Common Law of International Organizations

Common Law of International Organizations

By

Finn Seyersted

LEIDEN • BOSTON 2008

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Seyersted, Finn. Common law of international organizations / by Finn Seyersted. p. cm. Includes bibliographical references and index. ISBN 978-90-04-16699-8 (hardback : alk. paper) 1. International agencies. 2. Nongovernmental organizations—Law and legislation. 3. International law. I. Title. KZ4852.S39 2008 341.2—dc22 2008009747

ISBN 978 90 04 16699 8 Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

CONTENTS

Foreword ............................................................................................... About the author ................................................................................... Acknowledgements ...............................................................................

xi xxi xxv

PART ONE INTRODUCTION Chapter One Scope and purpose ....................................................... What this book is about ..................................................................... International non-governmental organizations ................................. Intergovernmental organizations: history, number, organs ............... Types of intergovernmental organizations ........................................ The common internal and external law ............................................ Delegated, implied or inherent powers? “Interpretation” of constitutions or customary law? ........................................................ Terminology ...................................................................................... Chapter Two Intergovernmental organizations – internal and international law ................................................................................... What constitutes an IGO? The lower and the upper limit ................ What organizations are international persons? The required criteria. Sovereignty ........................................................................................ Is a convention necessary? ................................................................. Capacity for rights, duties and action under international law ......... Is actual performance of international acts necessary? ..................... Possible reasons for denying the general international personality of intergovernmental organizations .......................................................

3 3 6 8 9 21 29 33

37 37 43 46 53 56 58

vi contents

Chapter Three Basic general distinctions .......................................... Inherent versus delegated powers – as opposed to the ction of “implied powers” ............................................................................... Organic jurisdiction and organic contra territorial and personal connecting factors ............................................................................. Internal law: distinct legal systems parallel to national public law, not to public international law ..........................................................

65 65 70 72

PART TWO INTERNAL LAW OF INTERGOVERNMENTAL ORGANIZATIONS Chapter Four Types of jurisdiction exercised by self-governing communities .......................................................................................... Territorial, personal and organic jurisdiction of States ..................... Organic and membership jurisdiction of the Holy See .................... Organic, membership and extended jurisdiction of intergovernmental organizations ......................................................................... Chapter Five Inherent jurisdiction over organs and ofcials .............. Internal legislation of intergovernmental organizations ................... Internal administration of intergovernmental organizations ............ Internal judicial power ...................................................................... Scope of the inherent jurisdiction. General ...................................... Organic jurisdiction over ofcials. Relationship of employment ....... Do headquarters agreements providing for application of local law within the headquarters district interfere with the organic jurisdiction? ....................................................................................... Conclusions: organic jurisdiction of States, intergovernmental organizations and other sovereign communities ............................... Chapter Six Extended jurisdiction of some organizations in substantive matters (delegated powers) .................................................. Introduction ...................................................................................... Territorial jurisdiction ....................................................................... Personal jurisdiction .......................................................................... Decisions binding upon States ......................................................... Legal basis for extended jurisdiction ................................................

81 81 92 96 107 107 117 120 122 137

174 177

183 183 184 208 215 239

contents vii Chapter Seven Settlement of internal disputes .................................. Introduction ...................................................................................... Constitutional provisions .................................................................. Settlement by administrative decision of the organization ............. Internal courts for disputes involving ofcials .................................. Internal courts for other disputes ..................................................... Internal courts – conclusions ............................................................ Are internal courts governed by the law of international courts? .... External courts .................................................................................. International courts .......................................................................... Binding “advisory” opinions of the International Court of Justice ... Preliminary questions of another legal system ................................ Settlement of disputes, conclusions ..................................................

245 245 246 248 257 279 292 297 307 317 334 341 350

PART THREE PUBLIC INTERNATIONAL LAW Chapter Eight Public international law; introduction ........................ Constitutional provisions only for legal personality of national law ..................................................................................................... Legal theory contra practice: delegated and “implied” contra inherent powers ................................................................................ Do the international capacities depend upon the constitution and the intentions of its framers? Scope of the international personality ......................................................................................... Are the member States subjects of the international rights and duties? ................................................................................................ Are only States original or necessary subjects of international law? The position of other sovereign communities ................................. Validity vis-à-vis non-members ......................................................... Conclusions .......................................................................................

357

375 380 391

Chapter Nine International acts ........................................................ Conclusion of treaties ....................................................................... Other acts .......................................................................................... Advisory opinions of the International Court of Justice ...................

401 401 406 410

357 359

362 371

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Chapter Ten Responsibility of intergovernmental organizations ...... Introduction ...................................................................................... The International Law Commission’s work ...................................... Are States relieved of their responsibility if they delegate their relevant powers to the organization? ................................................. Is the organization relieved of its responsibility if the States which delegate powers to it remain responsible? ......................................... The responsibility of the organization in elds where no powers have been delegated to it ............................................................................

415 415 415 420 429 430

PART FOUR CONFLICT OF LAWS: RELATIONS WITH PRIVATE PARTIES Chapter Eleven Internal relations ...................................................... Exclusive application of the internal law of the organization: the organic connecting factor .................................................................. Delimitation of the organic jurisdiction over ofcials ........................ Relations jure imperii ............................................................................ Other internal relations .....................................................................

Chapter Twelve External relations with private parties, introduction ........................................................................................... Types of relations .............................................................................. Application of national law ............................................................... Theory on national versus international law ..................................... The autonomy of the parties ............................................................. General principles of conict of laws as a subsidiary or binding source of each system of conict of laws .......................................... Plan of discussion .............................................................................. Chapter Thirteen Provisions on applicable law ................................. National legislation ............................................................................ General international conventions .................................................... IGO constitutions .............................................................................. Conventions on privileges and immunities. Power of the organization to enact conicts law .................................................... IGO regulations and general conditions ........................................... Contract clauses referring to applicable law ......................................

441 441 443 445 447

449 449 449 450 456 458 459 461 461 462 466 471 474 479

contents ix Clauses in arbitration agreements ..................................................... Rules adopted by the Institut de droit international .................................. Conclusions .......................................................................................

485 486 486

Chapter Fourteen Practice when there is no conicts provision. Examples of application of law other than national law ....................... Introduction ...................................................................................... General practice ................................................................................ Relations with non-governmental organizations ............................... International bank loan agreements .................................................. An important arbitral award .............................................................

489 489 490 491 496 503

Chapter Fifteen Relationship between international law of IGOs and general principles of law ....................................................................... The problems .................................................................................... Reasons for avoiding national law. Practice ....................................... General principles of law .................................................................. International law ............................................................................... Internal law of IGOs. Relationship to international and national law ....................................................................................... General principles of law as a source of the other legal systems ....... Field of application of internal IGO law .......................................... Choice between international law and general principles of law ...... Conclusions. Relations jure gestionis with other sovereign communities ......................................................................................

522

Chapter Sixteen Choice between national laws: references to the law of the organization in traditional conict of laws ................................. General .............................................................................................. Organic connecting factors (in public law) ........................................ Personal connecting factors in the law of persons ............................. Territorial connecting factors (in private law) .................................... Lex domicilii (and lex patria) in economic law .................................. Conclusions .......................................................................................

525 525 528 535 549 558 564

Chapter Seventeen Relationship between competent courts and applicable law. Interpretation of jurisdictional clauses .......................... Introduction ...................................................................................... Procedural law ................................................................................... International courts ...........................................................................

567 567 567 569

507 507 507 510 513 514 515 517 518

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National courts .................................................................................. Arbitral tribunals ............................................................................... Internal courts of the organization ................................................... No jurisdictional clause in the contract .............................................

570 572 574 577

Chapter Eighteen Conclusions .......................................................... Applicable provisions and general principles of conict of laws ....... Internal relations ............................................................................... External relations: the four alternatives ............................................. Substantive presumptions .................................................................. Jurisdictional presumptions ............................................................... Tentative nature of presumptions .....................................................

579 579 580 580 582 584 584

Table of cases ........................................................................................

587

Index .....................................................................................................

589

FOREWORD

I When Professor Finn Seyersted passed away in December 2006 he had for many years worked on a manuscript entitled “Common Law of International Organizations”, mainly based on his earlier work, listed below, on objective legal personality. Never nished, the manuscript provides a comprehensive theory of the system of legal norms that are developed partly in the internal written (constitutional) law of international organizations and partly through their consistent practice, and that are therefore common to international organizations. It was the author’s wish that the manuscript should be completed and published. As an old student of Professor Seyersted’s I have taken upon myself to contribute to nalizing the present book. For generations of students Professor Seyersted was a source of inspiration. He drew extensively on his own personal experience from working in and with international organizations in his lectures, and he maintained that any legal theory that cannot conform to law in practice is of questionable value. The contradiction and lack of coordination between theory and practice that he observed, would bring to mind the old German philosophical description that “theory is when one knows everything and nothing so happens. Practice is when everything functions and nobody knows why.”1 In this respect he sided with the Scandinavian school of legal realism. Inspired by the Danish scholar and legal philosopher Alf Ross,2 the theory of objective personality of international organizations owes to the reconceptualization of public international law by Ross as the law applicable to self-governing (sovereign) communities. The legal construction presented in this book consists of the following main elements:

1 2

“Theorie ist wenn man alles weiß und nichts klappt. Praxis ist wenn alles funktioniert und keiner weiß warum.” For an analysis of Alf Ross’ contribution to international law, see A.L. Escorihuela; Alf Ross: Towards a Realist Critique and Reconstruction of International Law, EJIL (2003), Vol. 14 No. 4, pp. 703–766.

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As for all other self-governing communities, all international organizations possess their own internal law governing their relations with 1) the organs of the organization, 2) the ofcials and 3) the member States in their capacity as members of the organization. Some organizations exercise, in addition, extended (delegated) jurisdiction over States, other organizations and/or individuals. Secondly, as for other self-governing communities all international organizations are subjects of public international law in their relations with other self-governing communities (States and other international organizations), and in the case of extended jurisdiction, also in relations with individuals and private entities. Thirdly, as for all other self-governing communities possessing their own internal law (their distinct lex personalis), international organizations enter into relations of a private law nature with both public and private entities. Governed by the rules on conict of laws, these relations must be determined by assessing relevant 1) personal, 2) territorial and 3) organic connecting factors. Thus “Common Law of International Organizations” brings together all those elements pertaining to the theory of objective legal personality that have, until now, been presented in a scattered fashion, in bits and pieces. Even so, it is only rarely that one comes across a study on international organizations without nding references to the work and theory of Professor Seyersted on objective legal personality. As was noted by Karl Zemanek on the 1986 Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, the textual compromise reached lends itself to the interpretation “that international organizations possess treatymaking capacity by virtue of general (customary) international law, if that capacity is necessary for their exercise of their functions and the fulllment of their purposes” which “comes very close to, if it is not identical with the theory which Finn Seyersted has defenced [sic] for many years”.3 The sole purpose of my own involvement in the completion of the manuscript is to contribute to making available to new generations of legal practitioners, scholars and students this exposition of the common law of international organizations based on the theory of objective legal personality. In doing so,

3

Karl Zemanek, The United Nations Conference on the Law of Treaties Between States and International Organizations or Between International Organizations, The Unrecorded History of its “General Agreement”, in Karl-Heinz Böckstiegel, Hans-Ernst Folz, Jörg Manfred Mössner and Karl Zemanek (eds.), Völkerrecht – Recht der Internationalen Organisationen – Weltwirtschaftsrecht. Festschrift für Ignaz Seidl-Hohenveldern (Cologne, Berlin, Bonn and Munich, 1988), pp. 665–79 at 671, cited in August Reinisch, International Organizations Before National Courts, Cambridge 2000, p. 59, note 117.

foreword xiii I have decided to prefer speed to perfection and have concentrated on the updates, corrections and completions that have been thought of as essential to the presentation of the book. Of course I alone stand to be corrected for any errors committed in this process. Wherever in this book it is referred to the “present writer” the submissions are a true reference to the original manuscript of the author. I would like to thank Henrik Bull, judge at the EFTA Court in Luxembourg, for valuable inspiration, guidance and corrections, particularly on matters relating to European organizations and EU Law and Øyvind Hernes, former executive ofcer/adviser in the Legal Department of the Royal Ministry of Foreign Affairs, Norway, for providing insight and comments, particularly on the work of the International Law Commission.

II Turning to the context of Professor Seyersted’s work, it is worth observing that his writing has consistently been guided and inspired by the idea that international organizations are inherently a good thing in that they contribute to a system of global governance that other mechanisms of coordination among sovereign States could not bring about with the same degree of efciency and legitimacy. His has always been a functional approach, meaning that a sufcient margin of manoeuvre and independence from unwarranted State inuence is needed for organizations to be able to deliver results on key common goals, such as world peace,4 fundamental rights, sustainable development and distribution of prosperity. This is not to say that the contribution of the objective legal theory is to let international organizations loose on the rest of us without constitutional restrictions. On the contrary, the main achievement of the theory presented in this book is to meaningfully identify the limits of international organizations’ internal and external powers by breaking down the concept of their exercise of powers into its various, distinct elements.

4

The aim of the United Nations is no less than “saving succeeding generations from the scourge of war”, cf. rst preamble paragraph of the Charter. In this context it is interesting to note that the UN, the specialized agencies and the IAEA have been awarded the Nobel Peace Prize no less than seven times since 1954; UNHCR (1954), UNICEF (1965), ILO (1969), UNHCR again (1981), UN peace-keeping forces (1988), the UN and Secretary-General Ko Annan (2001) and IAEA (2005). Moreover, the 2007 peace prize was awarded to Al Gore and The Intergovernmental Panel on Climate Change (IPCC), established by WMO and UNEP.

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In this context, organizations have over the years become subject to closer and more intense scrutiny, and their acts are no longer accepted just like that.5 In parallel, both government policies and business activities of multinational corporations are being challenged on their values and on the social consequences of their entrepreneurship, not only by their members or shareholders, but also by the stakeholders. This rethinking of social responsibility has in turn put pressure on international organizations e.g. in the eld of project funding, such as the World Bank, to further address the local impacts of their activities. There is no reason to believe that international organizations generally will be put to a more lenient test of social responsibility, democratic values, legitimacy and accountability in the years to come. In this legal landscape functionalism has in part been replaced by a call for good governance, and international organizations are seen as a good thing only insofar as they deliver on those demands. “In order for an organization to be said to exercise sovereign powers then it must ensure that it is in accord with sovereign values”.6 For some organizations that only in limited elds of cooperation are vested with extended powers to commit States, individuals or entities outside the organization, such as in the eld of trade, nance or security, there is a growing pressure for them to take into account wider societal values such as e.g. the environment, human rights, health and consumer protection.7 The fundamental debate on international organizations’ perceived “democratic decit” is another important part of this picture. Even to the extent that international organizations are made up of sovereign, democratic communities, it is inherently difcult for them to recreate the ideals of representative democracy on the international level.8 A more proper starting point is perhaps the democratic decit that would result from a lack of organized regional and global coordination between sovereign States.9

5 6 7

8

9

Cf. Jan Klabbers, The life and times of the Law of International Organizations, Nordic Journal of International Law, Vol. 70 2001, p. 314. Dan Sarooshi, International Organizations and their Exercise of Sovereign Powers, Oxford 2005, p. 10. On the perception of WTO law favouring narrow commercial interests, see Allan Rosas’ comments on ECJ Case C-149/96 Portugal v. Council, on the possible direct effect of WTO law in the European Community; Common Market Law Review, Vol. 37 2000, pp. 797–816. Similarly the Multilateral Development Banks have been criticized for a lack of democratic basis, as their decision-making is based on the ratio of member States’ shareholding. Important questions of democratic distribution of powers were addressed by the Convention assigned by the European Council to propose a new EU constitutional treaty in the following way; how to bring citizens closer to the European design and European Institutions; how to organise politics and the European political area in an enlarged Union; and how to develop the Union into a stabilising factor and a model in the new world order. Cf. also infra, note 17.

foreword xv “Common Law of International Organizations” contributes in several ways to addressing, in terms of legal theory, important challenges of good governance and accountability. Firstly, it should be underlined that the theory of objective legal personality may offer a solution to the problem of “soft” organizations or undened legal constructions in international relations between States or international organizations. In a sense such undened or autonomous entities may be said to “exist in institutional and constitutional limbo outside the remit of any effective judicial or parliamentary control: it is not clear what they can do, how they can do it, or how they can be prevented from doing whatever it is they can do. The only thing that is clear is that they harbour and accommodate executive power, untrammeled, unimpeded, and unchecked”.10 What the theory of objective legal personality offers is a model to clarify uncertainties as to the status of “soft” organizations, which are set up as any other international organization (and not as mere intergovernmental networks), but without the intention of vesting the organization with the proper rights and obligations that follows from the common law of international organizations. This is so because the theory of objective legal personality does not rely exclusively on the intent of the organization’s founding fathers or on powers “implied” in its constitution, but on the fact that the organization exists and thus becomes a subject of international law ipso facto. Thus, organizations which fulll objective criteria are international organizations, and the common law described in this book apply to them. This must imply that the organization as a separate legal person is internationally responsible for its wrongful acts under public international law. And even though the organization has no inherent capacity to commit the member States nancially without legal basis in its constitution or otherwise, member States will be expected to provide the resources necessary for the organization to comply with its promises, as an emerging rule of common law of international organizations. There has been a scholarly debate particularly on the legal status of GATT and the later World Trade Organization (WTO), the Organization for Security and Co-operation in Europe (OSCE) and the European Union (EU) as distinct from the legal personality of the European Community (EC). While sovereign communities are free to establish or not to establish an international organization, they have to respect legitimate expectations of third parties in so doing. In light of EU’s treaty-making capacity, if the EU could nonethe-

10 Jan Klabbers, Soft Organizations in International Law, Nordic Journal of International

Law, Vol. 70 2001, pp. 406–7 and note 19.

