 is accorded a key function within Chapter VII UN Charter, and thus for the adoption of coercive measures under the collective mechanism of the UN. The Security Council may only adopt collective measures under Chapter VII when at least a threat to the peace exists. The application of a narrow or broad notion of peace thus has an immediate impact on the competences of the Security Council.30 For these reasons Art. 39 UN must be primarily interpreted within the context of Chapter VII UN Charter. The overall development of the notion of peace under the Charter in general is, by contrast, only of secondary importance. aa) Inter-State Force as Starting Point. Today, it is generally accepted that 419 the notion of threat to the peace covers situations in which there is an immediate and serious danger of the use of force between States. In fact, this was the scenario the founders of the Charter had in mind when they framed the collective mechanism of Chapter VII. The danger of inter-State use of military force or the actual use of such force, are thus model cases for the application of Chapter VII. Similarly, the continuation of inter-State use of military force can easily be qualified as a threat to the peace.31 bb) Civil Wars. Quite early in its practice, the Security Council went beyond 420 the inter-State scenario in its application of Chapter VII. For instance, it qualified the Palestine conflict as a threat to the peace as early as 1948.32 This practice was intensified with the increase of internal conflicts since the 1950ies. When the activity of the Security Council generally increased with the end of the Cold War, so did its practice relating to internal conflicts. In that context, the Security Council initially referred to transnational dimensions of an internal conflict, for example by highlighting its potential for destabilising a whole region, for instance because of refugee fluxes into neighbouring countries.33 Later, these transnational elements were dropped.34 It may be concluded from this practice that civil wars, and also other internal conflicts which, because of the dimen-

Cf. GA Res A/RES/39/11 of 12 November 1984. For details cf. below → paras 424 f. 31 SC Res S/RES/1298 of 17 May 2000; SC Res S/RES/353 of 20 July 1974; SC Res S/RES/ 1304 of 16 June 2000. 32 SC Res S/RES/54 of 15 July 1948. 33 SC Res S/RES/733 of 23 January 1992. 34 Cf. Krisch in Simma, Art. 39 para 19. 29

30

189

§ 11 Peace and Security

sion of the use of military force, are of a war-like character, can as such constitute threats to the peace.35 421 cc) Massive Human Rights Violations? Similar to its treatment of civil wars, the Security Council treated internal human rights violations as threats to the peace, when they caused international consequences, again in form of refugee fluxes.36 Here again, the international consequences were later dropped as a requirement. Thus, in Somalia, “the magnitude of the human tragedy caused by the conflict” was sufficient to establish a threat to international peace and security.37 There are diverging views as to whether this practice can be read as implying that massive human rights violations may in and by themselves be qualified as threats to the peace.38 An argument for a rather cautious approach must be seen in the fact that all cases in which the Council qualified a humanitarian crisis as threat to the peace, featured characteristics of a civil war. On the other hand, the notion of “responsibility to protect” continues to gain support within and outside the UN. The most important step in that regard may certainly be seen in resolution 1970 and 1973 relating to the situation in Libya in 2011. Also, the position the General Assembly has taken towards the concept of responsibility to protect39 may be seen as an indication that massive human rights violations may be qualified as threats to the peace when they include the use of military force. 422 A further possible extension of the notion of threat to the peace relates to the protection of democratic structures in the Member States of the United Nations. The practice of the Security Council following coups against President Aristide in Haiti in 1993/94 and against President Kabbah in Sierra Leone on 25 May 1997 could be read as pointing in this direction.40 However, again, caution is called for when analysing the Council’s resolutions. In both cases the overall situation was highly dangerous with dimensions close to full-scale civil wars. This suggests a restrictive interpretation with regard to the protection of internal democratic structures under Chapter VII UN Charter. Most likely, it was less the undemocratic change that caused the Council to act, but rather the civil war factors which went along with it.

35 ICTY, Prosecutor v Dusko Tadic (Appeal on Jurisdiction), 35 ILM (1996) 32 at 43 para 30; Chesterman, Just War or Just Peace?, 2001, 128 ff; Franck, Fairness in International Law and Institutions, 2002, 224 ff. 36 With regard to the human rights violations by Saddam Hussein against the Kurdish people in Northern Iraq, cf. SC Res S/RES/688 of 5 April 1991. 37 SC Res S/RES/794 of 3 December 1992. 38 Affirmatively: Bothe in Graf Vitzthum/Proelß, para 44; Conforti, The Law and the Practice of the United Nations, 2005, 177 f.; Gading, Der Schutz grundlegender Menschenrechte durch militärische Maßnahmen des Sicherheitsrates, 1996, 165 f.; White, Keeping the Peace, 1997, 42 ff.; critically: O’Donoghue, ‘Humanitarian Intervention Revisited’, 1 Hanse Law Review (2005), 165 at 167. 39 GA Res A/RES/60/1 of 16 September 2005, para 139. 40 SC Res S/RES/841 of 16 June 1993; SC Res S/RES/917 of 6 May 1994; SC Res S/RES/940 of 31 July 1994; SC Res S/RES/1132 of 8 October 1997.

190

I. The System of Collective Security of the United Nations

dd) Threats to the Peace by Private Actors (International Terrorism). The 423 notion of threat to the peace received yet another extension in the context of combating international terrorism. On several occasions the Council decided that inaction – or in the Security Council’s view insufficient action – in the fight against international terrorism constituted a threat to international peace and security.41 The international legal development since 11 September 2001 in the area of self-defence against terrorist acts42 and the ensuing inter-State use of military force are indeed factors which allow threats by international terrorism to be qualified as threats to the peace within the meaning of Art. 39 UN. A crucial question remains, however, whether this qualification relates to concrete instances of terrorist threats or whether “the international terrorism” as such may be qualified as threat to the peace. ee) Concrete or Abstract Threats? There are currently two areas in which the 424 Security Council qualified certain activities in an abstract manner, i.e. without referring to specific States or groups of individuals, as threats to the peace. The first of these two examples concerns international terrorism43 and the second the proliferation of weapons of mass destruction.44 In both instances abstract dangers (“international terrorism” as such and the “proliferation of weapons of mass destruction” as such) were considered to constitute threats to the peace within the meaning of Art. 39 UN. While this development, at first sight, seems a logical continuation of the in- 425 clusion of private actors into the threats covered by Chapter VII, a closer look reveals the considerable extension of the Security Council’s powers, which goes along with such a qualification. From this perspective, the development is highly problematic because it leads to quasi-legislative powers of the Council. The necessary legitimation of such powers, however, remains highly doubtful. Chapter VII enables the Council to oblige Member States to take certain action or to abstain from certain activities. As long as this power relates to concrete situations involving concrete Member States and concrete activities, the powers of the Security Council are automatically limited by the facts of the situation concerned. This limitation is automatically lifted if abstract dangers are in question. Abstract dangers require, by logical necessity, abstract counter-measures. Hence, 41 SC Res S/RES/731 of 21 January 1992 and SC Res S/RES/748 of 31 March 1992 deal with the deficient Libyan cooperation concerning the prosecution of individuals being suspected of an attempt on a British airliner; SC Res S/RES/1267 of 15 October 1999 and SC Res S/RES/1333 of 19 December 2000 deal with the deficient attendance of the Taliban government to take measures in Afghanistan against activities of Al-Qaida on Afghan territory. 42 Cassese, ‘Terrorism is also disrupting some crucial legal categories of international law’, 12 EJIL (2001), 993 at 999; Delbrück, ‘The Fight Against Global Terrorism: Self-Defense or Collective Security as International Police Action?’, 44 GYIL (2001), 9 at 15; Dinstein, War, Aggression and Self-Defence, 5th edn 2011, 227 ff.; Randelzhofer/Nolte in Simma, Art. 51 para 35. 43 SC Res S/RES/1373 of 28 September 2001; SC Res S/RES/1535 of 26 March 2004; SC Res S/RES/1566 of 8 October 2004; SC Res S/RES/1617 of 29 July 2005; SC Res S/RES/1624 of 14 September 2005. 44 SC Res S/RES/1540 of 25 April 2004; SC Res S/RES/1673 of 27 April 2006; SC Res S/RES/ 1695 of 15 July 2006.

191

§ 11 Peace and Security

the qualification of abstract situations as threats to the peace, leads to a competence of the Security Council to take quasi-legislative action. The measures adopted by the Council concerning the suppression of the financing of international terrorism are illustrative in that regard. The Council essentially adopted measures, which corresponded to those included in the International Convention for the Suppression of the Financing of Terrorism. In consequence, the usual way of international lawmaking by treaty is substituted by a Security Council resolution.45 426 c) The Function of Art. 39 within Chapter VII UN Charter. Art. 39 UN Charter serves as a door opener to the realm of Chapter VII. This implies that the provision contains the conditions for coercive Security Council action under Chapter VII, i.e. non-military and military enforcement measures according to Arts. 41 and 42. The decision on the existence of a threat to the peace, a breach to the peace or an act of aggression is of declaratory character. The wording of Art. 39 implies that a formal decision on the existence of at least a threat to the peace is required. This may be viewed as a procedural safeguard which is all the more important as the substantive criteria are not only extremely vague, but in the opinion of most observers, their affirmation is subject to a broad discretion of the Council.46 Thus, the legal clarity, which is necessary for the far-reaching competences under Chapter VII is secured by the formality of the decision under Art. 39 UN. 427 Against this background a new deplorable tendency in the practice of the Council can be observed. This practice foregoes the formal decision under Art. 39, although the Council is clearly acting under Chapter VII. During the dispute concerning Iran’s nuclear programme, the Council first adopted measures under Art. 40 UN, without referring to a threat to the peace within the meaning of Art. 39.47 At this stage, the approach of the Council was arguably correct since Art. 40 does, at least by implication, refer to situations in which no decision under Art. 39 have been taken.48 However, when Iran failed to comply with these provisional measures, the Council decided on economic sanctions and established a new sanctions committee without stating which actions by Iran constituted a threat to the peace. It could have been the nuclear programme as such, the alleged non-co-operation with the IAEA or the failure to comply with the measures adopted under Art. 40. It is precisely the function of the decision under Art. 39 to avoid such ambiguities. Therefore, one can only hope that the approach taken in the context of the Iranian nuclear programme will not be repeated.

Talmon, ‘The Security Council as world legislature’, 99 AJIL (2005), 175 ff. To the procedural constituent, cf. Krisch in Simma, Art. 39 para 45. 47 SC Res S/RES/1696 of 31 July 2006; SC Res S/RES/1737 of 23 December 2006; SC Res S/RES/1747 of 24 March 2007. 48 Cf. below → para 428 f. 45

46

192

I. The System of Collective Security of the United Nations

d) Provisional Measures under Art. 40 UN Charter. As has already been mentioned, the wording of Art. 40 leaves open whether the preconditions of Art. 39 have to be met in order to adopt provisional measures. Neither Art. 39 nor Art. 40 are clear on this issue. Nevertheless, it may be argued that by allowing the adoption of provisional measures even “before making the recommendations or deciding upon the measures provided for in Article 39”, Art. 40 allows to forego the express determination under Art. 39.49 Furthermore, the purpose of Chapters VI and VII, which serve an effective preservation of international peace and security, also favours (mandatory!) provisional measures even if the threshold of a threat to the peace has not yet been reached. The purposes of legal clarity are sufficiently served if Art. 40 is expressly referred to in such a situation. This also seems to be the view prevailing in the Council’s practice which, for instance in the case of the Iranian nuclear programme, expressly relied on Art 40 when it adopted provisional measures.50 Measures under Art. 40 are aimed at forestalling an aggravation of the situation. Typical measures are requests to withdraw troops or to conclude armistice agreements. Such measures typically operate on the thin line between ensuring peaceful settlement of international disputes under Chapter VI and enforcement action under Chapter VII. For this reason, it is necessary to leave a certain margin of discretion to the Security Council as to the exact legal basis of such measures. It is clear, however, that if the measures are intended to be mandatory, they need a legal basis in Art. 40 because under Chapter VI only recommendations are possible. e) Non-Military Measures under Chapter VII. Art. 41 UN serves as the legal basis for all non-military measures adopted by the Security Council in order to force the adressee of the measures to stop its peace-endangering behaviour. The measures expressly mentioned in the provision (complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations) are only referred to as examples; the list is not exhaustive. During the period of the Cold War, the activity of the Security Council in the area of non-military sanctions – and in fact its activity under Chapter VII in general – remained rather limited. In the early 1990ies this picture changed considerably. The Council adopted, among others, non-military sanctions against Iraq, Serbia and Montenegro, Libya, Somalia and Afghanistan. Notably the sanctions policy against the former Iraqi dictator Saddam Hussein, which lasted more than ten years, raised questions of efficiency of economic sanctions. Furthermore, the Iraq sanction regime revealed the necessity of organising the sanctions in a manner which does not affect the supply of the civilian population with elementary goods, such as medicine and nourishment. The experience of these difficulties has led to the development of a new concept of sanctions, the so-called “smart 49 50

In detail cf. Krisch in Simma, Art. 40 para 4. SC Res S/RES/1696 of 31 July 2006, preamble at the end.

193

428

429

430

431

§ 11 Peace and Security

sanctions” or “targeted sanctions”, which are intended to directly affect members of government and other decision-makers, while leaving the civilian population as much unaffected as possible.51 432 The overall development in the area of non-military sanctions under Art. 41 largely corresponds to that under Art. 39: In the Council’s practice, measures under Art. 41, which were at first directed only against States, later were extended to non-State parties in a civil war52 and finally to private individuals.53 433 Furthermore, the legal basis in Art. 41 UN was used by the Security Council in order to adopt abstract measures against abstract threats to international peace and security. As already indicated, this extension of Art. 41 is a logical consequence of the practice under Art. 39 to consider abstract threats to international peace and security as triggering the mechanism of Chapter VII.54 An example of this type of measures may be found in Security Council resolution 1373 (2001) where Member States are obliged to take measures to prevent and suppress the financing of terrorist acts. 434 In addition, Art. 41 UN is today used for the adoption of measures in the area of post-conflict peacebuilding. The international criminal tribunals which were created by the Security Council in order to deal with crimes committed during the conflicts in Yugoslavia and Rwanda are but the most prominent example of activities by the Security Council in this area.55 Largely similar in purpose are recent examples of territorial administration by the United Nations. While early examples of territorial administration were only adopted on the basis of a prior consent by the parties to the conflict (this was the case concerning the situation in Cambodia),56 the more recent practice also resorted to territorial admin51 SC Res S/RES/1737 of 23 December 2006; SC Res S/RES/1747 of 24 March 2007; White/ Abass,‘Countermeasures and Sanctions’, in Evans, 555; Shaw, 1250; Kotzur, ‘Eine Bewährungsprobe für die Europäische Grundrechtsgemeinschaft’, 33 EuGRZ (2006), 19 ff.; Ohler, ‘Die Verhängung von „smart sanctions“ durch den UN-Sicherheitsrat’,41 EuR (2006), 848 ff.; Werthes, Probleme und Perspektiven von Sanktionen als politisches Instrument der Vereinten Nationen, 2003. 52 SC Res S/RES/1127 of 28 August 1997; SC Res S/RES/1173 of 12 June 1998; SC Res S/RES/1176 of 24 June 1998; Report of the Secreary-General on the work of the United Nations, A/55/1, para 100. 53 SC Res S/RES/1267 of 15 October 1999; SC Res S/RES/1333 of 19 December 2000; SC Res S/RES/1373 of 28 September 2001; SC Res S/RES/1390 of 28 January 2002; Bianchi, ‘Assessing the Effectiveness of the UN Security Council's Anti-terrorism Measures’, 17 EJIL (2006), 881 ff.; Cameron, ‘UN targeted sanctions, legal safeguards and the European Convention on Human Rights’, 72 Nordic Journal of International Law (2003), 159 ff. 54 Cf. above → para 418. 55 SC Res S/RES/827 of 25 May 1993; SC Res S/RES/955 of 8 November 1994; Akhavan, ‘The International Criminal Tribunal for Rwanda’, in: Lattanzi/Sciso (eds.), Dai tribunali penali internazionali ad hoc ad una Corte permanente, 1996, 191 ff.; Cassese, ‘From Nuremberg to Rome: International Military Tribunals to the International Criminal Court’, in: Cassese/Gaeta/Jones (eds.), The Rome Statute of the International Criminal Court, 2002,12 ff.; Jones, The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 2000; Shraga/Zacklin, ‘The International Criminal Tribunal for the Former Yugoslavia’,5 EJIL (1994), 360 ff. 56 SC Res S/RES/717 of 16 October 1991; SC Res S/RES/718 of 31 October 1991; SC Res S/RES/745 of 28 February 1992.

194

I. The System of Collective Security of the United Nations

istration against the will of at least one of the parties. Examples of the latter kind are Bosnia, East Slavonia, Kosovo and East Timor.57 The administrative authorities created by the United Nations were given full governmental powers. On the one side, this measure was a necessary prerequisite for the proper fulfilment of their tasks, but on the other it was problematic in terms of separation of powers and rule of law.58 From a procedural point of view, it should be noted that a decision to impose 435 economic sanctions creates a continuous measure, which, in principle, lasts until a decision to the contrary is adopted. This has important consequences with regard to the veto position of the five permanent members of the Security Council: The veto of a single permanent member may block the decision to lift a sanctions regime. This reverses de facto the majority requirements of Art. 27 para. 3 UN, which is why the situation has been named “reverse veto”. As a consequence of the experience of a reverse veto by the United States blocking the alleviation of the sanctions regime for long years, the Security Council started limiting new decisions on sanctions with sunset clauses. With the expiry of the time limit the original veto position is re-established. Continuing the sanctions regime requires a new positive decision, which puts the five permanent members back into the original veto position, i.e. each permanent member can block the decision to continue the sanctions with its veto.59 In the more recent practice of the Security Council “targeted” or “smart sanc- 436 tions” have been adopted against private individuals and private entities. This development must be seen against the background of the negative effects classical economic sanctions tend to have on the civilian population of the adressed State.60 In the practice of the Security Council, the private addressees of smart sanctions are listed by name in Annexes to respective resolutions of the Security Council (so-called “listing”). These lists are then administered by sanctions committees, which are established for each sanctions regime.61 This practice raises issues of legal protection against listing decisions. Under 437 which conditions and with which institutions can individuals concerned submit delisting claims? Initially, no procedure for delisting was available. This lacuna was later partially filled when the Security Council, by resolution 1730 (2006) created a so-called focal point, which collects claims for delisting emanating from individuals or groups subject to sanctions. Individuals and entities con57 SC Res S/RES/1031 of 15 December 1995; SC Res S/RES/1144 of 19 December 1997; SC Res S/RES/1174 of 15 June 1998; SC Res S/RES/1037 of 15 January 1996; SC Res S/RES/ 1244 of 10 June 1999; SC Res S/RES/1272 of 25 October 1999. 58 For a detailed analysis on those legal issues cf. Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond, 2008; Wilde, International Territorial Administration, 2008. 59 Cf. for example SC Res S/RES/1816 of 2 June 2008 (Somalia). 60 Cf. above → para 431. 61 The most well known example of this practice is the Al-Qaida sanctions committee established pursuant to SC Res S/RES/1267 of 24 November 1999, for details cf. , accessed 24 February 2014.

195

§ 11 Peace and Security

cerned may directly address the focal point. However, since December 2009, requests for de-listing relating to the Al-Qaida sanctions regime are processed through the so-called Office of the Ombudsperson, which was specifically created for that purpose in 2009.62 Claims concerning exemptions from the Al-Qaida sanctions (in contrast to claims for a complete delisting) were, however, again referred to the focal point in December 2012.63 438 Under both the procedure of the Ombudsperson and the focal point, the final decision on delisting rests with the respective sanctions committee. The respective procedures are, however, quite different in character. While the focal point basically operates as a mailbox for the collection of claims for delisting, the Ombudsperson was granted a certain procedural autonomy. For example, it may, at least to some extent collect evidence. Furthermore, it may propose delisting of an individual or an entity to the sanctions committee, which can only reject such a proposal by negative consensus, unless one of its members requests that the matter be deferred to the Security Council. In such a case the Council would, then, decide under its ordinary voting procedures. In consequence, regarding delisting under any of the sanctions regimes, no procedure giving full access to the individual is available. Perhaps even more importantly, there is also no procedure which could lead to a binding decision which would require the Council to delist a person or an entity.64 In terms of rule of law and legal protection of the individual, the situation is thus still highly unsatisfactory. The authorities of the Member States (including the national courts) consequently face a difficult situation. On the one hand they are bound to respect Security Council resolutions, and thus in principle required to enforce the targeted sanction. At the same time, however, they are subject to constraints of rule of law and legal protection, which require access to court in order to challenge interferences with individual legal positions, even if the interference is authorised by the UN Security Coun-

62 SC Res S/RES/1904 of 17 December 2009, para 20; for details cf. , accessed 24 February 2014. 63 SC Res S/RES/2083 of 17 December 2012, para 37. 64 Cf. e.g. Ciampi, ‘Security Council Targeted Sanctions and Human Rights’, in: Fassbender (ed.), Securing Human Rights, 2011, 98 at 138 f.; Verdirame, The UN and Human Rights, 2011, 314; Genser/Barth, ‘When Due Process Concerns Become Dangerous: The Security Council’s Regime and the Need for Reform’, 33 Boston College Int’l & Comp. L. Rev. (2010), 1 at 6; Sullivan/de Goede, ‘Between Law and the Exception: The UN 1267 Ombudsperson as a Hybrid Model of Legal Expertise’, 26 Leiden J. of Int’l L. (2013), 833 at 842; Santos Vara, ‘The Consequences of Kadi: Where the Divergence of Opinion Between EU and International Lawyers Lies’, 17 ELJ (2011), 252 at 268 f.

196

I. The System of Collective Security of the United Nations

cil. Confronted with the alternative between these two options, the European Court of Justice opted for legal protection.65 In this context, Art. 103 UN is often mentioned as a possible solution giving 439 priority to the enforcement of the sanctions regime. However, this solution seems doubtful given the fact that Art. 103 and its decision to give priority to obligations under the Charter is a solution which is intricately linked to the classical perception of the Charter creating rights and obligations in an inter-State scenario. The application of Art. 103 UN to a situation where individual human rights guarantees might be suppressed by Security Council decisions is anything but obvious. At least one may doubt that such effect was intended by the provision. In order to comply with minimum standards of legal protection and requirements of rule of law, the system of “targeted sanctions” urgently needs procedural supplementation in order to guarantee these minimum standards. The development is an excellent illustration of the need for mechanisms of individual legal protection whenever new forms of public authority are created. f) Military Enforcement Action under Art. 42 UN. Compared to the previous 440 mechanism under the League of Nations Covenant, Art. 42 UN contains a decisive improvement of the system of collective security established by the UN Charter. While the Council of the League of Nations only had the possibility to recommend military action against an aggressor State, the Charter enables the Security Council to execute the military operations itself with troops which are to be put at its disposal. For this purpose Art. 43 UN envisages the conclusion of special agreements under which the Member States provide the Security Council with the necessary military capacity. However, until today, no such agreement has been concluded. Thus, the originally intended form of direct use of military force by the Security Council itself never became operative. In addition, the Cold War led to a practical blockade of the Security Council in all matters relating to collective enforcement measures. During that period the only notable actions in this respect are the authorisation for the establishment of a peacekeeping force for the Congo (1960-1964)66 and the military enforcement of an embargo against Southern Rhodesia.67 These measures may be seen as predecessors of the later practice, which the Security Council adopted after the end of the Cold 65 Initially, the (then) European Court of First Instance refused to review the EU regulations transforming the Security Council’s resolution into European Union law (CFI T-315/01 Kadi v Council and Commission, 2005 ECR II-3649). This was overruled by the ECJ’s Grand Chamber on appeal (ECJ C-402/05 P Kadi and Al Barakaat International Foundation v Council and Commission, 2008 ECR I-6351) and the EU measures transposing the resolution have thus been subjected to human rights scrutiny. The basic principle of the ECJ’s Kadi ruling has recently been repeated in follow-up proceedings concerning Mr Kadi: EGC T-85/09 Kadi v. Commission, 2010 ECR II-5177 (invalidating the Commission regulation that maintained Mr Kadi on the list) and ECJ (Grand Chamber) C-584/10 P et al. Commission/UK v. Kadi, judgement of 18 July 2013 (upholding the General Court’s ruling). For an account of the European Courts’ rulings in these cases cf. e.g. Santos Vara (n 64), 252 ff.; Kokott/ Sobotta, ‘The Kadi Case: Constitutional Core Values and International Law – Finding the Balance’, 23 EJIL (2012), 1015 ff. 66 SC Res S/RES/143 of 14 July 1960. 67 SC Res S/RES/253 of 29 May 1968.

197

§ 11 Peace and Security

War, according to which, instead of dispatching its own troops, the Security Council authorises the use of force by individual Member States or regional organisations. Landmarks of this development may be seen in the authorisation of the military defence of Kuwait after the Iraqi invasion in 1990,68 the authorisation of use of force by the UN peacekeeping force in Somalia,69 and finally the authorisation to use force on the territory of the former Yugoslavia in order to enforce no-fly zones, a trade embargo and the protection of so-called safe havens.70 The concept of authorisation, thus, has established itself in practice, despite the fact that it was criticised for an overly lax interpretation of the legal foundations in Chapter VII and for the delegation of powers from the Security Council to the Member States or regional organisations that undertake the operative action on the ground.71 441 g) Discretion of the Security Council – Limits and Judicial Control. The general principle of conferred powers, which applies to all International Organisations,72 also limits the powers of the Security Council. There are indications in the drafting history that at least some delegates assumed that the Security Council would be granted unlimited discretion in the exercise of its Chapter VII powers. Thus, the Committee on Enforcement Arrangements decided at the San Francisco Conference “to leave to the Council the entire decision as to what constitutes a threat to the peace, a breach of the peace or an act of aggression.”73 The Subcommittee of the Committee on Legal Questions at the San Francisco Conference, by contrast, stated more generally that “[i]t is to be understood […] that if an interpretation made by any organ of the Organisation […] is not generally acceptable it will be without binding force.”74 Additionally, State practice and the majority of authors who concerned themselves with the subject reject the idea of unlimited discretion by the Security Council.75 442 The fact that the competences of the Security Council are, in principle, limited by the UN Charter does not exclude a broad margin of appreciation concerning both the determination of the existence of a threat to the peace, a breach of the peace or an act of aggression within the meaning of Art. 39 UN and the choice of measures to be adopted under Art. 41 or Art. 42 UN. Such a broad margin of appreciation is necessary given that enforcement measures are a politically highly sensitive issue and that an assessment and evaluation of facts and SC Res S/RES/678 of 29 November 1990. SC Res S/RES/791 of 3 December 1992. 70 Cf. Desch, ‘Safety Zones’ in Wolfrum, MPEPIL; in more detail, Simon, UN-Schutzzonen – Ein Schutzinstrument für verfolgte Personen?, 2005. 71 Blokker, ‘Is the authorization authorized? Powers and practice of the UN Security Council to authorize the use of force by ‘coalitions of the able and willing’’, 11 EJIL (2000), 541 at 542 f.; de Wet, The Chapter VII Powers of the United Nations Security Council, 2004, 256 ff.; Doehring, para 466; Krisch in Simma, Art. 42 paras 25 ff.; Shaw, 1136. 72 Cf. → § 6 para 197. 73 UNCIO 12, 505 (emphasis added). 74 UNCIO 13, 832. 75 For details cf. Krisch in Simma, ‘General Framework’, para 38. 68

69

198

I. The System of Collective Security of the United Nations

possible reactions and consequences is required. This position is confirmed by the Tadic decision, in which the Appeals Chamber of the ICTY on the one hand underlined the principle of conferred powers and the ensuing legal limitations of Security Council action, while at the same time speaking of “a very wide discretion”.76 This discretion is, however, limited by the principle of proportionality, which applies when choosing between military and non-military action, as well as when deciding on one specific measure from among those mentioned in Art. 41 or Art. 42 UN. Again, the wording used by the Charter allows for broad discretion. Under Art. 41 UN the Security Council “may decide what measures not involving the use of armed force are to be employed to give effect to its decisions”. Art. 42 leaves it to the Security Council whether or not it “considers” that measures provided for under Art. 41 “would be inadequate or have proved to be inadequate”. Therefore, a violation of the proportionality principle can only be assumed where the impact of the measures is manifestly out of proportion to the aims pursued.77 More recently, the introduction of targeted sanctions has triggered a debate on 443 the application of human rights standards to Security Council decisions. On a political level, the 2005 World Summit called upon the Security Council “to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them, as well as for granting humanitarian exemptions.”78 In some cases appeals against the national implementation of targeted sanctions has led to the invalidation of the respective national measures. In this regard, the most intensively debated decisions were made by the courts of the European Union. While the Court of First Instance limited its review to possible violations of ius cogens,79 the ECJ has opted for a full review on the basis of EU human rights guarantees.80 Given the fact that decisions by the Security Council must be viewed as one form of the exercise of public authority, international law must insist on respecting general principles of rule of law and human

ICTY Appeals Chamber, The Prosecutor v. Dusko Tadic, 35 ILM (1996), 42, para 28. Krisch in Simma, ‘General Framework’, para 47. 78 2005 World Summit Outcome Document, GA Res. A/RES/60/1 of 24 October 2005, para 109. 79 Cf. CFI, T-306/01, Yusuf and Al Barakaat 2005 ECR II-5533, para 275; Fassbender, ‘Tageted Sanctions Imposed by the UN Security Council and Due Process Rights’ 3 IOLR (2006) 437; Biersteker/Eckert (eds.), Strengthening Targeted Sanctions through Fair and Clear Procedures, 2006; Bartelt/Zeitler, ‘“Intelligente Sanktionen” zur Terrorismusbekämpfung in der EU’, 14 EuZW (2003), 712 at 716; Kotzur (n 51) at 24; Ohler (n 51) 848 ff. 80 ECJ Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat, ECR 2008 I-6351, paras 256 ff. 76

77

199

§ 11 Peace and Security

rights standards. Even in their improved form,81 the possibilities for review at the UN level do not meet these requirements.82 444 A particularly delicate issue concerns the question of judicial review of the Security Council.83 The issue has a procedural and a substantive dimension. The substantive question is whether there should be any legal review of Security Council decisions at all. This substantive question is to be distinguished from the conclusion reached above that the Security Council is legally bound by the UN Charter and certain fundamental norms of international law relating to the rule of law and international human rights. Accepting these limitations as legally binding does not necessarily imply that there should be judicial review. In the Lockerbie case President Schwebel forcefully argued against any power of judicial review by the ICJ over decisions which the Security Council adopts under Chapter VII of the Charter.84 Against this, it may be argued that judicial review has evolved into a general principle of law which also applies to the UN Charter.85 The more modern view of the issue would therefore be that the ICJ may review the decisions of the Security Council, including those which have been taken under Chapter VII of the Charter. 445 There remains, however, the procedural question, how a dispute on the legality of such decisions could be brought before the ICJ. Here, the limited competence of the ICJ, which presupposes consent by the parties to the dispute and is limited to States (Art. 34 ICJ-Statute), has important drawbacks. In spite of the UN Charter labeling the ICJ in Art. 92 as the “principal judicial organ of the United Nations”, the Court has no competence to act as a “constitutional court” of the organisation. Disputes between organs relating to their competences cannot, therefore, be directly decided by the ICJ. However, it is possible that the legality of a Security Council resolution may be incidentally reviewed by the ICJ in a dispute between two States. An example of this may be found in the Lockerbie case, in which the UK and Libya fought about Libya’s obligation on the basis of Security Council resolutions 731 (1992) and 748 (1992) to extradite two individuals who were suspected by the UK to have been involved in the 1992 Cf. → paras 446 f. Bothe, ‘Security Council's Targeted Sanctions against Presumed Terrorists: The Need to Comply with Human Rights Standards’, 6 Journal of International Criminal Justice (2008), 541-555; Foot, ‘The United Nations, Counter Terrorism and Human Rights: Institutional Adaptation and Embedded Ideas’ 29 HRQ (2007) 489; Kanetake, ‘Enhancing Community Accountability of the Security Council through Pluralistic Structure: The Case of the 1267 Committee’ 12 Max Planck UNYB (2008) 113; Johnstone, ‘Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit’ 102 AJIL (2008) 275, 294-299; Heupel, ‘Multilateral Sanctions against Terror Suspects and the Violation of Due Process Standards’ 85 Intl Aff (2009) 307. 83 de Wet (n 71) 30 ff.; Martenczuk, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrats, 1996, 240 ff.; Martenczuk, ‘The Security Council, the International Court and judicial review: what lessons from Lockerbie?’, 10 EJIL (1999), 517 ff. 84 ICJ, Diss. Op. President Schwebel, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, ICJ Rep. 1998, 155 at 165 f. 85 For a comprehensive analysis cf. de Wet (n 71) 69-129. 81

82

200

II. Maintaining Peace and Security through Regional Organisations

Lockerbie bombing. For procedural reasons, the Court was unable to address the issue of judicial review of Security Council resolutions. While the issue was addressed in several separate or dissenting opinions, the positions of the individual judges are too divergent to allow for any deductions regarding a possible general opinion of the Court. An alternative possibility to obtain a legal evaluation of a Security Council 446 resolution is the advisory competence of the Court according to Art. 96 UN. This provision enables the General Assembly and the Security Council to request an Advisory Opinion on any legal question. Thus, the General Assembly could ask for an Advisory Opinion on the legality of a given Security Council Resolution. While Advisory Opinions of the Court are not legally binding they are nevertheless considered to provide for an authoritative interpretation of the law which is usually respected within the UN.86 An overall assessment of the possibilities and limits for judicial review of Se- 447 curity Council decisions under Chapter VII of the Charter has to take into account the eminently political character of such decisions, which will inevitably, and rightly, result in judicial self-restraint on the part of the ICJ. At the same time, the importance of judicial review should not be underestimated, even in the area of use of force and similarly sensitive issues. The Nicaragua decision87 and the judgment in the Uganda-Congo case88 demonstrate that the Court is willing and able to make statements on such controversial issues as self-defence and use of force. II. Maintaining Peace and Security through Regional Organisations

The relationship between the United Nations and regional organisations with 448 regard to matters relating to international peace and security is regulated in Chapter VIII (Art. 52 – Art. 54) UN Charter. These provisions, which were highly debated in Dumbarton Oaks and at the San Francisco Conference, reflect a compromise between adherents of a centralised responsibility of the United Nations for the maintenance of international peace and security and others, who believed that regional approaches deserved an explicit legalisation in the Charter. It is not without cause that the compromise between universalism and regionalism, which was ultimately reached in San Francisco, has been qualified as ‘ambivalent’.89 On the one hand, regional arrangements for the maintenance of peace and security were explicitly recognised in the Charter, but on the other, the exact relationship of such regional arrangements with the universal mechanism under the control of the Security Council remained largely unclarified. No-

86 For details cf. Frowein/Oellers-Frahm, in: Zimmermann et al. (eds.), The Statute of the International Court of Justice – A Commentary, 2nd edn. 2012, Art. 65 paras 44 ff. 87 ICJ, Military and Paramilitary Activities in and against Nicaragua, ICJ Rep. 1986, para 188. 88 ICJ, Case Concerning Armed Activities on the Territory of the Congo, ICJ Rep. 2005, 168. 89 Neuhold, Internationale Konflikte—verbotene und erlaubte Mittel ihrer Austragung, 1977, 152 footnote 336.

201

§ 11 Peace and Security

tably the relationship between regional organisations of collective self-defence (Art. 51 UN) and regional collective security was deliberately left open.90 449 However, these inconsistencies should not be overemphasised. Over the years the originally clear difference between the universalist and the regionalist approaches to international peace and security has melted away considerably. Notably after the end of the Cold War the original antagonism between the two concepts has been gradually replaced by a cooperative framework including both the universal mechanism established under Chapters VI and VII UN Charter and regional activities for the maintenance of peace and security.91 1. The Notion of Regional Organisations

a) Criteria for the Qualification of an International Organisation as “Regional”. The literal meaning of the term “regional” seems to suggest a certain geographical proximity of the members of a regional organisation. For most regional organisations this association is certainly correct. This fact has led many authors to assume that at least some geographical link is required. In this respect, reference is also made to the ‘local’ character of the disputes mentioned in Art. 52 para 2 UN. Nevertheless a solely geographical approach to the notion of “regionality” would seem too limited in scope given the overall object and purpose of Chapter VIII, which is to capitalise on pre-existing greater familiarity with the subject-matter of a dispute, as well as enhanced legitimacy and solidarity, which is presumed to exist at the regional level.92 451 It is questionable, however, whether familiarity with the subject matter, enhanced legitimacy, and solidarity can arise only from a geographical proximity of the Member States of the organisation. Other factors such as a common history or common cultural traditions, stemming for example from a common religion, may equally foster solidarity and closeness among States. The Organisation of Islamic Cooperation is an example in point,93 as is the Commonwealth of Nations, with its members spread all over the globe.94 What is required by ‘re450

Russel/Muther, A History of the United Nations Charter, 1958, 697-702. Cf. generally Walter, Vereinte Nationen und Regionalorganisationen, 1996, 39-47. 92 For an overview of possible advantages and disadvantages of regional conflict resolution as opposed to universal activities cf. Diehl, ‘New Roles for Regional Organizations’, in: Crocker et al (eds.), Leashing the Dogs of War: Conflict Management in a Divided World, 2007, 535 at 541– 543. 93 Cf. Walter in Simma, Art. 52 para 67 f. 94 The qualification of the Commonwealth of Nations as a regional organisation within the meaning of Chapter VIII is viewed controversely: Farer, ‘The Role of Regional Organizations in International Peacemaking and Peace-keeping: Legal, Political and Military Problems’ in: Kühne (ed.), Blauhelme in einer turbulenten Welt, 1993, 275, 276 f; Nicol, ‘Interregional Coordination within the United Nations: The Role of the Commonwealth’, in: Andemicael (ed.), Regionalism and the United Nations, 1979, 132; Eagleton, International Government, 1957, 562 f.; Goodrich/ Hambro, Charter of the United Nations, 2nd edn. 1949, 312; Kühne, ‘Völkerrecht und Friedenssicherung in einer turbulenten Welt: Eine analytische Zusammenfassung der Grundprobleme und Entwicklungsperspektiven’, in: Kühne (ed.), Blauhelme in einer turbulenten Welt, 1993, 17 at 81. 90

91

202

II. Maintaining Peace and Security through Regional Organisations

gional’ is thus not geographical proximity but close and reliable ties between the members of the organisations; these ties must lead to the expectation that the organisation can provide specific contributions to the maintenance of international peace and security which go beyond what would be achievable at the universal level by the United Nations.95 b) Specific Structural Requirements. Are there specific structural require- 452 ments for an organisation to fall within the scope of Chapter VIII? It should be noted in this context, that Art. 52 para 1 UN does not use the term “organisation” but instead speaks of “regional arrangements or agencies” (in French: “accords ou organismes régionaux”). Against this background, and given the fact that an organisation like the OSCE, which is not based on a formally binding international treaty,96 has nevertheless declared itself as organisation under Chapter VIII and is treated in the UN as such, no formally binding treaty is required for organisations to be treated as falling under Chapter VIII. Also in other areas structural requirements are considered less important than 453 they used to be. The requirement of autonomous organs has been gradually abandoned,97 and the debate on a minimum number of participants has turned out largely theoretical and without any practical impact. Furthermore, the activities of ECOWAS and the European Union in the area of international peace and security have shown that also organisations with a primarily economic focus may become engaged in the maintenance of regional peace and stability and thus fall within the scope of Chapter VIII.98 Hence, the functional approach, which has already determined the criterion of regionality, also proves helpful regarding the structural requirements. It is not necessary to qualify organisations in an abstract manner as organisations under Chapter VIII. Rather, the question should be asked whether specific activities of an organisation find their basis in Chapter VIII. The functional approach finally allows finding a solution to one of the issues 454 of interpretation of Chapter VIII, which was most controversially debated during the Cold War, namely the relationship between collective security and collective self-defence. During the Cold War the predominant position was that organisations of collective self-defence remained completely outside the scope of Chapter VIII. A number of systematic and teleological reasons were advanced for this position. A prominent argument in this direction was an alleged structural parallel between the UN and regional organisations under Chapter VIII. Since the UN itself was conceived as a system of mutual collective security, so the argument went, regional organisations under Chapter VIII had to be construed on a similar

Cf. generally Walter (n 91) 39–47. → paras 486 ff. 97 Pernice, Die Sicherung des Weltfriedens durch Regionalorganisationen, 1972, 20 f.; Walter in Simma, Art. 52 para 20. 98 Walter in Simma, Art. 52 paras 62 ff. and 72 f. 95

96

203

§ 11 Peace and Security

basis. Another argument related to the systematic position of Art. 51 UN Charter, which is outside Chapter VIII. 455 None of these reasons is convincing given the fact that, right from the beginning of the United Nations, regional organisations, which assumed both tasks of collective security and of collective self-defence, existed. The OAS, for example, always contained a collective self-defence clause and was thus not limited to collective security. 456 Another reason for reconceptualising the notion of regional organisations may be seen in the changing tasks such organisations have been performing during the last twenty years.99 In addition to providing for collective security among their members (i.e. against internal threats emanating from members of the organisation) and collective self-defense (against armed attacks form the outside), since the end of the Cold War a new area of activities has developed, which could be described as supporting the United Nations in ensuring the organisation’s and its members’ “external security”.100 “External security” is understood to cover activities which do not relate to collective security strictu sensu because the measures adopted are either directed against third States or against non-State actors which operate outside the territory of the organisation’s members. Neither are they covered by collective self-defense because of the lack of an armed attack against a member of the organisation. The first measures of this type were the activities of NATO, EU and WEU in the former Yugoslavia. More recent examples concern the EU operation ATALANTA combating piracy in the waters before the coast of Somalia101 and NATO’s intervention in Libya in 2011.102 In the 1990ies such activities were aptly labeled as “new tasks” of NATO and WEU.103 457 In sum, the notion of “regional arrangement or agency” under Art. 52 UN may be defined as follows:104 it covers unions of two or more States or other (partial) subjects of international law from which, for reasons of the specific ties which bind them, specific contributions for the maintenance of international peace and security may be expected. These ties can be, and quite often are, of a geographic nature. Nevertheless, other factors such as historical or cultural proximity are not excluded. While actions based on self-defense find their exclusive basis in Article 51 UN, this does not rule out that the same organisation may, in other circumstances, act under Chapter VIII. Instead of qualifying the organisation as such, it is the legal basis for concrete actions that should be determined. Cf. Arrighi, ‘Organization of American States’ in Wolfrum, MPEPIL, paras 12 and 22. In more detail Körbs, Die Friedenssicherung durch die Vereinten Nationen und Regionalorganisationen, 1997, 554 ff. 101 Francioni/Ronzitti, War by Contract, Human Rights, Humanitarian Law, and Private Contractors, 2011, 39; Orakhelashvili, Collective Security, 2011, 260. 102 For an overview cf. Fox, ‘Regime Change’ in Wolfrum, MPEPIL, paras 45 ff. 103 Nolte, ‘Die neuen Aufgaben von NATO und WEU: Völker- und verfassungsrechtliche Fragen’, 54 ZaöRV (1994), 95 at 102 ff.; Schweisfurth, Ch. 12 paras 6 ff; cf. also Reinalda, Routledge History of International Organizations, 2009, 571 f. 104 For a detailed definition cf. Walter (n 91) 124 ff. 99

100

204

II. Maintaining Peace and Security through Regional Organisations

The broad term “arrangement” allows the application of Chapter VIII to organisations which lack a formal founding treaty under international law, such as the OSCE.105 2. Peaceful Settlement of International Disputes by Regional Organisations

The question of regional priority with regard to the peaceful settlement of 458 international disputes was hotly debated, notably at the San Francisco Conference and during the Cold War period. A number of different points should be distinguished: First, a general principle of regional priority may be derived from Art. 52 paras 2 and 3 UN. While Art. 52 para 2 contains obligations for Member States of a regional organisation, Art. 52 para 3 deals with obligations of the United Nations. According to Art. 52 para 2, the members of a regional organisation “shall make every effort” to settle their “local” disputes by using the instruments provided for at the regional level. Another source for such an obligation may be found in the constitutive instrument of the regional organisation in question. Thus, Art. 24 OAS-Charter, for example, provides for a principle of regional priority, which has been labelled as “Try OAS First”.106 Second, the explicit reference in Art. 52 para 4 UN, according to which the 459 rights of investigation of the Security Council under Art. 34 UN remain unimpaired, clearly indicates that action by the Security Council under these provisions is not blocked by activities of peaceful settlement at the regional level. Similar considerations apply regarding an implicit right of investigation contained in Art. 39 UN, which serves the assessment of whether or not a specific situation or dispute constitutes a threat to the peace, a breach of the peace or an act of aggression.107 Similarly, the right of members of a regional organisation to bring a dispute 460 to the attention of either the General Assembly or the Security Council of the United Nations remains unaffected beacause Art. 35 UN is also explicitly mentioned in Art. 52 para 4 UN. In this context some confusion has arisen because the obligations for the parties to a dispute under Art. 52 para 2 UN and the obligations of other Member States of a regional organisation are sometimes not distinguished clearly enough. While the principle of regional priority under Art. 52 para 2 UN is addressed to the parties to the dispute, the right to bring a dispute or situation to the attention of the General Assembly or the Security Council under Art. 52 para 4 and Art. 35 UN refers to the (other) members of the organisation.108

Walter in Simma, Art. 52 para 48. Walter, ‘Regional Arrangements and the United Nations Charter’, in Wolfrum, MPEPIL, para 10; cf. also Walter in Simma, Art. 52 para 81. 107 Regarding this right, cf. de Wet (n 71) 183; Martenczuk, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrats, 1996, 214. 108 Cf. Gerold, Die Sicherung des Friedens durch die OAS, 1971, 65. 105

106

205

§ 11 Peace and Security

Taking into account these general principles, which may be derived from Art. 52 paras 2, 3 and 4 UN, the decisive issue of interpretation regarding the respectives roles of the United Nations and regional organisations in the area of peaceful settlement of international disputes remains the following: May the Security Council, while regional attempts of peaceful settlement are still going on, make use of its rights under Art. 36 para 1 and Art. 37 para 2 UN (recommendations regarding the substantive or procedural settlement)? The most plausible way of dealing with possible conflicts of activities is to oblige the Security Council to take into consideration the effectivity of regional measures when deciding on its own course of action. Article 36 UN speaks of “appropriate” procedures or methods of adjustment. Therefore, when deciding on the referral of a matter to a regional organisation under Article 52 para 3 UN, the Security Council has to assess whether such a procedure would be appropriate. If it comes to the conclusion that such procedures would most likely prove ineffective, a corresponding recommendation is “inappropriate” within the meaning of Article 36 para 1 UN. 462 Similarly, the wording of Article 37 para 2 UN requires the Security Council to assess whether “continuance of the dispute is in fact likely to endanger the maintenance of international peace and security”. This wording includes a broad margin of appreciation by the Security Council, in which an assessment of the effectiveness of activities by a regional organisation could easily be included.109 461

3. Enforcement Action by Regional Organisations

The conditions for regional enforcement action are pivotal for the relationship between the United Nations and regional organisations. Art. 53 UN provides for the basic principles. Leaving apart the by now obsolete enemy State clause in Art. 53 para 1 s 2 part 2 UN,110 the provision addresses two distinct situations: the “utilisation“ of regional organisations by the Security Council (Art. 53 para 1 s 1 UN), and autonomous enforcement action by the regional organisation, which is made subject to Security Council authorisation (Art. 53 para 1 s 2, part 1 UN). In order to properly understand the provision, the notion of “enforcement action” first needs to be clarified (a). On that basis it is then possible to inquire into the conditions under which the Security Council may „utilise“ regional organisations (b), before, finally, analysing different types of authorisation (c). 464 a) The Notion of “Enforcement Action“in Art. 53 para 1 UN. The term “enforcement action” is open to interpretation. Over the years different approaches have emerged. In the 1960ies, the view was expressed that the mandatory or non-mandatory character of regional measures was decisive for their qualifica463

109 110

206

For a more detailed presentation of this argument cf. Walter in Simma, Art. 52 para 108. Cf. the unanimous vote adopting GA Res A/RES/60/1 of 16 September 2005, para 177.

II. Maintaining Peace and Security through Regional Organisations

tion as enforcement action.111 Today, the debate largely concerns the question of whether the term covers both military and non-military measures,112 or is limited to measures involving the use of military force.113 For many, the term enforcement action must be interpreted from the perspective of Chapter VII UN Charter. According to this approach, the parallels between Art. 52 and Chapter VI on the one hand, and Art. 53 and Chapter VII on the other, indicate that the enforcement action referred to in Art. 53 para 1 UN is to be construed in parallel with Chapter VII, thus also covering non-military measures addressed in Art. 41 UN.114 A different approach analyses the function of Art. 41 and 42 UN in view of 465 the general prohibition of the use of force contained in Art. 2 para 4 UN.115 Both, Arts. 41 and 42 provide a legal justification for measures which might otherwise be contrary to international law.116 Art. 42, however, is unique in the sense that – apart from the right of self-defense under Art. 51 – it is the sole provision which can justify action which would otherwise contravene the prohibition of the use of force in Art. 2 para 4 UN.117 Since the prohibition of the use of force is generally considered to form part 466 of ius cogens, the authority of the Security Council under the Charter is unique in the sense that it justifies behaviour which would otherwise be considered a

111 Meeker, ‘Defensive Quarantine and the Law’ 57 AJIL (1963), 515 at 520 ff; Chayes, ‘Law and the Quarantine of Cuba’ 41 Foreign Affairs (1963), 550 at 556, for details cf. below → paras 469 f. 112 Beyerlin, ‘Regional Arrangements’ in Wolfrum (ed.), United Nations: Law, Policies and Practice, Vol. 2, 1995, 1040 para 6; Wolfrum, ‘Der Beitrag regionaler Abmachungen zur Friedenssicherung: Möglichkeiten und Grenzen’ 53 ZaöRV (1993), 576 at 580; Cassese, International Law in a Divided World, 1986, 244 f. 113 Frowein, ‘Zwangsmaßnahmen von Regionalorganisationen‘ in: Beyerlin et al. (eds.), Recht zwischen Umbruch und Bewahrung. Völkerrecht – Europarecht – Staatsrecht, Festschrift für Rudolf Bernhardt, 1995, 57 at 66; Frowein, Regionale Sicherheitssysteme und nationales Recht, Sitzungsbericht Q zum 60. Deutschen Juristentag, 1994; Frowein, ‘Legal Consequences for International Law Enforcement in Case of Security Council Inaction’ in: Delbrück (ed.), The Future of International Law Enforcement – New Scenarios, New Law?, 1993, 111 at 121 f; Frowein, ‘Die Intervention im heutigen System der Weltverfassung’ in: Jäckel (ed.), Ist das Prinzip der Nichteinmischung überholt?, 1995, 9 at 18; Jiménez de Aréchaga, ‘La coordination des systèmes de l’ONU et de l’OEA 111 RdC (1964 I) 419 at 480 f; Goldman, ‘Action by the Organization of American States: When is Security Council Authorization Required under Article 53 of the United Nations Charter?’ 10 UCLA Law Review (1962-63) 837 at 845 f; cf. Akehurst ‘Enforcement Action by Regional Agencies’ 42 BYIL (1967), 175 at 195; Kolb, ‘Article 53’ in: Cot/Pellet/Forteau (eds.), La Charte des Nations Unies, Commentaire article par article, 3rd edn. 2005, 1415 f. 114 Wolfrum, ‘Der Beitrag regionaler Abmachungen zur Friedenssicherung: Möglichkeiten und Grenzen’ 53 ZaöRV (1993), 576 at 580; Akindele, The Organization and Promotion of World Peace, A Study of Universal-Regional Relationships, 1976, 56; Pernice (n 97) 114; for further details of this position cf. Walter in Simma, Art. 53 para 12. 115 For details of the following argument cf. Walter (n 91) 201–217. 116 For this function of decisions under Article 41, cf. Krisch in Simma, ‘Chapter VII Powers: The General Framework’, paras 40 ff. 117 Cf. Randelzhofer/Dörr in Simma, Art 2 (4) paras 44, 46 ff.

207

§ 11 Peace and Security

violation of ius cogens.118 On the basis of the uniqueness of the Security Council power just described, the purpose of the requirement for Security Council authorisation in Art. 53 UN becomes clear: it ensures the control of the Security Council over action which would otherwise contravene the prohibition of the use of force contained in Art. 2 para 4 UN. With regard to non-military measures (notably economic or diplomatic sanctions) no comparable monopoly of the Security Council needs to be considered. Hence, such measures do not necessarily need Security Council justification in order to be applied legally. If such measures could be unilaterally justified (for example as counter-measures), then there are no reasons to prohibit their collective application in the context of a regional organisation. The mere fact that collective measures might have a greater impact than unilateral decisions cannot in itself make a decisive difference.119 This (restrictive) interpretation of the notion of enforcement action in Art. 53 para 1 UN is also confirmed by State practice and the practice of regional organisations concerned.120 467 b) “Utilisation” by the Security Council on the Basis of Art. 53 para 1 UN. In its practice the Security Council never formally “utilised” regional organisations under Art. 53 para 1 UN. However, it has operated with a formula under which the UN Member States were asked to adopt certain measures “acting nationally or through regional arrangements or agencies”.121 This formula leaves the precise legal basis of the Security Council decision open. Apart from Art. 53 para 1 UN also Art. 48 para 2 UN could justify such decisions by the Security Council. Under the latter provision decisions of the Security Council “shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.”122 The provision mainly addresses UN Specialised Agencies. However, it also refers to regional organisations. Therefore, the respective fields of application of Art. 53 para 1 and Art. 48 para 2 UN need clarification. The wording of Art. 53 para 1 s 1 does not expressly restrict the Security Council to utilising regional arrangements or agencies for enforcement action taken to maintain or restore peace only within that organisation.123 Nevertheless, some writers argue that the primary function of a regional organisation, is to keep peace within this organisation124 and that, consequently, a regional organisation can only take measures within the regional community, that is to say not against third

118 On the relationship of customary international law belonging to ius cogens and the development of UN law, notably regarding the powers of the Security Council under Chapter VII, cf. Krisch in Simma, ‘Chapter VII Powers: The General Framework’, para 46. 119 Herdegen, Völkerrecht, § 44 para 4. 120 Cf. Walter in Simma, Art 53 paras 18 ff. 121 SC Res S/RES/770 of 13 August 1992, Op. 2; SC Res S/RES/776 of 14 September 1992, Op. 3. 122 Emphasis by the authors. 123 Kelsen, The Law of the United Nations, 1951, 327. 124 Pernice (n 97) 149.

208

II. Maintaining Peace and Security through Regional Organisations

States.125 Others have argued that the Security Council must be able to utilise regional organisations for enforcement actions at least in so far as the Member States of such arrangements are bound by the Charter to execute the decisions of the Security Council.126 In the absence of clear wording in Art. 53 para 1 UN, the answer must rely on 468 systematic considerations and the purpose of Chapter VIII in general. The raison d’être of Chapter VIII is to make available the specific contributions of regional organisations to the maintenance of international peace and security, which result from the special ties that bind their members. This consideration is reflected in the requirement of “appropriateness for regional action” in Art. 52 para 1, the provision which sets out the general concept of regional action within the framework of the Charter.127 If a regional arrangement or agency acts completely outside its region (as defined in the broad terms suggested by recent practice),128 there are no reasons to assume that such action occurs within the framework of Chapter VIII. The dispute in question is clearly not appropriate for regional action.129 Similar considerations apply regarding measures which are taken against States that are not members of the regional arrangement or agency concerned. In consequence, Art. 53 para 1 UN must be considered to constitute the legal basis for action against members of the regional organisation concerned, while Art. 48 para 2 UN applies for measures against third States.130 Art. 53 para 1 UN does not create additional powers of the Security Council 469 beyond those existing under Chapter VII. To the contrary, systematic considerations lead to the conclusion that the conditions of Chapter VII must be met, in order to enable the Security Council to authorise regional enforcement action under Art. 53 para 1 s 2 UN, i.e. there must be a threat to the peace, a breach of the peace or an act of aggression.131 When utilising regional organisations for enforcement action under Art. 53 470 para 1 s 1 UN, the Security Council must respect certain limitations, which, again, derive from systematic and teleological considerations. The most important limitation follows indirectly from Art. 43 paras 1 and 3 UN. These provisions clearly state that there is no unconditional obligation on the part of the Member States to make their military capacities available to the Security Council. Such an obligation could only be created by special agreements, which, however, have until now never been concluded. If the Security Council were authorised under Chapter VIII to oblige regional organisations to participate in enforcement action without the consent of the respective organisation this would Vellas, Le régionalisme international et l’Organisation des Nations Unies, 1948, 206. Kelsen (n 123) 327; Akehurst (n 113) 221. 127 Cf. Walter in Simma, ‘Introduction to Chapter VIII’, para 3 and Walter in Simma, Art. 52 para 32. 128 Cf. Walter in Simma, Art. 52 para 33. 129 Pernice (n 97) 149. 130 Walter, (n 91) 277 f. 131 Walter, (n 91) 265 f. 125

126

209

§ 11 Peace and Security

circumvent the concept established by Art. 43 UN, which expressly refers to “groups of members” (Art. 43 para 3 UN). 471 c) Different Forms of Authorisation. The wording “authorisation” is not limited to ex ante decisions. Nevertheless, it seems clear from the purpose of effective control by the Security Council that prior authorisation is the usual form envisaged by the Charter. Only prior authorisation fully ensures effective Security Council control over regional enforcement actions.132 To hold otherwise bears the risk of regional arrangements being tempted to initiate enforcement actions in the hope that the Security Council will give its authorisation afterwards.133 Similar considerations apply regarding the necessity of an express authorisation. Although the language of Art. 53 para 1 does not prescribe that the authorisation be express, Security Council control over regional enforcement action is best preserved if the authorisation is express and clear.134 472 While the arguments just presented certainly have the main advantage of ensuring legal clarity, their downsides must not be overlooked. Notably, such a restrictive interpretation limits the options of the Security Council before and after regional action has taken place. It is easily conceivable that there might be tacit support for the regional action in question, yet it might be impossible for some (permanent) members, be it for domestic political reasons or for diplomatic reasons, to consent to an express authorisation. If the teleological approach to the matter demands an interpretation which leaves the Security Council with as much control over regional action as possible, then the Security Council should be put in a position to exercise control as effectively as possible and this ‘effetutile’ objective cannot be reached by taking options away from the Security Council. Against this background neither implicit nor ex post facto authorisations should be excluded in general. This flexible interpretation is also supported by the report of the High Level Panel on Threats, Challenges and Change, which expressly mentions the possibility of ex post facto authorisations.135 473 However, the conditions for such authorisations need to be formulated as clearly and unmistakably as possible. Mere silence, i.e. the absence of condemnation by the Security Council, can never be considered to constitute an implicit authorisation.136 If silence or the absence of condamnation were to suffice 132 Kourula, ‘Peace-keeping and Regional Arrangements’ in: Cassese (ed.), United Nations Peace-Keeping, 1978, 95 at 118; Schaefer, Die Funktionsfähigkeit des Sicherheitsmechanismus der Vereinten Nationen, 1981, 201; de Wet, ‘The Relationship between the Security Council and Regional Organizations during Enforcement Action under Chapter VII of the United Nations Charter’ 71 NJIL (2002), 1 at 14 ff. 133 Akehurst (n 113) 214. 134 Walter in Simma, Art. 53 paras 64 and 69. 135 Report of the High-level Panel on Threads, Challenges and Change, UN Doc. A/59/565 of 2 December 2004, para 272. 136 The position by Meeker (n 111) at 522; and by Chayes (n 111) at 556 must thus be rejected; cf. Walter (n 91) 304; but cf. Momtaz ‘La délegation par le Conseil de Sécurité de l’exécution de ses actions coercitives aux organisations régionales’ 43 AFDI (1997), 105 at 113.

210

II. Maintaining Peace and Security through Regional Organisations

for an implicit authorisation, the burden of collecting an affirmative vote (including the vote of the permanent five members) in the Security Council would be reversed. Instead of a majority supporting the action, a single veto blocking the condamnation by the Council could do the trick. In consequence, an implied authorisation can only flow from a resolution passed on the matter that also contains positive language pointing towards an implied authorisation of enforcement measures. Blanket authorisations, by contrast, are excluded. Such authorisations would foster the risk of abuse of regional hegemony. Again, for reasons of the veto position of the permanent five members, Security Council control over regional action could not effectively be ensured because a veto might block the Council from stopping the use of a blanket authorisation.137 4. Regional Peacekeeping Forces

The classical concept of peacekeeping rests on the consent of the parties to a 474 conflict. Peacekeeping forces are to be neutral and the use of force remains limited to self-defence.138 The idea is to establish (limited) military forces in order to monitor (sometimes fragile) cease-fire agreements between the parties, or to create buffer zones or secure the withdrawal of troops behind certain lines.139 While some early approaches in the literature assumed that the participation of the military was in itself sufficient to qualify any type of peacekeeping that goes beyond civilian observer missions140 as “enforcement action within the meaning of Art. 53 para 1”,141 it is today largely accepted that — given the consent of the parties to the conflict — classical peacekeeping cannot be qualified as enforcement action for the purposes of Art. 53 para 1 UN.142 However, the classical model of peacekeeping reached its limits in civil war 475 situations, where the consent of the parties to the conflict is often less obvious and more fragile. Following the developments first in Somalia and later in the former Yugoslavia, peacekeeping forces were authorised to use force, if necessary, in order to fulfil their mandate, usually the protection of the civilian population.143 This type of peacekeeping, which was strategically and politically criticised, became known as “robust peacekeeping” and went along with Chapter

Walter (n 91) 309 for further refences; Walter in Simma, Art. 53 para 68. Cf. Bothe in Simma, ‘Peace-Keeping’, para 16. 139 Cf. Bothe in Simma, ‘Peace-Keeping’, paras 15 f. 140 For civilian missions cf. Bothe in Simma, ‘Peace-Keeping’, para 7. 141 Eide, ‘Peace-keeping and Enforcement by Regional Organizations’ 3 JPR (1966), 125 at 141 f; cf. also Kimminich, ‘Peace-keeping on a Universal or Regional Level’ in: Wolfrum (ed.), Strengthening the World Order: Universalism v. Regionalism, 1989, 37-47; Kourula, (n 132) 116 f. 142 Frowein, ‘Legal Consequences for International Law Enforcement in Case of Security Council Inaction’ (n 113) 120; Pernice (n 97) 116 f; Beyerlin (n 112) 1040 ff; Wolf, ‘Regional Arrangements’ in: Bernhardt (ed.), EPIL vol 6, 1st edn 1983, 289 at 293; Wolfrum, (n 112) 583; Virally, L’Organisation mondiale, 1972, 491; Kolb, ‘Article 53’ (n 113) 1417; Boisson de Chazournes, ‘Les relations entre organisations régionales et organisations universelles’ 347 RdC (2010) 79 at 269. 143 Cf. Bothe in Simma, ‘Peace-Keeping’, para 16. 137

138

211

§ 11 Peace and Security

VII mandates by the Security Council.144 The Chapter VII mandate for “robust peacekeeping” by the UN is indicative for the interpretation of Chapter VIII: Given the fact that “robust peacekeeping” occurs without the consent of at least one party to the conflict, it clearly bears elements of enforcement action and thus needs Security Council authorisation under Art. 53 para 1 UN when employed by a regional organisation. 5. Specific Regional Organisations

a) Organization of American States (OAS). The Organization of American States (OAS) was founded at the 9th International Conference of American States on 30 April 1948 in Bogotá, Colombia. It has its main seat in Washington D.C. While issues of economic cooperation on the American continent are predominantly dealt with in subregional organisations or organisations of economic integration like NAFTA, MCCA, CARICOM, MERCOSUR or the Andean Community,145 the OAS has developed a focus on the maintenance of peace and security, including issues of political stability, democratisation and cooperation in cultural and social matters. 477 The OAS can be seen as the paradigm of a regional organisation under Chapter VIII of the UN Charter. It counts all States on the American continent among its members,146 with the American Treaty on Pacific Settlement it provides a specific instrument for the peaceful settlement of regional disputes, and, on the basis of the Inter-American Treaty on Reciprocal Assistance, allows for mutual military and non-military support in cases of internal or external acts of aggression against a Member State. In addition to the treaties already mentioned, the OAS system also includes the Charter of the Organization of American States as its main treaty instrument147 and the American Convention on Human Rights (also called Pact of San José).148 478 Some of the organs belonging to the OAS-sytem operate jointly for the different treaties just mentioned. The main organ of the organisation is the General Assembly in which, on the basis of sovereign equality, each of the Member States possesses one vote (Art. 54 ff. OAS). Executive functions are assumed by the Permanent Council (Art. 80 ff. OAS) and the General Secretariat (Art. 107 ff. OAS). The main organ in the area of peace and security (Arts. 7 and 8 Rio-Treaty) is the Meeting of Consultation of Ministers of Foreign Affairs (Art. 61 ff. OAS). 479 In addition to its activities in the area of maintenance of regional peace and security as well as the enforcement of human rights, since the mid-1990 s, the 476

Cf. Bothe in Simma, ‘Peace-Keeping’, para 16. In more detail → § 13 paras 666 ff. 146 The exclusion of Cuba from participation since 1962 ceased to have effect with the adoption of OAS General Assembly Resolution AG/RES. 2438 (XXXIX-O/09). 147 OAS Charter (signed 30 April 1948, entered into force 13 December 1951) 119 UNTS 3. 148 American Convention on Human Rights (signed 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123. 144

145

212

II. Maintaining Peace and Security through Regional Organisations

OAS has developed a strong focus on promoting democracy in its Member States. The Protocol of Amendment to the Charter of the Organization of American States (Protocol of Cartagena de Indias)149 added the protection and promotion of democratic structures to the tasks of the OAS (Art. 2 lit b OAS) and since the entry into force of the Protocol of Amendments to the Charter of the Organization of American States of 14 December 1992 (Protocol of Washington),150 overthrowing a democratically elected government may be sanctioned with a suspension of the rights of participation in the main organs of the organisation (Art. 9 OAS). Finally, the underlying democratic principles have been spelled out in more detail in the Inter-American Democratic Charter adopted by the OAS General Assembly on 11 September 2001.151 b) African Union (AU). The African Union (AU) was established in 2002 as 480 the successor organisation to the Organization of African Unity (OAU), which was founded in 1963 and had already comprised more than 50 members. The AU consists of all 54 African States except for Morocco, which had left the organisation in 1984 following differences concerning the situation in Western Sahara. The new Republic of South Sudan joined in August 2011.152 The main seat of the AU is in Addis Ababa, Ethiopia. The Constitutive Act of the AU entered into force on 26 May 2001. However, 481 the OAU Charter remained in force until July 2002 in order to provide for a smooth succession between the two organisations (→ § 4 paras 146 f.), notably concerning the operation of their organs and other mechanisms which were to be continued. The general idea of the AU and its main structures are modeled on the basis of the European Union, even though not all organs of the AU are fully operable yet. Just as the European prototype the AU aims at comprehensive political and social integration among its members. The main organs of the AU consist of an Assembly, composed of the Heads 482 of State and Government or their duly accredited representatives (Art. 6 ff. AU), an Executive Council of Ministers composed of the Ministers of Foreign Affairs or other Ministers (Art. 10 ff. AU), a Pan-African Parliament (Art. 17 ff. AU),153

149 Protocol of Amendment to the Charter of the Organization of American States (done 5 December 1985, entered into force 16 November 1988) 25 ILM (1986), 527. 150 Protocol of Amendment to the Charter of the Organization of American States (done 14 December 1992, entered into force 25 September 1997), 33 ILM (1994), 1005. 151 Inter-American Democratic Charter (adopted 11 September 2001), 40 ILM (2001), 1289; on the development of the principle of democracy in the OAS cf. Schliemann, ‘Das Demokratiegebot in der Organisation Amerikanischer Staaten (OAS)’ 42 VRÜ (2009), 320. 152 AU Constitutive Act (done 11 July 2000, entered into force 26 May 2001) 2158 UNTS 3; for the admission of South Sudan cf. African Union Press Release 090/2011 (15 August 2011). 153 Cf also: The Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament (entered into force on 2 March 2001) accessed on 3 April 2014.

213

§ 11 Peace and Security

a Court of Justice (Art. 18 AU) 154 and a Commission which operates as the Secretariat of the Union (Art. 20 AU). Furthermore, there are a number of additional organs which are mentioned equally in Art. 5 AU (the Permanent Representatives Committee; the Specialised Technical Committees; the Economic, Social and Cultural Council and the Financial Institutions). 483 Already the former OAU provided for mechanisms aiming for the maintenance and promotion of regional peace and security.155 The AU continues this tradition with additional emphasis on the protection of human rights and the promotion of democratic structures. In addition, the AU decided to specifically address the issue of internal conflicts. The most important instrument for dealing with threats to regional peace and security is the Protocol relating to the Establishment of the Peace and Security Council (PSC) of the African Union.156 The first peace operation of the AU took place in 2003 in Burundi (AMIB), though the mandate was not yet given by the PSC but by the Central Organ of the Mechanism for Conflict Prevention, Management and Resolution (MCPMR), a former organ of the OAU. The African regional mechanism was activated for the first time in order to deal with the Darfur crisis in Sudan (AMIS), without, however, being able to solve the problem. In 2007, according to UNSC Resolution 1769, the UN together with the AU built a mission for Darfur called UNAMID.157 Another mission—AMISOM—is active in Somalia, supporting the Somali government in Mogadishu, with authorisation by the UNSC158 as well as the Peace and Security Council of the AU.159 484 According to Art. 4 lit h AU, the Union claims a right “to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity”. This right is confirmed in the Protocol on the Peace and Security Council of the African Union, which in Art. 7 lit e AU adds a recommendation by the Peace and Security Council to the overall procedure. Furthermore, the AU Protocol envisages an African Standby Force (Art. 13 AU Protocol), which will be composed of five

154 Articles 2 and 3 of the Protocol on the Statute of the African Court of Justice and Human Rights (not yet in force) accessed on 3 April 2014; for further details cf. → § 12 para 570. 155 Naldi, The Organisation of African Unity, 2nd edn. 1999, 5; the OAU carried out missions to Chad, Congo, Ethiopia, and Eritrea as well as to Rwanda and to Burundi. 156 Protocol relating to the Establishment of the Peace and Security Council (PSC) of the African Union (adopted 9 July 2002, entered into force 26 December 2003) accessed 3 April 2014. 157 For details of the mission cf. accessed 3 April 2014; Walter, ‘Hybrid Peacekeeping: Is UNAMID a new Model for Cooperation between the United Nations and Regional Organizations?’ in Hestermeyer et al. (eds), Liber Amicorum Rüdiger Wolfrum, vol 2, 2012, 1327 ff. 158 SC Res S/RES/1744 of 21 February 2007; confirmed by several UNSC Resolutions, latest SC Res S/RES/2010 of 30 September 2011. 159 Cf. < http://amisom-au.org/amisom-background/> accessed 3 April 2014.

214

II. Maintaining Peace and Security through Regional Organisations

regional brigades.160 The brigades are currently on their way of being established. The question arises whether the right to regional intervention as conceived by 485 the AU Charter and the Protocol on the African Security Council is in conformity with the UN Charter. Art. 53 UN excludes, in principle, any regional enforcement action without authorisation by the UN (!) Security Council. Therefore, Art. 4 lit h of the Constitutive Act of the African Union must be interpreted in conformity with Art. 53 para 1 UN. The basis for such an interpretation can be found in Art. 17 of the Protocol Relating to the Establishment of the African Peace and Security Council which explicitly acknowledges the primary responsibility of the UN Security Council for the maintenance of international peace and security. Hence, a right to regional intervention under the AU Charter is subject to an authorisation by the UN Security Council. Exceptions to this general rule could only be discussed under the doctrine of responsibility to protect in extreme situations.161 c) Organization for Security and Cooperation in Europe (OSCE). The OSCE 486 is the institutionally stabilised continuation of the former Conference on Security and Cooperation in Europe (CSCE), which starting already in the early 1970ies became the first pan-european institution including States from both sides of the Iron Curtain. It essentially served as a forum for meetings and conferences enabling a multilateral dialogue between Eastern and Western European countries. Given that purpose, the CSCE lacked any formal and institutionalised structures. Similar to the famous Helsinki Final Act of 1975 most of the documents which were agreed upon in that phase remained legally nonbinding.162 The Helsinki Final Act contained a number of key commitments of the so-called “Helsinki process”. Among these principles were peaceful settlement of international disputes, the principle of self-determination of peoples and, somewhat hidden in the famous “Third Basket” entitled “Co-operation on humanitarian matters, including information, education and culture”, basic human rights guarantees. The end of the Cold War triggered a development which starting with the 487 “Charter of Paris for a New Europe”163 gradually led to the institutionalisation and formalisation of the Helsinki process, first in the Helsinki-Document

160 Further information about the African Standby Force: Cilliers/Pottgieter, ‘The African Standby Force’ in Engel/Porto (eds.), Africa’s New Peace and Security Architecture: Promoting Norms, Institutionalizing Solutions, 2010; Engel/Porto, ‘The African Union’s New Peace and Security Architecture: Toward an Evolving Security Regime?’, 2 African Security (2009), 82 at 87 f. 161 Walter in Simma, Art. 53, paras 31 ff. 162 Barberini, ‘Nature et portée des principes et des engagements’, in: Decaux/Sur (eds), L‘OSCE Trente Ans Après l’Acte Final de Helsinki, 2008, 37 ff.; Bloed, From Helsinki to Vienna: Basic Documents of the Helsinki Process, 1990, 11 ff.; Bortloff, Die Organisation für Sicherheit und Zusammenarbeit in Europa, 1996, 326 ff. 163 Charter of Paris for a New Europe: A New Era of Democracy, Peace and Unity (done 21 November 1990) 30 ILM 193 ff.

215

§ 11 Peace and Security

“Challenges of Change” of 1992,164 and finally resulting in the renaming of the CSCE into “Organization for Security and Cooperation in Europe” as of 1 January 1995.165 The OSCE currently comprises 56 participating States from Europe, North America and Central Asia and the Holy See. In its 1992 Helsinki Document, the OSCE claimed the status of a regional organisation within the meaning of Chapter VIII UN Charter,166 and it is treated in the UN accordingly.167 488 Over the years the OSCE has developed a complex system of organs and institutions. The leading organ is the Summit of OSCE Heads of State or Government, which meets periodically (originally biannually, later on a more irregular basis) in order to determine the political priorities of the organisation. The second highest organ, meeting in years without a summit meeting, is the Ministerial Council composed of OSCE Foreign Ministers. The main executive organ of the Organisation is the Permanent Council, which convenes weekly. Chairmanship of the Permanent Council rotates annually and is assumed by the ambassador to the OSCE of the country that holds the Chairmanship of the OSCE. 489 The Chairperson-in-Office is the Minister of Foreign Affairs of the country that holds Chairmanship in the OSCE in general. He or she is assisted by the Ministerial Troika, which is composed of the present, past and future Chairpersons-in-Office. The OSCE belongs to the rather few International Organisations with a parliamentary organ. The Parliamentary Assembly is composed of 323 parliamentarians from the participating States168 and thus provides for the indirect involvement of the national parliaments of the participating States. Finally, there is the Secretariat which is directed by the Secretary-General and provides for operational support to the organisation. It is based in Vienna with an office in Prague, which hosts the documentation repository of the organisation. Within the Secretariat two subunits deserve special mentioning, the Action against Terrorism Unit and the Conflict Prevention Centre. Furthermore, there are specific institutions which are not integrated into the Secretariat but operate autonomously: the Office for Democratic Institutions and Human Rights, which is based in Warsaw, the High Commissioner on National Minorities based in the Hague and the Representative on Freedom of the Media based in Vienna. With respect to the peaceful settlement of international disputes, the Convention on Conciliation and Arbitration within the OSCE is one of the few legally binding OSCE documents.169

164 The Challenges of Change – Helsinki Summit Declaration and Helsinki Decisions (done 10 July 1992) 31 ILM 1385. 165 Budapest Summit Document: Towards a Genuine Partnership in a New Era (done 6 December 1994) 34 ILM 764. 166 The Challenges of Change (n 164) para 25. 167 For details cf. Walter (n 91) 114. 168 Among the larger Member States, the United States have 17, Russia 15 while France, Germany, Italy and the United Kingdom have 13 seats each. The smallest Member States (Andorra, Liechtenstein, Monaco and San Marino) have 2 seats each. 169 BGBl. 1994 II, 1327 ff.

216

II. Maintaining Peace and Security through Regional Organisations

Irrespective of this complex institutional structure, which, in fact, resembles 490 very much that of traditional International Organisations, the OSCE is still considered to lack international legal personality because it is not based on a legally binding international treaty. However, it is not inconceivable that the OSCE could acquire international legal personality if it acts in its own name and is respected as an independent actor by the international community.170 d) North Atlantic Treaty Organization (NATO). NATO was founded on 4 491 April 1949 by Belgium, Denmark, France, Iceland, Italy, Canada, Luxembourg, the Netherlands, Norway, Portugal, the United Kingdom and the United States of America. It was conceived as an organisation of collective self-defence against external aggression. In 1951 Turkey und Greece joined the organisation, followed by the Federal Republic of Germany in 1955 and by Spain in 1982. The end of the Cold War led to a first round of admission of formerly Eastern European countries in 1999 (when Poland, the Czech Republik and Hungary joined the organisation). In 2004 a second round of new admissions comprised Bulgaria, Estonia, Latvia, Lithuania, Romania, Slovakia and Slovenia. With the end of the Cold War NATO established special relations with Russia, first, as of 1991, within the North Atlantic Cooperation Council (today: Euro-Atlantic Partnership Council), then with the Partnership for Peace Programme (1994), and today in the NATO-Russia Council, which was created in 2002.171 The main obligation created among the members of NATO concerns mutual 492 military assistance in the case of an armed attack against one of the members of the organisation (Art. 5 NATO). Following the terrorist attacks of 11 September 2001 the North Atlantic Council (the principal political decision-making body within NATO)172 formally qualified the bombings as “armed attack” within the meaning of Art. 5 NATO.173 This implicitly extends the notion of self-defence to attacks emanating from non-State actors. While there are good reasons for such an extension, both regarding Art. 51 UN and Art. 5 NATO,174 the question of the continuation of the attacks becomes more and more urgent. Thirteen years after the original attacks and with only a limited number of further assaults by Al-

Herdegen, Völkerrecht, § 45, para 8. As of 1 April 2014 the cooperation in the NATO-Russia Council is suspended due to the crisis in the Ukraine, cf. accessed 21 May 2014. 172 → Para 494. 173 Statement by the North Atlantic Council of 12 September 2001, NATO Press Release (2001) 124, accessed 8 May 2014. 174 Randelzhofer/Nolte in Simma, Art. 51, paras 38 ff; opposing opinion by the ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Rep. 2004, para 139. 170

171

217

§ 11 Peace and Security

Quaeda since then, it must be concluded that the original attack has ceased and hence the conditions of Art. 5 NATO are not met anymore.175 493 The analysis above regarding the relationship between collective security and collective self-defence leads to the conclusion that NATO does not operate outside Chapter VIII UN Charter simply because it was founded as an organisation of collective self-defence.176 Rather, the decisive factor is whether or not it contributes to the maintenace of international peace and security outside the scope of self-defence. Such activities of NATO were started with the 1991 “Strategic Concept”. Since then, NATO has assumed responsibilities in the area of combating international terrorism and crisis management under UN mandate, in the wider Euro-Atlantic area, i.e. even outside the territory of its Member States. NATO expanded its activities a number of times on the basis of such strategic concepts.177 This practice stretches the 1949 founding treaty, which does not expressly include the new tasks. In a judgement of 1994 the German Federal Constitutional Court rejected the claim that the Federal Government had violated the rights of Parliament because it had agreed to an implicit amendment of the NATO-Treaty without the constitutionally necessary parliamentary consent. However, this rejection was only the procedural consequence of a 4:4 split decision by the Court. In fact, four justices were of the opinion that the new tasks formulated in the 1991 NATO Strategic Concept were not covered by the NATO-Treaty and, hence, constituted an implicit amendment to that treaty.178 Given the broad scope of activities of the organisation as envisaged in Art. 1 NATO, the more convincing position is to accept the new activities as still covered by the treaty.179 This position also prevailed when the Court was confronted again with the issue in 2001.180 494 The organisational structure of NATO is split in two, a military and a civilian section. The main civilian operative organ of NATO is the North Atlantic Council, which is composed of representatives either at the ministerial level or of the Permanent Representatives of the Member States. Each Member State possesses one vote (Art. 9 NATO). Periodically, but not on a regular basis, NATO convenes summit meetings of the Heads of State and Government of its 175 Cf. König, ‘Der Einsatz von Seestreitkräften zur Verhinderung von Terrorismus und Verbreitung von Massenvernichtungswaffen sowie zur Bekämpfung der Piraterie: Mandat und Eingriffsmöglichkeiten’ in: Zimmermann et al. (eds.), ‘Moderne Konfliktformen’ 44 Berichte der Deutschen Gesellschaft für Völkerrecht (2010) 203 at 208 [engl. summary at 246 f.]; Heintschel von Heinegg/Gries, ‘Der Einsatz der Deutschen Marine im Rahmen der Operation “Enduring Freedom”’, 40 AVR (2002) 145 at 157; Reply by the German Federal Government to a brief parliamentary enquiry by the BÜNDNIS 90/Die Grünen Group, BT Drucksache (Parliamentary Paper) 18/248, 4 f. 176 → Para 454. 177 For a detailed description of the development of NATO’s Strategic Concepts cf. accessed 3 April 2014. 178 90 BVerfGE 286 at 372 ff. 179 Some refer to this problem under the expression of ‘Treaty on wheels’, Cf. Simma, ‘NATO, the UN and the Use of Force: Legals Aspects’, 10 EJIL (1999), 1 at 18. 180 104 BVerfGE 151 at 210 ff.

218

II. Maintaining Peace and Security through Regional Organisations

Member States. The summits have been used to introduce important developments, such as invitations to new members, the presentation of new strategic concepts etc. Although constituing the main political decision-making body of the organisation, the North Atlantic Council is not in a position to take action which is mandatory for the Member States. In consequence, each Member State decides autonomously by which means it will meet its obligations of cooperation and assistance under Art. 5 NATO. A second civilian organ with the same authority as the North Atlantic Council is the Nuclear Planning Group, in which the organisation’s policy regarding issues associated with nuclear forces is discussed. The military structure is headed by the Military Committee, which is composed of the Chiefs of Defence of NATO member countries. Its main task is to give military advice to the civilian decision-making bodies. The Military Committee possesses an executive body, the International Military Staff. Finally there is the Military Command Structure, which comprises two sections: the Allied Command Operations (headed by the Supreme Allied Commander Europe (SACEUR)), and the Allied Command Transformation (headed by the Supreme Allied Commander Transformation (SACT)). In order to allow for rapid reaction in emerging crises, the NATO Response Force (NRF) was created. It is based on a rotational system under which Member States contribute land, air, maritime or special operations forces.181 e) Other Regional Organisations. Apart from the organisations just described in detail, a number of other regional organisations may be mentioned. With respect to Europe, the Council of Europe is probably the most important organisation of regional character, which, however, does not cover issues of peace and security, but has its main focus on the protection of human rights and the promotion of the rule of law among its members.182 The League of Arab States (LAS) belongs to the regional organisations, which were seen, right from the beginning in 1945, as being covered by Chapter VIII of the UN Charter.183 Founded on 22 March 1945, the LAS today consists of 21 Arabic and Asian States as well as Palestine. The decisive criterion for membership is not so much a geographical factor, but rather the affiliation with the Arab World. The organisation promotes stronger cooperation among its members on matters of common interest, while also stressing their sovereignty and independence (Art. 2 LAS). The Charter was supplemented on 13 April 1950 by the Joint Defence and Economic Cooperation Treaty,184 which came into force on 25 October 1952. The latter treaty is based upon Art. 6 of the Pact of the Arab League and establishes an autonomous system of collective security Cf. accessed 3 April 2014. → § 12 para 547 ff. 183 LAS Charter (Pact) (signed 22 March 1945, entered into force 10 May 1945) 70 UNTS, 237. 184 Text in Hassouna (ed.), The League of Arab States and Regional Disputes. A Study of Middle East Conflicts, 1975, 411 ff. 181 182

219

495

496

497

498

§ 11 Peace and Security

and defence within the meaning of Art. 51 of the UN Charter. The LAS is also active in the area of regional peacekeeping (Kuwait, 1961-1963; Lebanon, 1976-1983). The qualification of the LAS under Chapter VIII was for a long time strongly opposed by Israel. In 1992 the UN General Assembly accepted the position of the LAS in that regard.185 Its status as a regional organisation is also widely accepted in the literature.186 499 Finally, the Economic Community of West African States (ECOWAS), based in Abuja, Nigeria, should be mentioned. It is a regional organisation which was originally founded in 1975 with a clear focus on regional economic integration but since then has been highly active in the area of regional peace and security in West Africa.187 It consists of 15 West African States. The founding treaty188 was modified considerably in 1993189 and supplemented in 1999 by the Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security.190 500 ECOWAS sent regional intervention and peacekeeping forces to Liberia in 1990, Sierra Leone in 1997 (ECOMOG, Ceasefire Monitoring Group) and 1998 to Guinea-Bissau. It sent further peacekeeping missions to Liberia (ECOMIL in 2003) and Côte d’Ivoire (ECOMICI in 2002).191 Hence, the organisation may be qualified as a regional organisation within the meaning of Chapter VIII of the UN Charter.

185 GA Res A/RES/47/12 of 29 October 1992 recalling the decision of the Council of the LAS that it considers the League as a regional organisation within the meaning of Chapter VIII. 186 Rishmawi/Comandulli, ‘League of Arab States (LAS)’ in Wolfrum, MPEPIL para 8; Nye, Peace in Parts, 1971, 130; Boutros-Ghali, ‘The Arab League 1945–1970’, 25 Rev Egypt de Droit Intern (1969), 84; Samy, ‘The League of the Arab States’ in: Nesi (ed.), International Cooperation in Counter-Terrorism: The United Nations and Regional Organizations in the Fight against Terrorism, 2006, 155 ff., mentioning the LAS as a regional organisation. 187 For an analysis of the historical development of ECOWAS, cf. Mair, ‘Economic Community of West African States (ECOWAS)’, SWP-Study (2001), 7 ff. 188 Treaty of the Economic Community of West African States (ECOWAS) (done and entered into force 28 May 1975) 1010 UNTS 18. 189 Revised Treaty of the Economic Community of West African States (ECOWAS) (done 24 July 1993), 35 ILM (1996), 664. 190 Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, PeaceKeeping and Security (done 10 December 1999) accessed 3 April 2014; for an analysis cf. Abass, ‘The New Collective Security Mechanism of ECOWAS: Innovations and Problems’, 5 J Conflict & Security L (2000), 211 ff. 191 For details cf. Walter in Simma, Art. 53, para 21.