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less deny being bound by its agreements under international law because its drafters never endowed it with legal personality,11 I, for one, would probably have to be looking for another job. While the issue of classication of GATT was about as interesting to GATT ofcials as “ornithology is to birds”,12 a locally engaged OSCE ofcial on mission being thrown to jail because of uncertainties of her legal status and that of the organization, turns out to pose entirely different questions. Certain mechanisms of international coordination may be described as purely intergovernmental networks, and as such they offer a solution to the perceived lack of accountability in that the participating national ofcials are made democratically accountable to their respective publics through domestic institutions.13 National governmental bodies are, for example, increasingly representatives of a global administration responsible for implementing international standards for the achievement of common objectives, e.g. in the eld of environmental protection.14 The pluses and minuses of not creating a formal organization can be viewed in light of the reasoning behind the set-up of the Group of 8 (G8): The G8 has remained informal and light on bureaucracy: it has no secretariat, no central ofce and no formal rules of procedure. Co-ordination is in the hands of the rotating Presidency and the Sherpa system provides direct links to Heads. On the plus side this means that the G8 is able to react quickly to events while reecting the foreign policy and domestic concerns of the world’s most powerful leaders. Notable successes have included breakthroughs on debt, climate change and non-proliferation. The weaknesses are a poor institutional memory, the absence of an in-built mechanism for following-up or implementing agreements, and the lack of a formal consultative mechanism. Nevertheless,

Ibid., p. 414. The EU’s external treaty competence, as distinct from the EC, was introduced in 1997 by the Treaty of Amsterdam, cf. Art. J.14 (OJ C 340, 10 November 1997). The Treaty of Lisbon, 13 December 2007 (OJ C 306, 17 December 2007), will merge the “pillars” and the legal personality of the EU/EC into one. 12 Ibid., p. 407 note 21. 13 In this sense Anne-Marie Slaughter, A New World Order, Princeton 2004, who regards national governments as guarantors of democratic accountability in international networks. As noted by Kingsbury et al., infra note 14, p. 36, this model is not well adapted and may actually work against the realization of solidarist or cosmopolitan conceptions of international administration. A further question is: who is the relevant constituency? If the relevant public is global in character and different from the sum of the national publics, domestic procedures may be insufcient, at least in their traditional form (Id. p. 41). 14 Cf. Kingsbury et al., International Law and Justice (IILJ) Working Papers, New York, 2004/1, p. 9. Cf. also N. Krisch and B. Kingsbury, Global Governance and Global Administrative Law in the International Legal Order, EJIL Vol. 17 (2006) No. 1, pp. 1 ff. 11

foreword xvii successive leaders have consistently resisted the temptation to create a Secretariat, which they believe would swamp the process in bureaucracy.15

Yet, as an intergovernmental network it is perceived as a powerful forum in world politics. The group’s legal status does not seem to be decisive to demonstrators as there has been no less massive mobilization against G8 summits compared to the protests at WTO summits or European Council meetings, although the G8 seems to be challenged more by the positions they do not take than by the actual results the group delivers. What is important in this connection, is that the participating States cannot hide behind the veil of the organization, and accountability for consensus decisions runs, in principle, through national capitals. On the other hand, from an international perspective the legitimacy of governance limited within national States is fundamentally awed in so far as it remains inevitably one-sided and parochial or selsh. It has been argued that the possibilities of what international law can achieve are limited by the congurations of State interests and the distribution of State power.16 International organizations may be designed so as to cure these deciencies as a correction of national State failures, and they may derive their legitimacy from this compensatory function.17 In conclusion, objective criteria of international legal personality means that “what you see is what you get”, or as put by Klabbers,18 “if an entity looks like an international organization, functions like one, and is treated by outsiders as one, then it is pretty unlikely that in reality it is, all appearances notwithstanding, something other than an international organization”. Secondly, the concept of “common law of international organizations” opens new possibilities for organizations to adapt their practices to new demands of democracy, legitimacy, good governance and accountability through borrowing, copying or importing standards as e.g. set by other organizations.19 They all have the inherent capacity to adapt their internal law and organizational structure to meet the demands required by their exercise

G8; “Pluses and minuses”, cf. www.fco.gov.uk (visited September 2007). Cf. Jack L. Goldsmith and Eric A. Posner; The Limits of International Law, New York 2005, p. 13, who do not include international organizations in their analysis of international law. See also the pertinent reminder of the importance of State interests in the formation of international organizations, in Schermers and Blokker, International Institutional Law, 4th ed., Leiden 2003, § 18. 17 Christian Joerges; Re-Constitutionalising Transnational Governance Through Conict of Laws: The Example of International Trade – An Outline, paper submitted to The New International Law Conference, Oslo 15 – 18 March 2007, p. 13. 18 Ibid. note 10, p. 415. 19 Cf. the examples of “borrowing regimes” provided by Sabino Cassese in Shrimps, Turtles and Procedure: Global Standards for National Administrations, International Law and Justice (IILJ) Working Paper, New York, 2004/4. 15 16

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of governmental functions. Even though each international organization possesses its own distinct internal law, there will often be a need to supplement its written sources of law with references to general principles of law, international (or global) administrative law, international peremptory norms or otherwise. This legal method is of importance also in order to address the problem of fragmentation of international law. A “systemic integration” as described by the International Law Commission’s Study Group looks beyond the individual case. By making sure that the outcome is linked to the legal environment, and that adjoining rules are considered – perhaps applied, perhaps invalidated, perhaps momentarily set aside – any decision also articulates the legal-institutional environment in view of substantive preferences, distributionary choices and political objectives. This articulation is quite important in a decentralized and spontaneous institutional world whose priorities and objectives are often poorly expressed. It is also important for the critical and constructive development of international institutions, especially institutions with law-applying tasks. To hold those institutions as fully isolated from each other and as only paying attention to their own objectives and preferences is to think of law only as an instrument for attaining regime-objectives. But law is also about protecting rights and enforcing obligations, above all rights and obligations that have a backing in something like a general, public interest. Without the principle of “systemic integration” it would be impossible to give expression to and to keep alive, any sense of the common good of humankind, not reducible to the good of any particular institution or “regime”.20

A vehicle to achieve a greater “systemic integration” is found in the so-called judicial dialogue or interaction between judicial organs of different international organizations, a process that also involves national courts of the member States inter alia through the legal mechanism of requesting preliminary rulings. The formulation of human rights as part of Community law has for example largely been developed through the jurisprudence of the European Court of Justice.21 Other examples are “imports” from national legal systems in the development of the principle of proportionality and the precautionary principle in European law.22

20 Fragmentation of International Law: Difculties Arising From the Diversication and

Expansion of International Law; Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, Doc. A/CN.4/L.682 13 April 2006, page 244, para. 480. 21 Cf. Allan Rosas, The European Court of Justice and Fundamental Rights, in Carl Baudenbacher and Henrik Bull (eds.): European Integration through Interaction of Legal Regimes, Centre for European Law, University of Oslo, IUSEF No. 50 2007, pp. 33-63. 22 For the latter principle see further Carl Baudenbacher, The Denition of the Precautionary Principle in European Law: A Product of Judicial Dialogue, ibid., supra note 21, pp. 1–31.

foreword xix Another example of current developments of common law in international organizations that seems to draw on the principle of “systemic integration” is the UN draft resolution on the administration of justice at the United Nations.23 By this resolution the General Assembly emphasizes “the importance for the United Nations to have an efcient and effective system of administration of justice so as to ensure that individuals and the Organization are held accountable for their actions in accordance with relevant resolutions and regulations” and on this basis to decide to “establish a new, independent, transparent, professionalized, adequately resourced and decentralized system of administration of justice consistent with the relevant rules of international law and the principles of the rule of law and due process to ensure respect for the rights and obligations of staff members and accountability of managers and staff members alike”. In the 5th Committee debate on 22 March 2007 the German representative on behalf of the EU stated inter alia that: “The United Nation’s system of administration of justice urgently needs to be reformed. It does currently not comply with international standards. [..] Therefore, the system must be professionalized and be in conformity with relevant rules of international law, principles of the rule of law and due process.” Similarly, the Chinese representative on behalf of the G77 stated that “We consider a professional, independent and adequately resourced system of internal justice as a central pillar of the accountability framework of the Organization”. A further example of “systemic” development of common law is concerned with targeted sanctions and freezing of funds belonging to or controlled by private individuals and groups of individuals. In its best practices document,24 the EU states that “The introduction and implementation of restrictive measures must always be in accordance with international law. They must respect human rights and fundamental freedoms, in particular due process and the right to an effective remedy. The measures imposed must always be proportionate to their objective.” The Court of First Instance of the European Communities has in several judgments inter alia stated that “According to settled case-law, observance of the right to a fair hearing is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question”.25 See doc. A/RES/61/261, 30 April 2007. Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common Foreign and Security Policy, Council doc. 15114/05, 2 December 2005, see also on measures to avoid mistaken identity, EU Best Practices for the effective implementation of restrictive measures, Council doc. 10533/06, 14 June 2006. 25 See e.g. Case T-228/02, Organisation des Mojahedines du peuple d’Iran v. Council of the European Union, judgment of 12 December 2006, para. 91, Ofcial Journal of the European Union 2006/C 331/63. 23 24

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The UN Security Council, by passing resolution 1730 on 19 December 2006, committed itself to “fair and clear procedures [. . .] for placing individuals and entities on sanctions lists and for removing them” and decided to establish a “focal point to receive de-listing requests [and to perform the tasks described in the annex]”. These few examples based on current thinking on organizations’ exercise of power, support the proposition that the “Common Law of International Organizations”, starting out from the position of objective legal personality, is fully compatible with modern requirements of good governance and accountability of international organizations, and particularly adaptable to the ideal of “systemic integration” of legal regimes constituting internal law of the organization. Tornn Rislaa Arntsen*

*

Assistant Director General, Legal Department, Royal Norwegian Ministry of Foreign Affairs. Nothing in this book shall be understood as reecting the ofcial views of the Norwegian Ministry of Foreign Affairs.

ABOUT THE AUTHOR

Finn Seyersted (1915–2006) served in the Norwegian Ministry of Justice and the Ministry of Foreign Affairs from 1943 after completion of law studies at the University of Oslo, Norway. He served inter alia as head of division in the Legal Department, Royal Norwegian Ministry of Foreign Affairs, deputy permanent representative for Norway to the UN during its rst three years of existence and, subsequently, as expert adviser on international organizations in foreign ministries of three newly independent states in the Far East. Author of several works on public international law, he became Doctor Juris at the University of Oslo in 1966. Among his appointments and experience may be mentioned: Delegate to the Geneva Conference on the Law of the Sea, 1958, Director Legal Division of the International Atomic Energy Agency, Vienna, 1960–65, Associé of Institut de droit international, chairman of the committee that drafted the constitution of the (former) International Maritime Satellite Organization; participation in conferences and meetings of other IGOs; and member of the international administrative tribunals until 1991 and of relevant committees of other IGOs. Norwegian Ambassador 1968–73, Professor of international law, University of Oslo from 1973. Selected earlier works by the author: – “United Nations Forces: Some Legal Problems”, 37 British Yearbook of International Law, 1961, pp. 351–475. – “Can the United Nations Establish Military Forces and Perform Other Acts Without Specic Basis in the Charter?” in Österreichische Zeitschrift für öffentliches Recht, Band XII, Heft 1–2, 1962. – “Settlement of Internal Disputes of Intergovernmental Organizations by Internal and External Courts”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, XXIV 1963, pp. 1–121. – “Objective International Personality of Intergovernmental Organizations: Do Their Capacities Really Depend upon the Conventions Establishing Them?” – Copenhagen 1963 and 34 Nordisk Tidsskrift for International Ret, 1964, pp. 1–112.

xxii

about the author

– “International Personality of Intergovernmental Organizations: Do Their Capacities Really Depend Upon Their Constitutions?” – 4 Indian Journal of International Law, 1964, pp. 1–74. – “Is the International Personality of Intergovernmental Organizations Valid vis-à-vis Non-Members?” – 4 Indian Journal of International Law, 1964, pp. 233–68. – “Jurisdiction over Organs and Ofcials of States, the Holy See and Intergovernmental Organisations”, International and Comparative Law Quarterly, XIV 1965, pp. 31–82 & pp. 493–527. – “United Nations Forces in the Law of Peace and War”, Leyden 1966. – “Die Internationale Atomenergie – Organisation, ihre rechtlichen Aufgaben und Funktionen”, Beiträge zum Internationalen Wirtschaftsrecht und Atomenergierecht, Verlag Otto Schwartz, Göttingen 1966. – “Die internationale Atomenergieorganisation (IAEO)”, Verlag Otto Schwartz, Göttingen 1966. – “Applicable Law in Relations Between Intergovernmental Organizations and Private Parties”, 1967 III, 122 Recueil des Cours, pp. 427–616. – “Has the Government a Duty to Accord Diplomatic Assistance and Protection to Its Nationals?” – 12 Scandinavian Studies in Law, 1968, pp. 121–49. – “Diplomatic Freedom of Communication” – 14 Scandinavian Studies in Law, 1970. – “The Legal Nature of International Organizations”, Comments on Mr. Reuterwärds article in Nordisk Tidsskrift for International Ret, 51 Nordisk Tidsskrift for International Ret, 1980, pp. 203–5. – “The Åland Autonomy and International Law” in Nordisk Tidsskrift for International Ret, Vol. 51 1982. – “Treaty Making Capacity of Intergovernmental Organizations: Article 6 of the International Law Commission’s Draft Articles on the Law of Treaties Between States and Intergovernmental Organizations or Between Intergovernmental Organizations”, 34 Österreichische Zeitschrift für öffentliches Recht und Völkerrecht, 1983, pp. 261–7. – “Binding Authority for the United Nations and Other International Organizations in Limited Functional and Territorial Fields”, 56 Nordic Journal of International Law, 1987, pp. 198–204. – “Autoridad vinculante par las Naciones Unidas y otras organizaciones internacionales en determinados de lo funcional y territorial” in Anuario Argentino de Derecho Internacional, III, 1987–1989. – “Federated and Other Partly Self-governing States and Mini-states in Foreign Affairs and in International Organizations” in Nordic Journal of International Law, pp. 369–75, 1988.

about the author xxiii – “The Relationship between National Law, International Law and the Law of International Organizations” in N. Mikkelsen, ed., The Implementation in National Law of the European Convention on Human Rights (Danish Centre of Human Rights), Copenhagen 1989. – “The United Nations Decade of International Law” in Nordic Journal of International Law, pp. 117–27, 1990. – “Basic Distinctions in the Law of International Organizations: Practice versus Legal Doctrine” in Theory of International Law at the Threshold of the 21st Century, Essays in honour of Krzysztof Skubiszewski, Edited by Jerzy Makarczyk, Klüwer Law International 1996.

ACKNOWLEDGEMENTS

An important source for the work on the common law of intergovernmental organizations is legal advisers and other ofcials and former colleagues of the UN and a great number of other IGOs and of national governments, who have kindly provided information and relevant documents and read and commented upon parts of the manuscript. They are far too many to be listed by name. The present writer wishes hereby to thank them all whole-heartedly for their kind assistance, without which this book could not have been written. IGO and university libraries in Paris, New York, Geneva, Vienna – and notably Randi Halveg Iversby, Kjersti Selberg, Karen Danbolt and Beate Heilemann at the University Library in Oslo – have been of invaluable assistance in documenting the practice of the various IGOs and of governments and other parties in their relations with IGOs. Thanks are due also to the Department of Public and International Law, University of Oslo, and particularly to Professor Henning Jakhelln, for providing funds and numerous scientic assistants. Among the secretarial assistants at the University thanks go to Lisa Sterud, Kari Brenna Oppi and Else Vera Aas. The present writer is indebted to the outstanding Danish Professor Alf Ross and his near namesake Austrian colleague Alfred Verdross, who, already more than 50 years ago identied the basic concepts of self-governing communities and internal law of intergovernmental organizations. These legal achievements constitute two of three basic new concepts which are now indispensable to a correct theoretical description of customary law, and which are further developed and supplemented in the present book. Thanks are due to the publishers of Nordic Journal of International Law, The Indian Journal of International Law, Zeitschrift für Ausländisches öffentliches Recht und Völkerrecht, The International and Comparative Law Quarterly, The British Yearbook of International Law, Österreichische Zeitschrift für öffentliches Recht und Völkerrecht and Recueil des Cours of the Hague Academy, who published original studies on the topics dealt with in various parts of the present book and who have kindly permitted these to be used as bases for important parts of the present book.

xxvi acknowledgements

Thanks are also due to several institutions which have provided nancial assistance. The Rockefeller Foundation at the very outset of the work accorded the present writer a fellowship to study the law of international organizations in Paris and New York 1950–51. Thanks are also due to the professors there: Suzanne Bastid, Charles Rousseau, Philip Jessup and Oliver Lissitzyn. The Norwegian Research Council has also contributed nancially. Above all, the writer wishes to thank his wife, Sølvi, for her manifold, enduring and capable assistance.

PART ONE

INTRODUCTION

CHAPTER ONE

SCOPE AND PURPOSE

1.1

What this book is about

This book deals with international organizations of States – so-called intergovernmental organizations or IGOs – as opposed to non-governmental organizations, which are composed of private individuals and/or of national associations of individuals or companies (NGOs). The present book is neither on specic organizations, nor a comparative description of several organizations, but concentrates upon the basic common1 law2 of IGOs. Indeed, despite the differences between the various types of IGOs, there is an important body of customary law which in fact is common to all IGOs, including even supranational organizations. This book is intended for use in practice, notably by IGOs and by governmental institutions, and as a basic aid for teachers of international law and for textbook-writers to enable them to take into account modern developments, which have brought international organizations to the forefront as important actors and rule-setters in international law. It is especially hoped that the book may help lecturers and text-book writers to reect the customary law, common to all IGOs, which has developed in practice, rather than conne their lectures and books to descriptions of the UN and certain other important organizations severally and/or to comparative presentations of their

1 2

Except partly for the narrower concept of “extended jurisdiction”, which is not common to IGOs other than those exercising such powers, see below chapter 6. On the concept of law applied in this book, one would think that the English word “law” and the French word “loi” had a common origin. However, this is not so. It has been pointed out by Professor Gudmund Sandvik of the University of Oslo that “loi” stems from the Latin “lex”, which in turn stems from the Latin “ligere”, to bind; “law”, however, stems from the old Norse “lög”, which meant to lay and thus had the same substantive meaning as the much more modern German word “Gesetz” (from the verb “setzen”, to prescribe) and which clearly comprises only statutes enacted by the competent authorities. Thus, while “law” and “loi” have different origins, they both originally meant only enacted statutes, while “law” today is general and comprises also customary law.

4

scope and purpose

express constitutional and other provisions. This because the present book – in contradistinction to the dominant current literature – is based upon practice, not upon an interpretation of “powers” “implied” in constitutional provisions which were never intended to answer the basic common problems. We now have several thousand international organizations; many more than there are States,3 and the number is steadily increasing. IGOs have become as important actors in both public and private international law as non-governmental organizations are in national law. In addition, each IGO has an internal public law of its own. In these circumstances we have seen an increasing stream of literature on the law of IGOs. Most books and articles deal with the law of one or more particular organizations, based upon their constitutional and other written instruments. We are also getting literature taking up specic problems with regard to all or several IGOs, but these publications are mostly of a comparative nature, comparing the relevant provisions of several organizations. However, the internal and external law of IGOs can no longer be adequately covered by books on individual organizations or by books based upon their respective written constitutions. Indeed, existing literature – which concentrates rather upon such aspects of the law of the organizations as are dealt with in their constitutions and other conventions – covers only certain aspects of the internal law of the organizations concerned and, largely, aspects which differ from one organization to the other. The present book is neither on specic organizations, nor comparative. It describes the basic common law which is not primarily laid down in constitutions or other conventions but which has developed in practice as customary law and which covers the aspects not laid down in the constitutions and other conventions. This includes the basic aspects of the internal law of the organizations (constitutional, administrative and procedural law) – as well as the entire law on their external relations of public and private international law (international personality and choice of law respectively), which are not at all dealt with in their respective constitutions. This law is common to all IGOs (unless they exceptionally have deviating provisions) and is thus “common law”, both in the literal sense and in the Anglo-Saxon sense of customary law. A greater number of questions are covered in Schermers and Blokker’s

3

The yearbook of International Organizations 2004–2005 by the Union of International Associations has selected 33,635 of the most important organizations (past and present). Of these 5,713 are listed as intergovernmental (IGOs) and 27,922 are international nongovernmental organizations (INGOs).

chapter one 5 comprehensive book on “International Institutional Law”,4 but more as a comparative description. In addition to this common, customary law we shall in chapter 6 survey and compare the different types of extended jurisdiction which are exercised only by some organizations over territory, persons or States, on the basis of specic authority as a parallel to the “principle of legality” which applies in democratic States. This will be done – partly to complete the picture of IGO-law and to demonstrate the difference from common law – and partly to demonstrate important elements of common law which apply even here, notably that the legal authority required does not, as assumed by some writers, have to be found in the constitution of the organization concerned. IGOs have inherent capacity to assume even extended jurisdiction which is free or assigned to them, and there is therefore even here no need to ction powers “implied” in the constitutional convention. An important task for this book is to identify the relevant basic legal distinctions. When legal writers have been unable to offer real guidance in IGO-law beyond the respective constitutions and other specic texts, it is primarily because they: – Assume that everything must be derived from the constitution of the organization concerned (via the useless ction of “implied powers”) and ignore the basic distinction between inherent and extended powers; – do not adequately distinguish between external relations, governed by international law, and internal relations, governed by the same principles as apply in national public law in all basic respects (subjects, sources in hierarchical order, separate legal system for each organization, effects in national law); and because they – concentrate upon territorial and personal jurisdiction (in internal law and in public international law) and upon territorial and personal connecting factors (in private international law), ignoring the (for IGOs far more important) jurisdiction over organs in internal law and public international law and the corresponding organic connecting factor in conict of laws, which both take precedence over relevant territorial and personal conicting factors. The practice reported and analyzed in the present book amply demonstrates that without these fundamental distinctions no real guidance can be given

4

Henry G. Schermers & Niels M. Blokker; International Institutional Law: Unity within Diversity, 4th ed., Leiden 2003.