220

§ 12 The Institutional Organisation of International Human Rights Protection Literature: Baderin/Ssenyonjo (eds.), International Human Rights Law: Six Decades after the UDHR and Beyond, 2010; Burgorgue-Larsen/Úbeda de Torres, The Inter-American Court of Human Rights: Case Law and Commentary, 2011; Cassese/Gaeta, International Criminal Law, 3rd edn. 2013; Cavallaro/Brewer, ‘Reevaluating Regional Human Rights Litigation in the Twenty-first Century: The Case of the Inter-American Court’, 102 AJIL (2008), 768 ff.; Gaer, ‘A Voice Not an Echo: Universal Periodic Review and the UN Treaty Body System’, 7 Human Rights LR (2007), 109 ff.; Ghanea, ‘From UN Commission on Human Rights to UN Human Rights Council: one step forward or two steps sideways?’, 55 ICLQ (2006), 695 ff.; Grabenwarter, European Convention on Human Rights: A Commentary, 2014; Hampson, ‘An Overview of the Reform of the UN Human Rights Machinery’, 7 Human Rights LR (2007), 7 ff.; Harris/Livingstone, The Inter-American System of Human Rights, 1998; Kälin/Künzli, The Law of International Human Rights Protection, 2009; Karrenstein, Der Menschenrechtsrat der Vereinten Nationen, 2011; Klein/Breuer, ‘(Un-)Vollendete Reformschritte in den Vereinten Nationen: Die Beispiele Sicherheitsrat und Menschenrechtsrat’, in Münk (ed.), Die Vereinten Nationen – sechs Jahrzehnte nach ihrer Gründung. Bilanz und Reformperspektiven, 2008, 75 ff.; Moeckli/Shah/Sivakumaran (eds.), International Human Rights Law, 2010; O’Flaherty/O’Brien, ‘Reform of UN Human Rights Treaty Monitoring Bodies: A Critique of the Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body’, 7 Human Rights LR (2007), 141 ff.; Spohr, Der neue Menschenrechtsrat und das Hochkommissariat für Menschenrechte der Vereinten Nationen, Berlin 2014; Spohr, ‘United Nations Human Rights Council’, 14 Max Planck Yearbook UN Law (2010), 168 ff.; Theissen, ‘Mehr als nur ein Namenswechsel–Der neue Menschenrechtsrat der Vereinten Nationen’, 54 Vereinte Nationen (2006) 138 ff.; Tomuschat, Human Rights: Between Idealism and Realism, 2nd edn. 2008.

I. Human Rights Protection as Organisational Challenge

Universal and regional human rights were developed as catalogues of sub- 501 stantive guarantees aiming at the protection of individuals against State action. In the absence of international institutions for monitoring and enforcing compliance the procedural enforcement is left to the national authorities. However, national enforcement of international human rights standards largely depends on the position the respective national constitution grants international law in the State’s internal legal order.1 Furthermore, national enforcement means decentralised enforcement and cannot ensure the consistent and uniform application of the international standards in all Member States of a given human rights treaty. From the perspective of international institutional law, organising interna-

1 On the question of human rights treaties’ status in domestic law, cf. Tomuschat, Human Rights: Between Idealism and Realism, 2nd edn. 2008, 120 ff.

221

§ 12 The Institutional Organisation of International Human Rights Protection

tional mechanisms of surveillance and enforcement is an especially important task. International enforcement requires the creation of specific mechanisms which, in turn, need administrative and organisational support. It is in this sense that international human rights protection must be viewed as an integral part of international institutional law. 502 In recent years, a new dimension has been added to the necessity of international protection of human rights. A growing number of decisions by International Organisations, notably resolutions of the UN Security Council, directly or indirectly affect individuals. However, since International Organisations, so far, are not parties to human rights treaties, it is – with the exception of the European Union – largely unclear by which substantive standards and with which mechanisms of surveillance and implementation individual human rights protection may be ensured against such decisions by International Organisations. One of the challenges of international institutional law, thus, consists in developing adequate legal instruments and institutions (→ paras 583 ff.). 1. Treaty-Based and Non-Treaty/Charter-Based Surveillance Mechanisms

Most human rights treaties provide for their own treaty-based surveillance mechanisms. For that purpose treaty bodies are established, in which independent experts, who are elected by the Member States, serve in their personal capacity, i.e. they are not subject to any directions from their governments. At the regional level human rights courts have been established (European Court of Human Rights, Inter-American Court of Human Rights, African Court of Human and Peoples’ Rights). In order to fulfil their surveillance mission the different organs operate with different instruments ranging from State reports over individual and State complaints to visits to detention centres operated by the States parties under instruments for the prevention of torture (→ paras 527 ff.). 504 The mechanisms just mentioned are created by the respective human rights treaties and, thus, their monitoring tasks are limited to the obligations contained in these treaties and to the States parties to these treaties. Since these limitations have their drawbacks, additional bodies for monitoring human rights obligations have been created within the United Nations. These bodies are construed as suborgans of one of the main UN organs (either the Economic and Social Council [ECOSOC] or the General Assembly) and may therefore be labelled as Charterbased (as opposed to treaty-based). Their main advantage is that they extend to all 193 UN members, irrespective of whether or not they are parties to a specific human rights instrument (→ for details paras 511 ff.). 503

2. Universal and Regional Mechanisms 505

Mechanisms for human rights protection have been established both at the regional and at the universal level. It is obvious that the universal or regional scope of a treaty has consequences on the range of membership. This may result in differences regarding both the substantive guarantees and the proce222

I. Human Rights Protection as Organisational Challenge

dural instruments for monitoring and surveillance, because of different cultural, social and historical traditions.2 However, in practice overlaps and replications between universal and re- 506 gional are far more frequent than differences or contradictions. Such overlaps are particularly obvious regarding general universal and general regional instruments such as the International Covenant on Civil and Political Rights (ICCPR) and the European, American or African regional human rights conventions, all of which contain a catalogue of classical freedoms and create their own mechanism of surveillance. In addition, overlaps also exist concerning specific instruments. For example there are, apart from the universal Convention against Torture3 regional prohibitions of torture in Europe4 and in America.5 The replication of the substantive guarantees entails doublings of surveillance mechanisms since, again, each of the specific instruments provides for its own surveillance mechanism. 3. The High Commissioner for Human Rights as a Forum for Coordination of the Universal Mechanisms

With the growing number of universal treaty-based instruments and the UN 507 becoming more and more active concerning human rights protection beyond the treaty instruments, it became obvious that some form of overall coordination for the various universal human rights activities was necessary. Building on growing demands by NGOs and other human rights activists to improve the institutional structures of human rights protection within the UN, the 1993 World Conference on Human Rights in Vienna recommended in its ‘Vienna Declaration and Programme of Action’ the establishment of a High Commissioner for Human Rights. This recommendation was taken up by the UN General Assembly in Resolution 48/141, which created the post of a High Commissioner for Human Rights based in Geneva. Currently, the former President of the ICTR and former South African judge and defence lawyer Navanethem Pillay holds the office. The eminent political position of the UN High Commissioner for Human Rights is expressed by her rank as Under-Secretary-General of the United Nations.6 According to the resolution the High Commissioner for Human Rights 2 Kälin/Künzli, The Law of International Human Rights Protection, 2009, 19 ff.; Tomuschat, ‘Is Universality of Human Rights Standards an Outdated and Utopian Concept?’, in Bieber et al. (eds.), Das Europa der zweiten Generation, Gedächtnisschrift Christoph Sasse, 1981, 585 at 587 ff. 3 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, 1465 UNTS (1996) 85. 4 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 26 November 1987, ETS No. 126, and Protocols No. 1 and No. 2 of 4 November 1993, ETS Nos. 151 and 152. 5 Inter-American Convention to Prevent and Punish Torture (IACPPT) of 12 September 1985, OAS Treaty Series No. 67, reprinted in Basic Documents Pertaining to Human Rights in the InterAmerican System, OAS/Ser.L/V/I.4 Rev. 9 (2003). 6 GA Res A/RES/48/141 of 20 December 1993, reprinted in 33 ILM (1994), 303.

223

§ 12 The Institutional Organisation of International Human Rights Protection

shall be the ‘United Nations official with principal responsibility for United Nations human rights activities’, which notably comprises the coordination of ‘the human rights promotion and protection activities throughout the United Nations system’. In practice, the High Commissioner for Human Rights also coordinates the universal treaty-based human rights activities, even though the UN is not a party to these treaties and, thus, the treaty bodies formally operate independently from the UN institutional system. In connection with a general administrative reform of the United Nations in 1997, the pre-existing Centre for Human Rights was integrated into the office of the High Commissioner for Human Rights. 508 The office of the United Nations High Commissioner for Human Rights provides for administrative support for all Charter- and all treaty-based universal human rights activities. Consequently, it assists the UN Human Rights Council (→ paras 511 ff.) just as it supports the Human Rights Committee established by the ICCPR or the respective Committees founded by the other universal human rights treaties (→ paras 526 ff.). Additionally, the office has taken up the task of developing an overall human rights policy for all organisations belonging to the UN family (so-called mainstreaming of human rights). It is also represented in the Senior Management Group, the cabinet of the UN SecretaryGeneral. Apart from the specific mandate laid down in GA resolution 48/141, the High Commissioner for Human Rights operates on the basis of the Charter of the United Nations, the Universal Declaration of Human Rights of 1948, all subsequent universal human rights treaties, as well as the Vienna Declaration and Programme of Action of 1993 and the 2005 World Summit Outcome Document. II. The Organisation of Universal Human Rights Protection 1. UN General Assembly and Economic and Social Council 509

At the universal level, the political organs of the United Nations are of utmost importance also for the protection of human rights. The most important political organ in this regard is the General Assembly, which, according to Art. 10 UN has broad competences for taking up practically any internationally relevant issue. From early on the General Assembly dealt with human rights issues disregarding possible conflicts with the principle of non-intervention contained in Art. 2 para 7 UN. Notably the Apartheid policy of South Africa led to numerous resolutions by the UN General Assembly.7 This practice of the General Assembly supports the view that massive human rights violations may be qualified as threats to international peace and security.8 The Security Council applies a similar policy for its activities under Chapter VII UN Charter in reaction to massive human rights violations (→ para 545).

7 8

224

Cf. GA Res A/RES/616 (VII); 721 (VIII), 820 (IX), 917 (X) et passim. Hailbronner/Klein in Simma, Art. 10 para 14.

II. The Organisation of Universal Human Rights Protection

The UN Charter entrusts the Economic and Social Council with a special re- 510 sponsibility for the protection of human rights. Among the several commissions mentioned in Art. 68 UN, the Human Rights Commission is expressly referred to. Accordingly, the Human Rights Commission belonged to the four commissions the institution of which was already recommended by the UN Preparatory Commission in 1945. With the replacement of the Human Rights Commission by the Human Rights Council, the primary responsibility for the protection of human rights has shifted from ECOSOC to the General Assembly, as the Human Rights Council was created as a subsidiary organ to the General Assembly (→ para 513). 2. Commission on Human Rights and Human Rights Council

a) Historical Development and Organisational Issues. During the first three 511 decades of its existence the Commission on Human Rights devoted most of its efforts to the codification of human rights. Notably the Universal Declaration of Human Rights, the two 1966 Covenants, but also most other universal human rights instruments were prepared by the Commission on Human Rights. Apart from these activities, the Apartheid policy in South Africa and the occupation of Palestine by Israel raised the issue of surveillance mechanisms outside the treaty regimes. The Commission on Human Rights reacted by creating a system of so-called ‘Special Procedures’ which allow for independent fact-finding and, under specific conditions, even provide for the examination of individual complaints (→ paras 521 ff.). Throughout its existence the Commission on Human Rights was criticised for 512 being politicised and not acting independently enough. As a sub-organ of ECOSOC it was composed of government representatives whose decisions were primarily dictated by political rather than genuine human rights concerns. The problem was alleviated to some extent by the ‘Sub-Commission on the Promotion and Protection of Human Rights’, which was established already in 1947 as the main subsidiary body of the Commission on Human Rights under its original name ‘Sub-Commission on Prevention of Discrimination and Protection of Minorities’. The sub-commission was composed of originally 12, later 26, independent experts. It had advisory functions which originally concerned anti-discrimination and protection of minorities, but were later extended to implementation of human rights in general. However, also with regard to the sub-commission the criticism of political motivation was voiced.9 The criticism concerning the Commission on Human Rights and its sub-commission related to four major issues: their action was considered too selective, too cumbersome, States with a negative human rights record were too influential and the general North-South

9 Alston, ‘Reconceiving the UN Human Rights Regime: Challenges Confronting the New Human Rights Council’, 7 Melbourne J Int’l L (2006), 185 at 215.

225

§ 12 The Institutional Organisation of International Human Rights Protection

divide had led to a polarisation also within the Commission and the sub-commission.10 513 b) Establishment of the Human Rights Council. The general criticism regarding the work of the Human Rights Commission led to a reform, which was adopted in the World Summit Outcome Document of 2005.11 The reform resulted in the substitution of the former Human Rights Commission by the Human Rights Council.12 During the reform discussion, suggestions had been made which aimed at the creation of a new main organ of the United Nations entrusted with human rights protection. However, these proposals were finally dropped given the necessity of a Charter amendment for their realisation (cf. Art. 7 UN). Instead, the Human Rights Council was established as a subsidiary organ of the General Assembly, in contrast to the Human Rights Commission, which was a subsidiary organ of the ECOSOC.13 When establishing the Human Rights Council, the GA considered it necessary to provide for a review after the first five years of operation of the Human Rights Council. The review procedure operates on the basis of an open-ended working-group, which submitted its first report in 2011.14 Until now, no concrete changes have been adopted.15 514 Given the express mentioning of the Human Rights Commission in Art. 68 UN, the question may be raised whether its substitution could formally be effectuated by a simple GA resolution. It might be argued that the Charter requires a human rights commission established as a subsidiary organ of the ECOSOC. Apparently, the practice of the UN shows that a human rights body established as a subsidiary organ of the GA serves as a functional equivalent to the originally envisaged structure. In any case, the issue was of no importance during the reform debate. The first session of the Human Rights Council took place from 19 to 30 June 2006. The abolition of the Human Rights Commission marks the first time in the history of the UN where one organ was completely replaced by another and, consequently, abolished. 515 c) Major Differences between the Human Rights Commission and the Human Rights Council. The most important changes concern an extension of the period of sessions, the institution of the Universal Periodic Review Mechanism for all Member States of the UN and a new election modus. Furthermore, the possi-

10 Cf. Schmidt, ‘United Nations’, in Moeckli/Shah/Sivakumaran (eds.), International Human Rights Law, 2010, 391 at 392 f.; Smith, ‘The United Nations Human Rights System‘, in Baderin/ Ssenyonjo (eds.), International Human Rights Law: Six Decades after the UDHR and Beyond, 2010, 215 at 220; Theissen, ‘Mehr als nur ein Namenswechsel–Der neue Menschenrechtsrat der Vereinten Nationen‘, 54 Vereinte Nationen (2006), 138 f. 11 World Summit Outcome Document, A/RES/60/1 of 24 October 2005, paras 157 ff. 12 A/RES/60/251 of 3 April 2006; ECOSOC Res 2006/2 of 22 March 2006, HRC Res 2006/1, UN Doc E/CN.4/2006/122 of 27 March 2006. 13 GA Res A/RES/60/251 of 15 March 2006, para 1. 14 HRC Res 16/21 of 12 April 2011. 15 See HRC/Dec/17/119 of 19 July 2011 on the Follow-up to the Human Rights Council resolution 16/21 with regard to the universal periodic review, which essentially reaffirms the basic provisions on the UPR procedure.

226

II. The Organisation of Universal Human Rights Protection

bility to hold special sessions (at relatively short notice) was created in order to allow for a rapid reaction by the Human Rights Council in case of severe human rights crises. The new instrument of convening special sessions is used regularly. From November 2006 to April 2014 a total of 20 special sessions have taken place, mostly concerning human rights violations in specific conflicts (Palestine, Libya, Syria, Ivory Coast etc.), but also with regard to general human rights issues such as ‘The negative impact of the worsening of the world food’ (2008)16 or ‘The impact of the global economic and financial crises on the universal realization and effective enjoyment of human rights’ (2009).17 However, especially the new instrument of special sessions has raised criticism – comparable to the situation under the Human Rights Commission – reproaching the Human Rights Council for a selective choice of its subjects. For instance, a total of six sessions (among them the three first sessions) was devoted to actions by Israel, which was perceived by many Western States as an uneven and one-sided use of the Human Rights Council by the majority of its members. During the negotiations the size of the Human Rights Council was contro- 516 versial. Requests for reducing the number of members were, in the end, only marginally successful. With its 47 members, the Human Rights Council is not significantly smaller in size than the Human Rights Commission, which had 53 members. It seems that, given the overall size of the UN, a smaller (and thus allegedly more functional) organ simply was not achievable. It would also have arguably suffered from a deficit in representation among the 193 members of the UN. However, it was possible to improve the modus for electing the members of 517 the Human Right Council. Attempts to establish the modus originally favoured by Secretary-General Kofi Annan (majority of two-thirds in the GA) were not successful. Also there are no clear criteria relating to the human rights record of the candidate countries. Both may be seen as weaknesses of the new system. Still, the new voting modus (individual voting on each candidate, necessity of an absolute majority in the GA, i.e. currently 97 votes) significantly improves the former system for the election of the members of the Human Rights Commission, which mostly resulted in a simple confirmation of the candidatures presented by the regional groups.18 While it is true that the new system does not prevent the election of countries with a dubious human rights record,19 the individual 16 Report of the Human Rights Council on its Seventh Special Session, UN Doc. A/HRC/S-7/2 of 17 July 2008. 17 Report of the Human Rights Council on its Tenth Special Session, UN Doc. A/HRC/S-10/2 of 30 March 2009. 18 On the influence of regional groups on elections in the sphere of the UN, cf. Muravchik, Voting Patterns in the United Nations, available at web.archive.org/web/20110423001902/http://www. freedomhouse.org/template.cfm?page=383&report=12 accessed 18 August 2014; an overview of the current members is available at http://www.ohchr.org/EN/HRBodies/HRC/Pages/MembersByG roup.aspx accessed 18 August 2014. 19 E.g. China from the group of the Asia-Pacific States, the Russian Federation from the group of Eastern European States, Cuba from the Group of Latin American and Caribbean States.

227

§ 12 The Institutional Organisation of International Human Rights Protection

voting process nevertheless allows sanctioning such candidates with a bad voting result. Furthermore, in the more recent practice, the regional groups tend to suggest more candidates than necessary to fill the vacancies.20 Thus, an election in the proper sense of the word is possible. In some cases this has led to candidates missing the required absolute majority and the necessity of going through a second round of voting.21 Such results are embarrassing for the countries concerned and thus at least send a political message. Finally, GA Resolution 60/251 (2006) envisages that when electing the members of the Human Rights Council, the GA shall take into account the contribution of candidates to the promotion and protection of human rights and the voluntary pledges and commitments they made thereto. In practice, these voluntary pledges and commitments are made public and are subject to debate. The publication includes a list of international human rights instruments to which the candidate is already a party, indications of intent to ratify further instruments and to withdraw reservations, the extent of the candidate’s co-operation with special procedures, its acceptance of requests for visits, its co-operation with treaty monitoring bodies etc.22 While the election mode theoretically provides for the exclusion of a member from the Human Rights Council in case of gross and systematic violations of human rights, the necessary majority of two-thirds of the votes in the GA makes such an exclusion highly unlikely in practice. Nevertheless, the mere possibility of such a vote creates additional political potential for action and putting pressure on certain countries. Therefore, it seems correct to state that, all in all, the political costs of membership in the Human Rights Council are higher than they were concerning membership in the former Human Rights Commission.23 518 d) Universal Periodic Review Mechanism – UPRM. The most important improvement which went along with the creation of the Human Rights Council concerns the establishment of a universal periodic review of all members of the UN. The details of the new mechanism, which is, in principle, already included in GA Resolution 60/251 are set out in the annex to Resolution 5/1 of the Human Rights Council from 18 June 2007. According to these provisions, the review is based on information prepared by the State concerned (which can but need not necessarily provide for a national report), a compilation of information contained in relevant reports of treaty bodies or special procedures, and other relevant official UN documents, as well as credible and reliable information pro20 The Council’s Membership is based on an equitable geographical distribution with 13 African, 13 Asian-Pacific, 8 Latin American and Caribbean, 7 Western European and other and 6 Eastern European seats. An overview of the current members is available at http://www.ohchr.org/ EN/HRBodies/HRC/Pages/MembersByGroup.aspx accessed on 18 August 2014. 21 As an example, this was the case during the voting procedures in May 2007. 22 Cf. the document entitled ‘Suggested Elements for Voluntary Pledges and Commitments by Candidates for Election to the Human Rights Council’, available at http://www.ohchr.org/Docume nts/HRBodies/HRCouncil/Pledges.pdf accessed on 18 August 2014. 23 Cf. e.g., Lauren, ‘”To Preserve and Build on its Achievements and to Redress its Shortcomings”: The Journey from the Commission on Human Rights to the Human Rights Council’, 29 Human Rights Quarterly (2007), 307 at 337; Theissen (n 10) at 145.

228

II. The Organisation of Universal Human Rights Protection

vided by NGOs or independent human rights institutions.24 By October 2011 the UPRM had completed the first review cycle, which implies that all 193 members of the UN have been subject to the procedure.25 e) Special Procedures. Over the years, the Human Rights Commission had 519 established a comprehensive system of thematic and country-specific procedures, which was later named Special Procedures. The Human Rights Council kept the denomination and the basic structure of this system.26 As of 31 October 2013 there were 37 thematic and 14 country mandates.27 The exact scope and mandate of the special procedures vary according to the subject and its specific requirements. Most special procedures concern individual experts who are assigned a given task as so-called ‘special rapporteur’ or ‘independent expert’. Examples are the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, the Special Rapporteur on Freedom of Religion or Belief, or the Independent Expert on the Promotion of a Democratic and Equitable International Order. Apart from that there are also ‘Working Groups’ in which several experts operate on an equal footing. Here, the Working Group on Arbitrary Detention or the Working Group on Enforced or Involuntary Disappearances may be mentioned as examples.28 The task with which the special procedures are entrusted range from inquiring into specific types of human rights violations (for instance torture, arbitrary of summary executions, violence against women) over mandates aiming at future codification (e.g. ‘sale of children, child prostitution and child pornography’ or ‘rights of indigenous peoples’) to research-oriented mandates which serve the purpose of establishing facts and clarifying options of legal policy (an example for this purpose is the mandate of the Special Rapporteur on the Right to Food).29 When creating the Human Rights Council, the GA specifically asked for a 520 review of the then existing mandates of special procedures. With the exception of the country mandates concerning Cuba and Belarus all special procedures were first provisionally and, after the review definitively prolonged. Until 24 On the notion of NGOs → paras 11 and 20 ff; regarding the role of independent national Human Rights institutions below → paras 573 ff. 25 An analysis of the UPRM’s first cycle can be found in McMohan, The Universal Periodic Review: A Work in Progress–An Evaluation of the First Cycle of the New UPR Mechanism of the United Nations Human Rights Council (Friedrich-Ebert-Stiftung: Dialogue on Globalizations Studies), 2012, available at http://library.fes.de/pdf-files/bueros/genf/09297.pdf accessed 18 August 2014. 26 Initially, the special procedures were based on ECOSOC Res 1235 (XLII) of 6 July 1967. 27 Cf. http://www.ohchr.org/EN/HRBodies/SP/Pages/Countries.aspx and http://www.ohchr.org/ EN/HRBodies/SP/Pages/Themes.aspx accessed 18 August 2014. 28 Especially with regard to the Working Group on Arbitrary Detention cf. Genser/WinterkornMeikle, ‘The Intersection of Politics and International Law: The UN Working on Arbitrary Detention in Theory and Practice’, 39 Colum HR L Rev (2008) 687. 29 On the systematisation of the special procedure mandates cf. Kälin/Künzli (n 2) at 248 ff. A comprehensive study of the special procedures system is offered by Nifosi-Sutton, ‘The System of the UN Special Procedures: Some Proposals for Change’, in Bassiouni/Schabas (eds.), New Challenges for the UN Human Rights Machinery, 2011, 389; cf. also Schmidt (n 10) at 398 ff.; Martin et al., International Human Rights & Humanitarian Law, 2006, 15.

229

§ 12 The Institutional Organisation of International Human Rights Protection

521

522

523

524

now, no thematic mandate which had originally been created by the Human Rights Commission has been abolished.30 Over the years, the Human Rights Council added ten new thematic procedures bringing their total number to 37 today. The Human Rights Council also established eight new country mandates between 2006 and October 2013. f) Human Rights Council Advisory Committee and Individual Complaint Procedure. Already in 1947, the Human Rights Commission had established the ‘Sub-Commission on the Promotion and Protection of Human Rights’ which was composed of originally twelve, later 26 independent experts (→ above para 512) and mainly exercised advisory functions relating to the various codification projects of the time. However, with the so-called ‘1503-Procedure’, named after the ECOSOC-Resolution of 27 May 1970 founding the mechanism,31 the sub-commission also took up tasks of monitoring and surveillance. The 1503-Procedure had been established by the ECOSOC as a confidential and non-judicial mechanism in order to enable the Human Rights Commission to consider individual communications with a view of determining whether or not they revealed ‘a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms.’ The procedure was reformed in 2000 without the reform having been able to considerably simplify the rather cumbersome procedure.32 With the replacement of the Human Rights Commission by the Human Rights Council the question of the future of the 1503-Procedure and of the sub-commission arose. The founding resolution of the Human Rights Council expressly envisages ‘a system of special procedures, expert advice and a complaint procedure.’ Consequently, the Human Rights Council, in its resolution 5/1 of 2007 decided to establish a ‘Human Rights Council Advisory Committee’, consisting of 18 independent experts who are elected for a (only once renewable) period of three years. The Advisory Committee shall function as a think tank for the Human Rights Council and work under the Council’s direction, which implies that the Advisory Committee does not have competence to act on its own initiative. It is furthermore barred from taking up country specific issues.33 Also, the duration of the sessions was reduced as compared to the former sub-commission. The Human Rights Council decided to continue the pre-existing individual procedure established under the 1503-Mechanism as ‘complaint procedure’.34 It was strengthened and now bears the essential characteristics of an individual complaint procedure. While it remains confidential, measures were adopted in Cf. again the comprehensive list of special procedures, n 27. ECOSOC Res 1503 (XLVIII) of 27 May 1970. 32 For a detailed description of the procedure, cf. Kälin/Künzli (n 2) at 253 f. 33 Schmidt (n 10) at 402 f.; Kälin/Künzli (n 2) at 252. 34 HRC Res 5/1 of 18 June 2007, paras 85 ff.

30

31

230

II. The Organisation of Universal Human Rights Protection

order to speed up the processing of communications. The procedure continues to serve as a filter for determining ‘consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms.’35 Mere individual violations will not be pursued beyond the filtering stage. In order to determine the existence of consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms, the Human Rights Council established two working groups. The first working group, the ‘Working Group on Communications’, is composed of five members of the Advisory Committee. It is given the task to decide on the admissibility and to assess whether the communication alone or in combination with other communications appears to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms. Only if the Working Group on Communications considers that this is the case, the communication will be forwarded to the second working group, the ‘Working Group on Situations’. The Working Group on Situations, by contrast, is composed of five representatives of members of the Human Rights Council and, thus, of State representatives and not of independent experts. The representatives serve, however, in their ‘personal capacity’. The Working Group on Situations has the task to establish a report and to present this report to the Human Rights Council with a recommendation for a decision. There are essentially four possible decisions: The consideration of the situation may be discontinued when no further consideration or action is warranted. The situation may be kept under review and the State concerned may be requested to provide further information within a reasonable period of time. The situation may be kept under review and an independent and highly qualified expert may be appointed to monitor the situation and report back to the Council. Finally, the most severe sanction available is to discontinue reviewing the matter under the confidential complaint procedure in order to take up public consideration of the same. The new procedure draws considerably on the pre-existing 1503-Procedure. It 525 still seems to be an open issue whether the reform will result in paying more attention to the situation and the needs of victims of human rights violations and in improving the efficiency of the mechanism.36 Also, the possibility of

HRC Res 5/1 of 18 June 2007, para 85. According to Schmidt (n 10) at 402 it is doubtful whether the renewed complaint procedure will bring about a fundamental improvement of the ‘1503-Procedure’; cf. also Kälin/Künzli (n 2) at 252. By contrast, State representatives put much emphasis on the differences between the ‘old’ 1503-Procedure and ‘more efficient’ new complaint procedure; cf. the German Ambassador’s speech on ‘The consideration of situations under the complaint procedure by the Human Rights Council’ (H. Schumacher), 25 April 2013, available at http://www.genf.diplo.de/contentblob/3874 060/Daten/3231314/20130425UPR16BoSchumacherNGO.pdf accessed 18 August 2014. 35

36

231

§ 12 The Institutional Organisation of International Human Rights Protection

making systematic human rights violations public is an instrument which still has to prove its practical relevance.37 3. Treaty Bodies and Applicable Procedures

a) Introductory Remarks. As already mentioned, the Charter-based organs just described must be distinguished from treaty-based organs which find their legal basis in the respective human rights treaty. The probably most prominent universal treaty-based organ is the Human Rights Committee established by Art. 28 ICCPR. Other examples are the Committee on the Elimination of Racial Discrimination (CERD), the Committee on the Elimination of Discrimination against Women (CEDAW), Committee against Torture (CAT), the Subcommittee on Prevention of Torture (SPT), the Committee on the Rights of the Child (CRC), the Committee on Migrant Workers (CMW), the Committee on the Rights of Persons with Disabilities (CRPD), and the Committee on Enforced Disappearances (CED). An exception to the approach of constituting separate organs for each treaty is the Genocide Convention, which establishes the jurisdiction of the ICJ (Art. IX Genocide Convention). Another atypical construction was established regarding the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Committee on Economic, Social and Cultural Rights was instituted by a resolution of the ECOSOC, but is entrusted with monitoring tasks under the ICESCR (cf. Art. 16 ICESCR).38 In 2008 the GA adopted the text of an Optional Protocol to the ICESCR, which entered into force on 5 May 2013 and enables the Committee to receive and consider individual communications. 527 All treaty-based committees are composed of independent experts who serve in their personal capacity. The Committees meet regularly at the UN headquarters in Geneva. In order to fulfil their monitoring tasks the treaty bodies operate with different procedures, among which four core types may be distinguished: State reports, individual complaints, State-to-State (resp. interstate-)complaints and inquiries. A fifth, preventive type of procedure was developed with regard to the specific needs of preventing torture. The procedure was originally developed in the context of the European Convention against Torture. The Optional Protocol to the Convention against Torture, which entered into force in June 2006, transferred the preventive mechanism to the universal level. The different treaties vary as to the mandatory or optional character of each of these mechanisms. 528 b) State Reports. All universal human rights treaties provide for regular reports by the Member States to the respective treaty body. Under the report526

37 In June 2012 the Human Rights Council decided for the first time to make use of the ‘go public’-procedure against the Republic of Eritrea, cf. HRC Res. 20/20. Cf. also Rathgeber, Performance and Challenges of the UN Human Rights Council (Friedrich-Ebert-Stiftung: Dialogue on Globalization Studies), 2013, 9. 38 ECOSOC Res 1985/17 of 28 May 1985.

232

II. The Organisation of Universal Human Rights Protection

ing system the parties to the treaty are obliged to report regularly on the implementation of the substantive human rights obligations they undertook by ratifying the respective treaty. State reports usually cover general aspects of implementation of international human rights guarantees in the national legal system. Thus, monitoring legislation and general national administrative practice are the main objectives of the reporting system. By contrast, it is unsuitable for the treatment of individual cases. In addition to the report delivered by the State, the treaty bodies also consider 529 information on the country’s human rights situation from other sources, including NGOs and national human rights institutions. The report is usually publicly examined and discussed with the respective State. Based on these discussions, the Committee publishes its ‘concluding observations’.39 These observations are, of course, cautiously formulated and use diplomatic language. Nevertheless they may contain suggestions for concrete remedial measures.40 In contrast to what one might expect, given the broad and free-handed acceptance of the reporting system by the Member States, the procedure is much more than a paper tiger or a fig leaf. Its main advantage must be seen in the comprehensive human rights dialogue it triggers. Individual complaints are restricted to an examination of the specific situation out of which they arose. The reporting system, by contrast, allows for a broad discussion of structural human rights problems in a given country and for an evaluation of its human rights policies. Furthermore, a follow-up based on the discussions and the ‘concluding observations’ (and, possibly, also taking into account certain commitments undertaken as a consequence of these discussions) becomes possible when the next regular State report is debated in the committee. Thus, while the reporting system may not be a substitute for individual complaint procedures, it certainly serves as an important complementary to these other mechanisms. c) Inquiries. Five of the existing mechanisms (CESCR, CAT, CEDAW, CR- 530 PD, CED) may conduct inquiries if they receive reliable information containing well-founded indications of serious, grave or systematic violations of the conventions by a State party. As of 14 April 2014, the Committee on the Rights of the Child has a similar possibility, since the necessary Optional Protocol on a Communications Procedure (‘OP 3 CRC’) finally entered into force.41 The respective committee may trigger the application of the procedure at its own initiative (cf. Art. 8 OP CEDAW; Art. 20 CAT).

39 For a detailed (and exemplary) description of the ICESCR proceedings cf. Kälin/Künzli (n 2) at 213 ff. 40 Cf. e.g. the CAT’s 2004 recommendations regarding the Federal Republic of Germany stating that, as a routine practice, medical examinations should be conducted before all forced removals by air and, in the event of the removal’s failure, thereafter as well, CAT/C/CR/32/7 of 11 June 2004, para 5 (g). 41 Art. 19 para 1 OP 3 CRC required ratification by ten States. Albania, Bolivia, Gabon, Germany, Montenegro, Portugal, Spain, Thailand, Slovakia, and, finally, Costa Rica have by now ratified OP 3 CRC.

233

§ 12 The Institutional Organisation of International Human Rights Protection

Inquiries are faced with two important obstacles: The possibility to conduct inquiries is technically limited by an opt-out possibility. At the time of signature, ratification or accession a declaration not to recognise the respective competence of the Committee may be made.42 Under the Optional Protocol to the ICESCR the competence for inquiries must even be positively accepted.43 A second obstacle concerns the necessity of cooperation by the State concerned. Usually this will pose a problem especially concerning the most severe and difficult cases. The possibilities under the inquiry procedure are, therefore, rather limited.44 532 d) State-to-State Complaints. State-to-State complaints are based on the logic of human rights treaties as multilateral treaties between States. Since treaties create mutual obligations between their parties, it seems logical to enable the other parties to claim that one party has violated its obligations under the treaty. Among the universal human rights treaties only the CERD provides for a compulsory State-to-State mechanism.45 Under CAT, CMW, CED, and ICESCR State-to-State complaints are only possible on the condition that both (!) States have made separate declarations to that effect.46 533 In practice, the State-to-State procedure has turned out to be completely ineffective, because, for political reasons, States shy away from using formalised legal procedures for accusing other States of human rights violations. In fact, there has not been one single State-to-State case under any of the mechanisms just described.47 The situation is slightly better at the regional level under the ECHR (→ para 551) and under the ACHR (→ para 569). However, even there the State-to-State procedure is only of marginal importance. 534 The situation is also somewhat different regarding the implementation of ILO Conventions. Art. 26 ILO provides for an obligatory State-to-State complaint procedure regarding ILO Conventions which both parties to the dispute have ratified. The ILO procedure must be distinguished from the State-to-State complaints under the human rights treaties. In contrast to the human rights treaties, under the ILO system the substantive guarantees relating to labour rights are subject to separate ratification of each ILO Convention. Thus, States are more flexible regarding the substantive obligations they undertake. Furthermore, the ILO provides for a comparatively elaborate system of surveillance and moni531

E.g. Art. 28 para 1 CAT; Art. 10 para 1 OP CEDAW. Art. 11 para 1 OP ICESCR. 44 Kälin/Künzli (n 2) at 237. 45 Art. 11 CERD. 46 Art. 21 CAT, Art. 74 CMW, Art. 32 CED, Art. 10 OP ICESCR; Art. 12 OP 3 CRC, which recently entered into force (n 41), provides for a similar solution concerning the rights of the child. 47 Tomuschat (n 1) at 194; http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitio ns.aspx accessed 18 August 2014. 42

43

234

II. The Organisation of Universal Human Rights Protection

toring. Yet even under this system the number of State-to-State complaints is marginal.48 e) Individual Complaints. Individual complaints49 are usually considered the 535 most effective instrument of human rights enforcement, because the individual concerned is granted the possibility to pursue his or her claim directly before an international body. This assessment is confirmed by the reluctance of States to accept individual complaint procedures. Under the ICCPR it was impossible in 1966 to include the individual complaint procedure into the text of the Covenant itself. Instead, it was removed to an Optional Protocol and thus formally separated from the Covenant. Currently, 115 States have accepted the individual complaint procedure under the ICCPR. A similar approach based on an Optional Protocol was taken in 1999 regarding CEDAW.50 Regarding CAT (Art. 22) and CERD und (Art. 14) separate declarations of acceptance are necessary.51 The practical importance of the individual complaint procedures varies 536 according to the different treaties, as evidenced by the differing number of cases. The CEDAW committee has decided on only 38 individual complaints, which cannot even remotely correspond to the real situation of women’s rights infringements.52 The number of individual cases dealt with under the CERD is similarly insignificant (48 decisions).53 The situation seems to be different regarding torture (the CAT decided on 288 complaints, 124 are pending)54 and the general mechanism under the ICCPR (the Human Rights Committee has decided on 1,628 complaints, 388 are pending).55

48 Apart from States only delegates to the International Labour Conference and the Governing Body may institute proceedings. Until now, most cases have been initiated by delegates. Only eleven cases finally brought about the institution of a ‘Commission of Inquiry’. In one case (Myanmar) the Governing Body recommended sanctions under Art. 33 ILO Constitution; see ILO Governing Body, Doc. GB.277/6 (March 2000), ‘Measures, including action under article 33 of the ILO Constitution, to secure compliance by the Government of Myanmar with the recommendations of the Commission of Inquiry established to examine the observance of the Forced Labour Convention, 1930 (No. 29)’. For a recent account of the ILO complaint mechanism, cf. Dahan/ Lerner/Milman-Sivan, ‘Shared Responsibility and the International Labour Organization’, 34 Mich J Int’l L (2013) 675 at 701 ff. 49 The official term used in the treaties is ‘communications’ (cf. Art. 1 OP ICCPR); the terminology used in the UN system in general, however, prefers the term ‘complaint’, which is also used in the following sections of this book. 50 The OP CEDAW is currently in force for 104 States. Cf. also → para 526 on the OP ICESCR (which entered into force in 2013). 51 As of May 2014, 65 States have submitted declarations under Art. 22 Torture Convention, 55 States have submitted the relevant declaration under CERD (Art. 14). The number of declarations is available at the OCHHR’s treaty database, http://tbinternet.ohchr.org/_layouts/TreatyBodyExter nal/Treaty.aspx accessed 18 August 2014. 52 http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/Jurisprudence.aspx. 53 http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID= 6&DocTypeID=17 accessed 18 August 2014. 54 http://www.ohchr.org/Documents/HRBodies/CAT/StatisticalSurvey.xls accessed 18 August 2014. 55 http://www.ohchr.org/Documents/HRBodies/CCPR/StatisticalSurvey.xls accessed 18 August 2014.

235

§ 12 The Institutional Organisation of International Human Rights Protection

It is not easy to explain the striking differences in the number of individual applications. A possible explanation might be sought in the relevant point in time when the individual complaint procedure was accepted. For instance, the OP CEDAW did not enter into force before December 2000. However, this explanation does not work with regard to all other human rights treaties. With regard to CERD, only 22 of the total of 55 declarations of acceptance were made after 2000. Similarly, among the total of 65 declarations of acceptance under the CAT, merely 23 were made after 2000. Thus, with regard to CAT and CERD, the number of declarations already existing prior to the year 2000 would justify the expectation of more individual communications, even before 2000.56 Whatever the reasons for this limited use of the instrument may be, the limited number of individual communications under practically all universal human rights treaties (with a certain exception relating to the ICCPR) necessarily leads to the conclusion of a limited effectiveness of the instrument. Thus, at least at the universal level, individual complaints need to be complemented by other forms of implementation, such as the reporting system (cf. also below → para 546). 538 Under all universal human rights mechanisms the individual complaint mechanism is conceived solely as a written procedure. For an individual complaint to be admissible, the internal legal remedies need to be exhausted. Furthermore, complaints are inadmissible if they are anonymous or considered to constitute an abuse of the right of submission. Finally, the subject matter of the complaint must not be pending (or already decided upon) by another international human rights body of universal or regional character.57 539 The individual complaint procedures under all universal human rights treaties result in a quasi-judicial, but nevertheless non-binding decision by the respective committee. The Human Rights Committee and the Committee against Torture forward their ‘views’ to the respondent Member State (Art. 5 para 4 OP ICCPR, Art. 22 para 7 CAT), the Committee against Racial Discrimination forwards ‘its suggestions and recommendations, if any,’ (Art. 14 para 7 lit b CERD). A quite similar wording was chosen for the Committee on the Elimination of Discrimination against Women (Art. 7 para 3 OP CEDAW). Irrespective of their formally non-binding character, the views, observations, recommendations or suggestions of the committees are of considerable practical importance. The way in which these final documents are formulated increasingly tends to resemble binding court decisions. 540 f) Prevention. Apart from the State reports, which must be presented periodically, all other procedures operate ex post facto, i.e. they deal with human rights violations which have allegedly already occurred. Dissatisfactory as this may seem, it is nevertheless hardly possible to organise legal protection in a different manner. Legal protection in national legal systems usually also operates retro537

Cf. Vandenhole, The Procedure Before the UN Human Rights Treaty Bodies, 2004, 285 f. Art. 22 para 5 CAT, Arts. 2 and 5 OP 1 ICCPR, Art. 4 OP CEDAW; by contrast, cf. also Art. 14 para 7 lit a CERD. 56

57

236

II. The Organisation of Universal Human Rights Protection

spectively. However, with respect to specific human rights, preventive action may prove useful. Notably regarding the prohibition of torture, there is a specific danger that injuries which occur in prisons, police stations and pre-trial or other detention centres cannot properly be investigated and dealt with after they occurred. Furthermore, the issue of torture requires constant sensitivity by everybody who is involved in the operation of places of detention. The more recent debate on permissible forms of interrogation illustrates the point. It was the 1987 European Convention for the Prevention of Torture and 541 Inhuman or Degrading Treatment or Punishment, which first introduced a preventive mechanism into the portfolio of human rights surveillance mechanisms. It did so by allowing the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment to conduct visits to places of detention without prior notice (Arts. 7 and 8). Based on the positive experience with this mechanism, an Optional Protocol to the Universal Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted.58 The universal mechanism operates on two levels. The first level concerns the national legal system and requires all States parties to the Optional Protocol to establish, at the domestic level, one or several independent national preventive mechanisms for the prevention of torture (Art. 17 OP CAT). In addition, the Optional Protocol creates the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which is entrusted with the preventive tasks under the Optional Protocol (Arts. 2-4 OP CAT). The States parties to the Optional Protocol shall allow visits of the Subcommittee on Prevention to any place under their jurisdiction and control where persons are or may be deprived of their liberty (Art. 4 para 1 OP CAT). The reports of the Subcommittee on Prevention are, in principle, confidential. However, if a State party refuses to cooperate with the Subcommittee on Prevention, the Committee against Torture may, at the request of the Subcommittee, decide to make a public statement on the matter or to publish the report of the Subcommittee on Prevention. This decision of the Committee against Torture is taken by a simple majority (Art. 16 para 4 OP CAT). g) Future Perspectives for Human Rights Protection through Treaty Bod- 542 ies. The continuous growth of the number of human rights treaty bodies has led to overlapping reporting obligations and to delays both in reporting and in dealing with the reports. These problems led the UN Secretary-General Kofi Annan to initiate a debate on the modernisation of the human rights treaty body structure. Already in his report ‘Strengthening the United Nations: An Agenda for Further Change’ of 2002 (and again in the report ‘In Larger Freedom’), which was presented to the World Summit of 2005, Kofi Annan urged for common standards for the various reporting obligations. A first step in the direction of closer cooperation between the treaty bodies was taken with the so-called ‘An58

Cf. GA Res A/RES/57/199 of 9 January 2003; entered into force on 22 June 2006.