6

scope and purpose

to ll the important gap left by constitutional and other express provisions without making certain basic distinctions – between delegated and inherent powers, between the territorial, personal and organic jurisdiction and connecting factors, and between public international and internal IGO law, see below chapter 3.

1.2

International non-governmental organizations

The original subjects of national law are physical individuals, in legal terminology referred to as natural persons. In addition, associations of individuals have developed to become important subjects of national law. They are referred to as juridical or legal persons. These terms include corporations, companies, associations and other groups of individuals which act as distinct legal entities, i.e. which possess rights and duties distinct from those of their members. In most elds of private and procedural law no adequate statute or legal study can be written without taking into account the fact that the rights and duties laid down will be those of corporations and associations, as well as those of individuals. Indeed, the term “individuals” is frequently used, pars pro toto, for subjects of national law in general, whether natural or juridical, as are the terms “persons”, “private parties” and “third parties”. The same is true of “nationals”, despite the fact that “nationality” in the case of juridical persons is replaced by domicile, registration or similar tests. Associations of individuals are in international law referred to as non-governmental organizations (NGOs) – in order to distinguish them from associations of States (intergovernmental organizations – IGOs). NGOs (in the narrow sense, i.e., excluding companies) which are international in their composition and purposes are referred to as international non-governmental organizations (INGOs). These include both direct associations of individuals from different countries, like the Institut de droit international, and international unions of national associations working in the same eld, like the World Federation of Trade Unions, as well as mixed, or hybrid types, like the International Law Association and the Association des anciens auditeurs de l’Académie de droit international de la Haye (AAA). Examples of important INGOs from various functional elds include a number of international non-governmental organizations which have an impact on international trade. Among these are the International Standardization Organization (ISO), which adopts standards to harmonize product and process specications worldwide, and IATA (International Aviation Transport Association) and CMI (Comité Maritime International), which attend to the unication of legal rules for the carriage of goods by air and sea. The International Chamber of Commerce (ICC) has established arbitration

chapter one 7 rules and set up an international Court of Arbitration in the Hague. Other INGOs have standards and certication mechanisms for certain internationally traded products, like e.g. fair-trade products and environmentally sustainable harvest of timber products. The World Economic Forum plays an important role in shaping overriding global economic policy trends.5 In international sports the World Anti-Doping Agency (WADA) deals with athletes suspected of using banned substances, with the attached private review system of the Court of Arbitration for Sport. In principle international non-governmental organizations are subjects of national law like other NGOs, but may also acquire a participatory status in the law of intergovernmental organizations and inter-State conferences. However, INGOs as representatives of civil society play an increasingly important role in international relations. The acts of INGOs may not be much different from many non-binding intergovernmental public norms, and may often be more effective.6 Standards and recommendations adopted by INGOs may subsequently be adopted by IGOs as binding secondary norms.7 Civil society involvement is to a large extent interlinked with the question of legitimacy of international decision-shaping. Consequently, various formations of INGO involvement are component parts of the work of both intergovernmental organizations and international conferences. This may be reected in constituent documents of IGOs or conferences as consultative or representative rights, or otherwise be part of the internal law of the intergovernmental organization.8 INGOs may also sometimes be accorded privileges and immunities and thus be treated by national legal systems similarly to intergovernmental organizations.9 However, this does not necessarily imply that INGOs become general subjects of public international law. For the purpose of the present book INGOs are not further included in the analysis of the common law of intergovernmental organizations.10 Two examples of particular international organizations should be mentioned in this connection as they have important elements of both IGO

5 6 7

8 9 10

See further van Houtte, The Law of International Trade, London 2002, pp. 52–54. Kingsbury et al., The Emergence of Global Administrative Law, International Law and Justice Working Paper, New York 2004/1, p. 10. Cf. the examples of “borrowing regimes” provided by Sabino Cassese in Shrimps, Turtles and Procedure: Global Standards for National Administrations, International Law and Justice (IILJ) Working Paper, New York, 2004/4. For a comprehensive study of INGO participation in international relations, see A-K. Lindblom, Non-Governmental Organisations in International Law, Cambridge 2005. Cf. A. Reinisch, International Organizations Before National Courts, Cambridge 2000, p. 11 and note 47 and p. 171 note 9. Except that external relations between IGOs and non-governmental organizations will be discussed below in chapter 14.3.

8

scope and purpose

and NGO character, as a “mixed” or “hybrid” intergovernmental/private organization:11 The International Committee of the Red Cross is a non-governmental organization, but it has been given functions of public international law under the four Geneva-conventions and the additional protocols on international humanitarian law applicable to situations of armed conicts. The International Labour Organization (ILO) is an intergovernmental organization which brings together representatives of governments, employers and workers in a unique “tripartite” composition. The ILO is also empowered to produce new public international law in the form of treaties, mainly in the eld of international labour law.

1.3

Intergovernmental organizations: history, number, organs

The rst IGOs were international commissions set up by a small number of States for local, regional or ad hoc purposes. Important examples are the still existing international river commissions, which exercise a limited territorial jurisdiction on international rivers. The oldest still existing organization is the Central Commission for the Navigation on the Rhine.12 It was established rst in 1805 as a bilateral French-German commission. The chief organ was a directeur-général who, along with a number of subordinate ofcials, exercised wide legislative, administrative and, apparently, even judicial powers. This may have been not an IGO strictu sensu, but a joint organ of the two Empires, acting under their direct responsibility. It was re-established in 1815 by the Final Act of the Vienna Congress.13

11 A very different type of organization that could be mentioned here is the Internet Corpo-

ration for Assigned Names and Numbers (ICANN), which deals with assigning Internet addresses. Since 2002, government representatives have become increasingly involved in the organization’s work, and considerable powers have been allocated to the organization’s Governmental Advisory Committee, ibid. note 6 above p. 9. Such organizations with a mixed or hybrid legal character, which count on intergovernmental representation (as ILO), or which have been recognized as distinct international legal personality based in treaties (as ICRC), are covered by the common law described in the present book. 12 On the history of IGOs, see El-Erian’s First Report on Relations between States and Inter-Governmental Organizations to the International Law Commission at its fteenth session in Yearbook of the International Law Commission, 1963, p. 159; I. Seidl-Hohenveldern, Das Recht der internationalen Organisationen einschlisslich der supranationalen Gemeinschaften, 7th ed., Cologne 1996, pp. 16–43. 13 The assembly in 1814–15 that reorganized Europe after the Napoleonic Wars, see text in Martens, Recueil des principaux traités, VIII, p. 263. Cf. van Eysinga, La Commission Centrale pour la navigation du Rhin, Leiden 1935, and the historic summary in French and English in Annuaire Européen, XIV 1968, pp. 21–42 on the occasion of the 150th Anniversary. The Convention was revised in 1868, 1922, 1972 and 1979.

chapter one 9 The members of the Commission, appointed one by each member State, held their constitutive meeting in Mainz on 5 August 1816. The Commission got a full constitution in the Mainz Convention of 31 March 1831 and has its present basis in the Mannheim Convention of 14 October 1868, with minor amendments in the 1920s and in 1963. The Commission sat rst in Mainz, then in Mannheim and, since 1920, in Strasbourg. Other important examples – from 1856 and later – are the three Danube Commissions referred to below, in chapter 6.2, and the then so-called “administrative unions” or “international bureaux”, which later developed into modern IGOs, like the Universal Postal Union (of 1874) and the Bureau International des Poids et Mesures, established by the Convention du Mètre of 20 May 1875. However, the majority of IGOs were founded after World War I and II. Today they are much more numerous than the original subjects of international law, the States, and the number is steadily growing. Each of these organizations has an internal law – constitutional, administrative and procedural – which in its contents corresponds to the national public law of States. Most IGOs have a written constitution – usually laid down in a treaty between the member States. The bigger organizations will normally be set up with both a plenary organ, on which all members are represented, a more limited deliberative organ (council), which can meet more frequently, and a secretariat, as well as subsidiary organs (committees) of these principal organs. Some organizations also have (internal or even international) courts. The secretariat usually performs the organization’s external acts.

1.4

Types of intergovernmental organizations

There are many different types of IGOs – inter alia according to: a) Size (membership): Global, regional or bilateral; b) Purposes: Politico-general, (UN, Organization of American States, the African Union, EU), specic defence and/or security co-operation, (NATO, WEU (as later integrated in the EU), SCO,14 CSTO,15 ANZUS) – or specialized-technical (e.g. World Meteorological Organization);

The Shanghai Cooperation Organization (SCO) established in 2001 by Russia, China, Kazakhstan, Tajikistan, Kyrgyzstan and Uzbekistan with its permanent secretariat established in Beijing in 2004. See M. Al-Qahtani, Chinese Journal of International Law, Vol. 5 2006, pp. 129 ff. 15 The Collective Security Treaty Organization – CSTO (Armenia, Belarus, Kazakhstan, Kyrgyzstan, Russia, Tajikistan and Uzbekistan), signed on 7 October 2002 in Chisinau. 14

10

scope and purpose

c) Functions and powers: Consultative (Council of Europe, Association Of Southeast Asian Nations, ASEAN), operational (European Space Agency), regulatory for territory (Antarctic Mineral Resources Commission) or persons (Mixed Commission for the Exchange of Greek and Turkish Populations), for States (Organization for Economic Co-operation and Development, International Energy Agency) or generally (supranational organizations); d) Duration. Most organizations are permanent, but we also have some temporary IGOs, such as the bilateral Greek-Turkish Commission and the International Fusion Energy Organization (ITER).16 Indeed, IGOs may be classied by a number of criteria.17 However, most distinctions have little legal signicance with regard to the common internal and external law described the present book,18 except that certain parts of the book are irrelevant in respect of organizations of the type dépendant.

Global and regional organizations We have global organizations (organisations à vocation universelle) – like the UN and the Bureau International des Poids et Mesures – open for members from all parts of the world. And we have regional organizations (ententes régionales) – like the African Union, ASEAN, Organization of American States and the Council of Europe – open for members from one region only.19 We even have

16 ITER has an initial duration of 35 years which may not be extended by the States Parties

for more than 10 more years, see Article 24 of the ITER Agreement signed in Paris 21 November 2006 (as reproduced in the Ofcial Journal of the European Union vol. L 358 2006, pp. 62 ff. The now dissolved European Coal and Steel Community (ECSC) had a xed duration of 50 years (1952–2002). 17 The Union of International Associations describes in its yearbooks the development of various IGOs by type and function – inter alia by a membership criterion (universal, intercontinental or regionally oriented membership) and by type (conventional and special types), id note 3, and appendix 3, number of international organizations by type. 18 An example of legally insignicant distinctions is that between the UN and its specialized agencies, as the latter, too, are independent IGOs in voluntary co-operation with the UN and each other. 19 However, despite their nominations, the regional development banks (the Asian Development Bank (ADB), the African Development Bank (AfDB), the European Bank for Reconstruction and Development (EBRD), and the Inter-American Development Bank (IDB)) have a membership that extends beyond the scope of their operational domain as they are to a large extent funded by the same major industrialized States.

chapter one 11 some bilateral organizations – e.g. to regulate a border river or water levels of an international lake,20 or to oversee a peace accord.21

General political and specialized technical organizations We have general, political organizations – like the UN and the regional organizations cited above. These may in principle take up matters of common concern within any eld. And we have specialized or technical organizations – like the Specialized Agencies of the UN22 – which, according to specic provisions in their constitutions, are to work for limited purposes: Industrial, technical, economic, legal, relief, military or other. However, such provisions cannot prevent the organization from going beyond its stated purposes if no member objects. And neither the organization, nor external parties can invoke any transgression of the purposes stated in the constitution as a basis for wiggling out of their obligations under contracts, treaties or general national or international law,23 any more than States may do under reference to their constitutional provisions or those of other States. The specialized agencies of the UN and the Organization of American States (OAS) are independent IGOs and the relationship agreements they have concluded with the UN and the OAS are in the nature of agreements between equal partners, although they do confer upon the UN a few unilateral powers, notably the right to veto the admission of a new member to the agency, a provision which probably is no longer of practical importance, if it ever was. Otherwise, specialized agencies and the other types of organizations retain their full internal jurisdiction and external capacity as described in this book.

E.g. the US-Canadian International Joint Commission regulating the water levels of the Great Lakes, which was recognized with its distinct legal personality in Soucheray et al. v. Corps of Engineers of the United States Army et al., US District Court WD Wisconsin, 7 November 1979; 483 F. Supp. 352 (WD Wisconsin 1979). 21 E.g. the bilateral Greek-Turkish Commission. 22 Cf. van der Molen: Subjekten van Volkerecht, the Hague 1949, claimed that, while the UN has legal personality in international law, the Specialized Agencies and international river commissions have only limited (“beperkte”) or certain (“zekere”) legal capacities (“rechtsbevoegdheden”). She thus seemed to confuse capacity to perform different types of legal acts with the substantive matters they may relate to. 23 This does not imply that IGOs may exercise an extended jurisdiction (i.e. commit States or other intergovernmental organizations) beyond the extended powers delegated to the organization. 20

12

scope and purpose

Consultative, operational and regulatory organizations We have (a) consultative organizations (organisations de co-opération) – like the Nordic Council, the Council of Europe and, partly, the United Nations. Their basic functions are to meet, discuss and adopt non-binding recommendations, and draft treaties for voluntary accession. On the other hand, we have (b) operational organizations – such as international and regional banks, commodity organizations (like the International Coffee Organization and International Cocoa Organization) and the former International Maritime Satellite Organization– which operate services for the benet of member States and their inhabitants. And, more importantly from a legal point of view, we have (c) regulatory organizations, which make binding decisions for specic territories or categories of persons or for States. Several organizations, including the United Nations and its specialized agencies – combine tasks of more than one of these types. Finally, we have (d) the strongest type of IGOs – the supranational organizations, which, similar to federal States, in addition make decisions binding in member States, directly upon their nationals and inhabitants.

Organizations of intergovernmental organizations24 The members of these organizations are not States, but organizations of States. An example is the Agreement of July/August 1994 for the Establishment of the Joint Vienna Institute, between ve economic and nancial IGOs.25 This is open for accession “by such international organizations as may be decided by the Board” (Article XVI). Founding members were two regional IGOs (European Bank for Reconstruction and Development and the Organization 24 Another model of cooperation between IGOs is the establishment of a special intergov-

ernmental organization for the sole purpose of entering into structural cooperation with another, existing IGO. An example is the Georgetown Agreement establishing the group of African, Caribbean and Pacic States (the ACP Group) for the purpose of dening a common stand vis-à-vis the EC on matters covered by the successive ACP-EC partnership agreements, cf. Art. 2 (c) of the Agreement. To facilitate close cooperation with the relevant European institutions, the ACP Group is headquartered in Brussels. So too are the EFTA/EEA organs and joint organs between the EU and the EFTA/EEA States under the association agreement on the European Economic Area, cf. infra, note 25. 25 Another example is the joint decision-making procedure under the Agreement on the European Economic Area (EEA) in which the EEA Joint Committee is composed of the European Union (EU) on the one hand and the participating European Free Trade Association (EFTA/EEA) States, speaking with one voice, on the other hand, see Norberg et al., EEA Law, Stockholm 1993, pp. 127 ff. and Schermers and Blokker, op. cit., § 1799.

chapter one 13 for Economic Co-operation and Development (OECD)) and three global IGOs (Bank for International Settlements, International Bank for Reconstruction and Development and the International Monetary Fund). The constitution as formulated in the agreement on the Vienna Institute is parallel to those of organizations of States, but adds expressly that “the Parties shall not be responsible, individually or collectively, for any debts, liabilities, or other obligations of the Institute” and that this shall be stated also in any agreements which the Institute might conclude on privileges and immunities (Article X). It is no more strange that an organization of IGOs has a status similar to regular IGOs in respect of internal jurisdiction and external relations than it is for association of national non-governmental associations to have such status in national law.

Treaty organs Certain treaties concluded either independently from or under the auspices of an IGO may establish treaty organs to supervise or monitor State compliance with the provisions of the treaty, e.g. in the eld of human rights protection, protection of the environment or supervising disarmament agreements. Treaty organs normally report to the plenary organs of the IGO under whose auspices they operate and may be regarded as a category sui generis as they occupy a semi-autonomous position.26 Political and legal supervision by the IGO of such treaty organs of a judicial or quasi-judicial character does not extend to their performance of these functions. In all other respects treaty organs possess their own internal law as described in this book. It may sometimes be difcult to distinguish organs of IGOs from mere treaty administering organs set up by international agreements falling short of true international organization status.27

International tribunals The past two decades have produced a growth in the number and importance of judicial organs – tribunals and dispute resolution organs –

26 Cf. Churchill and Ulfstein, Autonomous institutional arrangements in multilateral envi-

ronmental agreements: a little noted phenomenon in international law, AJIL 2000, pp. 623–659. 27 Ibid. note 9 above, p. 7, note 27, cf. the cited commentaries concerning joint organs of free trade agreements.

14

scope and purpose

established to decide in cases involving international law and/or internal law of intergovernmental organizations. A large number of international tribunals are organs of the intergovernmental organization to which they are functionally assigned, such as the International Court of Justice (a principal organ of the United Nations, cf. Chapter XIV of the UN Charter and Article 1 of he Statute of the ICJ), the Court of Justice of the African Union (cf. Article 5 (d) of the Lomé Convention), The Permanent Tribunal of Revision of Mercosur (cf. Article 17 of the Protocol of Olivos), The Andean Community Court of Justice (cf. Article 6 of the Cartagena Agreement), The Court of Justice of the European Communities (cf. Articles 220–245 of the EC Treaty and Articles 35, 40 and 46 of the EU Treaty), The Inter-American Court of Human Rights28 and the European Court of Human Rights29 to give but a few examples. Other tribunals are intergovernmental organizations in their own capacity, such as the International Tribunal for the Law of the Sea30 and the World Trade Organization Dispute Resolution Mechanism.31 International tribunals differ from other (organs of) IGOs in that their judicial powers are separated and exercised independently from their powers as intergovernmental organizations, the latter e.g. including their competence to enter into agreements with States or other IGOs for the fulllment of their tasks. Most international tribunals exercise jurisdiction over (member) States based on their consent to submit such disputes to the extended judicial powers of the tribunal in question. Tribunals which are organs of an IGO, normally exercise jurisdiction over the legality of acts of the (various organs of the) organization in cases brought by member States (or other organs of the organization e.g. in disputes over competence to perform the contested act). Some tribunals have competence to hear individual petitions claiming that State acts violate provisions of a relevant instrument under the tribunal’s competence, or that acts of the organization violate its internal law. In those cases where an IGO exercises extended powers directly affecting individuals, internal tribunals of the organization represent an opportunity for them to have access to justice.

28 Cf. Statute of the Inter-American court of human rights adopted by the General Assembly

of the OAS at its Ninth Regular Session, held in La Paz Bolivia, October 1979 (Resolution No. 448). 29 Cf. Section II of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 with subsequent amendments. 30 See UNCLOS Art. 287 (1) and Annexes VI–VIII. States have the choice of using the ITLOS, the ICJ or arbitral tribunals under UNCLOS. 31 Cf. WTO Understanding on Rules and Procedures Governing the Settlement of Disputes, 33 ILM 1226 (1994), in force from 1 January 1995.

chapter one 15 Individuals and private entities may in those cases directly challenge the legality of acts of the various organs of the organization. Jurisdiction over individuals as such is however limited to international criminal tribunals, apart from the limited jurisdiction of administrative tribunals of IGOs in hearing disciplinary disputes concerning ofcials of the organization. In the eld of international criminal law, a permanent International Criminal Court (ICC) was established by the States parties to the Statute of the court – in force from 1 July 2002. In addition, several ad hoc tribunals have been established by the UN Security Council to exercise jurisdiction over specic situations constituting a threat to international peace and security. The rst ad hoc tribunal to adjudicate war crimes, since the Nuremberg and Tokyo tribunals were established by the victorious powers in the aftermath of World War II, was the International Criminal Tribunal for the former Yugoslavia (ICTY). The legal basis for the Tribunal was conceived in the following manner: In this particular case, the Security Council would be establishing, as an enforcement measure under Chapter VII, a subsidiary organ within the terms of Article 29 of the Charter, but one of a judicial nature. This organ would, of course, have to perform its functions independently of political considerations; it would not be subject to the authority or control of the Security Council with regard to the performance of its judicial functions. As an enforcement measure under Chapter VII, however, the life span of the international tribunal would be linked to the restoration and maintenance of international peace and security in the territory of the former Yugoslavia, and Security Council decisions related thereto.32

The same legal considerations pertain to the International Criminal Tribunal for Rwanda (ICTR) established by Security Council Resolution 955 (1994). Common to criminal tribunals competent to exercise criminal jurisdiction over individuals charged with grave international crimes, is the notion that they adjudicate on the basis of their own internal law, based on existing norms of public international law as set out in their constituting instruments, and that they possess no legislative power on their own, apart from that of establishing their rules of procedure. The International Criminal Court (ICC) differs from the ad hoc criminal tribunals mentioned above in that it is a permanent international criminal court not being created as a subsidiary organ of the UN, but with a close

32

Paragraph 28 of the report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993) presented 3 May 1993 (doc. S/25704) and approved in operative paragraph 1 of Security Council Resolution 827 adopted 25 May 1993.

16

scope and purpose

relationship with the UN Security Council.33 On the other hand, being a criminal tribunal, it enjoys the same judicial independence as the ad hoc criminal tribunals. Thus, the Assembly of States Parties assumes the functions of the ICC as an intergovernmental organization, whereas the other organs of the Court represent its judicial functions.34 Another legal construction is the so-called “mixed” or “hybrid” criminal tribunals, which may be described as tribunals with a necessary legal and functional basis both in the national legal system where the tribunal is set up, and in the international agreement which endows the tribunal with its international character. The Special Court for Sierra Leone,35 the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea,36 and the Special Tribunal for Lebanon,37 established by agreement between the UN and Lebanon pursuant to UN Security Council resolutions 1664 (2006) and 1757 (2007), are examples of mixed tribunals. The agreements between the UN and the

33

34

35

36

37

See K.S. Gallant; The International Criminal Court in the System of States and International Organizations, Leiden Journal of International Law, vol. 16 (2003), pp. 533–591 at p. 562. Ibid., p. 557. These organs are: the presidency, the appeals division, trial division and pre-trial division, the ofce of the prosecution – and the registry, which, similar to other courts, also functions as the general secretariat. For comparison, the ICJ Registry is tasked both with the administration of justice and of being the secretariat of an international organ. Its activities are judicial and diplomatic, as well as administrative. See the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, signed on 16 January 2002 pursuant to Security Council resolution 1315 of 14 August 2000. The Special Court for Sierra Leone has the power to prosecute persons who have committed a number of specied crimes under Sierra Leonean law and under international law. The Special Court and the national courts of Sierra Leone shall have concurrent jurisdiction, and the Special Court shall have primacy over the national courts of Sierra Leone (cf. Art. 8 of the Agreement). See the Agreement of 19 October 2004 between The United Nations and The Royal Government of Cambodia concerning the prosecution under Cambodian Law of crimes committed during the period of Democratic Kampuchea. The subject-matter jurisdiction of the Extraordinary Chambers comprises the crime of genocide as dened in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, crimes against humanity as dened in the 1998 Rome Statute of the International Criminal Court and grave breaches of the 1949 Geneva Conventions and such other crimes as dened in Chapter II of the Cambodian Law on the Establishment of the Extraordinary Chambers as promulgated on 10 August 2001. The Chambers are unique in that they are set up with a majority of national judges, cf. Art. 3 of the Agreement. As the situation referred to in resolutions 1664 and 1757 does not fall under international criminal law covered by the Statute of the ICC, the Special Tribunal for Lebanon is unique among international tribunals in that its material competence is limited to national (Lebanese) criminal law.

chapter one 17 State requesting assistance from the international community normally contain provisions on privileges and immunity for both national and international judges and other international personnel. The mixed tribunal model is seen as a way to provide full national participation and involvement in the trials while at the same time ensuring international standards and participation.38 On the other end of the spectrum, the War Crimes Chamber in BosniaHerzegovina and the Special Panels for Serious Crimes in Timor-Leste39 are examples of national tribunals with an international element,40 and the Iraq Tribunal can be seen as a national tribunal exercising jurisdiction over certain international crimes.41 The common law described in this book applies to international tribunals and to such mixed tribunals that have an international component, the latter also being organs under the national law of the host (or requesting) State. The law applicable to internal courts of intergovernmental organizations is dealt with below, in chapter 7.7.

International public corporations and mixed governmental and non-governmental organizations Pure commercial inter-State enterprises or corporations, companies or consortia are intermediate entities between IGOs and transnational corporations. The major distinction lies in the nature of its tasks; commercial or governmental However, it remains to be seen if this model will be applied also to any future situations where the complementary jurisdiction of the International Criminal Court (ICC) has been established. 39 The Special Panels were established under the auspices of UNTAET, cf., the UN Security Council Resolution 1272 of 25 October 1999 creating a United Nations Transitional Administration of East Timor “to which will be entrusted overall responsibility for the administration of East Timor, and which will be competent to exercise all legislative and executive functions, including the administration of justice”. Whenever sitting in judgment on the gravest crimes, the Dili district Tribunal was sitting in a special conguration, being composed of both Timorese judges and foreign representatives with the necessary legal expertise in such cases. The same legal basis in international territorial administration applies to Kosovo courts under UNMIK regulations. 40 Ofcially in operations from 9 March 2005 to alleviate the case-load of the ICTY, the War Crimes Chamber incorporated an international presence during its initial period of operation. Each judicial section includes two international judges and a national judge. The overall stafng of the Tribunal is also of mixed origin. Nevertheless, the international component is set to reduce over time to disappear completely by 2010. 41 On 11 August 2005, the Iraqi Transitional National Assembly approved a war crimes tribunal in Iraq, which was originally established by the US-installed Iraqi Governing Council. The court was mandated to prosecute numerous high level members of the former Iraqi regime accused of crimes against humanity, war crimes and genocide, but the main focus was on the most high-prole defendant: Saddam Hussein. 38

18

scope and purpose

character, e.g. either market regulators (commodity organizations with a “common good” objective of price stability or development assistance) or market operator (private cartels or prot-maximizing enterprises). In relation to the common law of intergovernmental organizations the purpose of the entities or organs of an organization may be decisive both to the question of whether or not a distinct IGO has been established, and to the question of the extension of privileges and immunities granted under national law.42 International public-private partnership may be referred to as a system in which a governmental service or private business venture is funded and operated through a partnership of government and one or more private sector entity. The involvement of IGOs in partnerships or in private sector project funding does not by itself alter the organization’s character of an intergovernmental organ. On the other hand, there are examples that existing IGOs providing services, e.g. in the form of access to an international infrastructure, may reach a stage of development where market operations take precedence over the organization’s original task of facilitating or constructing a new international infrastructure.43 A shift in focus and functions may lead to a re-establishment of an entity in a more appropriate organizational form. The common law presented here also applies to governmental functions exercised by “mixed” governmental/non-governmental type of organizations – exemplied in the eld of telecommunications and positioning services by satellite, such as the Galileo Global Navigation Satellite System (which was originally set up as an international public private partnership), the former European Telecommunications Satellite Organization (Eutelsat)44 and the former International Maritime Satellite Organization (Inmarsat).45 These organizations were typically established by two international agreements: A “convention” between the governments (alternatively a decision of an IGO)

42 See Seidl-Hohenveldern, Corporations in and under International Law, Cambridge

1987. In 1998 the assembly of member States decided to privatize Inmarsat from April 1999 as the rst intergovernmental organization to be incorporated as a private entity, and to create a new intergovernmental body (International Mobile Satellite Organization (IMSO)) to ensure that the new Inmarsat plc. continue to meet its public service obligations. Similarly, Intelsat, created 20 August 1964 as an intergovernmental organization, was privatized 18 July 2001. Cf. also the resolution adopted by the Institut de droit international in 1985 on “The Law Applicable to Joint International State or Quasi-State Enterprises of an Economic Nature”, dened as acting for purposes of general economic interest principally through private law procedures (Art. 1 (b)), and which may be established by a treaty, by a decision of an international organization or any other act (Art. 2). 44 The operations and activities of the intergovernmental organization Eutelsat were transferred to a private company called Eutelsat S.A. in July 2001. 45 Cf. supra note 43. Inmarsat was founded as an IGO in 1979 but privatized in 1999 as a commercial service provider. 43

chapter one 19 and an “operating agreement” between the national operators, which may be governmental in some countries and private companies in others. The operating agreements contain mostly nancial provisions, while the organizational provisions are contained in the intergovernmental agreements, which establish a plenary organ (Assembly) where governments are represented, and a Council, where the national operating agencies, which provide the capital, are represented and vote in proportion to their respective investment shares. It is the Council which makes the operational decisions – economic and technical – while the Assembly mostly exercises limited supervisory powers. This split has not prevented the organizations of this character from functioning as a regular intergovernmental organization and a subject of public international and private law – both with regard to internal jurisdiction and external relations.

Temporary intergovernmental organizations We also have temporary IGOs. These, too, fall under the common law, if their organs do not by their acts commit the several member States (as joint organs) or the host State only – although parts of the common law may have no practical signicance because the questions do not arise. An example of such temporary IGOs is conferences which run over a series of sessions, and have their own organs, including a continuous secretariat, which frequently is managed by the host State. Another example is the joint Vienna Institute referred to above. Article XV of its constitution provided that “the duration of this agreement shall be ve years form the date of coming into force unless the Parties unanimously decide to extend the duration of this Agreement by one or more successive periods of twelve months”. Thereupon “the Parties shall forthwith wind up the Institute”. The parties could even terminate the Agreement and wind up the Institute earlier if all agree.

Organizations “type dependant” A weak type of IGOs are organizations of the so-called “type dépendant”. Most IGOs have their own international secretariat established in a host country. However, for several old organizations established around and after the former turn of century, the member States did not establish an international secretariat, but entrusted the secretariat functions to the government of a member State, which then normally appointed special ofcials to perform the work. Many of

20

scope and purpose

these organizations have since established their own international secretariats and become regular independent organizations, such as the Universal Postal Union and the International Telecommunications Union. In addition, even at present, if States want to establish a very modest or a temporary organization, e.g. a permanent or semi-permanent conference of governmental representatives on a specic subject, they frequently nd it convenient to entrust the secretariat functions to a permanent host State, alternatively on a rotation basis.46 Organizations of the type dépendant do not themselves exercise legislative, administrative and judicial powers over the secretariat and its members.47 But the plenary organ retains normal powers vis-à-vis other deliberative organs. Externally, the host State normally acts for the organization – but on its behalf and in its name. Thus, the common law described in the present book is largely applicable also to organizations of the type dépendant in their external relations, but major parts of the description of the organization’s internal law are not relevant. There are also some IGOs which are not, or no longer, of the dependent type in the above sense, but which in one or more particular respects are dependent upon the government of the host country. Thus, under Article 6 of the Statut organique of UNIDROIT, the President of the Conseil de Direction of that organization is appointed by the Italian Government. However, such organizations, as well as those of the dependent type stricto sensu, are independent in all those respects in which no special powers have been conferred upon the government of the host country.48 Such conferences may develop into regular IGOs. Thus GATT (the General Agreement on Tariffs and Trade) functioned as conferences, before it – without even altering its name – developed into a full-scale specialized agency of the UN. The Conference on Security and Co-operation in Europe (CSCE) was established in the early 1970s as a multilateral forum for dialogue and

46 The G7/G8 meetings are held on a rotation basis with no permanent secretariat. 47 See the now repealed Swiss Statute of 31 January 1947 on international ofces placed 48

under supervision of the authorities of the Swiss federation. Another example is the Extractive Industries Transparency Initiative (EITI) whose secretariat was hosted by the Department for International Development (DFID) in the United Kingdom, but which at the time of writing is being set up as an independent legal entity located in Oslo, Norway. EITI is also an example of public private partnerships. It is open to question whether the Arctic Council, established by the declaration of the foreign ministers of the Arctic States in Ottawa 1996, counting on a rotating secretariat, which at the time of writing is located in Tromsø, Norway as part of the Norwegian presidency of the Council for the period 2006–2008, is an organization of the type dépendant, see further J. Klabbers, Soft Organizations in International Law, Nordic Journal of International Law, Vol. 70, 2001, p. 405 and note 11.

chapter one 21 negotiation between East and West. CSCE functioned mainly as a series of meetings and conferences that built on and extended the participating States’ commitments, while periodically reviewing their implementation. By the 1990s, the CSCE developed (by objective criteria) into an intergovernmental organization which was also reected in the decision in 1994 to change its name to the Organization for Security and Co-operation in Europe (OSCE).49

The common law applies to all types of intergovernmental organizations All these different types of organizations are independent intergovernmental organizations and are, both in their internal and external relations, governed by the same common law, described in the present book, unless their constitutions make special deviating provisions. The supranational organizations, although they have powers which go far beyond those of other organizations, also possess the same internal and external powers as other IGOs vis-à-vis their organs, ofcials, member States and the representatives of the latter, and of external parties and are in so far governed by the same common law as other IGOs. Special problems of special types of IGOs will not be examined in the present book on common law of IGOs, except those of IGOs exercising extended jurisdiction.

1.5

The common internal and external law

The common law of intergovernmental organizations50 is not normally found in the constitutional or other conventions between the member States, but in customary law developed in common by the numerous existing IGOs. The present book is conned to matters where such customary law has been developed (except for the survey of the extended jurisdiction which is exercised by some organizations only and which requires some other legal basis). The common law exists on all three levels on which IGOs have legal relations:

49 50

Cf. below, chapter 2.3. Judge Badawi Pasha, in his dissenting opinion on Reparation for Injuries Suffered in the Service of the UN, stated: “There is in fact no common law for international persons” (ICJ Reports, 1949, p. 205). Even the majority did not derive the capacity for the UN to present an international claim from common law, but from “implied” powers of the UN. However, the Court dropped that ction in 1962 (ICJ Reports, 1962, p. 108).

22

scope and purpose

a) Internally, with and between their members51 and organs. This internal law is dealt with in Part Two. b) Externally, with States and other subjects of public international law. This law is dealt with in Part Three. c) Externally, with private persons and other subjects of national (private) law (often referred to by the misleading term “municipal law”).52 This is dealt with in Part Four on conict of laws. In the latter case (c), as well as in the rst case (a), we are concerned, not with one, but with several distinct legal systems. But even here the important basic law is in fact common. In Part Two on internal law we are concerned with genuine jurisdiction (legislative, administrative and judicial) exercised unilaterally by the organization – a parallel to the public law of States. In Parts Three and Four we are concerned with voluntary bilateral relations between equal parties on the basis of legal capacity. Confusion has arisen from the fact that in the imprecise English language both jurisdiction and capacity are referred to as “powers” and that writers have brought these two very different matters under one hat as “implied powers”. Important parts of the internal law are laid down in the constitutional conventions and other legal texts of each organization concerned – and thus differ in many respects from one organization to the other. These non-common aspects fall outside the scope of the present book, except that we shall survey the different types of extended jurisdiction which several organizations exercise over territory, private individuals or States – in order (1) to complete the presentation of the common law of IGOs and (2) to demonstrate that it is only this extended jurisdiction which requires a specic legal basis (parallel to the “principle of legality” which applies in the national law of democratic States), but (3) that even this legal basis does not have to be found or “implied” in the constitutional convention of the organization, as maintained by some legal writers. – It should also be mentioned that, in addition to the common customary law of IGOs, there may easily develop special customary law within a particular organization. The classical example is the effect of the then Soviet Ambassador Gromyko’s abstention at a vote in the early days of the Security

51 Cf. Bengt Broms: The Doctrine of Equality of States in International Organizations, 52

Vammala 1959. However, the (Vienna) Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960/16 November 1982, Arts. 11 and 14 uses the adequate term “national law”.

chapter one 23 Council. The effect of abstention was thereafter established as a rule of the organization.53 The organization’s external law is normally not laid down in the written instruments of IGOs (except that many organizations have express provision for legal personality in national law). Here, IGOs are subject to regular customary public and private international law. The special problems which arise in adapting this law to IGOs have been solved in a customary law common to all IGOs. This law is described in Parts Three and Four of the present book. The external law and basic parts of the internal law are thus not normally found in constitutional and other conventions between the member States, but in customary law. This is then common law in a double sense: In the sense of general law for the several IGOs and in the Anglo-Saxon sense of customary law. The term “The Common Law of International Organizations” was used also by Elihu Lauterpacht, as a heading of Chapter II of his Hague lectures on “The Development of the Law of International Organizations by the decisions of International Tribunals”,54 where he concluded that the cases he cited: . . . show quite clearly, in relation to international instruments that the practice which has accumulated around other documents of a similar kind cannot be ignored. They show also that a similar approach has been applied to the interpretation both of international constituent instruments and of other legal documents relevant to the structure and operation of international organization. In this not inconsiderable sense one may properly speak of a “common law of international organizations”.

Although recognizing that there is a common law, he, like most other writers, appears to start out from an interpretation of constitutional instruments even when these contain no relevant provisions – via the ction of “implied powers”. The present book, however, starts out from and describes the general customary common law which has developed in practice for external relations and those basic parts of internal relations where constitutional provisions do not normally exist. This law has been developed in common by the ever increasing number of IGOs. It differs in several basic respects from the theoretical points of departure of the vast majority of writers.