237

§ 12 The Institutional Organisation of International Human Rights Protection

nual Meeting of Chairpersons of Human Rights Treaty Bodies’, which took place for the first time in 1984 and has been organised on an annual basis since 1995.59 In addition, from 2002 to 2011 ‘Inter-Committee Meetings’, including the chairpersons and two additional members from each of the Committees were held.60 543 The most far-reaching suggestion for reform was made by the High Commissioner for Human Rights, who suggested replacing the different committees by a ‘unified standing treaty body’.61 Some authors have even gone one step further and argued for a ‘World Human Rights Court’.62 However, such a radical reform would require the amendment of all underlying human rights treaties. Furthermore, the various universal human rights treaties vary as far as membership is concerned. While the International Convention on the Protection of the Rights of Migrant Workers has only 47 members, membership regarding all other human rights treaties varies between 145 and 194 parties. A unified treaty body, whether it is construed as a committee of experts or even as a world court, is thus difficult to realise in practice. For this reason, the proposals by the Secretary-General aiming at standardising the reports and allowing for a single report covering the various reporting obligations under the different treaties (‘single report solution’) seem preferable. The development during the last five years points in this direction.63 544 Irrespective of these difficulties in coordinating the various obligations under the different instruments, the overall development of the role of treaty bodies deserves further analysis. While, for instance, the European Convention on Human Rights (ECHR) explicitly states that the ‘jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto […]’ (Art. 32 para 1 ECHR), no comparable provision ex-

59 GA Res A/RES/49/178 of 23 December 1994; for an early request of the GA to convene meetings of the treaty bodies’ chairs, cf. GA Res A/RES/38/117 of 16 December 1983. 60 For the current status of efforts to harmonise, amongst others, the committees’ working methods, cf. GA Res A/RES/68/268 of 21 April 2014. 61 A/59/2005/Add.3 of 26 May 2005. Cf. Concept Paper on the High Commissioner’s Proposal for a unified standing treaty body, Report by the Secretariat, HRI/MC/2006/2 of 22 March 2006; for a critical account, cf. Tomuschat, ‘Human Rights Committee’, in Wolfrum, para 36. 62 Cf. Kozma/Nowak/Scheinin, A World Court of Human Rights–Consolidated Statute and Commentary, 2011. 63 On the development of a ‘simplified and aligned reporting process’, cf. GA Res A/RES/ 66/254 of 23 February 2012 and, most notably, the OHCHR’s report on the strengthening of the human rights treaty bodies, contained in GA Res A/RES/66/860 of 26 June 2012, 48 ff. The proposals contained therein are partly based on some committees’ experiences, e.g. the Human Rights Committee (cf. CCPR/C/99/4 of 29 September 2010), and the CAT (cf. the report of 38th session, contained in GA Res A/RES/62/44 of 5 December 2007, 6; currently under review, cf. CAT/C/ 47/2 of 27 September 2011), which have established so-called LOIPR (‘lists of issues prior to reporting’) procedures. The so-called common core document, which shall contain general information on the reporting State and its human rights framework, is described in detail in the SecretaryGeneral’s report, HRI/GEN/2/rev. 6 of 3 June 2009. An overall account of the review process is given by Egan, ‘Strengthening the UN Human Rigths Treaty Body System’, Human Rights LR (2013) 209 ff.

238

II. The Organisation of Universal Human Rights Protection

ists under the ICCPR. Thus, under the ECHR it can be reasonably argued that the European Court of Human Rights (ECtHR) is entrusted with the function of a ‘guardian of the Convention’. By contrast, where the respective treaties do not describe the role of the supervisory organ in such a broad and comprehensive manner, the role of these organs seems more limited in scope. However, the committees established under the various human rights treaties have gradually come to an understanding of their role as being similar to that of a ‘guardian’ of the respective systems. Indications for such a self-understanding are the use of judgment-like language in concluding observations and views, their self-confidence in claiming a decisive role in assessing the validity of reservations, and finally the so-called ‘General Comments’ which most human rights treaty bodies have issued over the years as general guidelines for the interpretation of the obligations contained in the respective treaties.64 4. Security Council

Among the main organs of the United Nations, also the Security Council 545 plays a role in human rights protection, even though this role is limited to the most severe cases. According to Art. 24 UN the Security Council bears the primary responsibility for the maintenance of international peace and security. Since the end of the Cold War there is a clearly visible development within the United Nations to consider the most severe forms of human rights violations, like genocide, war crimes, ethnic cleansing etc. as threats to international peace and security within the meaning of Art. 39 UN. These developments have been confirmed by the inclusion of the concept of ‘responsibility to protect’ into the World Summit Outcome document of 2005 (→ for details, § 11 para 421). Thus, concerning such human rights violations the possibilities for action under Chapter VII UN Charter are open, including, if necessary, the use of force. Security Council Resolution 1973 of 2011 concerning Libya may be seen as a practical application of the concept.65 Apart from such severe forms of human rights violations, there is, however, no competence of the Security Council for human rights action.

64 For a broad discussion of the concept and legal status of General Comments, cf. Keller/ Grover, ‘General Comments of the Human Rights Committee and their legitimacy’, in Keller/ Ulfstein (eds.), UN Human Rights Treaty Bodies: Law and Legitimacy, 2012, 116 ff.; Chinkin, ‘Sources‘, in Moeckli et al. (n 10), 103 at 109 f.; Schmidt, ‘United Nations‘ (n 10) 391 at 408 f. The historical development of General Comments is described in Alston, ‘The Historical Origins of the Concept of “General Comments” in Human Rights Law’, in Boisson de Chazournes/GowllandDebbas (eds.), The International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi Saab, 2001, 763 ff.; information as to the influence of General Comments on national jurisprudence has been collected in the ILA Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies, Berlin Conference 2004. On possible future developments of the system of General Comments, cf. the OHCHR’s report on the strengthening of the human rights treaty bodies, contained in GA Res A/RES/66/860 of 26 June 2012, 82. 65 Cf. again → § 11 para 421.

239

§ 12 The Institutional Organisation of International Human Rights Protection

5. Evaluation 546

The international instruments for human rights monitoring and enforcement need to be viewed in conjunction. Each single procedure has deficits and weaknesses, which, however, are to some extent made up for by other mechanisms. An illustration for such complimentary effects may be found concerning the individual complaint procedure and the system of State reports. While the individual complaint procedure is effective in the sense that it leads to a legal evaluation of an alleged individual violation, it is weak as far as general changes of national law and policy are concerned. It necessarily focuses on a solution for the individual case. The reporting system by contrast, allows an overall discussion of national law and policy, without, however, resulting in concrete and immediate consequences for individuals who may be negatively affected by such policies. Universal Periodic Review and the Special Procedures established within the system of the Human Rights Council cover yet another aspect. While the treaty bodies are necessarily limited to an evaluation on the basis of their respective treaty, surveillance under the mechanisms of the Human Rights Council may not only take up all treaty obligations of the State concerned, but also political commitments beyond the sphere of binding international treaties. The activities of the Special Rapporteur on Freedom of Religion are an excellent example which illustrates that their mandate of law and policy allows these bodies to address issues which remain outside the scope of institutions which are limited to an assessment of alleged treaty violations only.66 Similarly, the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment avoids visits to countries which are simultaneously under scrutiny by the Committee against Torture under Art. 20 CAT. However, the Special Rapporteur may use a subsequent visit to that country in order to organise a follow-up procedure based on the prior findings of the Committee against Torture, a procedure which, in turn, would have been more difficult for the Committee to organise.67 III. The Organisation at the Regional Level 1. Europe

547

In Europe, the Council of Europe is the primary address for human rights issues. Additionally, the OSCE has established a number of political mechanisms for the protection of human rights. Within the EU human rights protection is en-

66 Cf. e.g. GA Res A/HRC/25/58 of 26 December 2013; for other examples cf. Walter, ‘Religionsfreiheit in säkularen im Vergleich zu nicht-säkularen Staaten: Bausteine für ein integratives internationales Religionsrecht’, 43 Reports of the German Society of International Law (2008), 253 at 284 ff. 67 Rodley, ‘United Nations Human Rights Treaty Bodies and Special Procedures of the Commission on Human Rights–Complementarity or Competition?’, 25 Human Rights Quarterly (2003), 882 at 894 f.

240

III. The Organisation at the Regional Level

sured by the European Court of Justice based on the EU human rights standards laid down in the Charter of Fundamental Rights and complemented by the European Convention on Human Rights (→ paras 549 ff.). a) Council of Europe. The creation of the Council of Europe is closely linked 548 to the central human rights document in Europe: the Convention for the Protection of Human Rights and Fundamental Freedoms, in short European Convention on Human Rights. Over the years, a number of additional human rights treaties have been adopted within the Council of Europe, some of which possess their own mechanisms of implementation. aa) European Convention on Human Rights (ECHR) and European Court of 549 Human Rights (ECtHR). Over the more than 60 years of its existence the ECHR, with its today 47 Member States, has developed into an international system of human rights protection which may be compared with national constitutional courts.68 Some authors use the term ‘European Human Rights Constitution’.69 The ECtHR itself speaks of the Convention as a ‘constitutional instrument of European Public Order’.70 The ECHR entered into force on 3 September 1953 after having been ratified by ten States. From among the big Western European States France was the most reluctant, waiting until 1974 before ratifying the Convention. The creation of an individual complaint procedure was a particularly difficult 550 issue, because the European States were initially extremely reluctant to allow for the direct access of the individual to the ECtHR. The original mechanism provided for a two-step procedure allowing the individual only to address the European Commission of Human Rights. Access to the ECtHR was limited to the respondent State and the Commission. The individual thus remained mediated71 in the proceedings at the ECtHR. While Germany, for obvious historical reasons, was the first country to accept the individual complaint procedure (in 1955), it was not before 1966 that, with the UK, a second big Western European State followed suit. France only accepted the individual complaint in 1981. The two-step procedure was abolished with the entry into force of AP 11, which provided for a compulsory jurisdiction of the ECtHR for individual complaints.72 At the same time, the Court, which had previously operated on the basis of regular sessions, was turned into a permanent institution. 68

Frowein, Collected Courses of the Academy of European Law, 1990, Vol I Book 2, 267 at

278. 69 On the ‘constitutionalisation’ of the EU cf. Möllers, ‘Pouvoir Constituant-Constitution-Constitutionalisation‘, in von Bogdandy/Bast (eds.), Principles of European Constitutional Law, 2006, 169 at 195 ff.; Rittberger/Schimmelfennig, ‘Explaining the constitutionalization of the European Union’, 13 J Eur Public Policy (2006), 1148 ff. Cf. also the contributions in Riekman/Wessels (eds.), The Making of a European Constitution, 2006. 70 ECtHR, Loizidou v. Turkey, Appl. No. 153318/89, Rep. 1996-VI. 71 On the traditional position regarding the individual as a mere object of international law, cf. e.g. Oppenheim, International Law: a Treatise (vol. 1), 1905, § 288 at 341 ff. 72 Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby, of 11 May 1994, ETS No. 155.

241

§ 12 The Institutional Organisation of International Human Rights Protection

In contrast to the individual complaint procedure, the possibility of State-toState complaints was accepted quite easily. However, for the reasons already mentioned with regard to State-to-State complaints at the universal level, the instrument is only rarely used in practice and thus remains very limited in its effects.73 552 The individual complaint procedure has proven extremely successful. The increase in membership among central and eastern European countries after the end of the Cold War led to a steadily rising number of applications and brought the ECtHR to the limits of its capabilities in the late 1990 s and 2000 s.74 This brought about a lively debate on how to reform the system and enhance the effectiveness of the Court without diminishing its acceptance among the citizens in Europe. As a result, AP 14 was adopted, which introduced the possibility of single-judge decisions and created a new admissibility criterion requiring applicants to demonstrate that the alleged violation of a convention right resulted in ‘significant disadvantage’.75 553 ECHR AP No. 14 entered into force on 1 June 2010. The new procedural measures have proven effective as far as the Court’s capability to deal with the enormous workload is concerned. In 2012 the Court managed for the first time to decide on more applications than it received.76 Thus, while the backlog of cases is still considerable, AP 14 succeeded in providing the necessary tools for reducing that backlog. The figures for 2013 confirm this trend.77 554 bb) Human Rights Protection in the Council of Europe outside the ECHR. Within the human rights treaty law of the Council of Europe three specific treaties deserve separate mentioning. Already in 1961 the European Social 551

73 Until now, there have been 16 inter-State applications. For an example, cf. Ireland v. UK, Appl. Nos. 5310/71 and 5451/72; Denmark and Others v. Turkey, Appl. Nos. 9940/82 et al.; Cyprus v. Turkey, Appl. Nos. 6780/84 et al.; a list of all proceedings is available at http://www.echr.coe.int/D ocuments/InterStates_applications_ENG.pdf accessed 18 August 2014. On 12 May 2014 the court handed down its first judgment in State-to-State applications that applied Art. 41 ECHR, thereby awarding Cyprus just satisfaction of (in total) 90,000,000 EUR for non-pecuniary damage. 74 In 2011, 64,400 applications were lodged, while 1,511 judgments were handed down and 50,677 cases declared inadmissible or struck off the list. As of 1 January 2012, 151,600 cases were pending. Cf. ECtHR, Annual Report 2012, 149; available at http://www.echr.coe.int/Documents/A nnual_report_2012_ENG.pdf accessed 18 August 2014. 75 Art. 12 of AP 14, ETS No. 194; on this, cf. Eaton/Schokkenbroek, ‘Reforming the Human Rights Protection System established by the European Convention on Human Rights: A new Protocol No. 14 to the Convention and other measures to guarantee the long-term effectiveness of the Convention system’, 26 Human Rights LJ (2005), 1 at 6 ff.; van Dijk et al. (eds.), Theory and Practice of the European Convention on Human Rights, 4th edn. 2006, 105 ff. 76 http://www.echr.coe.int/Documents/Stats_annual_2013_ENG.pdf accessed 14 August 2014. 77 In 2013, about 65,900 applications were lodged; 3,659 judgments were issued and 89,737 cases declared inadmissible or struck off the list. As of 31 March 2014, 96,050 applications were pending. Cf. http://www.echr.coe.int/Documents/Stats_annual_2013_ENG.pdf, http://www.echr.co e.int/Documents/Stats_analysis_2013_ENG.pdf at 4 and http://www.echr.coe.int/Documents/Stats _month_2014_ENG.pdf accessed 18 August 2014. A recent analysis of the ECtHR caseload’s development and possible negative repercussions of the court’s procedural reforms on the quality of judgments is offered by Gerards, ‘Inadmissibility Decisions of the European Court of Human Rights: A Critique of the Lack of Reasoning’, 14 Human Rights LR (2014), 148 ff.

242

III. The Organisation at the Regional Level

Charter was adopted according to which the Member States shall endeavour to improve ‘the standard of living and to promote the social well-being of both their urban and rural populations.’ Under the European Social Charter the States parties have the possibility to choose five out of seven substantive guarantees, which they accept as mandatory (Art. 20). The Charter provides for the establishment of the European Committee of Social Rights as supervisory body for ensuring the respect of the commitments undertaken by the States parties (Art. 24). The main instrument of surveillance is a reporting system which covers both the mandatory and the non-binding substantive guarantees (Arts. 21, 22). Having been complemented by three Protocols of 1988, 1991 and 1995 a consolidated version of the Charter was adopted in 1996 as the ‘Revised European Social Charter’. The Revised European Social Charter is currently in force for 33 States parties. However, a significant number of States parties to the 1961 European Social Charter have, until now, refrained from ratifying the revised version.78 Germany is among the few States that did not even sign the document when it was adopted.79 The pioneer function of the European Convention for the Prevention of 555 Torture and Inhuman or Degrading Treatment or Punishment of 26 November 1987 regarding preventive action has already been alluded to (→ para 541). The European Committee for the Prevention of Torture, the surveillance mechanism established by the Convention, has free access to any detention facility in a State party (Arts. 2 and 7 ff. CPT). The Committee only notifies the State party concerned of its intention to carry out a visit. It is free in its choice of which place of detention it visits. Reports on the visits may be made public. There are only a limited number of highly exceptional grounds on which a visit to a specific facility may be refused (Art. 9 CPT). The Committee’s competence is exceptional in that it may make recommendations to the State party concerning the improvement of the situation of persons deprived of their liberty. If the Party fails to cooperate or refuses to improve the situation in the light of the Committee's recommendations, the Committee may make a public statement on the matter (Art. 10 para 2 CPT). The Committee makes use of this option not only in regard of grievances that have actually been found to exist, but also with a view to improving mechanisms of prevention against torture. The more recent activities of codification by the Council of Europe were con- 556 centrated on the protection of minorities. On 5 November 1992 the European Charter of Regional and Minority Languages80 was adopted, which also provides for monitoring by an expert committee. In addition, the Framework Convention on the Protection of National Minorities was adopted on 1 February 78 Cf. http://www.coe.int/t/dghl/monitoring/socialcharter/Presentation/Overview_en.asp accessed 18 August 2014. 79 Germany finally signed the revised Charter on 29 June 2007; however no further steps for ratification have been taken since then. 80 ETS No. 148; entered into force on 1 March 1998.

243

§ 12 The Institutional Organisation of International Human Rights Protection

1995.81 A committee of experts is also responsible for the supervision of this Convention. 557 b) OSCE. A major step in the development of human rights in Europe must also be seen in the CSCE/OSCE process, which started in 1975. Operating during the Cold War period as a purely political dialogical process, the Conference on Security and Cooperation in Europe (CSCE) was the sole pan-European human rights platform existing in 1989/90. The starting point for human rights activities of the CSCE was the so-called ‘Basket 3’ of the 1975 CSCE Helsinki Final Act,82 which was entitled ‘Co-operation in humanitarian and other fields’. Under this heading human rights issues and questions of family reunification were treated. 558 As of 1989 three ‘Conferences on the Human Dimension of the CSCE’ were held (Paris 1989/Copenhagen 1990/Moscow 1991). Among the concluding documents of the Conferences, the Copenhagen Document83 is of particular relevance because it contains a general acceptance of human rights commitments of any government and sets up a human rights catalogue for the CSCE context. However, the document remained particularly weak as far as institutional aspects are concerned. No obligatory mechanism for surveillance was created and the Chapter pertaining to institutional aspects was thus rightly labeled as ‘probably the most disappointing one of the Copenhagen Document’.84 The Moscow Document of 199185 introduced time limits in order to speed up the procedures of the human dimension. But all in all the mechanism has proven comparatively weak. 559 Irrespective of its purely political and thus legally non-binding character, the CSCE institutionalised its human rights activities. At the Helsinki Summit of 1992 the office of the ‘High Commissioner for the Rights of National Minorities’ was created. The Budapest Summit which decided on renaming the organisation to ‘Organisation for Security and Cooperation in Europe’ (OSCE) as of 1 January 1995, marks the end of the institutionalisation of an organisation, which thus developed highly sophisticated institutional structures in spite of its continuously non-binding character. The OSCE thus possesses all major organs which are characteristic for an international organisation, but it nevertheless is not based on a legally binding founding treaty. The most important institution with regard to human rights protection is the Office for Democratic Institutions and Human Rights (ODIHR) based in Warsaw. Its main focus lies on the monitoring of elections. Apart from that, there is an OSCE Representative on

ETS No. 157; entered into force on 1 February 1998. 14 ILM (1975) 1292 at 1313 ff. 83 29 ILM (1990) 1305 ff. 84 Bloed, ‘A New CSCE Human Rights “Catalogue“: The Copenhagen Meeting of the Conference on the Human Dimension of the CSCE’, in Bloed/van Dijk (eds.), The Human Dimension of the Helsinki Process: The Vienna Follow-Up Meeting and its Aftermath, 1991, 54 at 69. 85 30 ILM (1991) 1670 ff. 81

82

244

III. The Organisation at the Regional Level

Freedom of the Media, who observes media developments as part of an early warning function. In sum, it must be noted that along with the accession of the central and east- 560 ern European countries to the Council of Europe and the ECHR with its binding surveillance mechanism, the importance of the OSCE with regard to human rights protection gradually diminished. The OSCE is, however, still relevant with regard to election monitoring. c) European Union. In general, international human rights protection aims at 561 protecting individuals against public authority exercised by States. The human rights debate in the context of the European Union is fundamentally different in that regard. Quite early in the history of the European Union it became clear that the European Economic Community, as it was then called, was capable of interfering with fundamental rights of individuals in a manner which was similar to that of the public authority exercised by States. Thus, human rights were introduced into the Community’s legal order not with the aim of adding yet another international catalogue of rights to be protected against interference by the Member States, but for the purpose of limiting the power of the international organisation itself. While the European Court of Justice (ECJ), in its early jurisprudence pro- 562 voked fears that it might not take the issue of human rights protection against EC action seriously enough,86 it soon corrected this impression.87 Since the mid-1960 s Community human rights are considered general principles of community law, derived from the constitutional traditions common to the Member States88 and from international human rights treaties to which the Member States are parties,89 notably the ECHR. On this basis, the ECJ developed a catalogue of Community human rights, which, in 1987, was considered by the German Federal Constitutional Court to ensure a level of human rights protection comparable to that guaranteed by the German Constitution (Grundgesetz) and the jurisprudence of the German Constitutional Court.90 The ECtHR later adopted a similar approach.91 With the entry into force of the Treaty of Maastricht on the creation of the European Union in 1993, the jurisprudence of the ECJ was partially codified in Art. 6 para 3 TEU (then Art. F para 2 TEU). In its recent practice, the ECJ developed its human rights jurispru-

86 On the following issues cf. Kühling, ‘Fundamental Rights‘, in von Bogdandy/Bast (n 69), 479 at 482 ff. 87 ECJ 29/69 Stauder, 1969 ECR 419 at 427 f.; ECJ 11/70 Internationale Handelsgesellschaft, 1970 ECR 1125 at para 4; ECJ 4/73 Nold, 1974 ECR 491 at para 13. 88 Internationale Handelsgesellschaft (n 87) para 4. 89 Nold (n 87), para 13. 90 73 BVerfGE 339 ff. – Solange II. For an English translation, cf. 25 Common Market L Rev (1988) 201. 91 ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland, Appl. No. 45036/98, judgment of 30 June 2005, Rep. 2005-VI.

245

§ 12 The Institutional Organisation of International Human Rights Protection

dence even further, invalidating several European Union acts solely based on a violation of fundamental rights.92 563 Irrespective of this jurisprudential development and its consecration by EU treaty law, calls for a written catalogue of human rights continued to be voiced by the European Parliament and others.93 These demands led to the convocation of the European Fundamental Rights Convention, which on 2 October 2000 adopted the Charter of Fundamental Rights of the European Union.94 While the Charter was formally proclaimed by the European Council in Nice on 7 December 2000, it was with the entry into force of the Treaty of Lisbon that the Charter was formally integrated into EU treaty law and acquired as such binding legal force with precedence over any secondary legislation enacted by EU organs (Art. 6 TEU). 564 Corresponding to their historical development, European Union human rights standards were primarily considered to bind the organs of the European Union. However, given the supranational character of EU law and the ensuing entanglements between national and European Union law, applying EU human rights to Member State action soon became an issue of debate.95 Prior to the entry into force of the Charter of Fundamental Rights the application of EU human rights to Member State action was accepted in two cases: 1) execution of directly applicable EU law by authorities of the Member States; 2) limitations to fundamental freedoms imposed by the Member States.96 The question was explicitly taken up in Art. 51 Charter of Fundamental Rights, according to which the provisions of the Charter ‘are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.’97 However, the ECJ, in the controversial judgment in the Åkerberg Fransson case found that ‘the fundamental rights guaranteed by the Charter must […] be complied with where national legislation falls within the scope of European Union law.’98 This jurisprudence

92 Cf. ECJ Joined Cases C-92/09 and C-93/09 Volker and Markus Schecke GbR & Hartmut Eifert v Land Hessen, 2010 ECR I-11063 at paras 53 ff. (concerning the publication of information on beneficiaries of agricultural aid); ECJ Joined Cases C-293/12 and C-594/12 Digital Rights Ireland Ltd. v Minister for Communications and Others & Kärtner Landesregierung and Others, judgment of 8 April 2014, n.y.p., at paras 23 ff. (concerning the retention of personal date under the Data Retention Directive). 93 Already in 1989, the European Parliament passed the ‘Resolution adopting the Declaration of Fundamental Rights and Freedoms’ (OJ C 120 of 16 May 1989, 51) which was the first comprehensive catalogue of fundamental rights and freedoms in the EU. A comparable list of fundamental rights, including social rights, can be found in part VIII of the ‘Resolution on the Constitution of the European Union’ (OJ C 61 of 28 February 1994, 155) which was adopted on 10 February 1994. 94 OJ C 364 of 18 December 2000, 1. 95 Cf. Craig/de Búrca, EU Law: Text, Cases and Materials, 5th edn. 2011, 381 ff. 96 ECJ C-5/88 Wachauf, 1989 ECR I-2609 at para 19; ECJ C-260/89 ERT, 1991 ECR I-2925 at para 42 f. 97 Emphasis added. 98 ECJ C-617/10 Åkerberg Fransson, judgment of 26 February 2013, n.y.p., at para 21.

246

III. The Organisation at the Regional Level

opens a broad field of application for the EU Fundamental Rights Charter to national measures by the Member States. d) Accession of the EU to the ECHR. Even though, on the basis of the devel- 565 opment just described, the EU possesses its own standards of human rights protection, the situation was nevertheless considered to be dissatisfactory.99 Based on earlier proposals dating back to 1979,100 the changes to the EU Treaty brought about by the Treaty of Lisbon (Art. 6 para 2 TEU) envisage a formal accession of the EU to the ECHR. The lack of competence of the Union for such an accession, which the ECJ had determined in its Advisory Opinion 2/94,101 has thus been overcome. The accession process is still ongoing. On 5 April 2013 a Draft Revised 566 Agreement on the Accession of the European Union to the Convention on the Protection of Human Rights and Fundamental Freedoms, which had been negotiated by a group of 14 members of the Council of Europe and the Commission of the European Union, was adopted.102 Apart from institutional questions relating to the cooperation of the EU in the Council of Europe,103 of which the EU will continue not to be a formal member, the Draft Revised Agreement provides for the establishment of a so-called ‘co-respondent-mechanism’. Under this mechanism the EU and one or several of its members may operate on equal footing as far as the role as respondent in matters before the ECtHR is concerned. The co-respondent mechanism intends to avoid potential disadvantages for either the EU or one or several Member States concerned in situations where the allocation of responsibility for an alleged human rights violation between the EU and the Member State(s) concerned is unclear.104 Furthermore, the binding force of the judgment of the ECtHR relates to all co-respondents.105 Finally, the possibility of a reference to the ECJ is envisaged for applications relating to casCf. e.g., Craig/de Búrca (n 95) at 399 f. Cf. in particular the European Commission’s Memorandum on the accession of the European Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms, COM (79) 210 final of 2 May 1979 (Bulletin of the European Communities, Supplement 2/79); the European Commission’s Communication on Community accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms and some of its Protocols, SEC (90) 2087 final of 19 November 1990; cf. also the resolution of 18 January 1994 concerning the accession by the European Community to the ECHR, OJ C 44/32. 101 ECJ, Opinion 2/94 Accession by the Community to the ECHR, 1996 ECR I-1759 at para 34. 102 Final Report to the CDDH, 47+1 (2013) 008 of 5 April 2013 (Draft Revised Agreement); cf. Lock, ‘Walking on a Tightrope: The Draft ECHR Accession Agreement and the Autonomy of the EU Legal Order’, 48 Common Market LR (2011), 1025 ff.; de Schutter, ‘L’adhésion de l’Union européenne à la Convention européenne des droits de l’homme: Feuille de route de la négotiation’, 83 Revue trimestrielle des droits de l’homme (2010), 551 ff. 103 Cf. Schilling, ‘On Equal Footing: The Participation Rights Envisaged for the European Union after its Accession to the European Convention on Human Rights’, 14 Human Rights LR (2014), 197 ff. 104 Draft Revised Agreement (n 102), paras 38 ff.; cf. also Jacqué, ‘The Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms’, 48 Common Market LR (2011), 995 at 1012 ff. 105 Draft Revised Agreement (n 102), para 39; cf. also Lock, ‘EU Accession to the ECHR: Implications for the Judicial Review in Strasbourg’, 35 European LR (2010) 777 at 785 f. 99

100

247

§ 12 The Institutional Organisation of International Human Rights Protection

es in which no preliminary ruling under Art. 267 TFEU was asked for during the national phase of the proceedings.106 The ECJ is currently considering the compatibility of the terms of the Draft Agreement with EU law in an advisory procedure under Art. 218 para 11 TFEU.107 2. America

Already in April 1948 the American Declaration of the Rights and Duties of Man was adopted at the Ninth International Conference of American States in Bogotá, Colombia. This makes the American Declaration slightly older than the Universal Declaration of December 1948. Similar to the Universal Declaration, the American Declaration is not binding as such. However, the surveillance bodies of the Inter-American human rights system – the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights – quite naturally consider the Declaration as a specification of the human rights referred to in the OAS Charter.108 With the American Convention on Human Rights (ACHR),109 which was signed in San José, Costa Rica in November 1969 and entered into force on 18 July 1978, regional human rights protection in America was based on an international treaty which contains about 25 freedoms, as well as elementary economic, social and cultural rights. The economic, social and cultural dimension of the system was strengthened through an Additional Protocol of 17 November 1988,110 which entered into force on 16 November 1989. A major political weakness of the whole system must be seen in the fact that, until today, neither the United States nor Canada joined the Convention. 568 As already mentioned, the Inter-American system operates with a Commission and a Court as central organs of implementation. There are, however, significant differences compared to the original European system under the ECHR. For example, the Inter-American Commission was founded already in 1959, i.e. considerably prior to the Inter-American Convention, as a sub-organ of the Council of the Organization of American States (OAS).111 This existing organisational structure was then integrated into the surveillance mechanism established by the Convention (Arts. 34 ff. ACHR). In addition to integrating the 567

106 Draft Revised Agreement (n 102), paras 65 ff.; Lock (n 105) at 792 ff.; Lock (n 102) at 1045 ff. 107 Opinion 2/13: Request for an opinion submitted by the European Commission pursuant to Article 218 para11 TFEU, OJ C 260 of 7 September 2013. 108 119 UNTS (1952) 3; cf. IACtHR, Advisory Opinion OC-10/89 Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, 14 July 1989, Ser. A No. 10 (1989) at paras 35-45. 109 1144 UNTS (1979) 144. 110 Reprinted in 28 ILM (1989) 156. 111 For details cf. Kälin/Künzli (n 2) at 270 ff; before the Charter of the Organization of the American States was changed in 1970, there had been no treaty basis of the Inter-American Commission, cf. Cerna, ‘The Inter-American Commission on Human Rights: its Organization and Examination of Petitions and Communications’, in Harris/Livingstone (eds.), The Inter-American System of Human Rights, 1998, 65 ff.

248

III. The Organisation at the Regional Level

already existing Commission, the ACHR created the Inter-American Court of Human Rights (Arts. 52 ff. ACHR), which – in contrast to the ECtHR today (and comparable to the original European system) – does not accept direct individual complaints (Art. 61 ACHR). Individuals are required to bring their case before the Inter-American Commission (Art. 44 ACHR). Solely the Commission and the respondent State are entitled to submit a case to the Inter-American Court. A further important difference between the Inter-American and the European 569 systems of human rights protection relates to the obligatory character of individual complaints and State-to-State complaints. Under the Inter-American system the individual complaint was mandatory for all States parties right from the beginning. In Europe the individual complaint was only made mandatory by ECHR AP 9 and AP 11 respectively. By contrast, State-to-State complaints, which have always been mandatory under the European system, never have been so in the Inter-American context, but were always subject to a separate declaration of acceptance. Yet another difference of procedures concerns the advisory function, which has practically played no role under the ECHR but seems to have considerably contributed to the development of human rights in America.112 3. Africa

Also on the African continent a regional human rights development took 570 place, which operates with its own mechanism of implementation. The starting point for this development was the African Charter of Human and Peoples’ Rights (‘Banjul Charter’), which was adopted in 1981 and entered into force on 26 October 1986.113 Following African tradition, the African Charter places more emphasis on group rights than the other regional or universal human rights instruments. Initially, the sole surveillance mechanism was the African Commission of Human and Peoples’ Rights (Arts. 30 ff. Banjul Charter). In 1998 the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court on Human and Peoples' Rights was signed (‘1998 Protocol’).114 It entered into force on 25 January 2004. On 1 July 2008 a Protocol on the Statute of the African Court of Justice and Human Rights was signed (‘Merger Protocol’), which provides for the merger of the African Court of Human and Peoples’ Rights with the African Court of Justice (the judicial organ of the African Union).115 However, the ratification process for the merger is extremely slow with only three ratifications existing as of April 112 Fix-Zamudio, ‘The European and the Inter-American Courts of Human Rights: A brief comparison‘, in Mahoney et al. (eds.), Protecting Human Rights: The European Perspective, 2000, 514 ff.; Kälin/Künzli (n 2) at 209 f., 238. 113 21 ILM (1982) 58. 114 OAU Doc. OAU/LEG/EXP/AFCHPR/PROT(III); available at http://www.african-court.org/e n/images/documents/Court/Court%20Establishment/africancourt-humanrights.pdf accessed 18 August 2014. 115 48 ILM (2009) 337 ff.

249

§ 12 The Institutional Organisation of International Human Rights Protection

2014.116 Since a total of 15 ratifications is necessary for the entry into force (Art. 9 para 1 Merger Protocol), the merger has not yet become effective. The Court still operates under the 1998 provisions. As of April 2014 the Court has received a total of 27 cases.117 The Court may receive applications from the African Commission and from States parties to the 1998 Protocol. Furthermore, the 1998 Protocol also allows for individual applications.118 The Commission is competent to deal with State-to-State applications and individual applications.119 4. Similarities and Differences

All three regional systems of human rights protection are integrated in the wider organisational structures of a regional organisation with broad powers. The traditions and the institutional structures are certainly stronger in the European and the Inter-American context than in the African. The substitution of the former OAU by the AU has not yet significantly changed the picture given the slow progress of ratification of the new Protocol on the Statute of the African Court of Justice and Human Rights. The most important difference relates to the applicable human rights standards. While the other regional (and also the universal) treaty bodies are limited to ‘their’ treaty, the jurisdiction of the African Court extends to ‘the Charter, this Protocol and any other relevant Human Rights instrument ratified by the State concerned’.120 572 The Inter-American system is special in that the Inter-American Human Rights Commission also operates with regard to human rights issues which are not related to the American Human Rights Convention (but remain within the overall OAS context). There is no corresponding mechanism in the European system. However, it must also be taken into account that the Parliamentary Assembly of the Council of Europe made ratification of the ECHR a condition for joining the Council of Europe. Thus, in contrast to the Inter-American and the African systems, in Europe all members of the Council of Europe are 571

116 http://www.africancourtcoalition.org/index.php?option=com_content&view=article&id= 87 %3Aratification-status-protocol-on-the-statute-of-the-african-court-of-justice-and-human-rights&c atid=7%3Aafrican-union&Itemid=12&lang=en accessed 18 August 2014. 117 Cf. the Status of Applications, available at http://www.african-court.org/en/index.php/2012-0 3-04-06-06-00/cases-status1 accessed 18 August 2014. 118 This is based on a combined reading of Art. 5 para 3 and Art. 34 para 6 of the 1998 Protocol. When a Member State has made a declaration of acceptance under Art. 34 para 6, the Court may exercise its discretion under Art. 5 para 3 and accept individual applications; cf. Amao, ‘The African Regional Human Rights System’, in Baderin/Ssenyonjo (n 10) at 245. 119 The African Commission has accepted individual complaints as ‘other complaints’ under Arts. 55 to 59 Banjul Charter; cf. Amao, ‘The African Regional Human Rights System’, in Baderin/Ssenyonjo (n 10) at 242; cf. also Viljoen, International Human Rights Law in Africa, 2012, 289 ff.; Viljoen, ‘Communications under the African Charter: Procedure and Admissibility’, in Evans/Murray (eds.), The African Charter on Human and Peoples’ Rights: The System in Practice, 1986 to 2006, 2nd edn. 2008, 76 ff.; Killander, ‘The African Commission on Human and Peoples’ Rights’, in Ssenyonjo (ed.), The African Regional Human Rights System: 30 Years after the African Charter of Human and Peoples’ Rights, 2012, 235 ff. 120 Art. 3 para 1 1998 Protocol – emphasis added; for further analysis cf. Amao, ‘The African Regional Human Rights System’, in Baderin/Ssenyonjo (n 10) at 244 with further references.

250

IV. Independent Human Rights Institutions (Paris Principles)

parties to the ECHR. The missing ratification of the American Convention by important States such as the US or Canada cannot be made up for by the broader, but less formal powers of the Inter-American Commission within the overall framework of the OAS. IV. Independent Human Rights Institutions (Paris Principles)

In recent years, the international monitoring mechanisms have been comple- 573 mented by so-called Independent Human Rights Institutions which are created at the national level.121 The concept of Independent Human Rights Institutions has its basis in the legally non-binding Paris Principles, which were adopted as an Annex to GA Resolution 48/134 in 1993.122 According to these principles Independent Human Rights Institutions are composed of members of the civil society and operate independently from governmental structures. The idea is to ensure a pluralist representation of the social forces (of civilian society) involved in the promotion and protection of human rights, by including, among others, non-governmental organisations responsible for human rights, trade unions, other social and professional organisations, trends in philosophical or religious thought, universities and qualified experts etc. Independent Human Rights Institutions shall be given as broad a mandate 574 as possible. Their tasks include, inter alia, submitting proposals and recommendations on human rights matters to the public authorities concerned, accounting for the harmonisation of national legislation and practice with applicable international human rights instruments, and contributing to the State reports required by the State’s human rights treaty obligations.123 In a global comparison the exact structures and powers vary considerably.124 575 The French ‘Commission Nationale Consultative des Droits de l’Homme’ is strongly involved in advising the Government on legislative and other proposals. With about 60 members, and taking a position on practically any human rights issue that comes up, it is among the biggest Independent Human Rights Institutions worldwide.125 However, just as most of its counterparts, the French Human Rights Commission lacks the competence to accept and to deal with individual

121 Cf. United Nations, National Human Rights Institutions. A Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights, Professional Training Series No. 4, 1995; Murray, ‘The Role of National Human Rights Institutions’ in Baderin/Ssenyonjo (n 10) at 305 ff.; Reif, ‘Building Democratic Institutions: The Role of National Human Rights Institutions in Good Governance and Human Rights Protection’, 13 Harvard Human Rights J (2000); 1. for a broad account of the situation in Europe, cf. de Beco, Non-Judicial Mechanisms for the Implementation of Human Rights in European States, 2009, 69 ff. 122 GA Res. A/RES/48/134 of 20 December 1993, Annex. 123 For an overview of the tasks and powers of Human Rights Institutions, cf. Burdekin, ‘Human Rights Commissions’, in Hossain et al. (eds.), Human Rights Commissions and Ombudsman Offices, 2000, 801 ff. 124 Cf. the contributions in Lindsnaes/Lindholt/Yigen (eds.), National Human Rights Institutions–Articles and Working Papers, 2001. 125 Cf. the documentation available at http://www.cncdh.fr/ accessed 18 August 2014.