See discussion in Simma (ed.), The Charter of the United Nations, Oxford 1995, pp. 447–453. 54 Recueil des cours de la Haye, 1976 IV, pp. 381 ff. at p. 402. 53

24

scope and purpose

First, we shall see that there is no support in practice for the surprisingly general assumption in legal theory that an IGO can do, internally and externally, only what is provided, expressly or “implied”, in its constitutional convention. The implied concept was overruled by the International Court of Justice already in 1962 in favour of the present writer’s submission of inherent powers. However, this change was not discovered by many legal writers, who continue to ction “implication” in each particular constitution. This may be stretched to cover anything, and has therefore effectively prevented identication of the limits which apply to the internal and external powers which are inherent in all IGOs under common customary law, as described in the present book. Nor is there support in practice for the view defended by some writers that the internal law of IGOs is part of public international law; on the contrary it is parallel to national law in all basic respects: Subjects, sources, hierarchical levels, and, most important, its effects in national law. In particular, the internal law is governed by the basic “principle of legality” which governs the national law of democratic States. Thirdly, we shall see that, in addition to the well known territorial and personal jurisdiction (in internal and public international law) and the ditto connecting factors (in private international law) there is an important, third, organic jurisdiction which both States, IGOs and other self-governing communities exercise under customary law over their organs and ofcials as such and which, within its important eld, takes precedence over the territorial and personal jurisdiction, even if the two latter jurisdictions are combined in the same State. Similar confusion has arisen in conict of laws from writers ignoring the corresponding organic connecting factor, which within its important area takes precedence over the well-known territorial and personal connecting factors. Legal theory cannot offer the necessary guidance as long as it ignores these basic distinctions which are consistently made in practice, between internal and external law, between general inherent and special extended jurisdiction, between territorial, personal and organic jurisdiction (in internal law) and between the ditto connecting factors (in conict of laws). As for the latter, writers have tended to ignore the internal law of the organization and rather seek a substitute in the law of the host country when the conicts law refers to the law of the organization.

Internal law of IGOs as distinct legal systems parallel to national, not international law As described above, all IGOs (except those of the type dépendant) exercise inherent jurisdiction over their organs and ofcials and other members of the organs

chapter one 25 as such, and some organizations also exercise extended jurisdiction over territory and/or persons and States. This gives rises to an internal law for each organization. That law has in legal writings been considered part of public international law,55 although most writers now recognize the hierarchically lower part of the internal law as being distinct. In fact, the entire internal law is a distinct legal system for each organization, like national law, which is a distinct system for each State. It is also in substance more parallel to (public) national law of States than to public international law, but the writers falsely apply principles of international law also to internal IGO-law, instead of drawing them from national (public) law, which is the proper analogy. The confusion of the internal law with public international law has led legal writers to draw false analogies to internal law from international law. As for court practice, the then Permanent Court of International Justice stated in the Serbian Loans case that there are only two legal systems and “any contract which is not a contract between States in their capacity as subjects of international law is based on the municipal law of some country”. However, this was a mere dictum, as the case itself did not concern IGOs and, moreover, was decided before IGOs had become as well-known actors as they are today. But post-war court practice makes the distinction. Already in 1962 the International Court of Justice, in its advisory opinion on “Certain Expenses of the UN”, did not identify any “internal law”, but did distinguish between “the internal plane” and effects in respect of third parties.56 The tendency to clarify the internal law of IGOs as international law has led to erroneous contentions based upon false analogies from international law.57 Also the tendency to refer to the internal law of IGOs as “international administrative law” may be conducive to confusion, because it, too, gives the impression that it is one legal system for all IGOs and perhaps even part of public international law. Even a prominent practitioner like Jenks, who originally introduced the appropriate term “domestic law of international organisations” and who appropriately pointed out many of its relations to “municipal” administrative law, spoke mostly of “international administrative law” as an “integral part of public international law” – and of “a body of

Thus Batiffol and, very emphatically, Mann. A.H. Schechter: Interpretation of Ambiguous Documents by International Adminstrative Tribunals, London 1964, compared the administrative tribunals with (each other and) traditional international law, but not with national constitutions and national administrative tribunals. 56 ICJ Reports, 1962, p. 168. 57 Director-General of UNESCO and the United States in Judgment of the Adminstrative Tribunal of ILO upon complaints made against the UNESCO. 55

26

scope and purpose

international administrative law”.58 The latter formulation reects the reality that the internal law is to a great extent made up of a customary law which is common to all IGOs which do not have deviating provisions. The internal law of IGOs is thus to a great extent lled by a customary law which in fact is common to all IGOs which do not have special deviating provisions or practice. However, formally, the internal law is a separate legal system for each organization, as national law is for each State. And it is via its rules on conict of laws, not via incorporation in national law, that the internal law of an IGO is applied by national courts – this is an important difference. However, even the existence of any deviating provision in internal IGO law may not be sufcient to overturn the principles of international (or global) administrative law which must be regarded as norms pertaining to the common law of intergovernmental organizations, typically in respect of relations between the organization and third parties. The internal law is parallel to national (public) law, rather than to (public) international law, also in nearly all other respects: The internal law comprises, in all organizations, constitutional and administrative law – and in many organizations also procedural law. It governs: (a) Matters falling under the organic jurisdiction, i.e. relations with, between and within the organs of the organization and the members of the organs (including representatives of members) as such. This includes the constitutional and administrative law relating to the deliberative organs (e.g. rules of procedure) and the secretariat (e.g. staff regulations and rules) and any courts or other judicial organs of the organization. (b) Organizational59 relations with the members as such, e.g. budgetary contributions. (c) Substantive matters falling under the extended jurisdiction of some organizations, i.e. relations with and between member States and/or private parties, in case of organizations which have been granted (or exceptionally assumed) powers in respect of States, territory and/or groups of individuals. These relations differ in substance from those governed by international law (this is to a great extent true even of the relations with member States and

Jenks; The Proper Law of International Organisations, London 1962, pp. xxxi–xli, especially p. xxxix, and pp. 128–129, italics added. 59 The term “administrative” is also used, but this term can also be reserved for the distinction between legislative, administrative and judicial (governmental) powers. 58

chapter one 27 their representatives). Thus the rules governing the composition, procedure and powers of the organs are more analogous to the constitutional and administrative rules in States than to the relations between sovereign States governed by international law, not to mention the relationship of the organization with its ofcials, or with inhabitants of a territory under its jurisdiction. The internal law governs to a great extent, or even mostly, subjects other than the traditional subjects of international law (the self-governing communities). In addition to relations between the organization and member States as such, it governs relations with, within and between organs and their members (representatives, ofcials) as such, and in some organizations also relations with private individuals. This has given several writers who ignore the distinction between public international and internal law a false occasion to vastly exaggerate the position of individuals as subjects of public international law. However, none of these are subjects of public international law, which must be dened as the law governing relations between (not within) self-governing communities. As will be demonstrated in the following parts of the present book, customary law is a very important source of the internal law. However, only the customary law developed or recognized in the practice of the particular organization concerned has a status equal to the other, written sources. Only if neither of these offer guidance, the common customary law developed within IGOs generally will be applied – in the absence of specic sources for the organization concerned. An express and concrete list of sources is found in Article III of the Statute of the UNRWA Special Panel of Adjudicators (of which the present writer was an initial member) of 5 December 1983: 1. The Panel shall apply: (a) the terms of employment, including all pertinent Regulations and Rules in force at the time of the alleged non-observance (b) the general principles of law. 2. The panel shall be guided by the jurisprudence of the Administrative Tribunal of the United Nations. It may also be guided by the jurisprudence of other international and national administrative tribunals (italics added).

The reference in 1 (a) to “Rules in force at the time of the alleged non-observance” illustrates the legislative as opposed to the contractual aspect. The reference to “general principles of law” refers to national and IGO administrative law. And the reference to “the jurisprudence of other international and national administrative tribunals” refers to national and IGO courts. In public international law the sources are hierarchically equal – the later source takes precedence over the older, whatever its nature. Internal law,

28

scope and purpose

however, like national law, has different hierarchical levels. The constitution – if embodied in a treaty – can in principle be amended only by treaty (and not by any “treaty”). The internal law is applied externally in the same manner as national public law under general rules of conict of laws, which will be discussed below, in Part Four. However, this application is limited, because normally IGOs have only public law, except that supranational organizations like the European Community also have a limited private law, which invokes application also of the better known parts of conict of laws (private international law). The appropriate term “internal law” was rst introduced in practice by the Administrative Tribunal of the League of Nations in its rst judgment in 1929.60 Two years later the Italian Court of Cassation, in Proli v. International Institute of Agriculture spoke of the self-sufcient “particular system of the Institute” and stated that it “must be self-sufcient”.61 The rst writers known to distinguish the internal law of IGOs from public international law were the Austrian professor Alfred Verdross and his (abbreviated) Danish namesake Alf Ross. They described the internal law, respectively, as “internes Staatengemeinschaftsrecht” (“intern statsfellesskapsrett”). Later Adam spoke plainly of the “droit interne propre de l’organisation Internationale”.62 However, like most other writers, he included in this concept only regulations, not the constitution. On the other hand he maintained that the internal law governs not merely “la situation juridique du personnel”, but also “les actes conclus avec d’autres individus, collaborateurs volontaires de l’organisation, tels que les fournisseurs, les entrepreneurs, etc.”. Relations with ‘fournisseurs’ and ‘entrepreneurs’ are, in the view of the present writer, usually external relations governed by national law, cf. Part Four below – references in the contracts to regulations of the organizations may merely make these contractual terms. Similar terms were used by Philippe Cahier in his now classic article in 1963 on “Le droit interne des organisations Internationales”, by Georg Ress (“das so genannte interne Recht internationaler Organisationen”),63 by Amerasinghe64 and by di Palma Castiglione v. ILO. Rivista di diritto internzaionale, Vol. 23 (1931), pp. 386–91. “Les accords de prêt de la Banque Internationale pour la Reconstruction et le Développement”, in Revue général de droit international public, LV (1951) at p. 56 in ne. 63 “Die Bedeutung der Rechtsvergleichung für das Recht internationaler Organisationen” in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, XXXVI (1976), pp. 227–79. 64 “The Internal Courts and the Internal Law of International Organizations, with special reference to the World Bank Administrative Tribunal” and “The Implications of the Merode Case for International Administrative Law” in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, XXXIII (1983) at pp. 9–13. 60 61 62

chapter one 29 Bernhardt and Miechseler. The present writer, too, has used “internal law” and/or, for brevity, “IGO law” since the 1960s. Barberis uses the term “el ordenamento juridico de las organicaciones internacionales.”65

1.6

Delegated, implied or inherent powers? “Interpretation” of constitutions or customary law?

The basic point of departure for nearly all writers is that an IGO, in contrast to States and other self-governing communities which are subjects of international law, can only do – internally and externally – what is provided in its constitutional convention (or in other treaty between the member States). In its original form this doctrine of delegated powers was presented by Hans Kelsen and in practice by the conservative American judge Hackworth in his dissenting opinion in the 1949 ICJ Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations: There can be no gainsaying the fact that the Organization is one of delegated and enumerated powers. It is to be presumed that such powers as the Member States desired to confer upon it are stated either in the Charter or in complementary agreements concluded by them. Powers not expressed cannot freely be implied. Implied powers ow from a grant of expressed powers, and are limited to those that are “necessary” to the exercise of powers expressly granted.66

By “powers” these two meant not only jurisdiction, but also international (and legal) capacity to act as an equal partner. The prominent German (i.e. Roman law) lawyers who edited a major modern publication: “The Charter of the United Nations”67 apparently felt that the International Court of Justice went very far in respect of power for the UN even before 1962, but claim that the UN and the Charter in so far is in a special position not shared by other IGOs. However, there is no basis in practice for holding that other IGOs have more limited inherent powers than the UN. Most non-Roman law-writers have no problem seeing that in practice IGOs are not conned to what is provided in their respective constitutions,68 65 Los sujetos del derecho internacional, Madrid 1984, pp. 81–87. 66 ICJ Reports, 1949, p. 198. 67 Bruno Simma et al., The Charter of the United Nations, Oxford 1994, p. 26. 68 E. Suy, in an article on peace-keeping operations in R.J. Dupuy (ed.): Manuel sur les

organisations internationals, Dordrecht 1998, at pp. 542–8 “on Constitutional Aspects of Peace-keeping Operations” discusses the (weak) relationship to several provisions of the UN Charter, without getting involved in “implied” – not to mention inherent – power.

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but that, indeed, most of the acts they perform are not so authorized. However – instead of introducing the relevant distinctions and turning their point of departure partly around – writers (and the majority of the International Court of Justice69 prior to 1962) merely modify the doctrine of delegated powers into “implied” powers. They then pretend – or ction – that each (internal and external) act is based and depends upon a power “implied” in the constitution of the particular organization concerned, i.e. what its authors are supposed to have had in mind. This restrictive principle was in fact adopted even by the International Law Commission and the second Vienna Conference on the Law of Treaties.70 The International Court of Justice on the other hand, abandoned the ctitious application of “implied powers” already in 1962 when it stated that “the presumption is that the Organization has the power”. It is not necessary to provide that the organization may “(a) address communications to non-member States or organizations; (b) establish and maintain relations with non-member Governments or organizations to participate in activities of the Organization”, as done in Article 12 of the constitution of the Organization for Economic Co-operation and Development; any IGO can do that. However, the writers neither indicate any limits for such “implied” powers, nor do they give examples of acts that would not be “implied” nor indicate any differences between the various organizations that would be a logical consequence of their point of departure. Instead, in order to avoid a conict with practice and to escape the consequences of their point of departure without admitting its falseness, the formula of “implied powers” has had to be applied whenever the need was felt – in such a wide, ctitious and undened manner that it offers no guidance, merely an escape from the false point of departure. The contents, or outcome, of the formula are unpredictable, and this is why it has been chosen. The doctrine of “implied powers” has thus prevented identication in legal theory of the relevant rules and distinctions and of the delimitation which has been established in customary law between such powers as are inherent in all IGOs and those which do require specic authority, or which, only exceptionally, is implied in a genuine sense in their relevant provisions. Indeed, it is impossible to identify the real views of writers on any limits of what is “implied” as long as the writers perform any kind of gymnastics to pretend that the power is “implied” in the constitution of the organization concerned and, in particular, as they avoid giving concrete examples of internal and external acts whose performance would not be

69 ICJ Reports, 1949, p. 198. Cf. pp. 205 and 182 and ICJ Reports, 1954, pp. 56–57. 70 Cf. Art. 6 of the 1986 Vienna Convention on the Law of Treaties between States and

International Organizations or between International Organizations.

chapter one 31 “implied” in the constitution and avoid stating whether such acts would be invalid. Legal writers thus retain the point of departure that the powers of IGOs – both their internal jurisdiction and their external legal capacity – must be laid down in their respective written instruments, and have resorted to far-fetched, undened and unlimited applications of the principle of “implied powers” in order to escape the consequences of that point of departure without admitting its falseness Practice, on the other hand, has established clear distinctions and limits between those powers which are inherent in all IGOs; organic and limited organizational membership jurisdiction, plus external legal and international capacity (personality), and those powers which require a rm legal basis, in the constitution or otherwise. This practice constitutes clear customary law, common to all IGOs which do not have contrary provisions. In addition to this common customary law, we also have special customary law developed in and for specic organizations. It is not surprising that writers from Roman law countries on the European continent and in Latin America take a restrictive view of legal and international personality (and then are forced to resort to ctitious escapes), because under Roman law legal personality requires a legislative basis. However, even these writers appear to attempt to avoid denying personality in concrete cases. Nor was it a surprise that the former communist countries took a restrictive view, because, being in a minority in global organizations, they wanted to limit the powers of such organizations. It is more surprising that even Anglo-Saxon writers support a restrictive view in international law, despite the fact that they (like Scandinavian writers) are well familiar with legal persons of common law in their own national law. Even the International Court of Justice used the doctrine of “implied powers” in its advisory opinions of 1949 and 1954 – until it in 1962 turned to the contrary principle of inherent powers71 submitted to the judges by the present writer.72 However, the majority of writers73 never discovered this turnaround; they still stick to the false point of departure and then escape via “implied” powers. A different, and seemingly wider, but in reality more restrictive formula than “implied powers” is Bekker’s “strictly necessary” for the exercise of the organization’s functions in fulllment of its purposes, which he applies to legal

ICJ Reports, 1962, at p. 168. In the form of the proofs of his article subsequently published in Österreichische Zeitschift für Öffentliches Recht und Völkerrecht, Vol. XII (1962), pp. 188–229. 73 An exception is N.D. White: The Law of International Organisations, Manchester 1996, pp. 131–3, cf. pp. 128–31 (on “implied” powers), who supports the present writer’s concept “inherent powers”. 71 72

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personality of national law.74 Indeed, while “implied powers” can be stretched to cover anything (or nothing), “strictly necessary”, if it were to be applied, would rule out the majority of acts, despite the fact that they are never challenged in practice. However, here, too, it would have been necessary to see concrete examples of acts which are not considered “strictly necessary” and the legal consequences drawn there from to see to what extent his concept in fact deviates from customary international law, which covers acts designed to serve the purposes of the organization.75 A study of national jurisprudence has revealed that courts are very reluctant to use the consequences of a strict functionally limited personality concept which would provide them with a tool to abstain from adjudicating disputes involving intergovernmental organizations. As noted by Reinisch, “They have not accepted the offer made by learned authors who argue that international organizations cannot act beyond the scope of their functional personality with the result that any such (attempted) acts would be non-attributable to the organization. In fact, an explicit reliance on such a concept is totally exceptional”.76 There is also movement even in legal theory, notably among Anglo-Saxon writers. Thus, E. Lauterpacht recognizes the existence of a common law,77 but he appears to remain faithful to the traditional point of departure inasmuch as he describes it as a similar “interpretation” of international constitutional instruments and other legal documents in his Hague lectures cited above. Even this similar “interpretation” doctrine may conceal the fact that we are faced with an important basic common law which has developed in practice as common customary law. That law lls important basic gaps in the internal and external law of IGOs and it is unnecessary, impossible and misleading to attempt to derive that law from a fanciful interpretation of the constitutional or other provisions of each particular organization, which never were intended to cover the matter.78 It is plain common customary law.

74 75

76 77 78

P. Bekker: The Legal Position of Intergovernmental Organizations, A Functional Necessity Analysis of Their Legal Status and Immunities, Dordrecht 1994. At any rate Bekker expresses clear disagreement with the views of the present writer, although partly on the basis of a too wide presentation of those views, notably op. cit., pp. 81 ff. Cf. A. Reinisch, op. cit., note 9 above, p. 83. Similarly, E. Arroyo Lara describes “los elementos communes de las organizaciones internationales” citing inter alia the present writer. Akehurst has adequately stated that “it is no exaggeration to say that the whole history of the Charter of the United Nations has been a series of disputes about the correct interpretation of the Charter”, Modern Introduction to International Law, 6th ed., London 1987. This reects the political use that has been made of the interpretation doctrine.

chapter one 33 And it is this customary law which is the subject of the present book, which shall describe and analyze practice and then establish the basic rules that apply to IGOs. Leaving aside general diffuse formulations like “implied” and “necessary”, we are then free to identify the relevant basic distinctions which have developed in practice as customary law, common to all IGOs which do not, exceptionally, have deviating provisions. The need for a ctitious escape through the vague and undened concept of “implied powers” then dwindles away. It is not merely unnecessary – but also misleading. A basic general task for the present book is to demonstrate and delimit those internal and external powers which all IGOs possess automatically; inherent internal jurisdiction, cf. Part Two, and inherent external capacity, cf. Parts Three and Four, against those which require specic authority; extended jurisdiction, cf. chapter 6. However, we shall see that even this specic authority need not be found in the constitution of the organization concerned. It may be found in other treaty or a unilateral act. In other words, the current point of departure in legal theory is false even here, as compared to practice. These are important elements both in internal law and in public international law. The basic distinctions between inherent, implied and delegated powers are further elaborated and put together below in chapter 3. It is no use to attempt to deduce those powers which under customary law are inherent in all IGOs (that do not have contrary or restrictive provisions) from a fanciful interpretation of irrelevant (or lacking) constitutional provisions that never were intended to deal with the problem. Only when there is a question of imposition of new obligations upon parties which also have a legal existence outside the organization is a special legal basis required – but even then not necessarily in the constitutional convention – any treaty or unilateral act by the parties concerned will sufce.