251

§ 12 The Institutional Organisation of International Human Rights Protection

applications.126 The Australian Human Rights Commission, by contrast, on the basis of an individual complaint procedure, has adopted quasi-judicial functions and may thus redress human rights violations on a rather informal basis.127 576 In Germany the ‘German Institute for Human Rights’ (GHRI) assumes the task of an Independent Human Rights Institution. It was established in 2001 as a non-profit association under German national law, after Parliament had voted in favour of establishing an Independent Human Rights Institution also in Germany.128 Its statutes explicitly refer to the Paris Principles and a corresponding recommendation of the Committee of Ministers of the Council of Europe.129 The GHRI has no competence to deal with individual communications and its powers are generally rather weak. They are largely limited to information, policy advice, documentation and education (§ 2 of the statute).130 The GHRI may, however, provide support for legal proceedings, e.g. for the purpose of combating human trafficking or forced labour.131 V. The Role of International Criminal Law in Human Rights Protection 577

In addition to international human rights treaties, international criminal law has assumed a growing role in the protection of human rights. Viewed from its historical development and its overall current significance, international criminal law is closely linked to international humanitarian law and the criminalisation of war crimes. International criminal law penalises individual behaviour. As such it is part of criminal law. At the same time – and in contradistinction to the extraterritorial exercise of national criminal jurisdiction – it forms part of public international law, as its source is public international law.132 The development of international criminal law received decisive momentum through the War Crimes Tribunals of Nuremberg and Tokyo.133 However, international Cf. e.g., on the situation in Europe, de Beco (n 121) at 105. Cf. the information provided at https://www.humanrights.gov.au/complaints-information accessed 18 August 2014; cf. also Burdekin (n 123); Wilkie, ‘Australia’s human rights and equal opportunity commission’, in MacEwen (ed.), Anti-Discrimination Law Enforcement: a Comparative Perspective, 1997, 84 ff. 128 Documents of the German Federal Parliament (‘BT-Drucksache’) 14/4801 of 28 November 2000. 129 The Institute’s statutes are available at http://www.institut-fuer-menschenrechte.de/en/aboutus/structure/statutes.html accessed 18 August 2014; cf. also Recommendation No. R (97) 14 of the Committee of Ministers to Member States on the Establishment of Independent National Institutions for the Promotion and Protection of Human Rights of 30 September 1997. 130 For details cf. Müller/Gusy, ‘The interrelationship between domestic judicial mechanisms and the Strasbourg Court rulings in Germany’, in Anagnostou (ed.), The European Court of Human Rights: Implementing Strasbourg’s Judgments on Domestic Policy, 2013, 27 at 40. 131 Cf. the information provided at http://www.institut-fuer-menschenrechte.de/en/project-forced -labour-today.html accessed 18 August 2014; other National Human Rights Institutions are sometimes also enabled to appear as amicus curiae before national courts; on that, cf. de Beco (n 121) at 105. 132 Cassese/Gaeta, International Criminal Law, 3rd edn. 2013, 4 ff.; Satzger, International and European Criminal Law, 2012, § 10 para 1. 133 Cryer, ‘International Criminal Law’, in Evans, 752 at 770 ff. 126

127

252

V. The Role of International Criminal Law in Human Rights Protection

practice following these prominent tribunals remained rather scarce. The 1948 Genocide Convention penalises genocide as an international crime (Art. 1) and in Art. 6 speaks of an ‘international penal tribunal’ which was envisaged to exercise jurisdiction over the crime of genocide. In Resolution 177 (II),134 the General Assembly entrusted the ILC with for- 578 mulating principles of international criminal law based on the Charter and the judgments of the Nuremberg Tribunal and with drafting a code of offences against the peace and security of mankind. The codification work of the ILC on the subject was completed in 1950 and the requested draft code of international criminal law was submitted to the General Assembly in 1954. Furthermore, a Special Committee of the General Assembly had worked out the draft of a statute for an International Criminal Court.135 However, the upcoming Cold War blocked any further attempts at codification and enforcement of international criminal law. With the end of the Cold War international criminal law received new impe- 579 tus. The decades of political stalemate having been broken and the more or less contemporaneous massive human rights violations on the territory of the former Yugoslavia operated as a catalyst for the further development of international criminal law. The immediate consequence of the atrocities in the former Yugoslavia was the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY), an ad-hoc Tribunal created by the UN Security Council based on its powers under Chapter VII of the UN Charter (for details cf. → § 11 para 434). The competence of the ICTY was limited ratione temporis (only crimes committed after 1991), ratione loci (crimes that were committed on the territory of the former Socialist Federal Republic of Yugoslavia) and ratione materiae (only war crimes, genocide, crimes against humanity and grave breaches of the 1949 Geneva Conventions).136 The ad-hoc concept of international criminal prosecution was repeated concerning the crimes committed 1994 in Rwanda.137 At the same time, international negotiations on a treaty-based international criminal jurisdiction started. These negotiations led to the adoption of the Rome Statute of the International Criminal Court (ICC),138 which entered into force on 1 July 2002. The ICC became operative as of 11 March 2003. As to the applicable substantive criminal law, all international criminal tri- 580 bunals are limited to the prosecution of ‘the most serious crimes of international concern’.139 Given their ad-hoc character, the international criminal triGA Res 177 (II) of 21 November 1947. For a broad account of the history of international criminal tribunals, cf. Cassese/Gaeta (n 132) 253 ff.; Satzger (n 132) at § 11 para 15. 136 The original Statute of the ICTY is contained in SC Res. S/RES/827 of 25 May 1993. 137 SC Res. S/RES/955 of 8 November 1994 establishing the International Criminal Tribunal for Rwanda (ICTR). In Sierra Leone and Cambodia, ‘hybrid tribunals’ have been established on the basis of a treaty between these States and the UN; in East Timor the Special Representative of the Secretary-General established the hybrid tribunals on the basis of his powers of administration. 138 2187 UNTS (2004) 3. 139 Arts. 1 and Art. 5 Rome Statute; Arts. 2-5 ICTY Statute; Arts. 2-4 ICTR Statute. 134

135

253

§ 12 The Institutional Organisation of International Human Rights Protection

bunals for Yugoslavia and Ruanda were limited to the prosecution of crimes with a customary law basis in order to avoid problems of retroactive application of criminal law. Under the Rome Statute the ICC is competent to deal with the crime of genocide, crimes against humanity, war crimes, and the crime of aggression (Art. 5 Rome Statute). Initially, the exercise of the Court’s jurisdiction regarding the crime of aggression was made subject to a definition of that crime by a review conference. Such a definition was adopted at the review conference of Kampala in 2010.140 With the entry into force of the Kampala amendments, the ICC will also have jurisdiction for prosecuting the crime of aggression.141 While the crime of aggression does not stand in direct relation to international human rights protection, this is certainly different with regard to genocide, war crimes and crimes against humanity, all of which imply massive human rights violations. This relation is particularly obvious regarding crimes against humanity, which in 1945 were still connected to armed conflicts. Today, no such nexus is required. It is the widespread and systematic attack on the population as such, which triggers the international criminal responsibility.142 581 The jurisdiction of the ICC operates under the principle of complementarity. The Rome Statute explicitly refers to this principle in its Art. 1. Furthermore the admissibility criteria laid down in Art. 17 para 1 Rome Statute underline that, in principle, national criminal jurisdiction has priority over the jurisdiction of the ICC.143 The latter is limited to cases were the national courts are ‘unwilling or unable genuinely to carry out the investigation or prosecution.’ The situation is different regarding the ad-hoc tribunals. Since they were established precisely because the Security Council felt that national prosecution was inadequate in the situations concerned, here the international criminal jurisdiction does not operate under the principle of complementarity, but takes priority over national jurisdiction. 582 Under the Rome Statute an ad-hoc referral by the Security Council to the ICC is possible under Art. 13 lit. b Rome Statute. Thus, today, subjecting certain situations to international criminal jurisdiction in the absence of consent by the territorial State concerned does not require the establishment of new ad-hoc tribunals. Instead, the ICC exercises the ad-hoc jurisdiction. The Security Council has made use of this possibility regarding the situations in Sudan and in Libya.144

140 Review Conference, Resolution RC/Res. 6 of 11 June 2010. As of 29 April 2013, 14 States have ratified the amendment to the crime of aggression. 141 Cryer (n 133) at 764 f.; the exercise of the jurisdiction on the crime of aggression is, however, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute (Art. 15bis, para 3 Rome Statute as revised by the Kampala amendments). 142 Cf. Cassese/Gaeta (n 132) 91. 143 Cassese/Gaeta (n 132) 296 ff.; Satzger (n 132) at § 12 para 17. 144 SC Res. S/RES/1593 of 31 March 2005 concerning the situation in Darfur and S/RES/1970 of 26 February 2011 concerning the situation in the Libyan Arab Jamahiriya.

254

VI. Human Rights Protection Against Acts of International Organisations

VI. Human Rights Protection Against Acts of International Organisations 1. General Principles

While in their historical development human rights were almost exclusively 583 directed against public authority exercised by States, the growing powers of International Organisations have added a new dimension: the protection of human rights against interference by or on the basis of acts adopted by International Organisations. In the European context, the problem was brought to the fore already in the 1960 s. At the universal level, the concept of targeted sanctions (addressing individuals and not States), which was used after the attacks of 11 September 2001,145 illustrates that this new dimension presents a structural challenge which is not limited to the EU, but may occur wherever International Organisations have the power to take actions which interfere with individual rights. In that regard, two issues need to be kept separate: Are there (and if so: 584 which?) human rights standards which apply within the internal legal order of the organisation? And: Which international (i.e. external) human rights standards are binding for the organisation? Again the development within the EU may serve as an example. The jurisprudence of the ECJ brought about Community (later Union) human rights standards as internally applicable law of the organisation (→ paras 561 ff.). In developing these standards the ECJ also relied on international human rights treaties, notably the ECHR. However, these international standards were only made applicable because the creative jurisprudence of the ECJ transformed them into internal standards as ‘general principles of European Community law’. Until now, there is no international organisation, which is formally bound as a party to an international human rights treaty. This implies that the respective international mechanisms of monitoring and surveillance, which the human rights treaties establish, are not applicable to International Organisations. Once the accession of the EU to the ECHR has been achieved (→ paras 565 ff.), this will be the first example in kind. Where decisions of International Organisations are implemented by their 585 Member States, the question of attribution arises (for details → paras 587 ff.). The ECtHR’s ruling in Behrami seems to suggest that this question should be answered on the basis of strict alternativity, i.e. the assumption that responsibility lies either with the organisation or with the implementing Member State.146 However, the Court’s later jurisprudence focused on the question of whether the conduct at issue was (at least) attributable to a State party to the convention, ir-

Cf. → § 11 para 423. Cf. ECtHR, Behrami v. France and Saramati v. France and Others, Appl. Nos. 71412 and 78166/01, decision on admissibility [GC] of 2 May 2007, paras 128 ff. 145

146

255

§ 12 The Institutional Organisation of International Human Rights Protection

respective of such an attribution being exclusive or not.147 Under such an approach, the issue of attribution predetermines the applicable human rights standards: when the act in question is attributed to the Member State, this State’s international human rights obligations are in principle applicable. 586 The question then arises whether these obligations are modified given that the measure in question serves the purpose of implementing international obligations. Insofar as the internal mechanisms available within the legal order of the international organisation concerned provide for equivalent human rights protection, the transfer of competences from States to International Organisations does not necessarily result in deficits of human rights protection. This possible compensation is the justification which led the German Federal Constitutional Court to its famous ‘Solange’-jurisprudence.148 As long as (‘solange’) the level of protection of fundamental rights within the internal system of an international organisation is essentially comparable to the level guaranteed under the German Constitution and by the jurisprudence of the Federal Constitutional Court, the exercise of national jurisdiction may be relinquished in favour of the internal mechanisms of the organisation in question.149 When developing its Bosphorus test (→ paras 589 ff.), the ECtHR followed a similar line of argument. 2. The Issue of Attribution 587

The issue of attribution was for the first time directly addressed by the ECtHR in the Behrami and Saramati case, which concerned alleged violations of the ECHR by France and Norway in the implementation of decisions taken by UNMIK and KFOR respectively, both of which operated under Chapter VII mandates of the Security Council. In this case, the respondent governments strongly argued that the whole operation was solely attributable to the UN and that the

147 Implicitly, ECtHR, Al-Jedda v. UK, Appl. No. 27021/08, para 80; cf. generally on the issue of ‘shared responsibility’ the ILC’s Draft Articles on the Responsibility of International Organisations, contained in GA Official Records, 66th Session, Supplement No. 10, commentary to chapter II, para 4 at 81 (stating that ‘dual or even multiple attribution of conduct cannot be excluded’) and the 2nd Report on Responsibility of International Organisations by the ILC Special Rapporteur Giorgio Gaja, UN Doc. A/CN.4/541, 3 ff; cf. also Crawford, State Responsibility: The General Part, 2013, 195 f. and 351 f.; den Heijer, ‘Shared Responsibility before the European Court of Human Rights’, 60 Netherlands Int’l LR (2013), 411 at 428 ff. and Ahlborn, ‘To Share or Not to Share? The Allocation of Responsibility between International Organizations and their Member States’, 88 Die Friedens-Warte: J of Int’l Peace and Organization (2013), 45 ff. Especially with regard to the jurisprudence surrounding the Srebrenica cases, cf. von Arnauld/Buszewski, ‘Modes of Legal Accountability: The Srebrenica Example’, 88 Die Friedens-Warte: J of Int’l Peace and Organization (2013) 15 at 27 ff. 148 → above at n 90. 149 → above at para 562.

256

VI. Human Rights Protection Against Acts of International Organisations

Member States were acting as agents of the United Nations Security Council, an argument which was in principle accepted by the Court.150 In its subsequent jurisprudence, the ECtHR narrowed down the scope of 588 the Behrami and Saramati exception to human rights scrutiny. In Al-Jedda the Court found that the British detention of a joint British/Iraqi national in Baghdad from 2004 to 2007 was conducted under the exclusive control of British armed forces. Apart from the questions raised by the possible extra-territorial application of the ECHR,151 the Court held that for the purpose of its jurisdiction under Art. 1 ECHR the relevant action was not attributable to the UN Security Council, and, in particular, did not cease to be attributable to the UK. Thus, the UK remained responsible under the ECHR. Contrary to what the UK government had argued, the mere authorisation by the UN Security Council152 was not considered sufficient per se to make the detention exclusively attributable to the UN Security Council.153 3. Bosphorus Test of the ECtHR

International human rights protection faces a particular problem when a 589 Member State argues that the alleged human rights violation was merely a result of the application or implementation of a decision by an international organisation. The ECtHR was, in fact, confronted with such a situation in the Bosphorus Airlines case, where the incriminated Irish measure (the seizure of an airplane operated by the Turkish company Bosphorus Airlines) was completely predetermined by a regulation of the European Union. The ECtHR decided along the lines drawn by the German Federal Constitutional Court that action taken in compliance with legal obligations resulting from membership in an international organisation ‘is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides […]. If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of

150 Behrami and Saramati (n 146), paras 133 ff; according to ECtHR Beric and Others v. Bosnia and Herzegovina, Appl. Nos. 36357/04 et al., decision on admissibility of 16 October 2007, paras 26 ff., the same reasoning applies to measures of the High Representative for Bosnia and Herzegovina if the relevant acts are (ultimately) based on Chapter VII UN and the Security Council exercises ‘effective overall control’ over the High Representative’s acts. 151 Cf., for a broad account of the different notions of extra-territorial application, ECtHR AlSkeini and Others v. UK, Appl. No. 55721/07 [GC], judgment of 7 July 2011, paras 130 to 150 (concerning the killing of several Iraqi nationals by British forces during military operations in Iraq in 2003). 152 Cf. SC Res. S/RES/1483 (2005) recognising the authorities and responsibilities of the US and the UK as occupying powers in Iraq, SC Res. S/RES/1511 (2003) authorising a multinational force under unified command to establish security and stability in Iraq, and SC Res. S/RES/1546 (2004) reaffirming the former authorisation. 153 Al-Jedda v. UK (n 147), paras 74 to 86.

257

§ 12 The Institutional Organisation of International Human Rights Protection

the Convention when it does no more than implement legal obligations flowing from its membership of the organisation.’154 The presumption of compatibility with the ECHR only applies to the implementation of ‘strict legal obligations’ arising from membership in the organisation. Where the members of the organisation enjoy certain discretion in the implementation, there is no need to modify their human rights obligations under the ECHR.155 The assumption of compatibility with the ECHR may, however, be rebutted by the applicant in each single case. This is a difference compared to the jurisprudence of the German Federal Constitutional Court where it is sufficient that the human rights protection provided for by the organisation is generally equivalent to the standard provided for under the German Constitution. This leads to the procedural consequence that the applicant needs to demonstrate that the overall framework for human rights protection at the level of the Union has systematically declined below the level of equivalent protection. 590 Under the Bosphorus test, an implicit international review of alleged human rights violations becomes possible, which substantively find their origin in a decision taken by an international organisation, but technically are the result of an act of execution by an organ of a Member State. The national act of execution thus serves as the procedural vehicle for an implicit control of the substantive measure adopted by the international organisation. 591 This approach, which operates with a presumption of compatibility with obligations under the ECHR, was also followed regarding Security Council resolutions relating to the situation in Iraq after the intervention by the US and other States in 2003. When examining the alleged breach of Art. 5 para 1 ECHR in the case of Al-Jedda,156 the Court turned to the question of a possible conflict between obligations of the UK under the UN Charter and under the ECHR. In this regard, the Court held that Security Council resolutions are to be presumed as not imposing obligations on Member States that are incompatible with fundamental principles of human rights.157 Concerning the concrete resolutions in question, the Court held that they did not impose an obligation on the UK to indefinitely detain Iraqi nationals without a charge. As a result, the Court found that the UK, in implementing the Security Council resolution, did not respect the standard required by Art. 5 para 1 ECHR. On the basis of this approach, the Court was able to avoid the delicate question of hierarchy between the European human rights regime and the UN Charter. Had the Court, by contrast,

154 Bosphorus (n 91), para 155; cf. also the Commission’s decision in Appl. No. 13258/87, M & Co. v. Federal Republic of Germany, D.R. No. 64, 138 of 9 February 1990 (stating that the ‘transfer of powers to an international organisation is not incompatible with the Convention provided that within that organisation fundamental rights will receive an equivalent protection’ and holding that the then European Community provided for an essentially equivalent degree of protection). 155 Bosphorus (n 91), paras 155-159; confirmed in ECtHR MSS v. Belgium and Greece, Appl. No. 30696/09, judgment of 21 January 2011, paras 338 ff. 156 → above para 588. 157 Al-Jedda v. UK (n 147), para 102.

258

VI. Human Rights Protection Against Acts of International Organisations

affirmed a conflict between the UK’s obligations under the Charter (respectively, the Security Council’s resolutions) and the ECHR, this would have triggered a debate about the applicability and possible consequences of Art. 103 UN (→ § 11 para 439). 4. Applying the Bosphorus Test to Targeted Sanctions

The general approach just described was applied to targeted sanctions 592 based on UN Security Council resolutions in the case of Nada v. Switzerland and further refined in Al-Dulimi v. Switzerland. These cases did not create any problems of attribution. The imposition by the Swiss authorities of a ban on entering or transiting Swiss territory (Nada), based on SC Resolutions 1267 (1999), 1333 (2000) and 1390 (2002), is clearly attributable to Switzerland.158 Thus, the Court had to decide whether the Al-Jedda presumption of human rights compatibility of obligations flowing from Security Council resolutions applied and, consequently, whether the Swiss travel ban constituted a justified restriction of the right to private life under Art. 8 para 2 ECHR. Although the Grand Chamber reaffirmed the Al-Jedda reasoning in principle, it considered this presumption rebutted in the case before it, given that the resolution expressly required States to impose a travel ban.159 Nevertheless, the Court further refined its strategy of avoiding a conflict between the UN Charter and the ECHR, finding that the resolution left some discretion to the Member States in the implementation of the travel ban.160 The Court held that, by not using this latitude in a way that conforms to the ECHR, Switzerland did not meet the requirements under Art. 8 para 2 ECHR. The Nada judgment furthermore seems to indicate that, in the absence of such latitude, the Court would be content with the Member States attempting to take measures to alleviate the human rights situation of individuals under their jurisdiction.161 The question of hierarchy between the Charter and the Convention was still left open and the Court continued to keep clear of subjecting Security Council resolutions to its human rights scrutiny.162 These questions came back to the ECtHR in Al-Dulimi, again a Swiss case, 593 concerning the freeze of assets based on SC Resolution 1483 (2003). In this case, the Court could not rely on any Member State’s latitude as the SC Resolution clearly set out the aim to be achieved and did not leave any discretion to the

158 ECtHR, Nada v. Switzerland, Appl. No. 10593/08 [GC], judgment of 12 September 2012, para 121. 159 Nada v. Switzerland (n 158), para 172. 160 Nada v. Switzerland (n 158), para 180. This finding of the member State’s latitude departed from the Swiss Federal Court’s judgment and was subject to criticism by the court’s minority in the joint concurring opinion of Bratza, Nicolau and Yudkivska and the concurring opinion of Malinverni. 161 Nada v. Switzerland (n 158), para 196. 162 Cf., however, the concurring opinion of Malinverni (n 160), paras 11 ff.

259

§ 12 The Institutional Organisation of International Human Rights Protection

Member States.163 Thus, the Court reverted to its Bosphorus line of jurisprudence and applied the ‘equivalent protection’ test to the UN, including the presumption of equivalent protection.164 The system of human rights protection established at UN level165 was, however, considered deficient and thus not ‘equivalent’. Consequently, the Court examined whether the right to a fair trial under Art. 6 ECHR had been violated. With regard to possible limitations to the right under Art. 6 ECHR, the Court referred to its established case law, according to which the fulfilment of obligations flowing from the UN Charter in the field of international peace and security may in principle constitute a legitimate aim to be pursued. However, the Court held that by completely refusing to examine the merits of the applicant’s claim, the Swiss courts failed to strike a proportionate balance between the right to a fair trial and international security interests.166 Although the circumstances of the case seemed to warrant an attempt to clarify the relationship between the obligations under the ECHR and the UN Charter, and the role of Art. 103 UN in solving possible conflicts, the court, again, declined to do so.167 5. Targeted UN Sanctions and the Application of EU Human Rights 594

With respect to targeted sanctions adopted by the Security Council under Chapter VII UN Charter the situation is even more complicated because, according to the jurisprudence of the ECJ, the EU has competence for the implementation of economic sanctions168 (including also targeted individual sanctions).169 Consequently, as far as the application of EU human rights standards is concerned, the question must be addressed whether or not these standards apply with regard to measures which – regarding their substance – are completely predetermined by the demands of the Security Council in its resolutions establishing the sanctions. The then Court of First Instance (CFI), in its first instance de163 ECtHR, Al-Dulimi and Montana Management Inc. v. Switzerland, Appl. No. 5809/08, judgment of 26 November 2013, para 117 (explicitly distinguishing this case from Nada). Upon a request from Switzerland, the case has been referred to the Grand Chamber on 14 April 2014. 164 Al-Dulimi (n 163), paras 114 to 116. 165 Cf. SC Res. S/RES/1730 (2006) establishing the so-called Focal Point. It is important to note that the Office of the Ombudsperson, established by Sc Res. S/RES/1904 (2009) and SC Res. S/RES/1989 (2011) has not been entrusted with the task of handling applications for deletion from the Iraq sanctions list. 166 Al-Dulimi (n 163), paras 123 to 134. 167 For a treatment of these questions, cf., however, the dissenting opinion of Sajó (giving prevalence to the obligations under the UN Charter, as long as the human rights guarantees at issue do not have ius cogens status, and holding the complaint to be inadmissible) and the dissenting opinion of Lorenzen (joined by Raimondi and Jociene) (also giving prevalence to the obligations under the UN Charter). 168 Cf. e.g. ECJ, C-124/95 The Queen, ex parte Centro-Com Srl v. HM Treasury and Bank of England, 1997 ECR I-81; Court of First Instance, T-306/01 Yusuf and Al Barakaat International Foundation v. Council and Commission, 2005 ECR II-3533 at paras 107 ff.; ECJ, Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, 2008 ECR I-6351 at paras 158 ff. 169 Cf. also Court of First Instance, T-253/02 Ayadi v. Council, 2006 ECR II-2139 at paras 87 ff.

260

VI. Human Rights Protection Against Acts of International Organisations

cision on the issue, limited the standard of review to the minimum standard guaranteed as ius cogens.170 The ECJ later relied on a more formalistic approach arguing that the measure under review was an EU act (the regulation implementing the Security Council resolution) and that as an EU act it was subject to EU human rights standards irrespective of the predetermination of its contents by the UN Security Council.171 The basic reasoning underlying this jurisprudence now has to be considered established practice and has been further clarified in the ECJ’s subsequent case law.172 Yet another facet of the interplay between the different mechanisms for judi- 595 cial review concerns the preliminary rulings procedure under Art. 267 TFEU. Art. 267 para 3 TFEU creates an obligation for national courts or tribunals of final appeal to ask the ECJ for a preliminary ruling on the matter. Where, in spite of this obligation, such a preliminary ruling was not asked for, a violation of the right of access to Court, which is covered by Art. 6 ECHR, may be argued. Under this interpretation, access to the ECJ under the preliminary rulings procedure becomes a subjective right protected by Art. 6 ECHR. The ECtHR adopted this position in April 2014.173 6. Alleged Human Rights Violations Caused Directly by Acts of International Organisations (i.e. without National Implementation)

The issue becomes procedurally much more difficult when the alleged human 596 rights violation is directly caused by an organ of an international organisation, 170 Court of First Instance, T-315/01 Kadi v. Council and Commission, 2005 ECR II-3649; T-306/01 Yusuf and Al Barakaat International Foundation v Council and Commission, 2005 ECR II-3533; cf. Tomuschat, ‘Case Note’, 43 Common Market LR (2006), 537 ff.; cf. also Defeis, ‘Targeted Sanctions, Human Rights, and the Court of First Instance of the European Community’, 30 Fordham Int’l LJ (2006), 1449; Eckes, ‘Judicial Review of European Anti-Terrorism Measures– The Yusuf and Kadi Judgments of the Court of First Instance’, 14 European LJ (2008), 74; Bulterman, ‘Fundamental Rights and the United Nations Financial Sanction Regime: The Kadi and Yusuf Judgments of the Court of First Instance of the European Communities’, 19 Leiden J of Int’l L (2006), 753. 171 ECJ Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi und Al Barakaat International Foundation v. Council and Commission, 2008 ECR I-6351 at paras 278 ff.; ECF Joined Cases C-399/06 P and C-403/06 P Hassan and Ayadi v. Council and Commission, 2009 ECR I-11393 at paras 68 ff.; ECJ C-548/09 P Bank Melli Iran v. Council, 2011 ECR I-11381 at paras 100 ff; on this case law, cf. Griller, ‘International Law, Human Rights and the European Community's Autonomous Legal Order: Notes on the European Court of Justice Decision in Kadi’, 4 Eu Const LR (2008), 528 ff. 172 ECJ C-584/10 P et al. Commission and UK v. Yassin Abdullah Kadi and Council v. Yassin Abdullah Kadi (‘Kadi II’) of 18 July 2013, n.y.p. (concerning the renewed naming of Mr Kadi on the regulation implementing the UN sanctions regime). In its judgment, the court confirmed the basic reasoning of the ‘Kadi I’ judgment that Union measures transposing UN sanctions are, in principle, subject to full review by the EU courts (paras 65 to 69) and upheld the General Court’s judgment annulling Commission Regulation (EC) No 1190/2008 of 28 November 2008 (paras 97 to 164). For an analysis of the General Court’s judgment, cf. Cuyvers, ‘The Kadi II Judgment of the General Court: The ECJ’s Predicament and the Consequences for Member States’, 7 Eu Const LR (2011), 481 ff. 173 ECtHR, Dhahbi c. Italie, Appl. No. 17120/09, judgment of 8 April 2014, paras 31 ff. (with reference to Vergauwen v. Belgium, Appl. No. 4832/04, paras 89 f.).

261

§ 12 The Institutional Organisation of International Human Rights Protection

i.e. where there is no national act of execution by a Member State. Such cases concern notably the employees of International Organisations. Other situations relate to procedural rights of individuals before judicial or other organs of International Organisations. The lack of a national act of implementation deprives the individual of the necessary procedural vehicle for an implicit control. At the same time, given the fact that the organisation is not a party to the human rights treaty, the application cannot be directed against the International Organisation itself. One option in such a situation is to bring the case to the courts of the host country where the International Organisation is based. Usually, the national courts will refuse to hear the case on grounds of immunity of the International Organisation. After the exhaustion of local remedies, the case may then be brought to an international human rights body, however, with the limited allegation of having been denied access to court. This was the approach chosen by the applicants in Waite and Kennedy against Germany, where decisions not to extend existing labour contracts with the European Space Agency were at issue.174 While this approach opens the path to a review of the situation by an international human rights body, it is limited in reach because the focus is on access to court. In Waite and Kennedy the ECtHR consequently focused on the compatibility of the immunity of International Organisations with Art. 6 para 1 ECHR, rather than on the substantive claim relating to the termination of the labour contracts. The Court applied another version of the ‘as long as’ idea (without using the terminology). It decided that granting immunity to International Organisations from the jurisdiction of the national courts of the host country is compatible with the right of access to court, if ‘the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention.’175 597 An alternative possibility would be to argue with an omission on the part of the Member States. It may derived from the jurisprudence of the ECtHR both in Bosphorus and in Waite and Kennedy that States parties to the ECHR, when creating International Organisations and endowing them with the possibility to exercise public powers which might interfere with individual rights, are under an obligation to provide for adequate mechanisms of protection which ensure a standard of human rights guarantees that, procedurally and substantially, corre-

174 ECtHR, Waite and Kennedy v. Germany, Appl. No. 26083/94 [GC], judgment of 18 February 1999, Rep. 1999-I. 175 Waite and Kennedy (n 174) para 68.

262

VI. Human Rights Protection Against Acts of International Organisations

sponds to the rights guaranteed under the ECHR.176 Consequently it may be argued that the failure to provide for such standards of protection constitutes an omission for which those States which are members of both the international organisation, which allegedly violated individual rights and the human rights system in question, may be held accountable before the competent human rights body.177 Basing the claim on an omission by the Member States also has its limits and 598 drawbacks. A major difficulty relates to the possibilities for redress if, indeed, a violation of human rights was determined by the human rights body concerned. Amending the organisational structures of an international organisation usually requires joint action by all its members. However, if not all members of the organisation are simultaneously parties to the human rights treaty on the basis of which the violation was found, difficulties as to the implementation may arise. In such a situation, as far as redress is concerned, those members of the organisation which are also parties to the human rights treaty cannot be presumed to have incurred an obligation of result. Rather their obligation is an obligation of endeavor, requiring them to make use of all available means in order to settle the issue. The difficulties of providing access to court and legal protection in cases in- 599 volving several International Organisations or treaties are illustrative of fundamental challenges in the development of modern international law. More and more decision-making procedures are either completely externalised and transferred to International Organisations or taken in hybrid forms of cooperation where responsibilities are difficult to allocate. The legal structures thus become more complex and a challenge for research and practice arises to develop 176 Cf., e.g., ECtHR, Boivin v. 34 Member States of the Council of Europe, Appl. No. 73250/01, decision of 9 September 2008. The Court held the application of a Eurocontrol employee against an ILO Administrative Tribunal judgment to be inadmissible, as there was no involvement of a State party to the ECHR and the application thus fell outside the Court’s jurisdiction ratione personae. However, the Court left it open whether Eurocontrol offered a system of sufficient human rights protection as the applicant did not allege a lack of equivalent protection. Cf. also ECtHR, Beygo c. 46 Etats membres du Conseil de l’Europe, Appl. No. 36099/06, decision of 16 June 2009 and ECtHR, Connolly c. 15 Etats membres de l’Union Européenne, Appl. No. 73274/01, decision of 9 December 2008. The equivalent protection test has finally been applied in ECtHR, Gasparini c. l’Italie et la Belgique, Appl. No. 10750/03, decision of 12 May 2009 (finding no manifest deficiency in the internal NATO system for the protection of fundamental rights). With regard to the system of human rights protection of the EU, ECtHR, Senator Lines GmbH v. 15 Members of the European Community [GC], Appl. No. 56672/00, was finally held to be inadmissible as the CFI quashed the fine imposed and the applicant thus lacked the victim status required by Art. 34 ECHR (decision of 10 March 2004); in ECtHR, Kokkelvisserij U.A. v. Netherlands, Appl. No. 13645/05, the ECtHR considered the Bosphorus presumption of equivalent protection not to be rebutted and thus held the application to be inadmissible (decision of 20 January 2009). 177 Cf. Tondini, ‘The “Italian Job“: How to Make International Organisations Compliant with Human Rights and Accountable for their Violations by Targeting Member States‘, in Wouters et al. (eds.), Accountability for Human Rights Violations by International Organisations, 2010, 169 at 198 ff.; Lock, ‘Beyond Bosphorus: The European Court of Human Right’s Case Law on the Responsibility of Member States of International Organisations under the European Convention on Human Rights’, 10 Human Rights LR (2010), 529 ff.

263

§ 12 The Institutional Organisation of International Human Rights Protection

an interaction of national and international structures, which ensures that the new and intensified forms of cooperation do not result in lowering the standard of human rights protection. VII. The Outreach of Human Rights Treaty Bodies beyond their Treaty Functions

Strong institutions tend to expand their fields of activity. This general observation is to some extent confirmed by the recent practice especially of the ECtHR. Yet other institutions might well use the path prepared in the European human rights context. Human rights have a considerable overlap with other branches of international law: labour rights are guaranteed under ILO Conventions, the European Social Charter and other specialised instruments, but some core elements also form part of the right of association or the respect for private and family life. International humanitarian law contains many guarantees, notably regarding the protection of civilians for which there are corresponding rights under international human rights treaties, such as the right to life, personal liberty or property. A common characteristic of both, international labour law and international humanitarian law is that the degree of institutionalisation within these regimes is rather limited. While the ILO provides for at least some degree of formalised monitoring and implementation, international humanitarian law is almost completely dependent on decentralised and informal mechanisms. 601 A prominent example where a human rights treaty body has reached beyond the strict limits of its own treaty concerns the right of trade unions to collective bargaining and, if necessary, strike under Art. 11 ECHR. In its decisions in the cases of Demir and Baykara178 and Enerji Yapi-Yol Sen,179 the ECtHR analysed the overall development concerning collective bargaining and strikes, especially under ILO law but also under Council of Europe soft law instruments in order to change its previous jurisprudence under which the Court had constantly refused to include any rights of trade unions into the guarantees of the ECHR. This development is not only of methodological interest with regard to the interpretation of human rights treaties,180 but also in an institutional perspective. The (strong) institutional setting of a regional human rights instrument is used in order to indirectly enforce standards which have been established in other areas. 602 A similar development is likely to occur with regard to international humanitarian law. Given the jurisprudence of the ICJ in its Advisory Opinions on 600

178

ECtHR, Demir and Baykara v. Turkey, Appl. No. 34503/97 [GC], judgment of 12 November

2008. ECtHR, Enerji Yapi-Yol Sen v. Turkey, Appl. No. 68959/01, judgment of 21 April 2009. Cf., with regard to the development of ECtHR’s case law concerning Art. 11 ECHR, von Ungern-Sternberg, ‘Die Konsensmethode des EGMR–Eine kritische Bewertung mit Blick auf das völkerrechtliche Konsens- und das innerstaatliche Demokratieprinzip‘, 51 Archiv des Völkerrechts (2013), 312 ff. 179

180

264

VII. The Outreach of Human Rights Treaty Bodies beyond their Treaty Functions

Nuclear Weapons 181 and the Wall in the Occupied Palestinian Territory182 there exists a considerable overlap between the substantive guarantees of international humanitarian law and human rights law. The conflicts in Moldova, Georgia and Ukraine are likely to generate cases in which the issue will come up. Strong human rights treaty bodies like the ECtHR therefore have the potential to develop into institutional centres of gravity which attract and decide issues which are only substantively and not formally related to the respective human rights treaty regime. The strong institutionalisation of human rights treaty regimes like the ECHR is therefore likely to extend into related areas of international law like labor relations and international humanitarian law.183

181 ICJ, Legality of the Threat or Use of Force of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Rep. 1996, 226. 182 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, 136. 183 Cf., for an overview, Byron, ‘A Blurring of the Boundaries: The Application of International Humanitarian Law by Human Rights Bodies’, 47 Virginia J Int’l L (2007), 839 ff.

265

§ 13 Economy and Development Literature: Bhala, Modern GATT Law, 2nd edn. 2013; Deutsche Bundesbank, Weltweite Organisationen und Gremien im Bereich von Währung und Wirtschaft, 2013; Franca Filho et al. (eds.), The Law of MERCOSUR, 2010; Hilf/Oeter, WTO-Recht, 2nd edn. 2010; Gómez-Mera, Power and Regionalism in Latin America, 2013; Hummer, ‘Von der „Gemeinschaft“ zur „Union“ Südamerikanischer Nationen, Verfassung und Recht in Übersee‘, 42 VRÜ (2009), 7 ff.; Klumpp, Schiedsgerichtsbarkeit und Ständiges Revisionsgericht des Mercosur, 2013; Krajewski, Wirtschaftsvölkerrecht, 3rd edn. 2012; Krebber, ‘Aufgabe, Möglichkeiten und Grenzen des Arbeitsvölkerrechts im liberalisierten Welthandel’, 63 Juristenzeitung (2008), 53 ff.; Legal Department of the IMF, Selected Decisions and Selected Documents of the IMF, Thirty-Sixth Issue, 2011; Lowenfeld, International Economic Law, 2nd edn. 2008; Porrata-Doria, ‘Mercosur at Twenty: From Adolescence to Adulthood’, 27 Temple Int’l & Comp. L.J. (2013), 1 ff.; Qureshi/Ziegler, International Economic Law, 3rd edn. 2011; SchlemmerSchulte, ‘International Monetary Fund (IMF)’, in: MPIEPIL; Shihata, The World Bank in a Changing World, vol. III, 2000; id., The World Bank Legal Papers, 2000; Wouters/de Meester, The World Trade Organization, 2007; Zobl/Thürer/Alexander, ‘Die Legitimation der G-20’, 51 Archiv des Völkerrechts (2013), 143 ff.

I. The Law of Organisation in Inter- and Transnational Economic Relationships 1. The World Economic Order and its Standard-Setting and Organisational Tasks

Traditionally, public international law’s task of regulating international eco- 603 nomic relationships is of great importance to the entire field of (public and private) international economic law. Following the intensification of global economic interdependence during the course of globalisation, the amount and quality of regulatory challenges have considerably grown and cannot be tackled without a certain organisational density. The requirements set for the law of International Organisations may be divided into five topics (which are partially linked to each other). The first and foremost regulatory and organisational task is guaranteeing 604 free trade in goods and services including the free circulation of capital and – within limits – persons (self-employed and employees) which is necessarily linked to it. On a small scale, such free circulation may generally speaking be established on the basis of international treaties; in a limited number of contexts even bilaterally. Without organisations, however, frictional losses on a large regional level or even on the global level (e.g. through differing environmental or social standards) cannot be avoided.

267

§ 13 Economy and Development

A second task lies in combatting economic discrepancies between States, which are traditionally divided into developed industrial States and developing States. Since the great processes of decolonisation of the 1960 s, economic development of States that are considered to lag behind is a core aim of the international community. The perspectives on how organisations should secure this development process, however, differ: in practice International Organisations primarily organise development aid or support while many developing countries call for a redistribution of global wealth along the lines of a “New International Economic Order”.1 606 Thirdly, International Organisations are tasked with establishing and maintaining the stability of the World Economic System. This task of stabilisation becomes apparent in many areas: trust in the financial system must be achieved by guaranteeing currency stability. Organised investment protection secures the stability of foreign investment – next to the network of Bilateral Investment Treaties (BITs).2 Finally, co-ordinated, organised activity can help alleviate the risk of excessive cyclical differences in economic growth. This is an area in which an approach to transnational co-ordinated or even integrated economic and currency policy becomes visible. 607 Economic interests conflict with each other or with other interests. A fourth task of International Organisations in international economic law is the settlement of conflicts of interest. Different economic interests of certain economic branches, of States or of regions as well as intentions that conflict with economic aims such as environmental, social or security interests may be balanced within International Organisations. Often, the result of such regulated treatment is a public international legal regime for the settlement of disputes, guaranteed by an International Organisation. 608 Closely linked to this is the fifth task, the peaceful settlement of disputes in economic matters. Dispute settlement bodies in international economic law are most often linked to International Organisations (e.g. the Dispute Settlement Body of the WTO or the dispute settlement mechanism of ICSID in foreign investment protection law; → paras 328 f., 630 and 654). 605

2. Plurality in Organisation

Generally, heterogeneous plurality is characteristic for the law of International Organisations. However, the pluralised fabric of International Organisations in the field of economy is even less homogeneous than is usually the case. 610 This particularity is primarily due to the limited leadership role of the United Nations in this area. The establishment of the economic pillar of the UN-system after World War II was merely partially successful; although the IMF and the World Bank as the core financial organisations could be established as spe609

Cf. Herdegen, Internationales Wirtschaftsrecht, § 4 paras 76-82. Cf. Sacerdoti, ‘Bilateral Treaties and Multilateral Instruments on Investment Protection’, 269 RdC (1997), 251. 1

2

268

I. The Law of Organisation in Inter- and Transnational Economic Relationships

cial organisations within the United Nations, this failed in the case of the International Trade Organisation (ITO) due to lacking consent of the US Congress. The provisional GATT remained in force for decades and was only in 1994 replaced by the World Trade Organisation (WTO). This was deliberately effectuated outside of the UN family because of the US administration’s objection that the UN were not oriented towards the idea of free trade.3 This creates problems in balancing interests with all member organisations of the UN family. In addition, the usual framework of International Organisations is particularly 611 often overstepped in the economic field. This is primarily due to the high influence private actors have on international economic life. There is even a discussion on whether Multinational Corporations (MNCs) should be granted international legal personality.4 At the very least, it is worth discussing the legal character of private associations (such as the Club of London; → para 657. What is more, in the economic field there are forms of transnational and informal cooperation on a sub-State level. The co-operation in financial market supervision may serve as an example for the first type (Basel Banking Committee; → para 661), while the summits of leading heads of State and government are typical for the latter (G 8; → para 656). 3. Universal and Regional Organisations

International economic organisations are equally active on the global as on 612 the regional level ( in general → para 13). Differentiating the levels on which organisations are active is therefore particularly important in the economic field. Nevertheless, links and dependencies between the levels shall not be set aside. To give an example, the EC (succeeded by the EU) is a member of the WTO ( → para 117), and the WTO itself contains rules on regional trade agreements by its members.5 It must also be considered that especially in this area the regional design does not forcibly follow geographical conditions (e.g. organisation by continent), but that economic relations have an impact upon the fabric of organisations (e.g. OECD or G 8).

3 Tietje in Prieß/Berrisch, 65; Benedek, ‘Die neue Welthandelsorganisation (WTO) und ihre internationale Stellung’, Vereinte Nationen 1995, 13 at 17. On the course of negotiation Herrmann, Weiß/Ohler paras 100 ff. There is however co-operation between the UN and its special agencies (World Bank, IMF) on the one hand and the WTO on the other hand: Wouters/de Meester, The World Trade Organization, 2007, 129 ff.;→ Fn. 14. 4 Cf. only Stein/von Buttlar, para. 492. 5 Cf. Bartels/Ortino (eds.), Regional Trade Agreements and the WTO Legal System, 2006. Comparative Duina, ‘Varieties of Regional Integration: The EU, NAFTA and Mercosur’, 28 European Integration (2006), 247; Laursen, ‘Institutional Requirements for Regional Economic Integration: A Comparative Perspective on the EU, the Americas and East Asia’, CFES Working Paper No. 24/2005.

269

§ 13 Economy and Development

II. Universal Economic Organisations 1. Specialised Agencies of the United Nations

a) The Bretton Woods Organisations. aa) IMF. (1) Creation and Development of the System of Bretton Woods and of the IMF. Following the founding of the United Nations the world economic system was supposed to be given an institutional basis, too, in the 1940 s. To this purpose, in 1944 the United Nations Monetary and Financial Conference took place in Bretton Woods, a town in the Northeastern USA. The conference was heavily influenced by the US and Great Britain which were represented by the economists Harry Dexter White and John Maynard Keynes respectively. In summary it was the American position that was adopted, meaning that in case of deficits in a State’s balance of payments the respective debtor States should be held responsible.6 614 Bretton Woods saw the creation of the exchange rate system of Bretton Woods, which was in practice until the 1970 s.7 Its main feature was the gold standard for the US-Dollar (0.8867 grams of gold per Dollar) and the fixed parity of all of the other currencies towards the Dollar (a fluctuation range of 1 % to be secured by central bank intervention was adopted as well) as well as free convertibility of currencies.8 From the system’s inauguration on, the US-Dollar was in reality merely backed by a fourth of its nominal value in gold, the remaining part being compensated by the economic strength of the US relative to the other world economies. When these caught up with the US, the Dollar came under considerable pressure, so that ultimately the US unilaterally gave up the gold standard after a final attempt to preserve it (so-called Smithsonian agreement allowing for a larger fluctuation range), the exchange rate system of Bretton Woods had to be de facto given up in 1973 and the IMF-Agreement had to be modified accordingly in 1976.9 Since then, the Member States’ currencies float freely and the Member States’ exchange rate policies are supervised by the IMF according to its particular guiding principles (Articles VIII para 4 lit. a, IV para 1 and IV para 3). 615 Institutionally, the system of Bretton Woods meant the establishment of two interlinked International Organisations: the IMF and the World Bank.10 The founding of a third, trade-related ITO, failed ( → para 642). Despite the modifications of the system described, both organisations continue to exist unchanged, although the substantive rules had to be adapted. 613

6 Krajewski, Wirtschaftsvölkerrecht, 3rd edn. 2012, para 770; Lowenfeld, International Economic Law, 2nd edn. 2008, 600. 7 Cf. Herdegen, Internationales Wirtschaftsrecht, § 24 paras 6 ff. 8 Krajewski, Wirtschaftsvölkerrecht, 3rd edn. 2012, para 774. 9 On this Krajewski, Wirtschaftsvölkerrecht, 3rd edn. 2012, para 776. Text of the Articles of Agreement of the International Monetary Fund originally in 2 UNTS 39 and 134, modifications: 606 UNTS 295 and 726 UNTS 266. 10 On the delimitation of the sphere of competence Rowohl, Weltbank und Internationaler Währungsfonds: Ihre Mandate und deren Abgrenzung, 2007.

270

II. Universal Economic Organisations

(2) Legal Position and Tasks of the IMF. The IMF’s international legal per- 616 sonality per se is undisputed, although there is no consensus as to its justification, because Article IX para 2 of the IMF-Agreement may also be understood as referring to domestic relations ( → paras 176 f.), which would mean that international personality would have to be drawn from the treaty provisions and the organisation’s tasks.11 Today, the IMF has 188 members, including all EU Member States. The EU itself cannot be a member according to Article II para 2 IMF, as only States may apply for membership.12 From its inception on, the IMF has always been close to the United Nations. 617 As a Specialised Agency, the IMF is linked to the United Nations by way of an agreement according to Articles 57 and 63 UN.13 The agreement above all establishes a relationship of institutional co-operation (e.g. mutual exchange of representatives in sessions of organs, advice and exchange of information, common use of statistical resources), but not an institutional hierarchy. Since 1996, there is also a treaty relationship with the WTO which establishes co-operation in the relevant fields, too.14 The aims of the IMF are laid down in Article 1 of the IMF-Agreement. In 618 sum, the IMF shall support international co-operation in the field of currency policy, facilitate world trade by establishing a global system of payments and above all guarantee the stability of currencies as well as trust in the global currency system.15 For these purposes, the IMF is entitled to assume a position of creditor towards its Member States (Articles I para v and V IMF) to enable the respective Member State to overcome its balance of payment problems. This has become the main task of the IMF.16 In the 1990 s, this role was sometimes assumed in a spectacular way, when the IMF supported Mexico by granting it $ 50bn or by allotting comparable sums to some States in Asia.17 A new challenge – also in legal terms – is the support of Euro Zone States that technically are not in balance of payments problems – as the currency of their debts, the EuCf. Krajewski, Wirtschaftsvölkerrecht, 3rd edn. 2012, para 798. On this problem Kempen, ‘Die Zukunft des Internationalen Währungsfonds’, ZEuS 2000, 13 at 23 with further references; Kokott in Streinz, Art. 220 TFEU para 61; Häde in Calliess/Ruffert, Art. 219 TFEU paras 20 f.; Louis, ‘L’Union européenne et les institutions de Bretton Woods’, in: Dormoy (ed.), L’Union européenne, 1997, 335 at 338, 342; id., ‘Union monétaire européenne et Fonds monétaire international’, in: Weber (ed.), Währung und Wirtschaft: das Geld im Recht, Festschrift für Hugo J. Hahn zum 70. Geburtstag, 1997, 201 at 207; Lastra, ‘The independence of the European System of Central Banks’, 33 H.I.L.J. (1992), 475 at 516; Bognar, Europäische Währungsintegration und Außenbeziehungen, 1997, 373 ff. 13 Legal Department of the IMF, Selected Decisions and Selected Documents of the IMF, ThirtySixth Issue, 2011, 897 f. (available as pdf: ); On this Lucke, Internationaler Währungsfonds, 1997, 47 ff. 14 Qureshi/Ziegler, International Economic Law, 3rd edn. 2011, para 5-034 fn. 270. 15 Cf. Herdegen, § 26 paras 1ff. 16 Overview on the various facilities in: Deutsche Bundesbank, Weltweite Organisationen und Gremien im Bereich von Währung und Wirtschaft, 2013, 35 f. 17 Gramlich, ‘Eine neue internationale „Finanzarchitektur“ oder: Der IMF in der Krise?’, 38 AVR (2000), 399 at 420 ff.; Krajewski, Wirtschaftsvölkerrecht, 3rd edn. 2012, para 802; Lowenfeld, International Economic Law, 2nd edn. 2008, 669 ff. 11

12

271

§ 13 Economy and Development

ro, is available to them – but which are supported by the IMF nevertheless.18 On the technical side, such support is in all cases primarily achieved by the sale of Special Drawing Rights (SDR), an artificial “basket”-currency (composed of USD, EUR, YEN and GBP) against the relevant domestic currency.19 The sale is linked to conditions between the IMF and the debtor State on the basis of a “letter of intent” issued by the debtor State. The economic requirements drawn from these conditions are often criticised,20 as is the general competence of the IMF to supervise the economic and monetary policy of a Member State under such circumstances.21 619 (3) Institutional Structure. The IMF has three main organs: the Board of Governors, the Executive Board and the Managing Director (Article XII IMF). As the Member States did not make use of the opportunity to establish a council of ministers when they founded the IMF, the Board of Governors is the only plenary organ at the top of the IMF’s institutional structure. Some powers are exclusively vested with this Board, while others may be delegated to the Executive Board. All competences that are not attributed to another organ are automatically held by the Board of Governors (in detail Article XII para 2 IMF). Every Member State shall appoint a Governor and alternate deputy; in Germany it is common practice that the president of the Bundesbank acts as governor and the Federal Minister of Finance as his deputy. Usually, the Board of Governors meets once a year. 620 It is primarily in the case of the Board of Governors but also in that of the Executive Board that the IMF’s particularity of weighed voting according to economic data becomes apparent (for details → paras 341 f.). This is due to the IMF’s character as a financial institution and to the fact that the members contribute with varying intensity to its funding. Therefore, the industrialised States’ share of votes is considerably higher than the share of the other States. Ideas for reform mainly focus on a modification of the allocation of voting rights (→ para 341). 621 The Board of Governors may appoint advisory committees under Article XII para 2 lit, j IMF if this is deemed necessary; not all Member States need to be represented in the committees. Two bodies were established that are important from a practical viewpoint:22 the International Monetary and Financial Committee on the co-ordination of basic questions of the international monetary 18 Critical assessment: Gaitanides, ‘Intervention des IWF in der Eurozone – mandatswidrig?’, 30 NVwZ (2011), 848–852. From the point of view of economics Pisani-Ferry, Sapir/Wolff, An evaluation of IMF sureveillance of the euro area, 2011. 19 Cf. Herdegen, § 24 para 11. 20 Cf. Krajewski, Wirtschaftsvölkerrecht, 3rd edn. 2012, paras 823 ff., with partly strong criticism in para 847. More differentiated Dolzer in Graf Vitzthum, para 110; extensively and with practical explanations Lowenfeld, International Economic Law, 2nd edn. 2008, 644 ff. Cf. with a database of the reports. 21 Cf. on this Gramlich, ‘Eine neue internationale „Finanzarchitektur“ oder: Der IMF in der Krise?’, 38 AVR (2000), 399 at 404 ff.; Kranz, Entre l’influence et l’intervention, 1994, 165 ff. 22 Schlemmer-Schulte, ‘International Monetary Fund (IMF)’, in: MPIEPIL, para 27.

272

II. Universal Economic Organisations

and financial system and the Development Committee as a common committee of IMF and World Bank for development matters. Both committees have 24 members respectively. The core institution for the IMF’s management is the Executive Board, this is why it has received far-reaching powers from the Board of Governors (cf. Article XII para 3 IMF). Its composition also follows the voting quotas: five Executive Directors are appointed by the Member States bearing the highest quota, 15 further Executive Directors are elected by the remaining Member States (Article XII para 3 lit, b). As it is difficult to limit the number of the many remaining Member States to 15, the IMF-Agreement permits that number to be raised (or lowered) in its Article XII para 3 lit. b, 2nd sentence. This is currently done, so that the Executive Board currently disposes of 24 Members. The vote weighing procedure also applies to the Executive Directors: “Each elected Executive Director shall be entitled to cast the number of votes which counted towards his election.” (Article XII para 3) lit. i subsection iii IMF).23 The Managing Director is neither Governor nor Executive Director. He is head of the Executive Board and conducts the IMF’s usual business subject to the general control of the Executive Committee while being supported by the IMF staff (Article XII para 4 IMF). There is an unwritten rule of courtesy that the Managing Director of the IMF is always a European, while the President of the World Bank is an American. The current Managing Director is Christine Lagarde, a French national (since 2011). Currently, the IMF is undergoing a reform process. The distribution of power by quotas is particularly called into question.24 Additionally, there are calls for increasing the organisation’s democratic accountability and transparency.25 bb) The World Bank Group. (1) The World Bank: Tasks and Institutional Structure. The World Bank’s task is to support economic development by granting loans. Founded as the International Bank for Reconstruction and Development, IBRD, which was also responsible for supporting recovery from the consequences of World War II, its work today is exclusively in the development sector.26 It is closely linked to the IMF, as IMF-Membership is a precondition

Cf. . Cf. the Report of the Executive Board to the Board of Governors: Quota and Voice Reform in the IMF, 31.8.2006, and the consultation paper „Reform of IMF Quotas and Voice: Responding to Changes in the Global Economy”, IMF Issues Brief, April/May 2007. To this Qureshi/Ziegler, International Economic Law, 3rd edn. 2011, 5-018 and 5-024 f. 25 Ginanviti, ‘The Reform of the International Monetary Fund (Conditionality and Surveillance)’, 34 International Lawyer (2000), 107; Gartner, ‘Uncovering Bretton Woods: Conditional Transparency, the World Bank and the International Monetary Fund’, 45 The Geo. Wash. Int’ L. Rev. (2013), 121. Cf. generally the contributions in Lastra, The Reform of the International Financial Architecture, 2001 and the summary of the critical points by Schlemmer-Schulte, ‘International Monetary Fund (IMF)’, in: MPIEPIL, paras 72 ff. There is also the far-reaching plea for a World Financial Authority: Mirandola, ‘Solving Global Financial Imbalances: A Plan for a World Financial Authority’, 31 Northwestern Journal of International Law & Business (2011), 535. 26 Herdegen, § 24 para 8. 23

24

273

622

623

624

625

§ 13 Economy and Development

626

627

628

629

for membership in the Bank (Article II para 1 World Bank).27 It is also a United Nations Special Agency, and relies on the Member States’ quota of participation just like the IMF (Articles II para 3 and V para 3 World Bank). The World Bank’s institutional structure is also similar to the one of the IMF (cf. Article V World Bank). The plenary organ is the Board of Governors, the specialised members’ organ is the Board of Directors, and the head of management is the President. According to an unwritten agreement (→ para 623), the President of the World Bank is always from the US; currently it is Jim Yong Kim (since 2012). A particular (auxiliary) institution of the World Bank is the Inspection Panel, founded 1993 following severe criticism of the Bank’s project management.28 Inspections of projects by this independent panel, however, are not a form of legal control.29 For a considerable time now, the granting of loans has not been unconditional. It is linked to conditions concerning the creation and maintenance of an administrative and judiciary system that adheres to the rule of law, summarised under the heading good governance. On the one hand, this means a high degree of influence on the political system of many developing countries; on the other hand it also formulates a transnational standard for the rule of law in the execution of sovereign governmental powers.30 Such an active approach raises issues of legitimacy, which can only partly be solved by integrating elements of participation.31 A further central aspect is the respect for human rights in the work of the World Bank, but also in that of other financial institutions.32 Finally, political criticism has arisen concerning the quantitative design of the projects supported by the World Bank which are often deemed to have an excessive dimension that is – besides detrimental effects on the developing country’s environment – said to be more to the benefit of MNCs or other companies from industrial countries than to the economies of the developing countries.33 In this context, it is also the World Bank’s focus on free trade that is often criticised. (2) Further Elements of the World Bank Group. The World Bank is linked with a number of legally independent International Organisations within the Cf. also the references → para 615. On this extensively Dann, ‘Grundfragen eines Entwicklungsverwaltungsrechts’, in: Möllers/ Voßkuhle/Walter (eds.), Internationales Verwaltungsrecht, 2007, 7 at 21 ff. 29 Comprehensively Bradlow/Schlemmer-Schulte, ‘The World Bank’s New Inspection Panel: A Constructive Step in the Transformation of the International Legal Order’, 54 ZaöRV (1994), 392; Peters, ‘Membership in the Global Constitutional Community’, in: Klabbers/Peters/Ulfstein (eds.), The Constitutionalisation of International Law, 2011, 153 at 163 f. 30 See Theobald, ‘Die Weltbank: Good Governance und die Neue Institutionenökonomik’, 89 VerwArch (1999), 467. 31 Cf. Keuling, Partizipative Elemente der internationalen Zusammenarbeit – Die Zusammenarbeit der Weltbank mit Nichtregierungsorganisationen, 2005. 32 Comprehensively Darrow, Between Light and Shadow, 2003. Critical assessment of the political framework: Tetzlaff, Weltbank und Währungsfonds, 1996, 19 ff. 33 Dreher, Die Kreditvergabe von IWF und Weltbank: Ursachen und Wirkungen aus politischökonomischer Sicht, 2003. 27

28

274

II. Universal Economic Organisations

World Bank Group.34 Such are the International Development Agency (IDA), founded in 1960, which issues loans to particularly poor developing countries.35 The International Finance Corporation (IFC) issues loans to private investors in developing countries.36 The Multilateral Investment Guarantee Agency (MIGA) and the Interna- 630 tional Centre for the Settlement of Investment Disputes (ICSID) serve to support foreign direct investment. The MIGA does so via an insurance system.37 ICSID, established on the basis of the Agreement for the Settlement of Investment Disputes between States and Nationals of Other States (1965),38 organises a particularly effective dispute settlement procedure, which bears the special feature that private investors may pursue claims against States. Technically, this is a form of classical international arbitration under the institutional roof of ICSID within the World Bank Group. The fact that arbitration awards do not forcibly need to be published (although this often happens) raises the attractiveness of the procedure to the parties.39 The ICSID is particularly important for private investors as litigating outside of domestic courts guarantees the independence of the deciding panel in international law and in practice.40 b) International Labour Organisation (ILO). aa) Aims and Tasks. A central 631 requirement for the balance of interests in economic life is drawn from the conflict of interests between workers and employers. The roots of the public international and international institutional treatment of that problem date back as far as the 19th century with its ‘social question’ (in the industrialised States). The ‘hour of birth’ of International Labour Law is deemed to be the Conference for the Protection of Workers (Arbeiterschutzkonferenz) of 1890 organised by the German then-emperor William II., and the political purpose of that conference also reveals the international economic side of labour law, as it was Williams aim to protect the German industry’s competitiveness from the risk of globally diverging standards in workers’ protection.41 Given this deep entrenchment in history, it is by no means surprising that the 632 International Labour Organisation (ILO) was founded as early as 1919 alongside the League of Nations as the second great universal International Organisation

34 In detail: Deutsche Bundesbank, Weltweite Organisationen und Gremien im Bereich von Währung und Wirtschaft, 2013, 179 ff. 35 Cf. Dann, Entwicklungsverwaltungsrecht, 2012, 33 f. 36 Cf. Lowenfeld, International Economic Law, 2nd edn. 2008, 620 f.; Krajewski, Wirtschaftsvölkerrecht, 3rd edn. 2012, paras 941 f. 37 Näher Haltern in Ipsen, § 34 para 75; Herdegen, Internationales Wirtschaftsrecht, § 23 paras 33 f. 38 575 UNTS 159. 39 Art. 48 (5) ICSID Convention. On ICSID generally Schreuer, The ICSID Convention: A Commentary, 2nd edn. 2009. 40 Herdegen, Internationales Wirtschaftsrecht, § 23 paras 28 ff. 41 On the origins cf. Sauer, ‘International Labour Organisation (ILO)’, in: MPIEPIL, para 1. Further Krebber, ‘Aufgabe, Möglichkeiten und Grenzen des Arbeitsvölkerrechts im liberalisierten Welthandel’, 63 Juristenzeitung (2008), 53.

275

§ 13 Economy and Development

633

634

635

636

(as a sort of social branch of the League).42 Today, the ILO is a specialised agency of the United Nations – and at the same time older than the UN. Currently, it has 185 Member States. The ILO’s tasks are related to the guarantee of (minimum) labour standards in its Member States. At the same time, individual working conditions (e.g. working hours, protection of workers, prohibition of child labour) as well as collective rights (e.g. right to association) shall be guaranteed. Traditionally, this is achieved by means of a special procedure of international rulemaking (→ paras 636 and 83). Since the end of decolonisation, technical support has more and more become an important instrument in terms of development aid (e.g. in the field of vocational training).43 bb) Institutional Structure. The striking particularity of the ILO’s institutional structure is the principle of tripartism. The ILO’s organs reunite representatives of the Member States, of the employers’ associations and of the trade unions (quota: 2 : 1 : 1).44 By this means, a non-State element was fairly early integrated into the law of International Organisations.45 The International Labour Conference is the plenary organ. Every Member State has four representatives (2 : 1 : 1).46 Given the size of this institution, the majority of the work is done in committees. The Governing Body with its 56 members (28: 14 : 14) is responsible for the ILO’s internal planning and governance. The ten economically most important States47 are always represented in the Governing Body; membership is thus weighed in a similar way as in the Bretton Woods institutions (although not with the same intensity). The International Labour Office was established for the ILO’s administrative work. cc) Rule-Making and Implementation. The substantive rules of the organisation are either passed as (non-binding) recommendations or as conventions which are elaborated according to a settled procedure which involves the ILOorgans.48 Conventions become effective only after ratification by the Member States; there is no general rule-making power with respect to binding norms. The usual quota of ratification is approximately 35 %. The working conditions

42 → para 49. – The ILO Constitution is – as well as the Covenant on the League of Nations integral part of the Treaty of Versailles. It was however revised when the UN were founded (15 UNTS 35), and modified again later in the years 1953, 1962 and 1972. The ILO Constitution is complemented by the Declaration of Philadelphia (1944), the material principles of which are today part of the ILO Constitution (available at: ). 43 Sauer, ‘International Labour Organisation (ILO)’, in: MPIEPIL, para 17. 44 Sauer, ‘International Labour Organisation (ILO)’, in: MPIEPIL, para 7. 45 Sands/Klein, para 3-018. 46 Art. 3 (1) ILO Constitution. 47 Art. 7 (2) ILO Constitution: „… chief industrial importance …“. 48 On this procedure Birk, Münchener Handbuch zum Arbeitsrecht, 2nd edn. 2000, § 17 paras 53 ff.

276

II. Universal Economic Organisations

laid down in the agreements are generally shaped as minimum standards.49 The Declaration on Fundamental Principles and Rights at Work (1998) aims at causing the Member States to raise the quota of ratification and to effectively implement the minimum standards.50 Surveillance of compliance with the ILO standards is ensured by reporting 637 requirements to specialised committees of the International Labour Conference and the Governing Body. 51 Additionally, there is a complaints procedure to the Governing Body or to the Committee on Freedom of Association.52 In cases of particular severity, a complaint may be brought by a Member State or the Governing Body (ex officio or following the action of a conference delegate) against another Member State. This complaint is decided upon by an ad hoc scrutiny committee which gives recommendations that are either accepted by the States parties to the dispute or the dispute is referred to the ICJ.53 Thus, dispute settlement in the area of labour conditions is institutionalised in the ILO. c) Development Organisations. All special agencies of the United Nations 638 mentioned so far also (or even primarily) pursue development aims. The WTO and institutions of regional economic integration like the EU are active in development policy matters as well. Beyond that, there is a series of special agencies and independent programmes of the UN that have an exclusive or predominant development purpose: The Food and Agriculture Organisation of the United Nations (FAO)54 and 639 the United Nations Industrial Development Organisation (UNIDO) work in their respective sectors to achieve development in the countries concerned. Both of them are International Organisations, legally independent from the UN but attached to it by special agreements. UNIDO used to be an independent UN programme, but has ripened into an independent organisation.55 Contrary to that, the United Nations Development Programme still bears the status of an auxiliary organ of the United Nations. Furthermore, the United Nations Children’s Fund

49 On ILO-rulemaking in particular Böhmert, Das Recht der ILO und sein Einfluß auf das deutsche Arbeitsrecht im Zeichen der europäischen Integration, 2002, 99 ff.; Wißkirchen, ‘Die normensetzende und normenüberwachende Tätigkeit der Internationalen Arbeitsorganisation (IAO)’, 34 ZfA (2003), 691 at 696 ff.; Nußberger, Sozialstandards im Völkerrecht, 2005, 120 ff. On the implementation of the standards in the EU cf. Seifert, ‘The Still Complex Relationship between the ILO and the EU: The Example of Anti-Discrimination Law’, 29 The International Journal of Comparative Labour Law and Industrial Relations (2013), 39. 50 37 I.L.M. 1233. On this de Wet, ‘Governance through Promotion and Persuasion: The 1998 ILO Declaration on Fundamental Principles and Rights at Work’, 9 GLJ (2008), 1429. 51 Sauer, ‘International Labour Organisation (ILO)’, in: MPIEPIL, paras 19 f.; Wisskirchen,‘Die normensetzende und normenüberwachende Tätigkeit der Internationalen Arbeitsorganisation (IAO)’, 34 ZfA (2003), 691 at 708 ff. 52 Sauer, ‘International Labour Organisation (ILO)’, in: MPIEPIL, para 25. 53 Cf. Art. 26 ff. ILO-Constitution. 54 Sands/Klein, paras 3-023 ff. 55 Bretton, ‘La transformation de l’O.N.U.D.I. en institution specialisée’ (1979) XXV AFDI 567. In short: Kitaoka, ‘United Nations Industrial Development Organisation (UNIDO)’ in: MPIEPIL para 3 f.; Sands/Klein, para 3-071.

277

§ 13 Economy and Development

UNICEF and the FAO’s World Food Programme WFP need to be mentioned as UN-dependent programmes. 640 In 1964, the United Nations Conference on Trade and Development, UNCTAD, was established – nominally as an organ of the UN General Assembly56 – to achieve a better integration of developing countries into world trade. Within UNCTAD, a sub-division of States into groups soon became apparent; thus, developing countries are organised in the Group of 77 (today 133 Member States according to the official homepage of the group),57 which called for a “New International Economic Order” in the 1960 s and 1970 s.58 The UNCTAD conferences take place every four years and focus on questions in the context of trade and development, e.g. commodities agreements.59 UNCTAD’s importance was diminished with the advent of the WTO. 2. The World Trade Organisation (WTO)

a) On the Creation of the WTO. Recently, the World Trade Organisation WTO has often been the target of mainly unjustified criticism, in particular by “globalisation critics”. Its eventful history is – even though individual points of criticism are justified – largely a success story. The WTO was founded in 1995,60 but it roots reach back into the time immediately after World War II. 642 Parallel to the founding of the UN and the economic organisations IMF and IBRD, an International Trade Organisation ITO was envisaged as well.61 Its establishment, however, failed due to political resistance in the United States. The Cordell Hull programme for the promotion of American foreign trade granted the US President the power to conclude trade agreements, but not to participate in the founding of International Organisations. Therefore, the General Agreement on Tariffs and Trade (GATT 1947) could be concluded by the US. Furthermore, it was possible to establish an Interim Commission ITO (ICITO), which acted as a GATT Secretariat for decades to come. The founding of the ITO itself by ratifying the respective international treaty (Havana Charter, 1948) was however considered to be unacceptable to Congress and was abandoned in 1950. 643 This brought about the peculiar situation of a world trade regime without a solid institutional framework that lasted for nearly 50 years.62 The liberalisation of world trade was achieved during a total of seven negotiating rounds by the parties to GATT 1947. This procedure gave the GATT-regime a highly hetero641

GA Res. 1995 (XIX) (1964). . 58 Herdegen, Internationales Wirtschaftsrecht, § 4 paras 76 ff. 59 Fortin, ‘United Nations Conference on Trade and Development (UNCTAD)’, in: MPIEPIL, para 12. 60 Text of the Agreement in O.J. 1994 No. L 336/3. 61 On this and on the following Jackson, The World Trading System, 2nd edn. 1997, 36 ff.; Herrmann/Weiß/Ohler, paras 90 ff. 62 Seminal work: Benedek, Die Rechtsordnung des GATT aus völkerrechtlicher Sicht, 1990. 56

57

278

II. Universal Economic Organisations

geneous shape.63 The eighth round of trade deliberations was announced in Punta del Este, Uruguay, as the Uruguay Round and was meant to bring about deep structural modifications. This round concluded as a success eight years later when the Final Act of Marrakesh was signed (15 April 1994). b) Structure of the WTO-Agreements and their Substantive Rules. The WTO- 644 treaty regime is divided into several parts. The Agreement on the Establishment of the World Trade Organisation (WTO-Agreement) contains the central institutional rules. It is accompanied by the Dispute Settlement Understanding (DSU) in its Annex 2 which considerably enhances the rule of law within the WTO (→ para 654). The core substantive agreements are contained in Annex 2 to the WTO- 645 Agreement, viz. GATT 1994 for the trade in goods, the General Agreement on Trade in Services for the services markets and the agreement on Trade-Related Aspects of Intellectual Property Rights dealing with this particular field. They are complemented by a number of other trade-related agreements (e.g. on technical barriers to trade, sanitary/phytosanitary measures, trade in textiles or subsidies). These agreements are binding on all WTO-members as multilateral agreements (Article II para 2 WTO: “single undertaking approach”), which meant that the fragmentation from the end of the old GATT-regime was replaced by a more homogeneous model. 64 Only two plurilateral agreements, in force only for some Member States, are left (Article II para 3 and Annex 4 WTO): the Agreement on Trade in Civil Aircraft and the Agreement on Public Procurement. Lastly, there is a Mechanism on Trade Policy Review (TPRM) laid down in Annex 3. The free-trade regime of WTO is based on number of core substantive 646 concepts which are particularly developed in GATT. The main principle is the idea of the most favoured nation (MFN), laid down in the respective clause in Articles I para 1 and XIII GATT: “… any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.”65 This means that there automatically is equal treatment of all WTOMember States in the abolishment of barriers to trade. The principle is also applicable in other areas of the GATT. Furthermore, the substantive rules of the WTO provide for the elimination of customs and other barriers to trade. Quantitative restrictions and similar measures are prohibited as a matter of principle (Article XI para 1 GATT – “tariffs only”), and customs tariffs must be reduced step by step.66 Regional free trade areas and customs unions would technically be incompatible with the most favoured nation treatment as trade beKrenzler in Prieß/Berrisch, 5. Göttsche, in: Hilf/Oeter, § 5 para 8. 65 In detail Herrmann/Weiß/Ohler, paras 378 ff. 66 Herdegen, Internationales Wirtschaftsrecht, § 10 paras 49 ff.; Herrmann/Weiß/Ohler, paras 405 ff. 63

64

279

§ 13 Economy and Development

647

648

649

650

651

652

653

tween their members would be privileged, but from its inception the GATT recognised (in Article XXIV paras 4 to 8; similarly Article Vbis GATS) such regional arrangements under certain conditions because of their advantageous effect on the creation of trans-border markets. The elimination of barriers to trade is also pursued by the national treatment clause in Article III:1 GATT (together with Article III:2 for taxation and Article III:4 for regulatory discrimination). The problem lies in differentiating between excessive limitations of sovereignty and the justified defence against protectionism.67 Trade barriers may be justified under Article XX GATT if they serve certain public interests and if they “… are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, …”.68 – The liberalisation of trade in services is less developed, as the GATS requires the Member States to make special commitments. The TRIPS is interlinked with other agreements on the protection of intellectual property. c) Membership. Today, the WTO has 159 Members. Its founding Members are those of the GATT 1947 as well as the EU as the EC’s successor (Article XI para 1 WTO). Subsequent accession to the WTO is possible according to Article XII WTO. The newest Member State is Tajikistan (2 March 2013). d) Institutional Structure and Decision-Making. The WTO has three main organs: the Ministerial Conference under Article IV para 1 WTO is the plenary organ that replaced the “CONTRACTING PARTIES” from the old GATT.69 It can issue binding decisions for the WTO and meets at least every two years.70 The General Council is the organ representing the Member States between the meetings of the Ministerial Conference (Article IV para 2 WTO). According to special attributions made by other agreements of the WTO-regime, it is competent for special tasks, primarily in the field of dispute settlement where it convenes as the Dispute Settlement Body (DSB) of the WTO. Councils for the respective agreements in the annexes meet similar to working groups (Article IV para 5 WTO).71 The Secretariat led by the Director-General is in charge of everyday business and the WTO’s organisation. The WTO-Agreement itself does not fix the length of the Director-General’s term of office; a guideline of the General Council currently sets it at four years. The incumbent Director-General of the WTO is Roberto Carvalho de Azevêdo (Brazil, since September 2013). Decision-making in the WTO is as a matter of principle performed by consensus (→ paras 353 f.) which is defined in Footnote 1 to Article IX para 1 Herrmann/Weiß/Ohler, paras 507 ff. Herdegen, Internationales Wirtschaftsrecht, § 10 paras 56 ff. 69 Tietje, in: id. (ed.), Internationales Wirtschaftsrecht, § 3 para24. 70 Cf. Herrmann/Weiß/Ohler, para 177. 71 On these Herrmann/Weiß/Ohler, paras 179 ff.

67

68

280

II. Universal Economic Organisations

WTO: “The body concerned shall be deemed to have decided by consensus on a matter submitted for its consideration, if no Member, present at the meeting when the decision is taken, formally objects to the proposed decision.” Only for exceptional cases does the WTO-Agreement contain special rules and voting requirements. Thus, authentically interpreting the multilateral trade agreements (→ para 645) and deciding exceptions/waivers requires a three quarters majority in the Ministerial Conference as well as in the General Council (Article IX paras 2 and 3 WTO). e) Settlement of Disputes. The WTO’s dispute settlement mechanism estab- 654 lishes a rule- and law-based procedure (contrary to a procedure of purely political arrangement of interests) within the WTO-regime (for details → paras 329 f.). Article 3 para 2 of the Dispute Settlement Underestanding (DSU) makes an explicit reference to the rules of interpretation in public international law. In doing so it considerably differs from its predecessor. A further significant difference to dispute settlement under the old GATT rules lies in the fact that the report of the Panel which decides at first instance (→ para 330) is considered to have been accepted unless there is an appeal within 60 days or unless the DSB decides by consensus to reject the report. In the old GATT, the report had to be adopted by consensus which was easily avoided by the party that had lost the case before the panel. It is this shift from positive to negative consensus that caused the most considerable rise in the rule of law in the field of international trade.72 f) Criticism and Reform. There is a most intensive discussion on the issue of 655 the WTO decision-making’s democratic legitimacy. It was triggered by the social and economic effects of WTO-Law which are – though often wrongly – qualified as mainly negative.73 At the same time, the decision-making structures within the WTO and/or the democratic accountability with respect to these structures appear deficient.74 Other critics address the social aspects of trade liberalisation via the WTO.75 The criticism raised in the general public (sometimes with great intensity) 656 creates considerable pressure on the WTO to achieve institutional reforms. There is a series of reform proposals to increase the levels of transparency and

72 Specified Herrmann/Weiß/Ohler, para 255, as well as now Weiss, in: Tietje (ed.), Internationales Wirtschaftsrecht, 2009, § 17. 73 Cf. on this Reusch, Die Legitimation des WTO-Streitbeilegungsverfahrens, 2007, 43 ff., in particular on the legitimacy aspects of dispute resolution (→ para 654). 74 Krajewski, ‘Democratic Legitimacy and Constitutional Perspectives of WTO Law’, 35 JWT (2001), 167 at 175 ff.; Sunjoon Cho, ‘A quest for WTO’s legitimacy’, 4 World Trade Review (2005), 391. Cf. further Broude, ‘The Rules(s) of Trade and the Rhetos of Development: Reflections on the Functional and Aspirational Legitimacy of the WTO’, 45 Colum.J.Transnat’l Law (2006), 221; Meltzer, ‘State Sovereignty and the Legitimacy of the WTO’, 26 U. Pa. J. Int’l Econ. L. (2005), 693. 75 On these aspects cf. Stoll, ‘World Trade Organisation (WTO)’, in: MPIEPIL paras 98 f.

281

§ 13 Economy and Development

reflexivity.76 In order to compensate for deficits of accountability and legitimacy, NGOs are brought in to participate in consultation proceedings (Article V para 2 WTO). A further mechanism to integrate these organisations is the issuance of amicus curiae briefs in dispute settlement proceedings.77 Although the efforts for reform are currently leading to a process of constitutionalisation within the WTO, 78 the current Doha-Round – the longest round of negotiation ever – scarcely addresses institutional issues.79 3. Forms of Co-operation outside the UN and WTO

a) The Group of Eight (G8). The Group of Eight designates a system of co-operation between eight States: Canada, France, Germany, Italy, Japan, Russia,80 the UK and the US, while the European Commission holds observer status. While not being based on a binding treaty under international law and not being an International Organisation strictly speaking, it organises annual ‘informal’ meetings of the heads of State and government with the presiding host rotating for every session.81 The G8 States unite the largest part of the world’s economic power. The meetings of their finance ministers and central bank presidents are of particular importance, in which, however, Russia does not participate.82 Founded in 1975 as a forum to discuss questions of economic policy in a confidential circle, the G8 ripened into a network of intergovernmental co-operation. The initiatives of the G8 are often implemented via the Bretton-Woods-Institutions (→ paras 613 f.), in which its Member States have a lead role.83 The G8 is augmented by important industrial and emerging countries to form the G20,

76 Cf. e.g. Hilf, ‘New Economy – New Democracy’, in: Classen et al. (eds.), „In einem vereinten Europa dem Frieden der Welt zu dienen…“, Liber amicorum Oppermann, 2001, 427 at 434 ff., as well as the contributions in Petersmann (ed.), Reforming the World Trading System, 2005, 357 ff.; Cottier, ‘Preparing for Structural Reform in the WTO’ 10 Journal of International Economic Law (2007), 497. 77 Cf. Knahr, ‘Participation of Non-State Actors in Disputes before the WTO: Submission of Amicus Curiae Briefs – Recent Trends and Perspectives’, in: Tietje/Nowrot (eds.), Verfassungsrechtliche Dimensionen des Internationalen Wirtschaftsrecht, 2007, 197. 78 On perspectives see Hilf/Oeter in id., § 37 paras 24 ff.; critically Cass, The Constitutionalization of the World Trade Organization, 2005. 79 Cf. Tempone/Vinuesa, ‘Doha Round’, in: MPIEPIL. 80 The position of Russia has been modified following the events in Ukraine in early 2014. 81 Krajewski, Wirtschaftsvölkerrecht, 3rd edn. 2012, para 788. On the network-structure of G8 Gstöhl, ‘Governance through government networks: The G8 and international organizations’, 2 RevIntOrg (2007), 37. Critically on the G8’s composition Bradford/Linn, ‘Ist die G-8 noch zeitgemäß?’, Internationale Politik 7/2004, 90. 82 Deutsche Bundesbank, Weltweite Organisationen und Gremien im Bereich von Währung und Wirtschaft, 2013, 116. 83 Gramlich, ‘Eine neue internationale „Finanzarchitektur“ oder: Der IMF in der Krise?’, 38 AVR (2000), 399 at 425 ff.

282

II. Universal Economic Organisations

which intends to play a major role in overcoming the financial crisis triggered in 2007/2008.84 b) Paris Club. The Paris Club is an informal group of creditor States for the 657 ad hoc settlement of specific debt crises. It was established in the aftermath of the Argentinian debt crisis after the fall of Peron in 1956. In its framework, governments negotiate debt-restructuring and -relief, if this cannot be achieved by the IMF or development organisations for institutional or economic reasons.85 This calls for regular consultations. As a matter of principle, every creditor State can accede to the Paris Club. Following successful negotiations, a memorandum of understanding is concluded with the debtor State. The Club lacks the necessary institutional structure. The London Club is unable to acquire such a structure as it itself is only a co-operative structure of private banks in similar situations of crisis. 4. The Organisation for Economic Co-operation and Development (OECD)

Within the group of economic International Organisations, the OECD takes a 658 special role. It was founded in 1948 as a regional organisation in Europe, named Organisation for European Economic Cooperation (OEEC), to achieve economic reconstruction in the post-war era and to effectively distribute the funds under the American-lead European Recovery Programme (ERP).86 Today it comprises States such as Mexico, Japan or New Zealand, so ‘regionality’ cannot be understood geographically (and never could be understood that way, as from its inception on, the USA and Canada were Member States of the OEEC/OECD), but must in an abstract sense be viewed as referring to States of a certain ‘economic region’.87 In 2007, deliberations with a series of other States (such as China, Russia and India) were undertaken to achieve some form of membership; besides, some smaller States have acceded to the organisation since then.88

84 See in particular the Financial Stability Board (FSB), Deutsche Bundesbank, Weltweite Organisationen und Gremien im Bereich von Währung und Wirtschaft, 2013 143 f.; Ruddigkeit, Das Financial Stability Board in der internationalen Finanzarchitektur, 2001. Tietje, in: Paradigmen im internationalen Recht/Implikationen der Weltfinanzkrise für das internationale Recht, 2012, 243 at 263 f.; id., Architektur der Weltfinanzordnung, 2011, 24 f. pleads in favour of its personality under international law. Critically Zobl/Thürer/Alexander, ‘Die Legitimation der G-20’, 51 AVR (2013), 143. 85 Deutsche Bundesbank, Weltweite Organisationen und Gremien im Bereich von Währung und Wirtschaft, 2013, 248 ff. 86 On that history Sands/Klein, para 6-048; Hahn, ‘Die Organisation für Wirtschaftliche Zusammenarbeit und Entwicklung (OECD)’, 22 ZaöRV (1962), 49. See generally Woodward, The Organisation for Economic Co-operation and Development (OECD), 2009; Mahon/McBride, The OECDE and Transnational Governance, 2008. 87 Deutsche Bundesbank, Weltweite Organisationen und Gremien im Bereich von Währung und Wirtschaft, 2013, 157 f. 88 Cf. Bonucci/Kothari, ‘Organisation for Economic Cooperation and Development (OECD)’, in: MPIEPIL, para 10.

283

§ 13 Economy and Development

The OECD is an International Organisation headquartered in Paris.89 Its organs are the Council (plenary organ of all Member States), the Executive Committee, the Secretary-General as well as a number of substantive committees on the basis of Article 9 OECD. Rule-making and (data-based) policy agendasetting in and by the OECD are rather innovative. Non-bindung forms of action have joined the decisions, recommendations and international agreements foreseen under Article 5 OECD as instruments of the organisation. Important decisions are the Codes of Liberalisation of Capital Movements and of Current Invisible Operations or the Guidelines for Multinational Enterprises.90 Furthermore, the OECD collects data and publishes reports and comparative studies, be it on economic topics in general or on labour market policies, the educational sector, health services or environmental protection. The reports are not binding due to their factual character, but most often their effect is by no means weaker than that of binding legal acts.91 The Model Tax Convention on Income and Capital (and its official commentary) e.g. has become very important in international tax law.92 660 a) The Bank for International Settlement (BIS) and the Basel Committee on Banking Supervision. The Bank for International Settlement (BIS) in Basel has a very particular institutional basis. Having its roots in the settlement of German reparations after World War I, it was designed as the ‘Central Bank of Central Banks’ as an incorporated company under Swiss law.93 However, it has a special status under international law in its headquarters agreement with Switzerland, so that it was for a long time considered to bear legal personality under international law.94 The BIS undertakes ordinary banking transactions (e.g. the purchase of gold, currencies and other assets) to co-ordinate the international currency policy as an ‘emergency agent’.95 659

89 Founding Treaty: Convention on the Organisation for Economic Co-operation and Development, 888 UNTS 179. 90 Available at and . On this cf. OECD, ‘Working Party on the OECD Guidelines for Multinational Enterprises, The OECD Guidelines for Multinational Enterprises: Review 2000’, DAFFE/IME/WPG (2000) 9, 8 September 2000 (Ministerial Booklet). On this Schuler, ‘Effective Governance through Decentralized Soft Implementation: The OECD Guidelines for Multinational Enterprises’, 9 GLJ (2008), 1753. 91 List of the most important statistics: -. 92 Reimer, ‘Transnationales Steuerrecht’, in: Möllers/Voßkuhle/Walter (eds.), Internationales Verwaltungsrecht, 2007, 181 at 187 f. 93 Cf. Lowenfeld, International Economic Law, 2nd edn. 2008, 754 ff.; Baker, The Bank for International Settlements, 2002. As a matter of fact, the BIS was planned to be dissolved following the agreements of Bretton Woods and should have been replaced completely by the IMF. 94 Herdegen, Internationales Wirtschaftsrecht, § 14 para 26. 95 Jenkis, ‘Die Bank für Internationalen Zahlungsausgleich – der unbekannte Koordinator der Notenbanken?’, in: Gemper (ed.), Internationale Koordination und Kooperation: stille Diplomatie, politischer Dialog, innovativer Wettbewerb, 1990, 116 at 123 ff.

284

III. Regional Economic Integration

Above all, the BIS hosts the Basel Committee on Banking Supervision96 661 which convenes every three months97 and was initially composed of representatives of the so-called G10-States98 plus Luxembourg and Spain, but it was considerably augmented by other States, particularly by emerging markets, in the aftermath of the 2007/2008 financial crisis.99 The Member States are represented in the Committee by their central bank governors and by the presidents of their banking supervision. The Committee co-ordinates substantive supervisory criteria for e.g. trans-border banking transactions. Furthermore, it issues recommendations for bank loans to private actors. Its accords on the capital of banks are not binding under international law. The Basel Capital Accord Basel II that was passed in 2004 could not avoid the financial crisis that has raged since 2007/2008, even though it was conceived as an effective guarantee against economic perturbations.100 The new International regulatory framework for banks (Basel III) is currently being implemented. b) The Organisation of Petroleum Exporting Countries (OPEC). The OPEC 662 is an organisation of countries that produce crude oil and founded in Baghdad in 1960. It is an International Organisation on the basis of an international treaty.101 Its sole purpose is the stabilisation of the market price for crude oil by fixing production quotas through its main organ, the Conference, which gathers the competent ministers.102 III. Regional Economic Integration

Regional economic integration does not primarily rely on an institutional 663 framework. What is paramount is to advance free trade amongst a region’s States and to do so in accordance with the prerequisites of the WTO, as any regional preference is prima facie in violation of the most-favoured-nation clause which must be upheld according to the relevant rules of the GATT (→ para 646). On this basis, free trade zones in which no customs duties or similar charges are levied on products issuing from the Member States may be created as a first step. If a free trade zone has a common external customs tariff (so that products imported to the zone from the outside can be traded freely because of the lack of diverging external tariffs), it is transformed into a customs union.103 If there is comprehensive unhindered trans-border exchange of goods, individu-

Homepage: . Cf. Krajewski, Wirtschaftsvölkerrecht, 3rd edn. 2012, paras 879 ff. 98 These were the USA, Canada, the UK, France, Germany, Italy, Belgium, the Netherlands, Sweden and Japan together with Switzerland (without turning into „G11“). 99 New representatives originate from Argentina, Australia, Brasil, China, Hong Kong, India, Indonesia, Corea, Mexico, Russia, Saudi Arabia, Singapore, South Africa and Turkey. 100 Wood, Law and Practice of International Finance, 2008, Ch. 25. 101 443 UNTS 248. 102 Cf. also Terhechte, OPEC und europäisches Wettbewerbsrecht, 2008. 103 On this terminology Herrmann/Weiß/Ohler,para 611. 96

97

285

§ 13 Economy and Development

als (as economic factors), capital and services, there is an internal market, which today only exists in the EU (→ para 664).104 1. EU (EC), EEA and EFTA

Among the organisations of regional economic integration, the EU, founded as the EEC in 1958 and called EC until 2009, is by far the most successful one. Its combination of internal market law (composed of fundamental economic freedoms and legal harmonisation) and competition law to overcome trade barriers created by private economic actors has created a solid foundation for constructing a political union that transcends the economic sphere. It is only in the public international legal context that the EU is considered as an International Organisation (a quality which it did not lose during its evolution), whereas elsewhere the idea of multilevel constitutionalism prevails. 665 The European Free Trade Association EFTA (Denmark, UK, Norway, Austria, Portugal, Sweden and Switzerland) had been created “around” the EU in a geographic sense (with Iceland acceding later and Finland and Liechtenstein being associate members). When many of these States acceded to the E(E)C, the EFTA lost more and more of its importance. In 1994, the EC and EFTA (except Switzerland, where a referendum on the issue failed)105 were united to form the European Economic Area EEA. The framework of the EEA provides for the EFTA-partners to adopt EU-law. Generally speaking, this is a special institutional form of associate membership for Iceland, Norway and Liechtenstein with a separate EEA Council and a Joint EEA Committee as well as a complex dispute settlement arrangement according a particular role to the ECJ and establishing a separate EFTA-Court (based in Luxembourg).106 Founding the EEA created the world’s largest free trade zone.107 664

2. NAFTA 666

The institutional framework of the North American Free Trade Agreement NAFTA108 is rather small. A Free Trade Commission and a Secretariat act as organs of the agreement between the US, Mexico and Canada (Articles 2001 f.). What institutional matters are concerned, it is primarily the dispute settlement procedure that is interesting (with respect to matters of investment protection or public procurement law).109 Investment protection is also at the core of the

104 On the controversy about the notion of the internal market, which is not decisive here Kahl in Calliess/Ruffert, Art. 26 TFEU paras 8 ff. 105 Bieber et al., § 36 para 9. 106 Oppermann, § 3 para 16; Schweitzer/Hummer/Obwexer, para 1083. The reason for the complexity in the Courts‘ constitution lies in the ECJ’s opinions on the EEA-Agreement: ECJ, opinion 1/91, ECR 1991, I-6097 (EEA I); opinion 1/92, ECR 1992, I-2821 (EEA II). 107 Cf. Oppermann/Classen/Nettesheim, § 41 para 8. 108 ILM 32 (1993), 289 ff. at 605 ff. 109 Cf. Herdegen, Internationales Wirtschaftsrecht, § 12 paras 30 f.