1.7

Terminology

In the present book, the following legal terms are used in the following sense: 1)

2)

International organization, organization and IGO is all used as meaning an intergovernmental organization – i.e. an organization of States or State organs. The terms do not include national or international non-governmental organizations (NGOs and INGOs). Constitution is used for any treaty or other agreed text (resolution) by which the organization is set up and governed. Some writers have used “founding treaty”.

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scope and purpose

3)

Secretariat is used for the administrative branch of the organization. Secretary-General, Director-General and other personal titles are used only when the reference is to its head in person. However, conventional and other texts sometimes use such personal titles for the entire organ. National law and national courts are used referring to States. Most writers refer to these as “municipal” (or “domestic”) laws and courts; however, we are not concerned with municipalities. The present writer uses the term internal law for the internal law of each IGO. As described in Part Two, this is a distinct legal system for each organization and is not part of public international law, except for its higher part (the constitution) which has a double status. The internal law is in substance parallel to national public law in most basic respects: Subjects, sources, hierarchical levels and application by national courts. However, the International Law Commission (ILC) and the Vienna Conference on the Law of Treaties have confused matters considerably by introducing the term “internal law” for national law and then having to invent the curious (and linguistically narrow) term “rules of the organization” for internal IGO law. This terminology is fortunately largely ignored in practice, and is not used in the present book. In its work on responsibility of International Organizations, the ILC again reject the term “internal law” of the organization on the consideration that the term has both an internal and an international aspect, and prefer instead to keep the term “rules of the organization”.79 But also the term “rules of the organization” includes the organization’s “constituent instrument”, which typically has a double, internal and international, function.

4)

5)

In addition, in order to ll important gaps, it is necessary to make certain basic distinctions (described below, in chapter 3) and to introduce some corresponding new terms: 6) Organic jurisdiction: As explained below, in Part Two, this jurisdiction comes in addition to the well-known territorial and personal jurisdiction. It covers the exclusive legislative, administrative and judicial jurisdiction which all States, IGOs and other self-governing communities under customary law exercise over their organs and the members thereof as such if not otherwise provided. Correspondingly, we have the

79

Cf. ILC’s Second report of the Special Rapporteur on responsibility of international organizations, doc. A/CN.4/541, 2 April 2004, pp. 8–14 on p. 10. Other frequently used terms are international institutional law and international administrative law.

chapter one 35 7) Organic connecting factor, which comes in addition to the well-known territorial and personal connecting factors. This implies application of the law of each State, IGO or other self-governing community to matters concerning its organs, irrespective of territorial or personal attachments. Within its area the organic connecting factor takes precedence over the well-known territorial and personal connecting factors. 8) Inherent powers include jurisdiction and international (and legal) capacity which all States, IGOs and other self-governing communities exercise as a matter of general customary law – i.e. without specic legal basis – unless there is a contrary provision. 9) Inherent jurisdiction comprises the exclusive organic jurisdiction described in Part Two, plus a limited jurisdiction over member States in organizational matters. 10) Inherent capacity includes a general capacity to act as a subject of international, national and internal law. The term “inherent” is fundamentally different from the common term of legal writers of “implied” powers,80 which ctions that the power follows from an extended interpretation of the constitution of each specic organization. The term “implied” was introduced in 1949 and 1954 by the International Court of Justice, which in 1962 abandoned it in favour of the present writer’s doctrine of inherent powers, although the Court did not use that term.81 11) Extended jurisdiction is used for powers which are not inherent but require a special legal basis, but not necessarily in the constitution of the organization concerned as generally assumed. It includes any jurisdiction over territory, persons and States – as well as any supranational jurisdiction (comprising all three) – which has been conferred upon, or otherwise specially acquired by the particular organization concerned. The Treaty of Lisbon, 13 December 2007, amending Article 1 of the EU treaty, must be read in this context to mean conferral of extended competencies: “on which the member States confer competences to attain objectives they have in common”. The partly new terminology used in the present book reects some of the basic general distinctions described below, in chapter 3.

80 See Rouyer-Hameray: Les competénces implicites des organisations internationales, Paris

1962. 81 It simply turned the presumption around, stating that “the presumption is that such action

is not ultra vires the Organization”, ICJ Reports, 1962, p. 168.

CHAPTER TWO

INTERGOVERNMENTAL ORGANIZATIONS – INTERNAL AND INTERNATIONAL LAW

2.1

What constitutes an IGO? The lower and the upper limit

The question of the legal concept of IGOs1 – or, more precisely, of identifying their lower and upper limits – is interlinked with the question of the organization’s status as a separate legal subject (legal personality) and of the existence of rights and obligations possessed by the organization under public international law (international legal personality). However, a denition of IGOs may easily become circular. It should also be borne in mind that the application of different aspects of the common law may deviate in relation to certain modest types of IGOs, e.g. those of the type dépendant. The term “international organization” is dened in various instruments simply as meaning an “intergovernmental organization”, giving decisive importance to the membership consisting of States or State organs.2 An IGO may thus be described as an organization of States (and/or State organs and/or organizations of States)3 which has its own organs. Pastor

1

2

3

See Diez de Velasco: Las organizaciones internacionales, 14th ed., Madrid 2006, pp. 43–7; E. Arroyo Lara: “Elementos denitorios de las organizaciones internacionales y consideracion especial de la estructura institucional para la cooperacion politica del Acta Unica Europea” in Revista de Instituciones Europeas, Madrid 1990, at pp. 407–19; and C.E. do Nascimento e Silva: “The 1969 and the 1986 Conventions on the Law of Treaties: A Comparison” in Y. Dinstein (ed.): International Law at a Time of Perplexity, Dordrecht 1989, at pp. 467–8. The Vienna Convention on the Law of Treaties of 23 May 1969, Article 2 (1) (i) – UNTS vol. 1155, p. 331, the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character of 14 March 1975, Article I (1) (1) – doc. A/CONF.67/16, the Vienna Convention on Succession of States in respect of Treaties of 23 August 1978, Article 2 (1) (n) – UNTS vol. 1946, p. 3 and the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 21 March 1986, article 2 (1) (i) – doc. A/CONF.129/15. On membership for members of a federation or for other partly self-governing States, see Seyersted in Nordic Journal of International Law, Vol. 57 (1988) at pp. 372–3.

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Ridruejo has listed six characteristic elements4 of an international organization: Interstate character, voluntary basis, permanent organs, autonomous will, its own competence, and co-operation between its members to meet common interests.5 “Voluntary basis” implies that the member States have joined voluntarily. Except for (or if one precludes) temporary organizations, these criteria are in fact met by IGOs. Brownlie denes the criteria in organization as follows: (1) a permanent association of States, with lawful objects, equipped with organs, (2) a distinction, in terms of legal powers and purposes, between the organization and its member States, and (3) the existence of legal powers exercisable on the international plane and not solely within the national systems of one or more States.6 The International Law Commission, in its study on the responsibility of international organizations, has adopted the approach that for the purpose of responsibility under public international law, an international organization must possess a separate international legal personality. Consequently, an IGO does have a separate international legal personality in respect of its capacity to possess – even a single – obligation imposed on it under international law.7 A functional approach implies that the organization must exercise at least one form of sovereign or governmental function in parallel to such legislative, executive or judicial functions as are normally exercised by other sovereign communities.8 There is no requirement, as generally assumed in denitions of IGOs, that the organization is established by a convention. Thus, there can be little doubt that the Pan American Union prior to the treaty of Bogotá was an international legal person even though it was not established by an international treaty. Nor would there have been anything to prevent the Colombo Plan Organization from e.g. concluding and being, as an organization, party to an agreement with the host State (Sri Lanka) concerning privileges and immunities, despite the fact that the organization was not set up by a formal international convention. Pastor Ridruejo correctly lists also IGOs which were established by resolutions adopted 4 5 6 7 8

“Elementos caracteristicos” or “rasgos differenciales”. J.A. Pastor Ridruejo, Curso de derecho internacional publico y organizaciones internacionales, Madrid 1992, at pp. 687–90. I. Brownlie, Principles of Public International Law, Oxford 2003, p. 649. ILC, fty-fth session 2003, cf. docs. A/CN.4/532 pp. 8–9 and A/58/10, see also below, chapter 10. Id. note 7, p. 12. However, the notion of governmental functions should be understood as encompassing all similar functions normally exercised by other sovereign bodies, including e.g. market regulations, loans, grants, development assistance, research and scientic cooperation, monitoring of compliance with obligations under international law and dispute settlement. It would perhaps be reasonable to only include non-prot market operations as “governmental” functions, as commercial business activities are better performed by corporations, cf. above, chapter 1.4.

intergovernmental organizations 39 by international conferences (Organization of Petroleum-Exporting Countries – OPEC) or by pre-existing IGOs (UN Industrial Development Organization – UNIDO) although in the latter cases the organization may become merely an autonomous organ of the other organization. IGOs can be described as international organs (i.e. organs established by two or more sovereign communities) (1) which are not all subject to the authority of any other organized community (except that of the participating communities acting jointly through their representatives on such organs), and (2) which are not authorized by all their acts to assume obligations (merely) on behalf of the several participating communities.9 If they are so authorized, they are joint organs of the participating States, rather than distinct legal entities. There are other descriptions of what an IGO is and which list a number of criteria which exist in most – and all better known – IGOs, but which go beyond the minimum requirements. The latter may, however, be identied differently on the basis of internal and external status. For external purposes it may be said that the common organs constitute an IGO if they are not in all respects authorized to commit the participating States directly. If they are so authorized, they are (common) organs of the States concerned. For internal purposes a minimum requirement is that the organs are not in all respects submitted to the jurisdiction of a State or other international person. Organizations of the type dépendant have placed only their secretariats under the host State. Both these and temporary organizations are examples of modest – or partially reduced – IGOs. Still, they constitute distinct IGOs, with their own international and legal personality. An example of an organization which falls below the limit of an IGO, and thus outside the scope of the present book, may be the Arctic Council. This Council was established by a “Declaration on the Establishment of the Arctic Council”, signed by representatives of the eight Arctic States on 19 September 1996. In the text of the declaration the eight governments: Hereby declare: 1. The Arctic Council is established as a high level forum to: a. provide a means for promoting cooperation, coordination, coordination and interaction among the Arctic States, …………

9

Cf. the description of international organizations in A.S. Muller: International Organizations and their Host States, Aspects of their Legal Relationship, the Hague 1995, pp. 2 ff.

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chapter two 5. Responsibility for hosting meetings of the Arctic Council, including provision of secretariat functions, should rotate sequentially among the Arctic States. 6. The Arctic Council, as its rst order of business, should adopt rules of procedure for its meetings and those of its working groups. 7. Decisions of the Arctic Council are to be by consensus of the Members.

Paragraph 5 is supplemented by paragraph 32 of the Rules of Procedure: The Host Country shall be responsible for facilitating preparations for forthcoming Ministerial and SAO meetings, liaison and coordination, providing secretariat support functions, and carrying out such other tasks as the Arctic Council may require or direct (italics added).

This set-up may involve that also external responsibility vests in the host State. The Declaration is regarded as a political document, not as a legally binding instrument. However, like other organizations which start out modestly, the Arctic Council may easily develop into a regular IGO. While the question of the lower limit is normally of little signicance (or rather of a circular nature) in internal IGO law, it is an important issue in external law. The upper limit of IGOs – against federal States and confederations – is a matter of degree of transfer of powers to the common organs. In so far as IGOs have been given, or assumed, extended jurisdiction, territorial or personal, the analogy to the internal and external law of States is even stronger than what will be described in the main parts of this book. In the case of supranational jurisdiction it gets still stronger, and it is a matter of appreciation when one passes into the traditional, but different, category of federal State, which is not a subject for this book.10 On the other hand, it does not detract from the status as an intergovernmental organization or from the applicability of the common customary law described in the present book if some of the members of the organization are members of a federal State, or otherwise only partly self-governing. Two past examples are Belarus and Ukraine, which after World War II for purely political reasons at that time (to give the Soviet Union stronger representation and more voting power) were admitted as distinct members of the UN and subsequently of other IGOs, in addition to the Soviet Union (USSR) itself, despite the fact that they were at that time far from sovereign. Another example is the Faroe Islands, which remained a separate member of the North-East Atlantic

10 The formation of a union or league can be a step in the direction of some sort of con-

federal State, at least where important “sovereign” rights are transferred to the legal entity in question, see Crawford, The Creation of States in International Law, Oxford 2006, p. 493.

intergovernmental organizations 41 Fisheries Commission after Denmark joined the European Communities and gave up its membership in favour of that of the latter. Separate membership for partly self-governing entities is logical from a legal point of view whenever the entity has self-government in the eld covered by the organization. However, the only organization which is known to permit this on a general basis is the World Meteorological Organization. In accordance with specic provisions in Article 3 (d)–(e) of its constitution it has admitted several territories which maintain their own meteorological service as distinct members of the Organization, subject, however, to certain limitations upon their right to vote etc. in Articles 10 and 11 of the constitution. The constitutions of some other organizations open for “associate” membership with limited rights.11 The Nordic Co-operation Agreement of 23 March 1963, as amended in 1971, 1983 and 1986, provides for more timid status in the Nordic Council for the so-called “Small Nations of the North” (the islands of Åland, the Faroe Islands and Greenland). Various attempts have been made to establish a denition of IGOs.12 Many of these are merely descriptions of the majority of organizations and list too many elements to include all IGOs – i.e. they do not identify the minimum elements (the lower limit). The briefest denition is given by Schermers and Blokker who dene international organizations as “forms of cooperation founded on an international agreement creating at least one organ with a will of its own, established under international law”.13 Here it may be added expressly that the members should include States and/or other self-governing communities (including other IGOs).14 Virally suggests that an international organization can be dened as an association of States, established by agreement among its members and possessing

See the constitutions of FAO Art. II 3, UNESCO Art. II3, ITU Art. 1,3 (b), International Maritime Organization Arts. 8–9 and WHO Art. 8, cf. the detailed text adopted by the World Health Assembly on 21 July 1948. 12 Such denition has been considered difcult and/or useless or unnecessary by inter alia Shabtai Rosenne, Pierre Pescatore and the present writer (Annuaire de l’Institut de droit international, 1973, pp. 329, 344 and 352). Clive Archer: International Organizations, London 1992, in his chapter on “denitions” (pp. 1–3) contends himself with pointing to the important substantive difference between “international” and “intergovernmental” and “institution”. 13 International Institutional Law, 4th ed., Leiden 2003, p. 26, cf. pp. 21–31. 14 See further E. Arroyo Lara, Elementos denitorios de las organizaciones internacionales y consideración especial de la estructura institucional para la cooperación política del Acta Unica Europea; Seidl-Hohenveldern, Das Recht der internationalen Organisationen einschließlich der supranationalen Gemeinschaften, 7th ed., Cologne 2000, pp. 5–7. 11

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a permanent system or set of organs, whose task it is to pursue objectives of common interest by means of co-operation among its members.15 This denition highlights ve specic characteristics of international organizations: Their inter-State basis, their voluntary basis, their possession of a permanent system of organs, their autonomy and their co-operative function. Only the last factor is subject of controversy. If one wants a denition that includes all IGOs – in other words a denition that draws the lower limit – it may have to differ as to whether one is concerned with internal law ( jurisdiction) or external law (international and juridical personality). The internal law described in Part Two of the present book applies to organizations whose organs are not (all and in all respects) subject to the jurisdiction of another self-governing community. And it applies only in those respects where the organization has such jurisdiction, not e.g. in respect of the secretariat of organizations of the type dépendant. The external law, however, applies to organizations which are not authorized to commit the member States severally by all their (external) acts; if they are so authorized, they are joint organs (but these joint organs may well exercise organic (and extended) jurisdiction, like IGOs and States do). If one wants a combined denition of these two aspects of the lower limit, one may dene IGOs in accordance with Alf Ross’16 denition of international law on the basis of their sovereignty (self-government), as international organs (i.e. organs established by two or more sovereign communities) (1) which are not all subject to the authority of any other organized community except that of the participating communities acting jointly through their representatives on such organs and (2) which are not authorized by all their acts to assume obligations (merely) on behalf of the several participating communities17 (if they are so authorized, they are joint organs of the participating States, rather than distinct legal entities). Number (2) is relevant also in respect of legal personality under national law.

M. Virally: “Denition and classication of international organizations: A legal approach” in G. Abi-Saab (ed.): The Concept of International Organizations (UNESCO 1981), p. 51, cf. also pp. 52–3 on (autonomous) subsidiary organs and international conferences. 16 See Alf Ross, A Textbook in International Law, London 1947. 17 Branno v. Ministry of War, International Law Reports, 1955, pp. 756–7. The Protocol of 28 August 1952 on the Status of International Military Headquarters Set up Pursuant to the North Atlantic Treaty provides in Art. XI (1) that a Supreme Headquarters may engage in legal proceedings as claimant or defendant and may agree that the receiving State shall act on its behalf. The Protocol was not ratied by Italy until six months after the judgment, but that does not affect the incompetence ratione materiae recognized in the text. 15

intergovernmental organizations 43 2.2

What organizations are international persons? The required criteria.18 Sovereignty

States may come into existence in two ways, either through an understanding between the inhabitants of a territory, or through imposition by a group which assumes power over the inhabitants. Thus an agreement between all the “members” is not necessary. It is not the acts by which a State is created, but the objective facts which result from them which constitute the relevant criteria for the existence of a State. Similarly, it is submitted that, even if it should so happen that IGOs, as usually maintained, could only be established by one method, viz. an international convention, the crucial fact, in their case as in that of States, the Holy See and other subjects of international law, is not how they have been established, but that they exist. Once an organization or a State has been established, no matter how, it is ipso facto a general subject of international law. All that is required is that it possesses the objective characteristics of a State or organization, respectively. These necessary and sufcient characteristics are, in the case of States, generally considered to be: Territory, population and a sovereign government. In the case of IGOs the facts required are submitted to be: International organs (i.e. organs established by two19 or more sovereign States) which (1) are not all

18 The International Law Commission did not consider it possible to dene IGOs. Nor do the

Vienna Conventions on the Law of Treaties of 23 May 1969 and 21 March 1986 – they merely State that “international organization means an intergovernmental organization” (Art. 2 (1) (i)). Brierly included in his 1950 draft the following denition: “An ‘international organization’ is an association of States with common organs which is established by treaty”. The revised arrangements for consultation with non-governmental organizations adopted by ECOSOC resolution 288 (X) of 27 February 1950 State bluntly that: “Any international organization which is not established by inter-governmental agreement shall be considered as a non-governmental organization for the purposes of these arrangements”. Zemanek denes international organization as “eine durch Kollektivvertrag geschaffene, autonom organisierte völkerrechtliche Verbindung von Staaten zur Verfolgung gemeinsamer Interessen der Mitgliedergemeinschaft” (Das Vertragsrecht der internationalen Organsationen, Vienna 1957, p. 17). Seidl-Hohenveldern in Archiv des Völkerrechts IV (1953–54), pp. 30–31 lists more restrictive criteria relating to the purposes of the organization. Except for Brierly’s denition, most denitions which have been proposed are not for purposes of international personality or treaty-making capacity but are intended to be wider, since the general view is that not all IGOs have such personality and capacity. The essential requirements for international personality are, however, well formulated in Mosler’s denition of ‘necessary’ subjects of international law (States). For a compilations and discussion of denitions, see International Law Commission, First Report on Relations between States and Intergovernmental Organizations by Abdullah El-Erian (doc. A/CN.4/161, 11 June 1963) paras. 38–60, and for the purpose of international responsibility, see ILC doc. A/58/10 2003. 19 K. Zemanek, Das Vertragsrecht der internationalen Organisationen, Vienna 1957, p. 11 considers that two do not sufce.