286

III. Regional Economic Integration

agreement’s substantive rules.110 Furthermore, NAFTA liberalises trade in goods by abolishing customs duties as well as imposing rules on services and other areas of relevance to international economic law.111 The founding of NAFTA led to a significant increase in trade volume within the NAFTA zone.112 3. MERCOSUR

The situation of MERCOSUR (Mercado Común del Sur/Mercado Comum do 667 Sul) is different as it aim at achieving its goals by employing a distinct institutional structure.113 This International Organisation has experienced considerable success in advancing free trade in South America.114 The Cuzco Declaration (2004) envisages merging MERCOSUR with the Andean Community in order to create a large continental free trade zone.115 Economic integration and political conflict, however, are often in each other’s way.116 The organisation’s status and its current structure are laid down in the Proto- 668 col of Ouro Preto (1994).117 At the organisations top is the Council of the Common Market (Consejo del Mercado Común), composed of the Member States’ foreign ministers and the ministers in charge of the economy. Its decisions are binding within the MERCOSUR. MERCSUR’s executive organ is the Common Market Group (Grupo Mercado Común) comprising four representatives per Member State. Its decisions are binding, too, as are the recommendations of the Trade Commission (Comisión de Comercio) that supports the Common Market Group.118 As one of only few International Organisations, MERCOSUR has a

110 Cf. Maurer, ‘Was NAFTA Necessary? Trade Policy and Relative Economic Failure since 1982’, HBS Working paper 08-043 (13.6.2006). 111 More in detail Sagasser, ‘Das Nordamerikanische Freihandelsabkommen NAFTA’, RIW 1993, 573; Senti, NAFTA, 1996; Morales, ‘The governance of global issues through regionalism’, in: Nakagawa (ed.), Managing development: globalisation, economic restructuring and social policy, 2006, 108. On the currency perspective Salvatore, ‘Can NAFTA be a stepping stone to monetary integration in North America?’ 107 Economie internationale (2006), 135; Gruben/Koo, ‘Does NAFTA move North America towards a common currency area?’ in: Vernengo (ed.), Monetary integration and dollarization: no panacea, 2006, 79. 112 Romalis, ‘NAFTA’S and CUSFTA’S impact on international trade’ 89 The Review of Economics and Statistics (2007), 416; Hofbauer/Schott, NAFTA Revisted: Achievements and Challenges, 2005. 113 Founding treaty: ILM 30 (1991), 1041. On further economic organisations in Latin America de Velasco, Las organizaciones internacionales, 14 edn. 2008. 114 Cf. Wehner, Der Mercosur, 1999. Overview: Martins, ‘MERCOSUR: Der Südamerikanische Gemeinsame Markt im Überblick’, RIW 1999, 851. On the economic background Sangmeister, Mercosur: Möglichkeiten und Grenzen der Integration, 1996. 115 Herdegen, Internationales Wirtschaftsrecht, § 12 para 39. 116 Bodemer, ‘Von der Wirtschaftsgemeinschaft zur subregionalen Sicherheitsgemeinschaft? – Eine Zwischenbilanz des Mercosur’, 75 Die Friedenswarte (2000), 331; Porrata-Doria, ‘Mercosur at Twenty: From Adolescence to Adulthood’, 27 Temple Int’l & Comp. L.J. (2013), 1. 117 ILM 34 (1995), 1244. 118 On the institutional framework of MERCOSUR Borba Casella, ‘Legal Features and International Structures for the Mercosur’, in: Le partenariat entre l’Union européenne et les Amériques, 1999, 79 at 83 ff.

287

§ 13 Economy and Development

parliamentary organ, the MERCOSUR-Parliament which first met in 2007.119 Furthermore, there is a remarkable arbitration procedure for the settlement of disputes which is since 2004 controlled by a permanent appellate body (Tribunal Permanente de Revisión) and which can also be called upon by private individuals and companies that claim an infringement of their rights under the Treaty by a Member State.120 4. ASEAN

The work of ASEAN (Association of Southeast Asian Nations) has transcended the pure economic sphere in recent years.121 ASEAN was founded in 1967 by Thailand, Indonesia, Malaysia, the Philippines and Singapore. Later, Brunei (1984), Vietnam (1995), Myanmar and Laos (1997) as well as Cambodia (1999) acceded. Papua-New Guinea and East Timor have observer status. The organisation’s main area of activity besides to economic co-operation is security.122 ASEAN is organised and co-ordinated through an annual summit in November as well as by further ministerial meetings. The seat of the organisation is Jakarta (Indonesia). Besides the summits as the main institutional arrangement there is the Ministerial Meeting (AMM) of the foreign ministers, the Standing Committee (ASC) as well as the secretariat. 670 As far as economic cooperation is concerned, the 1995 summit decided to establish the ASEAN Free Trade Area (AFTA), to abolish all investment barriers until the year 2010 and to create an Asian Investment Area (AIA).123 The cooperative framework was extended to include China, South Korea and Japan (ASEAN+3) as well as Australia, New Zealand and India (ASEAN+6), whereas 669

119 The former Common Parliamentary Commission (CPC) was replaced by the MERCOSURParliament following the entry into force of the Protocolo Constitutivo del Parlamento del Mercosur MERCOSUR/CMC/DEC. No. 23/05. 120 Art. 18 of the protocol of Olivos, 42 ILM (2002), 2; Schmidt, ‘Neue Impulse durch institutionelle Reformen – der Mercosur ist wieder auf Kurs’, EuZW 2005, 139 at 140 ff.; Vargas/ Sennekamp, ‘Streitschlichtung als Integrationsfaktor in der Eurpäischen Union und im MERCOSUR‘, RIW 2002, 262 at 266 ff.; Lehmann, ‘Neues von der Schiedsgerichtsbarkeit des Mercosur – ein Integrationsmotor à la Luxemburg?’, EuZW 2001, 622; comprehensively Klumpp, Schiedsgerichtsbarkeit und Ständiges Revisionsgericht des Mercosur, 2013. 121 On the political consequences Busse, Die Entstehung von kollektiven Identitäten – Das Beispiel der ASEAN-Staaten, 2002; Stahl, Warum gibt es die EU und die ASEAN?, 1998, 181 ff.; Johnston, ‘Socialization in International Institutions: The ASEAN Way and International Relations Theory’, in: Ikenberry/Mastanduno (eds.), International Relations Theory and the Asia-Pacific, 2003, 107; Ufen, ‘Die ASEAN – Ein südostasiatischer Modellfall regionaler Kooperation?’, in Nabers/id. (eds.), Regionale Integration – Neue Dynamiken in Afrika, Asien und Lateinamerika, 2005, 23 ff.; Nakamura (ed.), East Asian Regionalism from a Legal Perspective, 2009; Plummer/Yue (Hrsg.), Realizing the ASEAN Economic Community, 2009. 122 Cf. Ditté, Die Rolle der ASEAN in der veränderten Sicherheitslage Südostasiens, 2001. 123 On foreign direct investment in the ASEAN area cf. in particular the contributions in Strange/ Slater /Molteni (eds.), The European Union and ASEAN: Trade and Investment Issues, 2000.

288

III. Regional Economic Integration

the latter extension has not yet been put into action.124 In important step on the way to integration was the ASEAN Charter, passed in November 2007, that goes beyond the framework of economic integration and aims at promoting democracy, the rule of law and human rights. However, the ‘ASEAN Way’ of non-interference in other Member States’ domestic matters, constitutes an institutional obstacle for the advancement of such issues.125

124 Kawai/Wignaraja, ‘ASEAN+3 or ASEAN+6: Which Way Forward’, ADB Institute Discussion Paper No. 77 (9/2007); Kawai/Houser, ‘Evolving ASEAN+3 ERPD: Towards Peer Reviews or Due Diligence?’, ADB Institute Discussion Paper No. 79; Dong/Heiduk (eds.), The EU’s Experience in Integration – A Model for ASEAN+3, 2007. 125 Cf. Malanczuk, ‘Association of Southeast Asian Nations (ASEAN)’, in: MPIEPIL, paras 12 f.; Leviter, ‘The Asean Charter: Asean Failure or Member Failure’, 43 N.Y.U. Journal of International Law and Politics (2010), 159; Seah, ‘The ASEAN Charter’, 58 ICLQ (2009), 197. Cf. also the differentiated assessment by Beeson, Institutions of the Asia-Pacific: Asean, APEC, and beyond, 2009, at 17 ff.

289

§ 14 Environment Literature: Beyerlin, Umweltvölkerrecht, 2000; Bolle, Das Intergovernmental Panel on Climate Change (IPCC), 2011; Churchill/Ulfstein (eds.), ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: a Little-Noticed Phenomenon in International Law’, 94 AJIL (2000), 623 ff.; Kilian, Umweltschutz durch Internationale Organisationen, 1987; Ott, Umweltregime im Völkerrecht, 1998; Sands/Peel, Principles of International Environmental Law, 3rd edn. 2012; Soroos, ‘Global Institutions and the Environment: An Evolutionary Perspective’, in: Axelrod/Downie/Vig (eds.), The Global Environment, 2004, 21 ff.; Wolfrum, ‘Means of Ensuring Compliance with and Enforcement of International Environmental Law’, 272 RdC (1998), 9 ff.

I. The Institutional Law of International Environmental Protection 1. Creation and Development of International Environmental Law and the Law of International Organisations

International law of environmental protection was only recently created.1 Its 671 oldest roots – apart from isolated rules concerning the protection of species for economic reasons2 – go back to the issue of trans-boundary pollution which caused the establishment of an international environmental neighbourhood law. As such it is primarily part of the law of State responsibility for illegal activity or, most recently, acts that, while being dangerous, conform to international law.3 Recent developments in public international environmental law since the 1970 s are mainly rooted in the work of International Organisations,4 partly including international environmental law’s roots in the law on State responsibility. Modern international environmental law, influenced by International Organisations, was thus created about thirty years after the respective organisational structures of international economic law. However, it does not develop less dynamically.

On its history Sands/Peel, Principles of International Environmental Law,3rd edn. 2012, 26 ff.; particularly on institutions 52 ff. 2 Schmidt/Kahl, Umweltrecht, 8th edn. 2010, § 8 para 2; Sparwasser/Engel/Voßkuhle, Umweltrecht, 5th edn. 2003, § 1 paras 61 f. These rules are about the protection of species (such as certain fish as well as seals, birds and whales) for economic use. 3 Overview: Ruffert, ‘Umwelthaftung im Völkerrecht’, JbUTR 2004, 7. 4 Cf. Tamiotti/Finger, ‘Environmental Organizations: Changing Roles and Functions in Global Politics’, 1 Global Environmental Politics (2001), 56. 1

291

§ 14 Environment

The starting point is the Stockholm Environmental Conference of 1972.5 It led to the establishment of the (non-independent)6 United Nations Environmental Programme, UNEP, with headquarters in Nairobi (Kenya).7 The Global commission for Environment and Development that was established during a phase in which the United Nations created various organisations and was named “Brundlandt-Commission” after its chairwoman, the Norwegian politician Gro Harlem Brundlandt,8 paved the way for the next step in substantial as well as in institutional international environmental law as it established the concept of sustainability as the basis for the law of environment and development at the international level.9 673 The central event in the history of international environmental law was the United Nations’ Conference on Environment and Development (UNCED) held in Rio de Janeiro in 1992 which was convened to implement the Brundlandt-Report. In substantive law, UNCED lead to the promulgation of five documents of varying legal quality: 672

– – –

– –

674

The Rio Declaration on Environment and Development, which is a followup to the Stockholm-Declaration and is not legally binding,10 the Agenda 21 which is equally non-binding in international law and rather aims at being implemented at the political level,11 the Forest Declaration (Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests),12 the Convention on Biological Diversity,13 and the Framework Convention on Climate Change14 as a starting point for a global climate protection policy. The Framework Convention is a binding international treaty although the framework’s contents need to be established.

In terms of organisation, UNCED created – besides special organisations for international climate protection (→ paras 692 ff.) – the Commission on Sustainable Development of the United Nations (CSD; → paras 690 f.). The aim of these institutions is organising the so called “Rio follow-up” process, i.e. politi5 Basis: GA Res. 2398 (XXIII) 3.12.1968. Cf. also the Stockholm Declaration of the United Nations Conference on the Human Environment ILM 11 (1972), 1416, and on the whole matter Kilian, Umweltschutz durch internationale Organisationen, 1987, 254 ff. 6 → para 10. 7 On the foundation of UNEP cf. Kilian, Umweltschutz durch internationale Organisationen, 1987, 234 ff. 8 Final report: The World Commission on Environment and Development, Our Common Future, 1978. 9 Overview: Cordonnier Segger/Khalfan, Sustainable Development Law, 2004, 15 ff. 10 A/CONF.151/26 (Vol. I). 11 A/CONF.151/26 (Vol. II). 12 A/CONF.151/26 (Vol. III.). 13 A/RES/51/182. 14 1771 UNTS 107.

292

I. The Institutional Law of International Environmental Protection

cal development required by the level of international environmental law decided upon in Rio. A follow-up summit held in Johannesburg in 2002 achieved partial progress on the issues of water supply, biodiversity and the protection of fish stocks.15 In the end, however, the emphasis of institutional development today lies on climate protection, although the work of special organisations in individual environmental sectors may not be underestimated (→ paras 692 ff.). 2. Regulatory and Organisational Tasks of International Environmental Law

The overview over the evolution of international environmental law illustrates the main tasks that need to be fulfilled by substantive and by institutional law.16 First is the treatment of global environmental problems. The multitude of challenges that need to be dealt with by effective environmental protection may scarcely be mastered by individual States let alone regional organisations. Cooperating to overcome environmental problems, exchanging information as well as the establishing and implementing globally binding standards requires effective and efficient organisational structures: International Organisations that are able to work on a global scale.17 Furthermore, the second task is dealing with trans-boundary environmental pollution. This task’s general importance, however, is far smaller, and – due to the often bilateral character of legal relationships – it does not always require organisational structures. In this context, it is primarily the efforts of the International Law Commission, which attempts to establish binding rules for State responsibility for internationally wrongful acts as well as for acts that conform to international law but are dangerous (→ paras 82 and 292), that deserve to be mentioned.18 Third, the rise in importance of international economic principles and rules as well as the high density of organisation in the economic sector make it necessary to coordinate and balance economic and environmental interests. This requires substantive rules but also institutional balancing mechanisms. With respect to the unique character of environmental protection that touches a great variety of other topics environmental interests are taken into account in many organisations that are not environmental organisations in the strict sense of the word. The fourth task concerns balancing environmental and development aims. Often, effective global environmental protection is impossible without transferring knowledge (including technologies) and capital to developing countries.

15 Sparwasser/Engel/Voßkuhle, Umweltrecht, 2003, § 1 para 73; Schmidt/Kahl, Umweltrecht, 2006, § 8 para 13; Cordonnier Segger/Khalfan, Sustainable Development Law, 2004, 25 ff.; Wolff, ‘Die Ergebnisse des Weltgipfels über nachhaltige Entwicklung in Johannesburg: Zusammenfassung und Wertung mit Blick auf die Entwicklung des Umweltvölkerrechts’, NuR 2003, 137. 16 This description follows Sparwasser/Engel/Voßkuhle, Umweltrecht, 2003, § 1 paras 55 ff. 17 Sands/Peel, Principles of International Environmental Law, 3rd edn. 2012, 52 ff. 18 → para 218.

293

675

676

677

678

§ 14 Environment

This also requires an institutional framework to augment to the applicable substantive rules. 3. Plurality of Organisations

Like other fields, international environmental protection is organised in a way that involves various organisations. Different from international economic law, however, this area is dominated by the United Nations. The legal reason for this involvement is the fact that the idea of peace as well as the concept of multilateral peace-keeping were augmented by ecological elements.19 This means that the United Nations are both motor and pillar of international environmental law and its organisational framework. Organisations with particular environmental tasks (e.g. the protection of species) are often linked to the United Nations by a special agreement (→ para 213). Only in cases in which environmental protection is integrated into the work of other organisations outside of the UN’s framework, does the UN play a subsidiary role. 680 The great importance the United Nations has for the law of international environmental organisations enables it to fulfil a demanding task of coordination. To a certain extent, this is achieved by holding large-scale environmental conferences (Rio and Johannesburg) as well as by having coordinating bodies convene between the conferences (CSD).20 Coordination may ease the consequences of a certain trend to separate between organisations general protection of the environment and highly specialised organisations. Additionally, the UN integrates NGOs which are not International Organisations (→ paras 20 ff.), as it is particularly in the environmental sector that NGOs bear great importance and some of them (Greenpeace, World Wild Life Fund) are quite well-known.21 679

4. Rule-Making and Implementation 681

Compared to traditional international legal rules, those of modern international international law have particularities. Most often, they are not a mirror of corresponding State interests, but are in conflict with manifold economic and social interests at State level as well at the private level.22 Therefore, most new rules of international environmental law do not derive from a long-standing practise but rather from the participation of acknowledged experts. Further, because binding environmental standards need to be established in a timely fashion, one can only seldom wait for customary international law to form.23 Standards for environmental quality, products, emission and procedure are mostly set 19 A differentiated view is taken by Nettesheim, ‘Die ökologische Intervention’, 34 AVR (1996), 168 at 173 ff. 20 On further institutional matters Sands, Principles of International Environmental Law, 3rd edn. 2012, 59 f. 21 Sands/Peel, Principles of International Environmental Law, 3rd edn. 2012, 155. 22 Cf. Sands/Peel, Principles of International Environmental Law, 3rd edn. 2012, 136 f. 23 On custom and its disadvantages in international environmental law Sands/Peel, Principles of International Environmental Law, 3rd edn. 2012, 111 ff.

294

II. Universal Environmental Protection Organisations

by the relevant bodies of International Organisations as binding secondary law.24 In addition, there is a notorious deficit concerning the implementation of environmental protection law which is rooted in the same conflict of interests. The law of international environmental organisations must react to these par- 682 ticularities. On the level of law-making, mechanisms to achieve a balance of interests need to be institutionalised and opportunities to include expert knowledge need to be seized. On the level of implementation, effective multilateral mechanisms must be established. These mechanisms include modern structures for surveying compliance with environmental rules. This surveillance includes both mere legal and factual implementation of international standards.25 The degree of effectiveness is proportional to the corresponding organisation’s organisational density. Usually, States are obliged to report to the respective International Organisation.26 What is more, many rules provide that the organisation’s bodies may themselves consider a Member State’s compliance with environmental provisions. The most far-reaching competence is the power to conduct inspections in situ. A common way special environmental institutions are organised is therefore a 683 combination of a State conference for rule-making, of expert committees for technical preparation (sometimes including secondary rule-making) and supervision and of a small administrative secretariat.27 II. Universal Environmental Protection Organisations 1. UNEP

a) Legal Basis, Membership and Tasks. The central UN organisation for gen- 684 eral environmental protection is the United Nations’ Environmental Programme UNEP. The legal basis for UNEP is General Assembly Resolution 2997 (XXVII) (1972). As a “programme”, UNEP is not an independent specialised agency of the UN.28 Its legal basis is not a founding treaty, but rather the merely political intention expressed by the General Assembly to coordinate and concentrate the UN’s environmental activities. UNEP itself does not have members; its members are the members of the Administrative Council that are elected by the General Assembly (→ para 687). Nonetheless, this organisational deSands/Peel, Principles of International Environmental Law, 3rd edn. 2012, 122 ff. Cf. in extenso Wolfrum, ‘Means of Ensuring Compliance with and Enforcement of International Environmental Law’, 272 RdC (1998), 9; as well as Sands/Peel, Principles of International Environmental Law, 3rd edn. 2012, 138 ff.; Birnie/Boyle, International law and the environment, 2nd edn. 2002, 205 ff.; Beyerlin, Umweltvölkerrecht, 2000, paras 460 ff.; Ott, Umweltregime im Völkerrecht, 1998, 224 ff. Particularly on compliance in climate protection matters Schram et al. (eds.), Implementing the Climate Regime, 2005. 26 Sands/Peel, Principles of International Environmental Law, 3rd edn. 2012, 143 f. 27 Durner, ‘Internationales Umweltverwaltungsrecht’, in: Möllers/Voßkuhle/Walter (eds.), Internationales Verwaltungsrecht, 2007, 121 at 126. 28 Kilian, Umweltschutz durch internationale Organisationen, 1987, 257 f.; Sands/Peel, Principles of International Environmental Law, 3rd edn. 2012, 60. Other view without reason Sparwasser/ Engel/Voßkuhle, Umweltrecht, 2003, § 1 para 64. 24

25

295

§ 14 Environment

685

686

687

688

pendency due to historical reasons at a time in which international environmental law was not as developed as it is today (i.e. the early 1970 s) is meanwhile seen as being in need of reform (→ para 689). According to its founding resolution, UNEP is vested with the tasks of coordinating international politics in the environmental field, issuing corresponding recommendations, establishing a reporting system on the implementation of United Nations environmental programs, supervising the global environmental situation and pointing out significant problems, integrating expert knowledge into the UN’s work, providing for compatibility of environmental protection and development and governing the Global Environmental Fund. The founding resolution’s catalogue of the organisation’s tasks, however, does not completely reflect the fact that UNEP’s main task is coordinating and concentrating the multitude of the UN’s environmental policy activities. Together with the World Bank and UNDP (→ paras 625 f. and 639), UNEP is one of the parent organisations of the Global Environment Facility (GEF) established in 1991 to support environmental projects including environmental protection efforts in developing countries.29 Although the GEF disposes of its own organisational framework, it is strongly linked to its implementing agencies.30 b) Organ Structure and Working Methods. UNEP’s general member organ is the Ministerial Environment Forum, i.e. the conference of ministers, which meets annually and deliberates on the general lines of environmental policy.31 Even more important is the Governing Council as a specialised member organ. It is composed of 58 members which are elected by the General Assembly for a term of three years on the basis of a regional distribution key.32 The administrative leadership of UNEP is conferred to the secretariat under its executive director, who has been a German national since 1998 (1998 – 2006: Klaus Töpfer, Achim Steiner since). The essential activity of UNEP lies in formulating common principles for the environmental protection work of the United Nations and its specialised agencies as well as in coordinating the multitude of environment-related organisa-

29 Instrument for the Establishment of the Restructured Global Environment Facility, 33 ILM (1994), 1283 (with further documents ib. 1273 ff.). 30 Sands/Peel, Principles of International Environmental Law, 3rd edn. 2012, 676 ff.; HellandHansen, ‘The Global Environment Facility’, 3 International Environmental Affairs (1991), 137; Boisson de Chazournes, ‘Le Fonds pour l’environnement mondial: recherche et conquête de son identite?’ XLI AFDI (1995), 612; Beyerlin, Umweltvölkerrecht, 2000, paras 526 ff.; Dolzer, ‘Global Environment Facility’, in: MPIEPIL. 31 A/RES/53/242 of 10 August 1999, Report of the Secretary-General on environment and human settlements. 32 Africa: 16, Asia: 13, Eastern Europe: 6, Latin America: 10, Western Europe and Others: 13. agenda: UNEP/GC/3/Rev. 3. On the distribution of seats Kilian, Umweltschutz durch internationale Organisationen, 1987, 260.

296

II. Universal Environmental Protection Organisations

tions and programmes within the United Nations.33 Rule-making and implementation supervision are carried out by these special organisational structures. c) Reform. In the context of United Nations reform (→ para 60), there is a 689 discussion on establishing a United Nations’ environment organisation (other designations: WEO – World Environment Organisation or UNEPO – United Nations’ Environmental Protection Organisation). As opposed to UNEP’s coordination model, such a specialised agency would serve to concentrate all of the various environmental agreements and their respective organisations under one roof.34 The UN also aims at achieving universal membership in both UNEP and its respective successor organisation.35 2. CSD

Following the Rio Conference (UNCED) of 1992, the UN General Assembly 690 established the Commission on Sustainable Development as a supervisory body for the so-called Rio follow-up process, i.e. implementation of the sustainable development policy established at UNCED. The commission carries out its tasks by entering into dialogue both with the UN Member States and with numerous International Organisations and NGOs that work in the environmental sector at UN level. Formally, CSD is a commission of the Economic and Social Council on the 691 basis of Article 68 UN (→ para 302). Membership (53 members) and composition are thus laid out by the rules in force for ECOSOC. It convenes in annual sessions which implement a multi-year programme (currently until 2016/2017). The CSD passes recommendations to ECOSOC and via ECOSOC to the General Assembly.36 3. Special Organisations

a) Climate Change. Ever since the Rio conference (UNCED), international 692 anti-climate change policy has been implemented as a sequence of State conferences on implementing the Framework Convention on Climate Change. This Sands/Peel, Principles of International Environmental Law, 3rd edn. 2012, 60 ff. To this reform Wissenschaftlicher Beirat der Bundesregierung Globale Umweltveränderungen, Welt im Wandel – Neue Strukturen globaler Umweltpolitik, 2001, 138 ff.; Whalley/Zissimos, ‘What Could a World Environmental Organization Do?’, 1 Global Environmental Politics (2001), 29; Biermann, ‘The Emerging Debate on the Need for a World Environment Organization: A Commentary’, 1 Global Environmental Politics (2001), 45; Biermann/Simonis, ‘Institutionelle Reform der Weltumweltpolitik? Zur politischen Debatte um die Gründung einer Weltumweltorganisation’, 7 Zeitschrift für Internationale Beziehungen (2000), 163; Rechkemmer (ed.), UNEO – Towards an International Environment Organization, 2005; Tarasofsky/Hoare, Implications of a UNEO for the global architecture of the international environmental governance system, 2004; Ulfstein, ‘Institutions and Competences’, in: Klabbers/Peters/id. (eds.), The Constitutionalisation of International Law, 2011, 45 at 68 ff. Kloepfer, Umweltrecht, 3rd edn. 2004, § 9 para 70, recognises a tendency to an institutional centralisation in so far. 35 S. A/RES/53/242 10.8.1999; UNEP/GC.22/INF/36 19.12.2002. 36 Sands/Peel, Principles of International Environmental Law, 3rd edn. 2012, 62. 33

34

297

§ 14 Environment

State conference is a Treaty organ of the Convention that has not attained the status of an International Organisation. The conferences are organised by the secretariat of the United Nations’ Framework Convention on Climate Change (UNFCCC-Secretariat; headquarters: Bonn/Germany), which may be considered as the nucleus of an international climate protection organisation.37 Milestones in the world-wide climate protection politics include the Kyoto Protocol with its aim of reducing emissions and its establishing of trade in emission certificates as well as the “roadmap” of the Bali Conference of 2007.38 Nonetheless, a number of important States that emit noxious gases (i.a. USA, China) are not part of the protocol and the Conference, rendering its work very difficult. 693 The fight against global warming and its negative effects require independent expert knowledge. To this purpose, as early as in 1988 UNEP and the World Organisation for Meteorology (WMO) jointly founded the Intergovernmental Panel on Climate Change (IPCC), also called World Climate Council.39 The members of these organisations elect the IPCC’s delegated experts.40 In 2007 the IPCC received the Nobel Peace Prize. It does not make decisions but publishes factual reports on climate change including an estimation of its effects and possible strategies for their avoidance. The steering effect of IPCC reports that have neither rule-making nor supervisory character is remarkable. It must be noted, however, that government representatives take part in the elaboration of the reports.41 694 b) Protection of Species and Biodiversity. The organisational elements of the conventions for the protection of species and biodiversity are also structured in conferences,42 be it the Ramsar Convention on Wetlands of International Importance,43 the (Washington) Convention on International Trade in Endangered Species of Wild Fauna and Flora – CITES – or the Convention on Migratory Species – CNS.44 All three of them are supported by a secretariat, a scientific committee as well as by subcommittees. The conferences may make binding decisions, e.g. on the listing of certain species as being in need of protection. The

Art. 8 UNFCCC. Decision 1/CP.13, FCCC/CP/2007/6/Add.1. 39 WMO – Resolution 4 of the Fortieth Session of the Executive Council (WMO EC-XL, Res. 4) – Intergovernmental Panel on Climate Change; Bolle, Das Intergovernmental Panel on Climate Change (IPCC), 2011; Tonn, ‘The intergovernmental Panel on Climate Change: a global scale transformative initiative’, 39 Futures (2007), 614; Betsill, ‘Global Climate Change Policy: Making Progress or Spinning Wheels?’, in: Axelrod/Downie/Vig (eds.), The Global Environment, 2004, 103 at 106 f.; Skodvin, Structure and agent in the scientific diplomacy of climate change: an empirical case study of the intergovernmental panel on climate change (IPCC), 1999, 145 ff. cf. also Faure/Gupta/Nentjes (eds.), Climate Change and the Kyoto Protocol, 2003. 40 On the mode of election cf. the Recommendations of the Executive Council in WMO EC-XL, Res. 4 – Intergovernmental Panel on Climate Change. 41 Cf. the Principles Governing IPCC Work, adopted in the 14th session, 1 October 1998, and changed in the 21th and 25th sessions. Cf. the IPCC-homepage http://www.ipcc.ch/. 42 To the following Sands/Klein, paras 4-015 ff. 43 11 ILM 963 (1972). 44 CITES: 12 ILM 1085 (1973); CMS: 19 ILM 15 (1980). 37

38

298

III. Environmental Protection in Other International Organisations

biodiversity convention established within the framework of UNCED follows this structure.45 c) Protection of the Oceans. The organisational structures of ocean protection at the global level are complex. The material rules are divided between various treaty regimes, also entailing consequences for the respective institutional law. Often, the organisational density involved is below the level of an organisation in terms of a treaty organ.46 Thus, the main organ of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 1972/1992 (“London Dumping Convention”)47 is the Member States Conference, which possess considerable influence on this area of international law as its decisions are binding upon the parties to the treaty (partly on the basis of 2/3 majority). The conference is supported by expert bodies. In terms of organisation, it is attached to the International Maritime Organisation (IMO) whose secretariat performs its administrative functions.48 The International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage of 197149 was established to support the implementation of substantive rules of international environmental law; however, it was designed as an International Organisation disposing of an assembly, a secretariat and an executive committee.50 Having a regional focus on the northeastern Atlantic Ocean, the commission of the OSPAR-Agreement is vested with large power concerning rule-making (on the basis of a 2/3 majority).51 Furthermore, the commission disposes of a great many opportunities for implementation its rules (e.g. by demanding certain measures as well as support for them).52

695

696

697

698

III. Environmental Protection in Other International Organisations

Environmental protection is an area that covers a variety of legal issues. 699 Environmental interests play a role in many areas of politics of all levels (local, regional, national, supranational, international). This entails the need to establish mechanisms to include environmental protection in these other areas. International Organisations do this in two ways: 31 ILM 818 (1992); Sands/Klein, para 4-018. Seminal paper: Churchill/Ulfstein (eds.), ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: a Little-Noticed Phenomenon in International Law’, 94 AJIL (2000), 623. 47 11 ILM 1294 (1972). 48 Sands/Klein, para 4-026. 49 11 ILM 284 (1972). 50 Sands/Klein, paras 4-027 f. 51 Convention for the protection of the Marine Environment in the North-East-Atlantic, 32 ILM 1072 (1993); Durner, ‘Internationales Umweltverwaltungsrecht’, in: Möllers/Voßkuhle/ Walter (eds.), Internationales Verwaltungsrecht, 2007, 121 at 127. 52 Art. 23 OSPAR-Convention; Sands/Peel, Principles of International Environmental Law,3rd edn. 2012, 370 f.. 45

46

299

§ 14 Environment

Some organisations whose primary purpose is not environmental protection create (sub-)organs that integrate environmental matters. The most prominent example would be the WTO’s Committee on Trade and Environment (CTE) which was established by a Ministerial Council Decision in 199453 and currently works on the basis of a mandate from the Doha conference.54 This is how the WTO reacts to the growing importance of environmental protection in trade policy.55 The CTE itself aims at achieving environmental goals in the WTO free trade system. There is criticism, however, that its precise conflict analysis to seldom includes concrete proposals for action.56 701 Another mechanism is to conduct environmental impact assessments for an organisation’s projects or for certain Member State projects seeking support.57 Conducting such assessments is a common procedure of the World Bank,58 MIGA59 and OECD.60 700

33 ILM 1267 (1994). 41 ILM 746 (2002). Cf. Herrmann/Weiß/Ohler, para 526; Ehling, ‘Environmental policies and the WTO committee on trade and environment: a record of failure?’, in: Joerges/Petersmann (eds.), Constitutionalism, multilevel trade governance and social regulation, 2006, 437; Tarasofsky, ‘The WTO Committee on Trade and Environment: Is it making a Difference?’, 3 Max Planck UNYB (1999), 471. 55 Cf. Puth in Hilf/Oeter, § 25; Trüeb, Umweltrecht in der WTO, 2001. 56 Puth in Hilf/Oeter, § 25 para 18. 57 Cf. Durner, ‘Internationales Umweltverwaltungsrecht’, in: Möllers/Voßkuhle/Walter (eds.), Internationales Verwaltungsrecht, 2007, 121 at 125. 58 Handl, Multilateral Development Banking. Environmental Principles and Concepts Reflecting General International Law and Public Policy, 2001, 94 ff.; Le Prestre, The World Bank and the Environmental Challenge, 1989, 54 f. The World Bank here operates also through its Inspection Panel → para 627). Cf. in extenso Holstein, Der Umweltschutz in der Tätigkeit der Weltbankgruppe, 2001. 59 Elgeti, Völkerrechtliche Standards für Umweltverträglichkeitsprüfungen. Dargestellt am neuen Verfahren der MIGA, 2002, 50 ff. 60 OECD, Recommendation on the Assessment of Projects with significant Impacts on the Environment. C (79) 116 (1979); Salzmann, ‘Decentralized Administrative Law in the Organization for Economic Cooperation and Development’, 68 Law and Contemporary Problems (2005), 189 at 206 ff. 53

54

300

§ 15 Perspectives Literature: de Búrca, ‘Developing Democracy Beyond the State’, 46 ColumJTransnat’lL (2007-2008), 221 ff.; Dicke, ‘Erscheinungsformen und Wirkungen von Globalisierung in Struktur und Recht des internationalen Systems auf universaler und regionaler Ebene sowie gegenläufige Renationalisierungstendenzen‘, 39 BerDGVR (2000), 13 ff.; Harlow, ‘Global Administrative Law: The Quest for Principles and Values‘, 17 EJIL (2006), 187 ff.; Keohane/Macedo/ Moravcsik, ‘Democracy-Enhancing Multilateralism‘, 63 International Organizations (2009), 1 ff.; Kingsbury/ Krisch/Stewart, ‘The Emergence of Global Administrative Law‘, 68 Law and Contemporary Problems (2005), 15 ff.; Krisch, ‘The Pluralism of Global Administrative Law‘, 17 EJIL (2006), 247 ff.; Marks, ‘Democracy and international governance’, in: Coicaud/Heiskanen (eds.), The Legitimacy of International Organisations, 2001, 47 ff.; Ruffert, Die Globalisierung als Herausforderung an das Öffentliche Recht, 2004; SchmidtAßmann, ‘Die Herausforderung der Verwaltungsrechtswissenschaft durch die Internationalisierung der Verwaltungsbeziehungen‘, 45 Der Staat (2006), 315 ff.; Stein, ‘International Integration and Democracy: No Love at First Sight’, 95 AJIL (2001), 489 ff.; Wheatley, The Democratic Legitimacy of International Law, 2010.

It is not only the practise of the law of International Organisations that has 702 considerably gained importance in recent times. There is also great movement within the theoretical world (→ paras 26 f.). New perspectives are currently opening up in two different but related areas: on the one hand there is the governance debate inspired by social sciences trying to establish a legal view on global governance exercised by national organisations, on the other hand international administrative law as part of public law is experiencing an impressive revival, partially caused by the law of International Organisations, but at the same time having repercussions upon it. I. International Organisations as an Element of Global Governance 1. The Idea of Global Governance as Part of the Governance Discussion

The idea of governance, which stems from social science, has entered the le- 703 gal debate without its contents having been sufficiently defined. First of all one needs to distinguish between a descriptive-analytical meaning of the term and a normative meaning. As a descriptive-analytical concept, governance designates the mode of government within complex structures. Governance comprises steering mechanisms that arise from a mixture of self-regulation and “classical” State regulation (examples from the domestic area: negotiated environmental agreements; State guarantees of universal services in telecommunication mar-

303

§ 15 Perspectives

kets).1 Above all, it refers to networks as forms of organisation that are situated between hierarchical and self-regulated steering. The crucial change in perspective is from steering actors to regulated structures.2 The normative concept of governance is also important in the context of the law of International Organisations: primarily so as a standard of “good governance” in implementing the World Bank’s policies. This concerns basic rule of law requirements concerning governance structures that must be met in order to secure support by the World Bank (→ para 628). 704 Global governance is part of the descriptive meaning of the term “governance” and transfers the basic requirements and aims of the concept of governance to the transnational area beyond the State. In this context, the idea of governance has already been quite firmly established.3 Different approaches to a definition of the term, whether by the Club of Rome, the Commission on Global Governance or the perhaps most prominent theorist of the global governance idea, the American political scientist James Rosenau, nevertheless remain rather vague.4 Looking at the policy fields that are dealt with at least sheds some light on the aim and the demands of global governance, viz. the analysis of working conditions and steering mechanisms that are used to combat global problems primarily in the areas economy, environment, security, communication, and culture/society.5 The final report of the Bundestag Enquete Commission “Globalisierung der Weltwirtschaft – Herausforderungen und Antworten” (Globalisation of the world economy – challenges and answers) is most illustrative and extends global governance to all global problems from climate protection to consequences of migration and organised crime.6 705 Nevertheless, it is not this politically motivated randomness in the selection of issues that helps in shaping theory but rather the knowledge of the global framework.7 Furthermore, it is not looking at the actors but at the structures of global governance that is important. At the core of the matter is the question of how a variety of actors deals with global problems by cooperating in a structured manner.

1 Voßkuhle, ‘Neue Verwaltungsrechtswissenschaft’, in: Hoffmann-Riem/Schmidt-Aßmann/id. (eds.), Grundlagen des Verwaltungsrechts, vol. I, 2nd edn. 2012, § 1 para 68. Comprehensively Schuppert/Zürn (eds.), ‘Governance in einer sich wandelnden Welt’, PVS Sonderheft 41/2008. 2 Cf. Mayntz, ‘Governance Theory als fortentwickelte Steuerungstheorie’, in: Schuppert (ed.), Governance-Forschung, 2005, 11 at 16. 3 Cf. Ruffert, Globalisierung als Herausforderung an das Öffentliche Recht, 2004, 28 ff. 4 King/Schneider, The First Global Revolution: A Report of the Council of Rome, 1991, 181 f.; Commission on Global Governance, Our Global Neighbourhood, 1995, 2; Rosenau, Along the Domestic-Foreign Frontier – Exploring Governance in a Turbulent World, 1997, 10 f. 5 Ruffert, Globalisierung als Herausforderung an das Öffentliche Recht, 2004, 29. 6 Deutscher Bundestag, ‘Schlussbericht der Enquete-Kommission Globalisierung der Weltwirtschaft – Herausforderungen und Antworten’, BT-Drs. 14/9200, 417. 7 Further von Bogdandy/Dann/Goldmann, ‘Developing the Publicness of Public International Law. Towards a Legal Framework for Global Governance Activities’, 9 GLJ (2008), 1375.

304

I. International Organisations as an Element of Global Governance

2. The Role of International Organisations in the Process of Global Governance

International Organisations have a traditional place here. Classical forms of 706 public international legal coordination through treaties and cooperation within International Organisations are part of the global governance architecture. Nevertheless, the global governance analysis may be detached from an isolated actor-oriented view of States as well as International Organisations and their specific steering potential. It rather includes further actors and the relationship between States and International Organisations. By this means the network-type entanglement with further sub-State actors (e.g. regions/Länder, local authorities, authorities in general) as well as non-State actors (NGOs, transnational companies) may be better taken into account.8 As an analytical framework the governance perspective offers several advan- 707 tages to the law of International Organisations. It provides a concept for a holistic assessment of global steering mechanisms. It is no more the capacity of single International Organisations, but the output of entire regulating structures that is relevant here. The particular challenge for legal scholarship lies in applying the basic standards of democratic legitimacy and the rule of law to various governance structures and in analysing these standards in the light of governance theory without modifying them in a way that deprives them of their fundamental character.9 Fulfilling this task is the main aim of global governance research from a legal 708 perspective. The theoretical approaches as well as practical means of realisation have not yet been completely decided upon. This holds particularly true for the various models for establishing democracy within the governance process.10 While on the one hand the principle of subsidiarity is underlined to support and advance the concept of State regulation because of its superiority with respect to representative democracy,11 on the other hand scholars search for alternative models of legitimacy.12 In this context, ideas of “output” democracy have to deal with the accusation of advocating a system of technocratic rule. This is linked to alternative concepts of democracy that try to integrate the autonomy 8 Cf. Ruffert, Globalisierung als Herausforderung an das Öffentliche Recht, 2004, 31 ff. with further references. 9 On democratic rule through international organisations: Marks, ‘Democracy and international governance’, in: Coicaud/Heiskanen (eds.), The Legitimacy of International Organisations, 2001, 47, as well as the comprehensive analysis by de Búrca, ‘Developing Democracy Beyond the State’, 46 ColumJTransnat’lL (2007-2008), 221, starting from the convincing premise (at 226) that “the democratization of transnational governance is not plausible”; also Stein, ‘International Integration and Democracy: No Love at First Sight’, 95 AJIL (2001), 489. 10 On the following Ruffert, ‘Was ist Democratic Governance?’, in: Schuppert (ed.), Governance als Prozess, 2008, 55 ff. 11 Seiler, Der souveräne Verfassungsstaat zwischen demokratischer Rückbindung und überstaatlicher Einbindung, 2005. 12 For an overview Ruffert, ‘Demokratie und Governance in Europa’, in: Bauer/Huber/Sommermann (eds.), Demokratie in Europa, 2005, 319 at 343 ff.