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subject to the authority of any one State or other organized community20 (but only to that of the participating States acting jointly through their representatives on such organs), (2) perform ‘sovereign’ and/or international acts21 in their own name and (3) are not authorized by all22 their acts to assume obligations (merely) on behalf of the several participating States.23 It will be noted that the only criterion which is common to the two types of subjects of international law is the fact that they have organs which are sovereign (or self-governing) or not subject to the jurisdiction of any one other organized community.24 Indeed, this criterion is common to all subjects of international law and, as will be explained below, this appears to be the crucial and only condition for international personality. The other criteria listed, if at all necessary, rather serve the purpose of distinguishing between the various types of international persons.25

20

21

22

23

24 25

This precludes non–governmental organizations and “organizations” with no independent organs, e.g. the International Organization for Bird Preservation and the International Association of Lighthouse Authorities. On the other hand, this does not prevent the voluntary delegation of certain powers to the host State or another organization. Thus, some organizations have submitted to the social security system of the host State in respect of their ofcials. The specialized agencies have submitted in respect of pensions to the United Nations General Assembly and the United Nations Joint Staff Pension Board, cf. GA resolution 248 (III). Some specialized agencies have submitted judicial settlement with their staff members to the Administrative Tribunal of the International Labour Organization or that of the UN. Such delegation does not impair the inherent international powers of the organization, such as its right to exclusive jurisdiction without interference from the courts of the host State in matters not delegated to them; cf. a dictum by the Italian Court of Cassation in Proli v. International Institute of Agriculture (Rivista di diritto internationale, XXIII (1931) pp. 386 et seq.). – Even the placing of the entire secretariat of the organization under the supervision of the Government of the host State as done in the case of the organizations of the so-called “type dependant”, does not deprive the organization of its international personality (but usually of its capacity for action, since international acts are performed by the host State on its behalf) if it has independent deliberative organs to which the host State is responsible for its supervision of the secretariat. Sovereign acts include acts of territorial, personal or organic jurisdiction. As may be gathered from chapter 2.1, the present writer is of the opinion that this criterion does not need to be included. This position is set out in further detail in chapter 2.5. If some categories of its acts commit the member States only, the organization is a distinct subject of international law only in respect of its other acts, i.e. it is a partial subject of international law. The latter reservation excludes confederations as dened by Ross. – The criteria listed in the text do not pretend to serve as an in all respects adequate denition of intergovernmental organizations, which even the International Law Commission did not feel able to formulate. See also Mosler’s denition of ‘necessary’ subjects of international law. Lissitzyn: “Efforts to Codify or Restate the Law of Treaties” in Columbia Law Review, LXII (1962), p. 1183, stated: “It may, indeed, be doubted that international law contains any objective criteria of international personality or treaty-making capacity. The very act or practice of entering into international agreements is sometimes the only test that can be applied to determine whether an entity has such personality or capacity, or, indeed,

intergovernmental organizations 45 Many writers attach importance, from the point of view of international capacities and personality, to the fact that IGOs have no territory and that they are dependent upon their member States, which are themselves subjects of international law. On these two bases they consider that IGOs are not “sovereign”. However, “sovereign” is used in the present study, not in a restrictive territorial sense, but broadly as meaning legally independent (i.e. not subject to the jurisdiction) of any other organized community except the participating physical or legal persons acting jointly through the organs of the organization, State or other organized community concerned.26 IGOs are not the only subjects of international law which have no territory. The Holy See was in the same position during the period between 1870 and 1929. Yet the majority appears to agree that, even during this period, the Holy See was a subject of international law, despite the fact that it, like IGOs, had exclusive jurisdiction only over its organs. For dependence of IGOs upon their members, it may be observed that this dependence is not essentially different from the dependence of non-governmental organizations (associations and companies) upon their members, a dependence which does not prevent these organizations from being considered distinct subjects of the same legal system as these members (national law). Indeed, as shall be more fully explained below, it is submitted that the relations of any community, (which is not itself subject to the authority of any particular other organized community) with other sovereign communities as such must necessarily be governed by international law; there is no other legal system which can apply. Even the criteria listed above are in certain respects too restrictive. Thus, not all the members of an IGO need to be States. They may also include other types of sovereign communities. Indeed, in some cases IGOs are members of other IGOs, and the Holy See is a member of a number of IGOs.27 And there is no reason why yet other types of sovereign communities should be debarred from becoming members of IGOs. The criterion that the international organs must not be authorized to commit the member States only has been considered above. It remains to consider whether the second criterion, the performance of international acts, is

‘statehood’ ”. He probably uses “objective criteria” in a stricter sense than the present writer, inasmuch as he questions whether such criteria may be found even in respect of States. It is, of course, not the intention of the present writer to suggest that it is possible to determine more “objective” criteria for IGOs than for States. 26 This does not represent any attempts at a denition of sovereignty covering all aspects of that concept. As pointed out by Alf Ross, this would require a splitting up of the concept into its various elements. 27 Below, chapter 8.

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necessary and whether any criteria are missing in the above enumeration. But rst an excluded criterion:

2.3

Is a convention necessary?

It will be noted that one of the few criteria which is common to most other denitions of IGOs, namely that they have been established by an international convention, is not included in the above enumeration of necessary criteria. It is true that most IGOs have been established by a convention concluded between the member States. However, this is not, as generally assumed, a necessary requirement, neither to constitute an IGO, nor to establish it as a subject of international law. Quite a number of IGOs have been established pursuant to a mere resolution adopted by an international conference28 or to some other form of understanding between the member States. It may of course be maintained that the member States, by taking part in the organs and the work of the organization, have tacitly accepted the resolution, or any other text which may embody certain basic organizational provisions, in such a manner that it may be said to constitute and international agreement. However, it is not a crucial element that the member States have legally bound themselves to participate in the work of the organization. Indeed, such obligation does not really exist even if there is a convention, if this allows for withdrawal from membership at any time without previous notice. Accordingly it is submitted that the fact that, for example, the Nordic Council originally was established by parallel (but originally not identical) decisions of the Parliaments of the member States – without any common document and without approval in all countries by the Head of State or gov-

28 Examples in A.J. Peaslee: International Governmental Organizations: Constitutional

Documents (revised 3rd. ed.), (Nijhoff, the Hague 1974–1979), see also: N.J. Rengger: Treaties and Alliances of the World, 5th ed., London 1990. See for example the constitutions of the International Council for the Exploration of the Sea, the International Hydrographic Organization, the Asian-African Legal Consultative Committee and the Council for Technical Co-operation in South and South-East Asia (the Colombo Plan). Thus the basic documents of the latter organization were not accepted in writing by the ‘co-operating Governments’, but were merely accepted informally by the countries acting on the arrangements made e.g. by attending Council meetings and operating the Technical Co-operation Scheme (information supplied by the Director of the Bureau). Cf. also the Pan American Union prior to the constitution of the Organization of American States by the Charter of Bogotá of 1948. The Statutes of the Inter-American Statistical Institute were laid down in an international agreement; however, this was not a multilateral agreement between the member States, but a bilateral agreement between the Institute and the Organization of American States (Peaslee, op. cit.). Nevertheless, the preamble to the agreement recognized that the Institute “is an inter-American organization of recognized international standing”.

intergovernmental organizations 47 ernment who is the organ competent to conclude international agreements – and the fact that these decisions (i.e. the original Statute of the Nordic Council)29 specically avoided provisions which would involve an obligation to participate in the Council,30 did not prevent the latter from constituting an IGO and a general subject of international law, if it otherwise satised the criteria. Indeed, although the Council was not usually considered as an IGO,31 it was admitted by writers of authority that it could perform international acts.32 The crucial fact,

29 The revised Statute of the Council was contained in Danish Act (lov) no. 292 of 21

December 1957, in Finnish Decree (förordning) no. 464 of 30 December 1957, in Icelandic Parliamentary decision (pingsályktun) No. 59 of 30 May 1958, in Norwegian Parliamentary decision (Stortingsvedtak) of 6 June 1957 and in Swedish Decree (förordning) No. 296 of June 1957. See also the Rules of procedure (arbeidsordning), Scandinavian texts in Nordiska Raadet, 5 sessionen 1957 (Helsingfors 1957), pp. 1739 et seq. On 23 March 1962 a formal Nordic agreement on co-operation was concluded, but only on 13 February 1971 provisions on the organization (the Nordic Council), which already existed in fact, were added into it as Articles 47 ff. 30 See Max Sörensen; “Le Conseil Nordique” in Revue générale de droit international public (Paris) LVIII (1955) pp. 63 et seq.; Gustaf Petrén: “Nordiska Raadet, et egenartat folkrättssubjekt” in Nordisk Tidsskrift for international Ret og Jus Gentium, XXIX (1959) pp. 112–26, English text ibid., pp. 346–62; Nagel: “Der nordische Rat, seine Organe, seine Funktionen und seine juristiche Natur” in Jahrbuch für internationales Recht (Göttingen) VI (1956), pp. 199–214. 31 Thus Sörensen, loc. cit., pp. 67–69, who considered that the Council constituted a legal order sui generis; Nagel, loc. cit., p. 212; and Petrén, loc. cit., p. 117. The reasons given for not considering the Nordic Council an intergovernmental organization were, besides those referred to in the text, that the Council is not composed of governments, but of representatives from parliaments, and that it had no permanent common secretariat. As for the rst fact, it is not part of the criteria listed above that the organization is constituted by, and composed of representatives of, any particular organs of the member States. Doubts might more easily arise from the fact that the Nordic Council had no real permanent common secretariat until it was established in Stockholm under Articles 50 and 54 of its constitutional convention of 13 February 1971. Before then it had, under para. 8 of its Statute, only secretariats for each national delegation (composed of national ofcials who are subject to national jurisdiction), although the Rules of Procedure (§ 8) provided that “the secretary of the delegation in whose country the session is held acts as secretary” (in fact she acts as secretary, not only to the Council during that session, but also to its President until the beginning of the next session). This might have deprived the Council of the factual need for and opportunity to perform international acts, but it could hardly deprive it of the legal capacity to do so. Moreover, the Council had another ‘standing’ organ, since it, in accordance with § 5 of the Statute, elected “for each session and for the period until the next session” a President and four Vice-Presidents who together constitute the Bureau of the Council, which inter alia was to direct the work and the cooperation of the secretariats (Statute, § 8) and to conduct the current affairs of the Council between sessions (Rules of Procedure, § 22). 32 Sörensen, loc. cit., p. 68, no doubt correctly, pointed to the reasons listed in the text as indications that the Nordic Governments did not intend to confer upon the Council any legal personality vis-à-vis these governments and, still less, vis-à-vis third States. Nevertheless he considers, also correctly, that the Council could conclude for example a cooperation agreement with the Council of Europe. It must be presumed that any rights and duties arising out of such agreement would devolve upon the Council as such rather than upon

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it is submitted, is that the organs exist and that the member States participate, not that they are legally bound to do so. If the organization has independent organs (which normally comprise at least a plenary organ, composed of representatives of all the participating States, and a secretariat)33 then one cannot prevent these organs from for example concluding a headquarters agreement with the host State or an agreement on cooperation with another IGO. On the same assumptions, one cannot deny that these agreements are treaties of international law and, provided that the organs have not been authorized by their acts to commit the several member States, that they create rights and duties for the organization as a distinct subject of international law. The same must apply to such other international acts as the organization may be in a practical position to perform, for example to present and receive international claims based upon such treaties or upon general international law, to have such claims settled by international arbitration, to convene intergovernmental conferences, to receive permanent ‘diplomatic’ representatives from member States etc., although this is not very likely to occur in the case of organizations with very modest functions. Such organizations must also be as entitled as other IGOs to claim immunity from suit (ratione personae) and from measures of execution

its several member States and, of course, be governed by public international law. Sörensen concluded that, despite dogmatic doubts and ambiguities, the Council “sans être revêtu de la personalilté juridique normale en droit international, est muni, néanmoins, d’une capacité juridique restreinte”. It is submitted, however, that once one (correctly) admits that the Council can conclude treaties in its own name, it would be hard to deny, in principle, its capacity to perform also any other international acts which it is in a practical position to perform, or that such acts become binding upon the organs of the Council and not upon the member States unless the latter have authorized the Council to commit them. This means that one must admit the general international personality of the Council, in the sense this term is used in the present book (legal capacity to perform any type of sovereign or international acts which it is in a practical positions to perform). 33 The Statutes of the Asian-African Legal Consultative Committee expressly provided for “a permanent Secretariat” led by a “secretary who may be authorized to act on its behalf on such matters as the committee may determine” (Article 5). – The Colombo Plan had a ‘Bureau’, composed of international ofcials appointed by the Council from persons nominated by the member governments. They were paid from a common budget of the Bureau, unless the country nominating them volunteered to meet the costs. (Today the Colombo Plan has as its principle organs a consultative committee, a council and a secretariat.) – The North American Free Trade Agreement (NAFTA) signed 17 December 1992 has a secretariat comprising national sections; cf. Article 2002 of the Agreement. The national sections are headed by a Secretary appointed by the respective government, which also bears the cost of its operations. The ASEAN Free Trade Agreements (AFTA) signed 28 January 1992, provides in Article 7 that the ASEAN Secretariat shall provide the support to the ministerial-level AFTA Council. AFTA was included in the broader ASEAN Economic Community (AEC) by the Bali Concord II, 7 October 2003. The International Council for the Exploration of the Sea also has a secretariat paid over a common budget, internationally at the professional level.

intergovernmental organizations 49 in national courts to the same extent as foreign States. And they can certainly claim incompetence ratione materiae if an action is brought in a national court relating to matters falling under their exclusive organic jurisdiction. The absence of a convention between the member States cannot in itself deprive the organization of any of these capacities, rights and duties under international law, or make the several member States responsible for its acts. Nor is it necessary that the convention, resolution or other document pursuant to which the organization has been established, denes in detail its organization, functions, powers and procedures. Here again, it is the factual existence and functioning of the organization which matters. If this is established, one cannot deny its capacity to perform the international acts and to claim the rights under international law described above, nor can one deny the nature of these as acts and rights under international law pertaining to the organization as a distinct entity.34 In this respect, too, intergovernmental organizations do not differ essentially from States, many of which exist, and exercise full international personality, notwithstanding the fact that their written constitutions do not cover all the subjects listed above, or that they have no written constitution at all.35 From a practical point of view it may be useful or even necessary to have certain rules concerning the internal procedures and the internal distribution of powers between the several organs of the organization. However, neither this, nor any rules concerning external capacities or procedures, is necessary from the point of view of international personality. Indeed, provisions concerning

34 The Court of Appeal of Firenze, in a judgment of 14 March/23 August 1955 in Mazzanti

v. Headquarters Allied Forces Southern Europe, declared the said Headquarters “exempt from Italian jurisdiction insofar as concerns the employment relationship involved in the case”, despite the fact that Mazzanti was an Italian national who had been employed with the Headquarters in Italian territory, and despite the fact that the constitution of the North Atlantic Treaty Organization merely consists of the following provision (Article 9) in the North Atlantic Treaty of 4 April 1949: “The Parties hereby establish a council, on which each of them shall be represented, to consider matters concerning the implementation of this Treaty. The council shall be so organized as to be able to meet promptly at any time. The council shall set up subsidiary bodies as may be necessary; in particular it shall establish immediately a defence committee which shall recommend measures for the implementation of Articles 3 and 5.” (The constitutions of many other regional defence organizations are equally brief. See for example Articles 5–6 of the constitution of the former Warszawa Pact Organization of 14 May 1955.) The Court thus took the same position in respect of this organization, as other courts have taken in respect of IGOs with more elaborate constitutions. Indeed, the Court relied upon, and quoted at length, one of the judgments there cited (Proli v. International Institute of Agriculture). The Court also referred to the more explicit reasons given in an obiter dictum of the lower court and in a subsequent obiter dictum on NATO by the Italian Court of Cassation in Branno v. Ministry of War. Both these obiter dicta are reprinted in International Law Reports, 1955, pp. 756–762. 35 See Peaslee; Constitutions of Nations, 4th ed., the Hague 1974, for example under the United Kingdom.

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the external or organic powers of the organization as a whole may do more harm than good, because they may invite false conclusions a contrario to the effect that the organization does not have the legal capacity to perform international or organic acts other than those specied. Rules concerning the internal procedures and distribution of powers may, moreover, be laid down by subsequent decisions36 of the plenary organ of the organization, which in the absence of contrary provisions in the constitution,37 has the supreme power to exercise the inherent exclusive organic jurisdiction of the organization. However, any such rules are of a lower hierarchical order than the constitution; indeed, subject to any eventual establishment of customary law, they have no more legal force than individual acts decided upon or approved by the same organ. Thus, even if most IGOs in fact have been established on the basis of international conventions which dene the organs, their procedures and the internal distribution of powers between them, and even if such conventions have usually preceded the establishment of the organization, such conventions and provisions are not indispensable from a legal point of view, and in particular not from an external point of view. What is decisive is that the organization exists, i.e. that it satises the criteria listed above. Those organizations which have not been established on the basis of any convention, or whose constitutions contain practically no organizational provisions, bear evidence of the fact that, in this respect too, IGOs are basically in the same legal position as States, and that the differences between IGOs and States in this respect are differences of fact and degree, rather than differences of law. But the most striking evidence may perhaps be found in those organizations which have been established on the basis of conventions which pretend that no organization is being set up, or which even say explicitly that no organization shall be set up,38 but which, nevertheless, have the same organs and perform the same ‘sovereign’ and international acts as other IGOs.39 In the commentary to Article 3 (3) of its 1962 draft articles on the Law of Treaties the International Law Commission stated that it deliberately used the term “constitution” (in preference to “constituent instrument”) as including also the [relevant] decisions and rules of its competent organs (OR GA, XVII, Suppl. No. 9, p. 7). In the present book the term is not used as including such decisions of a lower order. 37 The only known example of such contrary provision relates to an organization which has a detailed constitution, see Article VI F, cf. Article V E, of the Statute of the International Atomic Energy Agency of 26 October 1956. 38 See the example cited by Reuter: International Institutions, 1961. 39 GATT (acting under the name of the “Contracting Parties” [of the General Agreement on Tariffs and Trade], subsequently part of the International Trade Organization) even performed such acts on the basis of express constitutional provisions, see the ‘informal’ agreement of 9 February 1948 with the International Monetary Fund (IMF, Annual Report 1949, pp. 75–78; cf. p. 50) which did not create rights and duties also for the member States. Cf. Gold: The Fund and Non-Members (1966) p. 41, and Art. XXV of the GATT. 36

intergovernmental organizations 51 Similarly it is not necessary for the organization to possess international personality that its international status is dened in the constitutive instrument of the organization. Some international agreements do have provisions to the effect that the organization shall enjoy legal personality, as in Article 104 of the UN Charter or Article 281 of the EC Treaty, to expressly conrm the organization’s legal personality in the national law of the member States.40 Other (regional) agreements expressly State that the IGO shall enjoy international personality,41 and some agreements of a specialized-technical nature even do both.42 The absence of legal personality in national law does not affect the organization’s status under international law. Since international legal personality ows from the fact that the organization exists, it is not the intention of the founders of the organization to confer such personality which in itself creates new rights and obligations under international law, but rather the actual establishment of the organization. In the case of the Organization for Security ad Co-operation in Europe (OSCE), which prior to the Budapest Summit Declaration of 21 December 1994 was known as the Conference for Security ad Co-operation in Europe (CSCE), ambiguity of intentions and confronting legal views have drained resources away from fullling the objectives of the organization in order to conduct an internal scrutiny of its legal status. The OSCE performs extensive governmental functions, including in more than 20 OSCE missions and eld activities located in South-Eastern Europe, the Caucasus, Eastern Europe and Central Asia. It has its own organs which decide autonomously how to carry out the organization’s functions, including by entering into international agreements. As has been endorsed by the plenary meeting of the organization, the OSCE possesses the essential criteria to enable it to be categorized as an intergovernmental organization.43 Yet, the OSCE seems to aim for the advantages