305

§ 15 Perspectives

element, which is crucial to the idea of democracy, into the governance process by calling for participation of all affected parties or of associations. The latter is often achieved by integrating NGOs (→ paras 20 ff.), whereas one should only choose NGOs that themselves possess a democratic structure. The standards for such a structure are currently laid down in resolution 1996/31 of the Economic and Social Committee of the United Nations.13 Whatever concept of democracy14 one should ultimately prefer: transparency of decision-making processes as well as the explanation of such decisions are highly important. II. International Organisations and the Renaissance of International Administrative Law 1. Terminological Remarks

The second progressive development in legal doctrine is the current renaissance of international administrative law. The notion of international administrative law, understood as a term for administrative functions exercised above the level of individual States and supranational associations is firmly established within the law of International Organisations.15 This is illustrated by the fact that many of their dispute settlement organs are designated as “administrative tribunals” (→ para 332).16 Often, the aspect of International Organisations that is regarded as being particularly “administrative” is their internal organisation, primarily the regulations concerning personnel and finance. This narrow concept of international administrative law is, however, incomplete, because it both ignores a recent development and is incompatible with a traditional concept of international administrative law: 710 Discovery and analysis of administrative structures below the organisational density of International Organisations form an important part of recent developments in public international law. Their characteristic advantage lies in overcoming the mediatisation of administrative cooperation by the institution “State”. Where national administrations cooperate in transnational networks of authorities (example: international supervision of financial markets)17 or directly enter into cooperation agreements with other States or International Organisa709

On this Lagoni/Chatidiou in Simma, Art. 71 paras 5 ff. Cf. also Keohane/Macedo/Moravcsik, ‘Democracy-Enhancing Multilateralism’, 63 International Organizations (2009), 1, and in general Wheatley, The Democratic Legitimacy of International Law, 2010. 15 Cf. Amerasinghe, ‘The Future of International Administrative Law’, 45 ICLQ (1996), 773; Breining-Kaufmann, ‘Internationales Verwaltungsrecht’, 125 Zeitschrift für Schweizerisches Recht (2006) II, 5 at 10; Seidl-Hohenveldern/Loibl, para 1501. 16 Correctly hinted at by Kingsbury/Krisch/Stewart, ‘The Emergence of Global Administrative Law’, 68 Law and Contemporary Problems (2005), 15 at 20, fn. 11. 17 Seminal Zaring, ‘International Law by Other Means: The Twilight Existence of International Financial Regulatory Organizations’, 33 Texas International Law Journal (1998), 281. 13

14

306

II. International Organisations and the Renaissance of International Administrative Law

tions (example: framework rules on regional transnational cooperation),18 or where even private actors are included in cooperative relationships (example: obligations of transnational companies)19 there can be no mention of international relationships but of legal relationships that transcend borders and their legal importance. Philip C. Jessup termed these legal relationships to be transnational. 711 Transnational law comprises “… all law which regulates actions or events that transcend national frontiers.”20 While Jessup mainly aimed at alleviating the consequences of the separation public law/private law at the level above the individual States, it is today crucial to be aware of the evolution of legal relationships beyond the States and by the States.21 It is therefore the legal relationships within internationalised administrative work (internationalisiertes Verwaltungshandeln, Christian Tietje) that are the subject of modern international administrative law.22 What is more, there is a particular German tradition of shaping the terminolo- 712 gy of international administrative law. It was in the 19th century that Lorenz von Stein first applied the term as a designation for the legal relationship between the national and international fulfilment of administrative tasks.23 The advancement of the so called legalist method (juristische Methode) in administrative law, i.e. positivist separation of legal administrative relationships from an administration’s “extra-legal” (economic, social, organisational) environment, however, also cut off administrative law from the international sphere by the end of the 19th century. For public international legal theory this is due to the dominant position the dualist model of the relationship between public international law and domestic law achieved in the golden age of positivism as well.24 That left only that area of national law left for “international administrative law” (internationales Verwaltungsrecht) to deal with that governed the relationship be-

18 Schmidt-Aßmann, ‘Die Herausforderung der Verwaltungsrechtswissenschaft durch die Internationalisierung der Verwaltungsbeziehungen’, 45 Der Staat (2006), 315 at 320. Extensively Niedobitek, Das Recht der grenzüberschreitenden Verträge, 2001; Kotzur, Grenznachbarschaftliche Zusammenarbeit in Europa, 2004. 19 Exemplified by multinational undertakings Nowrot, Normative Ordnungstruktur und private Wirkungsmacht, 2006, 214 ff. 20 Jessup, Transnational Law, 1956, 2; on predecessors Tietje/Brouder/Nowrot, Philip C. Jessup’s Transnational Law Revisited – On the Occasion of the 50th Anniversary of its Publication, 2006, 26. 21 Instructively Tietje, ‘Transnationales Wirtschaftsrecht aus öffentlich-rechtlicher Perspektive’, 101 ZVglRWiss (2002), 404. 22 Möllers, ‘Transnationale Behördenkooperation’, 65 ZaöRV (2005), 351 at 382 ff., uses the term „Völkerverwaltungsrecht“. 23 v. Stein, ‘Einige Bemerkungen über das internationale Verwaltungsrecht’, in: v. Schmoller (ed.), Jahrbuch für Gesetzgebung, Verwaltung und Volkswirtschaft im Deutschen Reich, 1882, 395 ff. at 417 ff.; id., Handbuch der Verwaltungslehre I, 3rded 1887, 262; Tietje, Internationalisiertes Verwaltungshandeln, 2001, 56 ff. 24 Comprehensively on this development Tietje, Internationalisiertes Verwaltungshandeln, 2001, 86 ff. at 94 ff.

307

§ 15 Perspectives

tween national law and other jurisdictions: international administrative law as a law of collision, parallel to private international law. 713 At first, this parallel was especially focused on by legal scholarship. It was primarily Karl Neumeyer who as early as in 1910-1936 in his monumental fourvolume book ‘Internationales Verwaltungsrecht’ developed the idea that one must seek norms of delimitation within the substantive rules of administrative law; unilateral collision rules describing the range of applicability of German administrative law.25 The opposing view, mainly established by Klaus Vogel, denies the existence of and the necessity for such delimiting norms. According to this view and contrary to the typical question typical of private international law as to the choice of jurisdiction, rules of national administrative law only address domestic authorities.26 Today, this controversy is solved and the only question that remains is whether the term “international administrative law” also applies to issues of collision and coordination.27 2. International Administrative Law as Global Administrative Law – and the Role of International Organisations 714

As a result, one needs to apply a broad notion of international administrative law. “Internationalisation of administrations” means administrative processes that transcend the limits of national jurisdictions because they have either outgrown them or were initially designed without regard for such limits (Eberhard Schmidt-Aßmann).28 International administrative law may thus be understood as an area of law that is a consequence of internationalisation.29 In the same way, 25 Neumeyer, Internationales Verwaltungsrecht, vol. IV, Allgemeiner Teil, 1936, 105 f. at 115 ff. and 121 ff., followed by Steindorff, ‘Verwaltungsrecht, internationales’, in: Strupp/Schlochauer (eds.), Wörterbuch des Völkerrechts III, 2nd ed 1962, 581; König, Die Anerkennung ausländischer Verwaltungsakte, 1965, 11; Bernstein, ‘Ein Kollisionsrecht für die Verfassung?’, NJW 1965, 2273; Kopp, ‘Kollisionsrecht im öffentlichen Recht’, DVBl. 1967, 469; Hoffmann, ‘Internationales Verwaltungsrecht’, in: von Münch (ed.), Besonderes Verwaltungsrecht, 7th edn. 1985, 851 at 859; Eichenhofer, Internationales Sozialrecht und Internationales Privatrecht, 1987, 209 ff.; Grof, ‘Grundfragen des internationalen Verwaltungsrechts am Beispiel des Umweltschutzes’, in: Mellinghoff/Trute (eds.), Die Leistungsfähigkeit des Rechts, 1988, 303 at 306 ff.; Wolff et al., Verwaltungsrecht I, 12th edn. 2007, § 1 paras 25 ff.; cf. also Bülk, ‘Zur Dogmengeschichte des europäischen Verwaltungsrechts’, in: Göttinger Arbeitskreis (ed.), Recht im Dienste der Menschenwürde. Festschrift für Herbert Kraus, 1964, 29 at 55 f. 26 Vogel, Der räumliche Anwendungsbereich der Verwaltungsrechtsnorm, 1965, 298 ff.; id., ‘Administrative Law, International Aspects’, EPIL I (1992), 22 at 24 f. Followed by Sonnenberger, in: Münchener Kommentar zum BGB, Vol. 10, 3rd edn. 1998, Einl. IPR para 356; v. Bar/Mankowski, Internationales Privatrecht I, 2nd edn. 2003, § 4 paras 57 ff. (with a differentiation between a public law kind and a private law kind of International Public Law, which is barely pracitcable for the administration law para 52). Also sceptically Matscher, ‘Gibt es ein Internationales Verwaltungsrecht’, in: Sandrock (ed.), Festschrift für Günther Beitzke zum 70. Geburtstag am 26. April 1979, 1979, 641. 27 Divergent, but not irreconcilable positions by Ohler, Die Kollisionsordnung des Allgemeinen Verwaltungsrechts, 2005, 3, and Tietje, Internationalisiertes Verwaltungshandeln, 2001, 115. 28 Schmidt-Aßmann, ‘Die Herausforderung der Verwaltungsrechtswissenschaft durch die Internationalisierung der Verwaltungsbeziehungen’, 45 Der Staat (2006), 315 at 316. 29 On „publicness of Public International Law“ von Bogdandy, ‘General Principles of International Public Authority: Sketching a Research Field’, 9 GLJ (2008), 1909 at 1914.

308

II. International Organisations and the Renaissance of International Administrative Law

the exercise of public authority may be interpreted in an international law context. One of the central tasks in this context is guaranteeing legal security (including judicial review) of legal entities as well as of individuals that are affected by administrative acts of International Organisations (cf. ILA-report, → para 215, footnote 2). Understood in such way, international administrative law may be linked to 715 the administrative branch of global governance which tries – in the form of the concept of global administrative law – to establish a doctrine of interrelationships, decision-making connections and law-making mechanisms in the area of competing sources of the law.30 It is a core idea of this approach to understand the plurality of legal sources and institutions as being linked to the tasks that need to be fulfilled.31 According to their capacity, institutional layers are assigned law-creating functions – from establishing common values to technical implementation. The question of which legal layer prevails in case of conflict shall not be determined by fixed rules – general supremacy or lex posterior – but such conflicts shall serve as basis for establishing layers of responsibilities.32 Furthermore, this approach provides the opportunity to categorise the areas of reference within the global regulatory system.33 Finally, the basic principles of global administrative action are to be developed on the basis of the central principles of democratic legitimacy and the rule of law.34 International Organisations are the main administrative actors in this 716 global concept of international administrative law. Public international law of institutions derives great profit from such a new perspective on administrative law.

30 Cf. only Krisch, ‘The Pluralism of Global Administrative Law’, 17 EJIL (2006), 247; Kingsbury/Krisch/Stewart, ‘The Emergence of Global Administrative Law’, 68 Law and Contemporary Problems (2005), 15 at 17. Further Stewart, ‘The Global Regulatory Challenge to U.S. Administrative Law’, 37 New York University Journal of International Law and Politics (2005), 695. 31 Cassese, ‘Administrative Law without the State? The Challenge of Global Regulation’, 37 New York University Journal of International Law and Politics (2005), 663 at 668 f.; Krisch, ‘The Pluralism of Global Administrative Law’, 17 EJIL (2006), 247. 32 Krisch, ‘The Pluralism of Global Administrative Law’, 17 EJIL (2006), 247 at 269 ff. 33 Cassese, ‘Administrative Law without the State? The Challenge of Global Regulation’, 37 New York University Journal of International Law and Politics (2005), 663 at 670, fn. 44. 34 Harlow, ‘Global Administrative Law: The Quest for Principles and Values’, 17 EJIL (2006), 187 at 190 and 198 ff.; Cassese, ‘Administrative Law without the State? The Challenge of Global Regulation’, 37 New York University Journal of International Law and Politics (2005), 663 at 685, rightly designets the right to participation and the right to defense as central demands to every administrative legal system. Esty, ‘Good Governance at the Supranational Scale: Global Administrative Law’, 115 Yale LJ (2006), 1490, is drafting international administrative law as the legal basis of the activity of International Organisations.

309

Table of Abbreviated Citations Alvarez Amerasinghe Aston

Aust Bieber et al. Author in v. Bogdandy/Bast Author in Calliess/Ruffert Cassese Chalmers/Gareth/Monti Dahm/Delbrück/Wolfrum Doehring Author in Evans Fischer/Köck Author in Grabitz/Hilf/Nettesheim Author in Graf Vitzthum/Proelß Author in v. d. Groeben/Schwarze Grant Herdegen Herdegen, Internationales Wirtschaftsrecht Herdegen, Völkerrecht Herrmann/Weiß/Ohler Author in Hilf/Oeter Hobe Horspool/Humphreys Huber Author in Ipsen Ipsen Klabbers, International Organizations Klabbers, Introduction Author in Klabbers/Wallendahl

Alvarez, International Organizations as Lawmakers, 2005 Amerasinghe, Principles of the Institutional Law of International Organizations, 2nd edn. 2005 Aston, Sekundärgesetzgebung internationaler Organisationen zwischen mitgliedstaatlicher Souveränität und Gemeinschaftsdisziplin, 2nd edn. 2010 Aust, Handbook of International Law, 2nd edn. 2010 Bieber/Epiney/Haag/Beutler/Pipkorn, Die Europäische Union, 10th edn. 2013 v. Bogdandy/Bast (eds.), Principles of European Constitutional Law, 2nd edn. 2010 Calliess/Ruffert (eds.), EUV/AEUV, 4th edn. 2011 Cassese, International Law, 2nd edn. 2005 Chalmers/Gareth/Monti, European Union Law, 2nd edn. 2010 Dahm/Delbrück/Wolfrum, Völkerrecht, 2nd edn., vol I/1 1989, vol I/2 2002, vol I/3 2003 Doehring, Völkerrecht, 2nd edn. 2004 Evans, International Law, 3rd edn. 2010 Fischer/Köck, Das Recht der internationalen Organisationen, 3rd edn. 1997 Grabitz/Hilf/Nettesheim (eds.), Das Recht der Europäischen Union, 53rd edn. 2012 Graf Vitzthum/Proelß (eds.), Völkerrecht, 6th edn. 2013 v. d. Groeben/Schwarze (eds.), Kommentar zum EU-/EG-Vertrag, 6th edn. 2003 Grant, Admission to the United Nations, 2009 Herdegen, Europarecht, 16th edn. 2014 Herdegen, Internationales Wirtschaftsrecht, 10th edn. 2014 Herdegen, Völkerrecht, 11th edn. 2012 Herrmann/Weiß/Ohler, Welthandelsrecht, 2nd edn. 2007 Hilf/Oeter (eds.), WTO-Recht, 2nd edn. 2010 Hobe, Einführung in das Völkerrecht, 9th edn. 2008 Horspool/Humphreys, European Union Law, 6th edn. 2010 Huber, Recht der Europäischen Integration, 2nd edn. 2002 Ipsen, Völkerrecht, 6th edn. 2014 Ipsen, Europäisches Gemeinschaftsrecht, 1972 Klabbers, International Organizations, 2005 Klabbers, An Introduction to International Institutional Law, 2nd edn. 2009 Klabbers/Wallendahl, Research Handbook on the Law of International Organizations, 2011 311

Table of Abbreviated Citations

Kolb Lowenfeld Author in v. Mangoldt/Rittberger

Oppermann/Classen/Nettesheim Author in Prieß/Berrisch Rasch Sands/Klein Schermers/Blokker v. Schorlemer Schweisfurth Schweitzer/Hummer Seidl-Hohenveldern/Loibl

Shaw Author in Simma Stein/v. Buttlar Author in Streinz Streinz Weatherhill Weiss/Daws Author in Wolfrum, MPEPIL Author in Wolfrum Author in Wolfrum/Stoll/Kaiser Verdross/Simma

312

Kolb, An Introduction to the Law of the United Nations, 2010 Lowenfeld, International Economic Law, 2nd edn. 2008 v. Mangoldt/Rittberger (eds.), Das System der Vereinten Nationen und seine Vorläufer, Vol. 1: Das System der Vereinten Nationen, vol. 2: Sonderorganisationen und andere Institutionen, 1995 Oppermann/Classen/Nettesheim, Europarecht, 5th edn. 2011 Prieß/Berrisch (eds.), WTO-Handbuch, 2003 Rasch, The European Union at the United Nations, 2008 Sands/Klein, Bowett’s Law of International Institutions, 6th edn. 2009 Schermers/Blokker, International Institutional Law: Unity within Diversity, 5th edn. 2011 v. Schorlemer (ed.), Praxishandbuch UNO: Die Vereinten Nationen im Lichte globaler Herausforderung, 2003 Schweisfurth, Völkerrecht, 2006 Schweitzer/Hummer, Europarecht, 7th edn. 2007 Seidl-Hohenveldern/Loibl, Das Recht der internationalen Organisationen einschließlich der supranationalen Gemeinschaften, 7th edn. 2000 Shaw, International Law, 6th edn. 2010 Simma/Khan/Nolte/Paulus (eds.), The Charter of the United Nations, 3rd edn. 2012 Stein/v. Buttlar, Völkerrecht, 13th edn. 2012 Streinz (ed.), EUV/AEUV: Vertrag über die Europäische Union und über die Arbeitsweise der Europäischen Union, 2nd edn. 2012 Streinz, Europarecht, 9th edn. 2012 Weatherhill, EU Law, 9th edn. 2010 Weiss/Daws, The Oxford Handbook on the United Nations, 2007 Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, online version Wolfrum (ed.), Handbuch Vereinte Nationen, 2nd edn. 1991 Wolfrum/Stoll/Kaiser (eds.), WTO – Institutions and Dispute Settlement, 2006 Verdross/Simma, Universelles Völkerrecht: Theorie und Praxis, 3rd edn. 1984

Index 9/11 attack 60, 91, 423, 492 Ad-hoc International Criminal Tribunals 291 f 570, 579, 581; cf. also ‘International Criminal Law’ Administrative Tribunal 291 ff 332, 378, 393 f; cf. ‘United Nations’ and ‘UN Dispute Tribunal’ Administrative Unions 38, 40, 44 ff Admission 239 ff – Procedure 250 ff African Charter of Human and Peoples’ Rights 570 African Commission of Human and Peoples’ Rights 570 African System of Human Rights Protection 570 ff – African Charter of Human and Peoples’ Rights 570 – African Commission of Human and Peoples’ Rights 570 – African Court of Justice and Human Rights 570 – African Court on Human and Peoples’ Rights 570 African Union 55, 480 ff 570 f – Human Rights Protection 571 – Replacement of OAU 571 Agencies of the EU 179 Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) 645 American System of Human Rights Protection 567 ff – American Convention on Human Rights 567 – American Declaration of the Rights and Duties of Man 567

– Inter-American Commission of Human Rights 567 f – Inter-American Court of Human Rights 567 f “An Agenda for Peace” 311, 413 Andean Pact 55 Apartheid 280, 509, 511 – Commission on Human Rights’ Activities 511 Association of Southeast Asian Nations (ASEAN) 669 ff Attribution – Implementation of IO Decisions 587, 589 ff – of Acts to IOs 220 ff 585, 587 ff – Shared Responsibility 585 – Strict Alternativity 585 Bank for International Settlement 660 f Basel Committee on Banking Supervision 36, 660 f Behrami Jurisprudence 585, 587 ff Bernadotte Case 151 Bilateral Investment Treaties (BITs) 606 Biodiversity 694 Blue Helmets cf. Peacekeeping Forces Board of Directors 626 Board of Governors 619 ff 626 Bosphorus test 586, 589 ff 592 ff 597 Bretton Woods 613 ff – Exchange Rate System 614 Budget 362 ff – Auditing 383 f 313

Index

– Competence 374 ff – Contributions 365 ff – Principle of Completeness in Earnings and Expenditures 362 ff – Procedure 379 ff – System of Parallel Budgets 362, 369 Certain Expenses Case 363, 373, 377 Checks and Balances 66 Climate Change 692 f Codex Alimentarius 24, 96 Cold War 57 ff 249, 251, 318, 420, 431, 440, 449, 454, 491, 557 Collective Security 110, 397 ff 403, 440 ff 448 ff 455 f 493 – Concept of Authorisation 440 Comity 180 Commission on Sustainable Development 690 f Committee for Programming and Coordination 213 Competence – Distribution of Competence between International Organisations 210 ff Compliance 71 ff 682 – Inspections 73 – Reporting Systems 72 – Sanctions 75 Concluding observations 529 Confederation 18, 32 Conference on Security and Cooperation in Europe (CSCE) 10 Consequences of Ultra Vires Acts 206 ff Constitution 64 f – Concept of 62 Constitutionalisation 31

314

Convention for the Protection of Human Rights and Fundamental Freedoms 549 ff; cf. also ‘European Convention on Human Rights’ Copenhagen Criteria 248 Council of Europe 189, 249, 263, 270, 318, 359, 497, 547 ff 572; cf. also ‘Regional Organisations’ – European Court of Human Rights (ECtHR) 544, 549 ff; cf. also ‘ECtHR’ – Framework Convention for the Protection of National Minorities 556 – Membership cf. ‘Membership’ – Parliamentary Assembly 249, 270, 318, 359 Coup d’etat 422 Customary International Law 94 Customs 243, 645 Decolonisation 57 f 246, 304 Democratic Deficit 100 Democratic Legitimation 78, 92, 319, 337, 339 f Diplomatic Relations 170 f – Law of (ius missionis) 170 Dissolution 272 ff – European Atomic Energy Community (EURATOM) 274 – European Coal and Steel Community (ECSC) 272 – European Space Agency (ESA) 273 – European Union (EU) 274 – International Monetary Fund (IMF) 273 – League of Nations 275 – World Bank 273 Doctrine of Attributed Powers 197 Domaine Reserve 199

Index

Domestic Law 176 ff – Capacity to Act 176 ff Dualism 108 Dédoublement fonctionnel 64 Economic Community of WestAfrican States (ECOWAS) 55, 453, 499 f Economic Organizations 612 – Regional 562 – Universal 562 Economic Sanctions cf. ‘Targeted Sanctions’ Effet utile 137, 201 Election Observers 74 Enemy State Clause 56, 463 Enforced Disappearance 519, 526 Equivalent Level of Protection – ECtHR Jurisprudence 586, 589 ff 593 – Jurisprudence of the Federal Constitutional Court (Germany) 586 European Communities 55, 664 – Association Agreements 264 – EC – Turkey Association Council 264 – Financing through Loans and Bonds 367 – Implied Powers 204 – Self-Support 370 – WTO Membership 337 European Convention for the Prevention of Torture 541, 555 European Convention on Human Rights (ECHR) 544 ff 549 ff – Accession of the EU 565 ff – European Commission of Human Rights 550 European Court of Human Rights (ECtHR) 544, 549 ff – Backlog of Applications 552

– Complaint Procedures 551 ff – Compulsory Jurisdiction 550 – Co-respondent Mechanism 566 – Procedural Reforms 552 – Two-step Procedure 550 European Court of Justice (ECJ) 106, 358, 547, 562 – Human Rights Jurisprudence 562 ff – Judicial Review of the Security Council cf. Judicial Control; cf. Security Council – Preliminary Ruling Procedure 595 – Prior Involvement Proceedings 566 European Economic Area (EEA) 160, 664 f European Economic Community (EEC) 55, 664 European Free Trade Association (EFTA) 665 European Public Order 549 – Constitutional Instrument of 549 European Social Charter 554, 600 – Revised Version, 554 European Union (EU) 664 ff; cf. also Equivalent level of Protection – Accession Procedure 253 – Accession to the ECHR 565 ff – Agencies of the 179 – Charter of Fundamental Rights 547, 563 f – Council of the European Union 296, 319 – European Parliament 254, 261, 296, 319 ff 358, 382 – Human Rights as general Principles of Community Law 562, 584 – Human Rights Protection in general 561 ff 315

Index

– Implementation of Economic Sanctions 594 f; cf. also ‘Targeted Sanctions’ – International Legal Personality 158 – Jurisprudence of the Federal Constitutional Court 562 ff – Membership cf. ‘Membership’ – Scope of EU Human Rights 564 Executive Board 622 Executive Function 67 Extinction 142 ff 145, 282 f Extra-territorial Application of Human Rights Standards 588 Federalism 32 Federal State 18, 32 Finance cf. ‘Budget’ Food and Agriculture Organization (FAO) 53, 96, 213, 295, 301, 379, 639 – Council 301 Founding Treaty 10, 115 ff – Conclusion and Entry into Force 119 ff – Interpretive Power 140 f – Modifications and Amendments 123 ff – Reservations 122 Funding cf. ‘Budget’ General Agreement on Tariffs in Trade (GATT 1947) 642 General Agreement on Tariffs in Trade (GATT 1994) 645 General Agreement on Trade in Services (GATS) 645 Geneva Conventions 579 Genocide cf. also ‘International Criminal Law’ – Genocide Convention 526

316

– in International Criminal Law 577 Global Environment Facility (GEF) 686 Governance – Global 703 – Good 628 Group of Eight (G8) 656 Group of Twenty (G20) 656 Grundgesetz 110 Hague Conferences 42, 102, 325 Havana Charter 642 Headquarters Agreement 193 ff Hierarchy – Human Rights Standards and Obligations under IO Regimes 591 ff Human Rights 501 ff – at Regional Level 547 ff – at Universal Level 509 ff – Children’s Rights 526 – Future Perspectives 542 ff – Massive Violations 421 – Overlap with other Regimes of International Law 600 ff – Protection against Acts of IOs 583 ff Human Rights Treaty Bodies 526 ff 547 ff; cf. also ‘Surveillance Mechanisms for the Protection of Human Rights’ – Annual Meeting of the Chairpersons 542 – Composition 527 – Future Perspectives 542 f – General Comments 544 – Guardian of the Convention 544 – Overview 503 ff 526 ff – Procedures 527 ff – Regional Level 547 ff

Index

– Unified Standing Treaty Body 543 – Universal Level 526 ff – World Human Rights Court 543 Idealism 31 Immunity 181 ff 226 – Waiver of 185 Implementation 69 Implied Powers 202 ff Independent Human Rights Institutions cf. ‘National Human Rights Institutions’ Individual Complaint Procedures 535 ff – 1503-procedure 52 – African System of Human Rights Protection 57 – American System of Human Rights Protection 56 – CESCR cf. ‘UN Committee on Economic, Social and Cultural Rights – Decisions 539 – European System of Human Rights Protection 552 – Human Rights Council 521 ff – Written Procedure 538 Inherent Powers 205 Inspections 73 Institutionalism 34 Inter-American Commission of Human Rights cf. ‘American System of Human Rights Protection’ Inter-American Court of Human Rights cf. ‘American System of Human Rights Protection’ Intergovernmental Panel on climate Change (IPCC) 693 International Accounting Standards Board (IAS) 24

International Atomic Energy Agency (IAEA) 73, 277, 375, 427 International Centre for the Settlement of Investment Disputes (ICSID) 580 International Civil Aviation Organisation (ICAO) 86 International Civil Servant cf. ‘Personnel’ International Community 61 f International Court of Justice (ICJ) 98, 102 ff 106, 141, 173, 231, 324 ff 328, 359, 445 – Advisory Opinion 446 – and the Security Council 441 ff International Covenants on Human Rights – International Covenant on Civil and Political Rights (ICCPR) 506, 526 – International Covenant on Economic, Social and Cultural Rights (ICESCR) 526, 531 International Criminal Court (ICC) 121, 287, 579 ff International Criminal Law – Codification Work 578 – Crime of Aggression 580 – International Criminal Court (ICC) 121, 287, 579 ff – Principle of Complementarity 581 – Principle of Priority 581 – Referral to the International Criminal Court by the UN Security Council 582 – Role in Human Rights Protection 577 ff – Rome Statute 579 – Rwanda Tribunal (ICTR) 579 – War Crimes Tribunals 577 – Yugoslavia Tribunal (ICTY) 579 317

Index

International Development Association (IDA) 245, 629 International Finance Corporation 245, 629 International Humanitarian Law – Enforcement by Human Rights Treaty Bodies 602 – in International Criminal Law 577 – Overlap with International Human Rights Law 602 International Labour Conference 635 International Labour Organization (ILO) 631 ff – Administrative Tribunal 393 f – Founding 49 – Governing Body 301, 312, 635 – International Labour Office 635 – Overlap with General Human Rights Standards 600 ff – Plenary Organ 300, 635 – Principle of Tripartism 300 300 634 634 – Rule-making and Implementation 636 – State-to-state Complaints 534 International Law of Co-Operation 61 International Legal Personality 150 – Consequences of 161 ff – Criteria for 157 ff International Monetary Fund (IMF) 613 ff – Dissolution 273 f – Executive Board 301, 619 f 622 f – Guidelines on Conditionality 95 – Managing Director 308, 392, 619, 623 – Membership cf. ‘Membership’ – Special Drawing Rights 341 ff 618 318

– Weighted Voting 262, 341 f International Organisation for Standardization (ISO) 24 International Organisations (IOs) 6 ff – Attribution of Acts 220 ff 585, 587 ff – Concept 9 – Equivalent Level of Human Rights Protection 586, 589 ff 593 – Functional 13 – General 13 – Hierarchy between Human Rights and Obligations under an IO Regime 591 ff – Human Rights Protection against Acts of IOs 583 ff – Human Rights Protection of Employees 596 ff – Immunities and Access to Court 596 – Insolvency 145, 217, 276 – Omission to provide for Adequate Mechanisms of Human Rights Protection 597 – Organisation of Human Rights Protection 501 ff – Regional 13 – Replacement of Organs 514 – Seat 189 – Targeted Sanctions and Human Rights 592 ff – Universal 13 International Telecommunication Union (ITU) 44, 88 International Terrorism 423 International Trade Centre 213 International Trade Organisation (ITO) 642 International Treaty Law 79 International Tribunal for the Law of the Sea (ITLOS) 105 f 328

Index

International Union for Conservation of Nature (IUCN) 244 Interparliamentary Union 317, 322 Interpretation – Evolutionary Interpretation 601 – of Human Rights Treaties 601 Inter-state complaints 532 ff 551, 569, 570 Johannesburg, Summit of 674 Kadi jurisprudence 594 ff Kompetenz-Kompetenz 17 Layers of Law 78 League of Nations 47 ff 51 ff 131, 147, 246, 275 – Permanent Court of International Justice (PCIJ) 50 f 102, 324 ff – Secretary-General 309 Legitimacy 100 Liability 172 f 215 ff London Club 657 Lotus Case 200 Mainstreaming of Human Rights 508 Membership 236 ff – Council of Europe (CoE) 247, 249, 263, 270, 277 – European Union (EU) 248, 253 ff 258, 264, 269, 278 – International Monetary Fund (IMF) 245, 261 – United Nations (UN) 238 f 242, 250 f 259 f 263, 265 ff 278 ff – UN Specialised Agencies 263, 277 – World Bank 245, 261 – World Health Organization (WHO) 258, 277 – World Trade Organization (WTO) 238, 240, 252, 262

Membership Status 256 ff – Associate Membership 263 f – Expulsion 280 f – Graduated Membership 260 ff – Limitation of 268 ff – Observer Status 265 ff – Succession 284 f – Termination 271 ff – Withdrawal 277 ff Mercado Común del Sur (MERCOSUR) 55, 667 f Micro States 116, 246 Migrant Workers’ Rights 526 Minimum Standards 636 Minorities’ Protection cf. ‘Council of Europe’; cf. ‘OSCE’ Mixed Agreement 166 Monism 108 Most Favoured Nation 646 Multilateral Investment Guarantee Agency (MIGA) 245, 630 National Human Rights Institutions 529, 573 ff. – Commission Nationale Consultative des Droits de l’Homme 575 – German Institute for Human Rights 576 – Paris Principles 573 National Liberation Movements 266 National Treatment Clause 647 Neo-Realism 28 Non-governmental Organisations (NGOs) 11, 20 ff 265, 573 – Human Rights Activities 529 – Legal Personality 22 Non-State Actors 91, 266, 424, 432, 456, 492, 706 Nordic Council 11, 323

319

Index

North American Free Trade Agreement (NAFTA) 55, 666 Obligations erga omnes 65 Organization for Economic Co-Operation and Development 658 f – Organisation for European Economic Cooperation, OEEC 149, 658 – Programme for International Student Assessment (PISA) 95 Organization for Security and Co-operation in Europe (OSCE) 486 ff 557 ff – Copenhagen Document 558 – Election Monitoring 560 – Former CSCE 557 f – Freedom of the Media 559 – Helsinki Final Act 557 – Moscow Document (CSCE) 558 – Office for Democratic Institutions and Human Rights 559 – Protection of Minorities 559 Organization of African Unity (OAU) 55 Organization of American States (OAS) 55, 285 – Human Rights Protection 567 ff Organization of the Petroleum Exporting Countries (OPEC) 662 Palestine – Commission on Human Rights’ Approach 511 – Conflict of 151, 420 – ICJ Advisory Opinion 602 – Palestine Liberation Organization (PLO) 242, 266 Paris Club 657 Paris Union for the Protection of Industrial Property 44 Parliaments 11 “Peace”, notion of 417 320

Peacebuilding Commission 407, 415 ff Peace Congress 40 ff – Congress of Vienna (1915) 41 Peaceful Settlement of International Disputes 399 Peacekeeping 223 – Budget 363, 377 f – Forces 405 ff – Regional 474 ff – Responsibility and Liability 217, 223 ff – “Robust Peacekeeping” 224, 406, 475 Permanent Court of Arbitration (PCA) 42 Permanent Court of International Justice (PCIJ) cf. ‘League of Nations’ Personnel 385 ff – International Civil Servant 390 ff – Privileges and Immunities cf. ‘Privileges and Immunities’ – Recruiting 388 f Plurilateral Agreement 645 Power 196 Power to Conclude Treaties 163 ff Presumption – of Compatibility of IO Measures with Human Rights Standards 591 – of Compliance with Human Rights Standards when Implementing IO Decisions 589 – Rebuttal of Presumption 592 Principle of Specialty 197 Privileges and Immunities 181 ff 391 ff – Abuse 186 – of International Civil Servants 392

Index

– Personal and Functional Immunity 392 Prohibition of the Use of Force 400 Protection of Species 694 Protection of the Oceans 695 ff Public International Law 97 ff 200 – Constitution of the International Community 61 Racial Discrimination 526 Realism 28 Recognition 174 Reform – Human Rights Treaty Bodies 542 f Regime 14 ff 36 Regional Economic Integration 55, 663 ff Regional Human Rights Protection 547 ff Regionalism 55 Regional Organisations 448 ff – African Union (AU) 55, 480 ff 570 f – Chapter VIII 448 ff – Conference on Security and Cooperation in Europe (CSCE) cf. ‘OSCE’ – Council of Europe (CoE) 247, 249, 263, 270, 277, 497 – Economic Community of West African States (ECOWAS) 55, 453, 499 f – Enforcement Action 464 ff – League of Arab States (LAS) 498 – Maintenance of Peace and Security 448 ff – North Atlantic Treaty Organization (NATO) 491 ff – Notion of Regional Organizations 450 f

– Organization for Security and Cooperation in Europe (OSCE) 486 ff; cf. ‘OSCE’ – Organization of American States (OAS) 476 ff; cf. ‘OAS’ – Peaceful Settlement of Disputes 458 ff – Peacekeeping cf. Peacekeeping Forces; cf. regional – “Utilisation” by the Security Council (Art. 53 para. 1 UN) 467 ff Reparations for Injuries Suffered in the Service of the United Nations Case 151 Responsibility 215 – Acts that Conform with International Law 220 – Attribution 220 ff – Parallel 229 – Subsidiary 229 Responsibility to Protect 421, 545 River Commissions 40, 46 Rule-Making 77 ff Sanctions 75 San Francisco Conference 238, 278, 313, 441, 448, 458 Self-defense 404 – Collective 404 – Individual 404 – Organisation of Collective Self-defense cf. NATO; cf. Regional Organisations Smart Sanctions 113, 431 Social Constructivism 33 Solange/Jurisprudence 586, 596 South West Africa People's Organization (SWAPO) 266 Special Drawing Rights 341 ff 618 Specialised Agencies 213

321

Index

Special Rapporteurs 519, 546 Srebrenica 226 Staff cf. Personnel State Reports cf. ‘Surveillance Mechanisms for the Protection of Human Rights’ State-to-state complaints 532 ff 551, 569, 570 Stockholm Environmental Conference 672 Subsidiary Organs 10,, 292 ff Succession 146 ff Supranationality 16 Surveillance Mechanisms for the Protection of Human Rights cf. also ‘Human Rights Treaty Bodies’ – Advisory Proceedings 569 – Common Core Document 543 – Evaluation 546 – Individual Complaints 535 ff – Inquiries 530 f – List of Issues Prior to Reporting (LOIPR) 543 – Non-treaty Based/Charterbased 504 – Overlaps 506 – Preventive Mechanisms 540 ff 555 – Regional and Universal 505 f 526 ff 547 ff – Single Report Solution 543 – State Reports 528 ff – State-to-state Complaints 532 ff – Treaty-based 503 Sustainability 672 Targeted Sanctions 594; cf. also ‘Security Council’ – and EU Human Rights 594 ff – and Human Rights 592 ff Taxes 194 322

Telecommunication 44 Territorial Administration 227, 434 Terrorism 91, 423 f The Holy See 265, 487 Third Level of Organs 294 Tin Council 232 Torture Prevention 527, 540 ff 555 – Convention against Torture (CAT) 526, 540 f – Human Rights Commission 519 – Subcommittee on Prevention 526 – Universal and Regional Conventions 506, 541, 555 Trans-Boundary Environmental Pollution 676 Travaux Préparatoires 138 Treaty Bodies cf. ‘Human Rights Treaty Bodies’ Treaty Conferences 81 Tripartism, Principle of 634 Ultra Vires 206 ff UN Commission on Human Rights 511 ff – Sub-Commission 512, 521 UN Committee against Torture (CAT) 526, 530 – Subcommittee on Prevention of Torture 526 UN Committees on Economic, Social and Cultural Rights (ECOSOC) 21, 288, 302, 526, 530, 532 – on Enforced Disappearances (CED) 526 – on Migrant Workers (CMW) 526 – on the Elimination of Discrimination against Women (CEDAW) 526 – on the Elimination of Racial Discrimination (CERD) 526

Index

– on the Rights of Persons with Disabilities (CRPD) 526 – on the Rights of the Child (CRC) 526 UN Dispute Tribunal 315, 393 UN Economic and Social Council (ECOSOC) 21, 288, 302, 526, 530, 532 – Human Rights Activities 504, 510, 513 UN Family 53 f 213, 372, 386, 508, 610 UN General Assembly (GA) 94, 295, 297 ff – Human Rights Activities 509 ff 513 f – Recommendations 93, 95, 154, 408 ff – Relationship to the Security Council 408 – Resolution 3314 (XXIX) Definition of Aggression 416 – Resolutions of the 94 – “Uniting-for-Peace-Resolution” 409 ff UN High Commissioner for Human Rights (HCHR) 507 ff UN Human Rights Committee 526 ff 535 UN Human Rights Council 511 ff – Advisory Committee 521 ff – Composition 516 – Establishment 513 ff – former Commission on Human Rights 511 ff – Individual Complaint Procedure 521 ff – Modus of Election 517 – Special Procedures 519 ff – Special Sessions 515 – UPR Mechanism 515, 518 ff

United Nations 53 ff; cf. also ‘ICJ’ – Accession 239 ff – Administrative Tribunal 291 ff 332, 378, 393 f.; cf. also ‘UN Dispute Tribunal’ – Admission 250 – Budget 362 ff – Budget Competence 374 – Budget Procedure 379 – Economic and Social Council (ECOSOC) 21, 288, 302, 526, 530, 532; cf. also ‘UN ECOSOC’ – Expulsion 280 – Financing through Loans and Bonds 367 – Funding 53 ff – General Assembly 295, 297 ff; cf. also ‘UN GA’ – Indonesian Withdrawal 279 – Internal Subdivisions 298 – International Court of Justice (ICJ) 98, 102 ff 106, 141, 173, 231, 324 ff 328, 359, 445 – Membership cf. ‘Membership’ – Observer Status 265 – Reform 395 – Secretariat 313 ff – Secretary-General 308 ff 412 ff – Security Council 302 ff 349 ff; cf. also ‘UN SC’ – Special Agreement 679 – Trusteeship Council 302 – UN Family 53 f 213, 372, 386, 508, 610 United Nations Children´s Fund (UNICEF) 639 United Nations Conference on Environment and Development (UNCED) 673, 690 United Nations Conference on Trade and Development (UNCTAD) 294, 640 323

Index

United Nations Development Program (UNDP) 639 United Nations Educational, Scientific and Cultural Organization (UNESCO) 53, 114 United Nations Environmental Program (UNEP) 294, 672, 684 – Reform 689 – Tasks 685 United Nations Industrial Development Organization (UNIDO) 639 “Uniting-for-Peace-Resolution” cf. ‘UN General Assembly’ Universal Periodic Review Mechanism 515, 518 ff Universal Postal Union (UPU) 44 UN Security Council (SC) 302 ff 349 ff – and the General Assembly 408 – and the International Court of Justice 441 ff – Chapter VII 402 ff – Discretion, of the 426, 441 ff – Double Veto 351 – Focal Point 437 f – Individual Sanctions 594 – Judicial Control 441 ff – Monopoly of Force 403 – Non-military Measures 430 – Ombudsperson 437 f – Primary Responsibility for the Maintenance of International Peace and Security 407, 545 – Provisional Measures 428 – Referral to the ICC 582 – “Reverse Veto” 435 – Right of Investigation 459 – Role in Human Rights Protection 545 – Sanctions Committee 436 – “Smart Sanctions” 431 – Veto 409 324

– Veto Right 349 Uruguay Round 643 Utilitarianism 34 Values 31, 33 Vienna Declaration and Programme of Action 507 Voting, Weighted 336 ff – EU 338 – IMF 262, 341 f – on the Basis of Economic Strength 341 – UN General Assembly 336 – World Bank 262, 343 Waldschlößchenbrücke 114 War Crimes cf. ‘International Criminal Law’ Weapons of Mass Destruction 91, 424 Wilson, Woodrow 31, 48 World Bank 625 ff – Executive Director 301, 626 – Inspection Panel 627 – International Bank for Reconstruction and Development (IBRD) 625 – Membership cf. ‘Membership’ – President 308, 626 – Shares 343 – Weighted Voting 262, 341 f; cf. also ‘Voting, Weighted’ World Climate Council (= IPCC) 693 World Economic System 606, 613 World Environment Organization (WEO) 689 World Health Organization (WHO) 53, 87, 295 – Executive Board 301 – Membership cf. ‘Membership’

Index

– World Health Assembly 87, 295, 300 World Parliament 317, 322 World Republic 32 World Summit 2005 415 World Trade Organization (WTO) 641 ff. – Admission Procedure 253 – Appellate Body 330 – Decision-Making by Consensus 353, 653 – Decision-Making Procedure 348 – Director-General 652 – Dispute Settlement Body 306, 328 ff 345, 359, 608, 651 – Dispute Settlement Procedure 329 ff 654

– General Council 306, 348, 353 ff 651, 653 – Membership cf. ‘Membership’ – Membership of the EU 338 – Ministerial Conference 650 – Ministerial Council 306, 488, 700 – Panel Procedure 331 – Right for an Application to be Considered 240 – Secretariat 652 – “Separate Customs Territories”, Admission 243 – Trade Policy Review Mechanism 306, 645

325