Opposite; A. Reinisch, International Organizations Before National Courts, Cambridge 2000, p. 54 who maintains that it is clear from the context that in Art. 210 (now Art. 281) EC, international legal personality is meant. The Treaty of Lisbon states in Art. 46A that “the Union shall have legal personality”, and in Art. 1(b) that “the Union shall replace and succeed the European Community”. 41 See for example MERCOSUR (Tratado de Asunción, as amended by the Protocolo de Ouro Preto of 17 December 1994), Article 34, which states that “MERCOSUR tendrá personalidad jurídica de Derecho Internacional”, and the Andean Community – Comunidad Andina de Naciones (CAN), Article 48 of the Cartagena Agreement, as amended by the Trujillo Protocol of 10 March 1996, which provides that: “The Andean Community is a subregional organization with an international legal capacity and status.” 42 As in Article 5 nos. 1 and 2 of the International Fusion Energy Organization, cf. chapter 1 note 9. Cf. also Art. 15 of the Charter of the Shanghai Cooperation Organisation, supra, chapter 1, note 14. 43 See OSCE Permanent Council Decision No. 383, doc. PC.DEC/383 26 November 2000, point II.4 of Attachment 1 to Annex, where it is stated inter alia that “some missions have already experienced cases of arrest and detention of local staff members while they 40

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of not being an intergovernmental organization proper (the perceived freedom of exercising coordinated actions under the “veil” of an international institution without being accountable for the results of such performances) while at the same time making sure there is no difference between acts of OSCE and those of other, formal intergovernmental organizations. There is no reason to treat the OSCE any differently than other IGOs as long as the formal set-up and functions of the organization satisfy the basic criteria of an intergovernmental organization as described above.44 A far less consequential debate is about whether the European Union, as distinct from the already existing European Community, has a separate international legal personality of its own. Pending the entry into force of the new Treaty of Lisbon that will merge the different “pillars” of the present legal construction, it must be concluded that two distinct legal persons operate in parallel and within their respective functions and mandates.45

were performing their ofcial functions”. See also Decision 16/06, doc. MC.DEC/16/06 and Attachment. To exemplify the role of the organization, the OSCE Mission in Kosovo forms a distinct component of the United Nations Interim Administration Mission in Kosovo (UNMIK) authorized under UNSCR 1244 (1999). 44 Debating the EU rapid reaction force on 17 February 2001 in Parliament the then UK Conservative Party leader William Hague stated that “If it looks like an elephant and sounds like an elephant, it is an elephant”. J. Klabbers notes that: if an international entity looks like an international organization, functions like one, an is treated by outsiders as one, then it is pretty unlikely that in reality it is, all appearances notwithstanding, something other than an international organization; cf. Soft Organizations in International Law, Nordic Journal of International Law, Vol. 70 2001, p. 415. 45 Though the EU satises all relevant criteria to possess international legal personality, e.g. autonomous decision-making powers (including the capacity to formulate binding common positions, joint actions, decisions and framework decisions under Articles 12 and 34 TEU) and external treaty-making powers (Articles 24 and 38 TEU), the discussions on the international legal status of the EU must be seen in the light of the fact that the EC existed as a legal person both in international law and the national law of the member States prior to the creation of the EU by the Treaty of Maastricht (1992). The EU does not replace the EC, and the (new) competencies exercised under the EU Treaty are subsidiary to the supranational and other powers of the EC (Article 47 of the EU Treaty). It should also be observed that the Community legal system is founded on the principles of legality and subsidiarity of powers as set out in Article 5 TEC. For these reasons the notion of international legal personality may have been mixed up with the capacity to exercise supranational powers, cf. also below chapter 2.6. In sensitive areas such as foreign and security policy and justice and home affairs, which are close to the traditional core areas of national sovereignty, it has been politically important to distinguish the EU competencies from those of the EC. This notwithstanding, the EU is an intergovernmental organization in its own right with objective legal capacity under the common law of IGOs described in this book.

intergovernmental organizations 53 2.4

Capacity for rights, duties and action under international law

It is submitted that any organization which satises the criteria listed above, is, on the basis of general international law, ipso facto a general subject of international law, in the sense that it, like States, has the inherent capacity to perform any act of international law which is in a practical position to perform, subject to such negative restrictions which are laid down in its constitution if and to the extent that these might be considered to have external effect in respect of (States and) IGOs. A different matter is that organizations of the so-called type dépendant may be wholly or partly deprived of their capacity to perform themselves the international acts (capacity for action), since these are performed, on their behalf, by the host State. The fact that intergovernmental organizations have capacity to perform such international acts as they are in a practical position to perform implies that such acts give rise to rights and obligations under international law.46 Indeed, it is submitted that IGOs enter automatically into the rights and obligations under general international law to the extent that their nature and acts call for application of such rights and obligations. But their international rights and obligations are not necessarily identical to those of the traditional subjects of international law, States.47 There is, however, a good basis for analogy when the substantive conditions are the same. Thus it is submitted that United Nations Forces must have essentially the same rights and duties as States under the laws pertaining to armed conict, if United Nations enforcement actions in fact take the form of enforcement action rather than of peace-keeping or police action.48 Similarly, IGOs may claim the same immunity before national courts as States may claim before foreign national courts, even if no convention so provides.49 It

46 Thus, for example the obligation of certain specialized agencies under their relationship

agreements with the United Nations not to admit non-members of the United Nations to membership if the Economic and Social Council objects, is an obligation of international law. 47 Alf Ross: Lærebog i folkeret, 6th ed., Copenhagen 1984, §§ 15 II and 19 VIII). The International Court of Justice in 1949, in its advisory opinion on Reparation for Injuries Suffered in the Service of the United Nations stated that the UN “is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State” (ICJ Reports 1949, p. 179). The present writer would have added the word “necessarily” into the last phrase. 48 See Seyersted, United Nations Forces in the Law of Peace and War, Leyden 1966, chapters V–IX. 49 Cf. Godman v. Winterton and Others (representing the Intergovernmental Committee on Refugees), The Times, 13 March 1940; see also the action against the Pan-American Union reported by Scott-Peneld in AJIL, XX (1926), p. 257. (In neither of these cases

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is more doubtful whether a State has the same duty under general international law to grant diplomatic privileges and immunities to permanent representatives accredited to an IGO with headquarters in its territory, as it has in respect of diplomatic representatives accredited to that State’s own government. A different matter is that such a duty may be deduced from the act admitting the organization to its territory or from any headquarters agreement. At any rate, most or all host States in fact grant diplomatic privileges and immunities to permanent representatives to IGOs with headquarters in their territory, and they undoubtedly have a duty under general international law to grant immunity in respect of their ofcial acts. The freedom of action of an IGO may have been restricted by an international agreement to which it is a party, or by a unilateral act on its part, in the same manner as the freedom of action of a State may have been restricted, for example by a treaty of neutralization. Thus certain specialized agencies did in their relationship agreements with the United Nations undertake not to admit non-members of the United Nations to membership if the Economic and Social Council objects.50 Such restrictions do not deprive the organization of its capacity to perform the acts concerned;51 these are valid in relation to third parties and given rise to regular rights and obligations under international law. Such restrictions therefore do not detract from the international personality of the organization. The limitation of the purposes of the organization and other restrictions contained in its constitution merely represent internal restrictions upon its freedom of actions if they are not considered to have external effect. If they do have external effect, they constitute limitations upon the international capacity of the organization. On the other hand, it is submitted that if an organization does not full the criteria listed above, it can be a subject of international law only if and to the extent that States have conferred international functions upon it, and only in relation to these States and to States which have expressly or by implication recognized these functions. A special case in this respect is the International Committee of the Red Cross (ICRC). Although this is a non-governmental organization, subject in principle to Swiss law, it has been granted general recognition for its humanitarian activities and a number of specic powers in that eld under the Geneva Conventions of 12 August 1949, to which practically was a written opinion given, and it is thus not clear whether the courts (rightly) considered the organizations as juridical persons distinct from their several member States.) 50 See for example Article II of UNESCO’s relationship agreement (UNTS, I, p. 238). 51 This is pointed out in respect of neutralized States by Alf Ross, op. cit., § 18 A. Eagleton: “International Organization and the Law of Responsibility” in Recueil des Cours, 1950, p. 343, took a different view, both in respect of States and of IGOs, however, he, too, placed these on an equal footing, in contrast to what most other writers do.

intergovernmental organizations 55 all States of the World are parties.52 Moreover, it concludes agreements which, pursuant to the intention of the contracting parties, are not subject to national, but to international law.53 This it does both with parties and non-parties to the Geneva Conventions.54

See notably the general provisions in Articles 9 and 125 and the specic provisions in Articles 10, 56, 73, 123 and 126 of the III Geneva Convention Relative to the Treatment of Prisoners of War and several similar provisions in the other Geneva Conventions. See also Article 16 of the Treaty of Peace with Japan of 8 September 1951 (UNTS, Vol. 136, p. 68). 53 For example the agreement with Greece of 3 November 1969 granting the ICRC access to places of internment of, and to give aids to, political prisoners, as well as rights of visit for relatives. Cf. also Taracouzio, The Soviet Union and International Law, A Study on the Legislation, Treaties and Foreign Relations of the Union of Soviet Socialist Republics, New York 1935, pp. 15 and 205–6; and the agreement of 9/12 May 1960 between the United States, the Federal Republic of Germany, France, the United Kingdom and the Comité international de la Croix-Rouge Concerning the International Tracing Service (U.S. Treaties and Other International Acts Series, No. 4736) and the earlier agreement of 6 June 1955 (U.K. Treaty Series, No. 11 (1956)) transferring to the Comité the direction and administration of the international tracing centre at Arolsen. The international character of the agreements concluded during the Spanish Civil War were denied because they were concluded through the Spanish Red Cross, see Guggenheim: Lehrbuch des Völkerrechts, I, Basel 1948, p. 262, note, and text of the agreements in XVIe Conférence internationale de la Croix-Rouge, Rapport general du Comité international de la Croix Rouge 1934–38, pp. 131 et seq. The International Law Commission, in its 1959 and 1962 draft articles on the Law of Treaties, stated categorically that agreements between a State (or other subjects of international law, possessed of treaty-making capacity) and a private individual or entity is necessarily and always not an agreement governed by the law of treaties, although “if several States were involved, together with one or more private entities, the instrument might operate as a treaty purely in the relations between the States parties to it” (Yearbook of the International Law Commission, 1959 II, p. 95). The Commission did not specify whether it also precluded application of international law to the substance and if so, what law would be applicable (cf. Lissitzyn: “Efforts to Codify or Restate the Law of Treaties” in Columbia Law Review LXII (1962), p. 1178, note). It is submitted that the agreement must be governed by international law if it, according to its content and the intention of the parties, could not be governed by national law. An example may be the agreement of 6 April 1961 between the International Atomic Energy Agency, the Principality of Monaco and the Institut Océanographique Concerning Research on the Effect of Radioactivity into the Sea, UNTS, Vol. 396. Reference may also be made to the agreement between the United Nations and the Carnegie Foundation Concerning the Use of the Premises of the Peace Palace at the Hague, approved by GA resolution 84 (I) of 11 December 1946. This agreement provided, in Article XIV: “It is expressly understood that the question of the establishment of the International Court of Justice at the Peace Palace exclusively concerns the United Nations and the Carnegie Foundation, and is consequently outside the jurisdiction of any other organization; the Foundation declares its readiness to accept all the responsibility arising out of this principle.” 54 See also, on reparation paid to the ICRC by the UN for the killing of three ICRC representatives, Seyersted, ibid. note 48, p. 195. 52

56 2.5

chapter two Is actual performance of international acts necessary?

There is even one of the criteria listed above which may be dropped from the list, namely the condition that the organization performs “sovereign” and/or international acts. All organizations which are not subject to the jurisdiction of any one State or other organized community will by denition exercise exclusive, or “sovereign”, jurisdiction over its organs,55 as well as over any territory or persons or States if and to the extent these might be placed under its jurisdiction. The condition that the organization performs “sovereign” acts is thus superuous, in as much as it follows from the other criteria listed. On the other hand, there may be organizations of limited functions which do not perform international acts, in a limited sense, at least during the rst phase of their existence. Thus the International Tin Council was an IGO which pursued its main purpose of regulating the tin market by performing business transactions.56 There is a tendency to deny their international personality in such cases, or to consider it to be limited to those capacities which they have actually exercised, e.g. immunity from suit. This is in effect what is suggested by a number of writers who attempt to mitigate the proposition that international powers depend upon the constitution of the organization, by adding that they may be extended by the practice of the organization57 or who attach major signicance to the latter criterion. This may be a matter of terminology. It is of course possible to dene “international persons” or “subjects of international law” in a descriptive sense and xed in time, as communities which have in fact performed international acts.58 If so, no IGO which does not have territory, population, military forces etc. could be termed a general subject of international law, and some organizations might not be termed subjects of international law at all. However, this must not be confused with legal limitations upon the international capacities and personality of the organizations. Indeed, the

55 Except insofar as they may have voluntarily submitted to local jurisdiction in certain

respects. 56 Se Seidl–Hohenveldern: “Failure of Controls in the Sixth International Tin Agreement”

in Towards More Effective Supervision by International Organizations, Essays in Honour of Henry G. Schermers, Dordrecht 1994, pp. 255–74, on the question whether, after the bankruptcy of the International Tin Council, its corporate veil should have been lifted to allow direct claims against Member States. 57 See for example Kasme: La capacité de l’Organisation des Nations Unies de conclure des traités, Paris 1960, p. 36 and ICJ Reports 1949, p. 180. 58 Some of the restrictive views which have been advanced (see for example some of those quoted by Kasme, op. cit., pp. 21–24) may be connected with such deniton. See also Kasme’s own denition and views, op. cit., p. 35, which are very different from those submitted in the present study.

intergovernmental organizations 57 concept of international persons would hardly serve any legal purpose if it were dened by the factual performance of international acts or exercise of international rights and duties at a given time and automatically expanded by any new acts. What one needs to know for legal purposes is which communities have the capacity to perform (any type of) international acts and to be subjects of international rights and duties,59 if and when the practical opportunity arises. And it would be as wrong in the case of IGOs as in the case of States to attempt to turn factual limitations into legal limitations. The factual limitations may disappear as soon as the facts change, for example if the organization is given territorial jurisdiction. If one takes the view that the organization only has the legal capacity to perform such acts as it has already performed, then one would logically be denying the capacity of the organization to perform any new types of acts. This would amount to saying that for example Iceland does not have the capacity to create an army and to wage war because it in fact never did so, or that a new State does not have the capacity to conclude treaties because it has not yet done so.60 On the other hand, if one is prepared to admit the capacity of a State or organization to perform international acts, or any particular type of international act, the moment it actually does so, then it would appear articial and misleading to consider that, before this happens, it lacks the capacity to perform international acts, or the particular type of international act concerned, merely because it has not yet done so. It would also be articial, or wrong, to say that a sovereign community does not have international capacities until these have been established by a consistent practice by that community. If one is not prepared to question the validity of the rst international acts (of each type) performed by the community, this would be a pure ction which would serve no purpose other than to conceal the true legal position. On the other hand, if one were to draw the logical consequence of such a doctrine and question the legality of the rst acts until they have been repeated sufciently to establish a practice, one would nd oneself in conict with the facts of international life. It cannot be required that the international capacities should be established again and again in respect of each new organization and in respect of each type of international act. It must sufce that the international capacities and personality of IGOs, like those of States, have been established as a general principle of international law through the practice of IGOs generally. And this practice certainly is consistent and extensive enough to constitute customary international law. It should be recalled in this connexion that we are not here concerned with

It was in this sense that the International Court of Justice expressed itself in Reparation for Injuries, ICJ Reports, 1949, p. 179. 60 Cf. Lissitzyn’s statement, quoted above, note 52, where he, correctly, places States and IGOs on an equal footing in this respect. 59

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a problem of the internal law of each IGO, any more than we are in respect of States concerned with the national law of each State, but with a question of general international law. Moreover, as will be demonstrated below, the general practice referred to merely conrms a logical principle that all “sovereign”, or self-governing, communities are subjects of international law.

2.6

Possible reasons for denying the general international personality of intergovernmental organizations

The doctrine that States are the only necessary subjects of international law It has already been pointed out that the general reluctance of legal writers to admit the general and objective international personality of IGOs may be seen as a reminiscence of the ancient doctrine that only sovereign States are subjects of international law, and as a consequence of the distinction between ‘necessary’ and ‘derived’ subjects of international law. This is contradicted by a practice which constitutes customary international law.

Assimilation to associations of individuals under certain systems of national law An underlying reason for the reluctance of some legal writers to admit the general international personality of IGOs may be found in an assimilation of the position of organizations of States in international law to that of associations of individuals in certain systems of national law. The national law of many (notably Roman law) States recognizes the legal personality of associations only if and to the extent that it has been positively conferred upon them by legislative provisions and/or incorporation. This may work well in systems of national law, which have a developed legislative and administrative power, except for the involved problems of drafting if one wishes to enumerate the capacities of each organization. 61 But it is submitted that it does not lend itself to application by analogy in international law, where there is no legislative power.

61

The complete American style of legal drafting is shown, for example, in the United States Act on the American Society of International Law, Title 36 (of 20 September 1950) to Incorporate the American Society of International Law, and for Other Purposes, reproduced in all subsequent issues of the Proceedings of the American Society of International Law. Paragraph 5 of the Act reads: “The corporation shall have succession by its corporate name and shall have power to sue and be sued, complain and defend in any court of competent jurisdiction; to adopt,

intergovernmental organizations 59 If an analogy is to be drawn from national law, it would seem more appropriate to draw it from those national systems of national law which take the opposite approach, by recognizing, without legislative provisions and/or incorporation, the general juridical personality of associations, subject only to such restrictions as may be laid down in statute.62 Even in the latter systems it is obvious that juridical persons, because of their nature, cannot perform certain types of acts normally performed by physical persons (for example only physical persons may enter into matrimony, whereas juridical persons may opt for merger), but these are limitations of fact, which require no legal expression or which follow from the special laws concerned. This is in line with the factual limitations which apply in the case of most IGOs, for example that they cannot exercise any territorial powers as long as no territory has been placed under their jurisdiction. In the case of international law a transformation of such facts into legal restrictions would do direct harm, because it would prevent the organization from acting if, at a later stage, it were put in a practical position to do so, by relevant cession of territorial jurisdiction or other powers from one or more member or non-member States.

Confusion with acts which impose obligations upon States, or with scope of nancial obligations of member States Failure to recognize the inherent powers of IGOs may also stem from a failure to distinguish between acts which impose obligations upon member States and acts which do not. In this connection it is recalled that IGOs cannot impose use, and alter a corporate seal; to choose such ofcers, managers and agents as its business may require; to adopt, amend, apply, and administer a constitution, bylaws, and regulations, not inconsistent with the laws of the United States of America or any State in which the corporation is to operate, for the management of its property and the regulation of its affairs; to contract and be contracted with; to take and hold, lease, gift, purchase, grant, devise, or bequest, in full title, in trust, or otherwise, any property, real or personal, necessary for attaining the objects and carrying into effect the purposes of the corporation subject, however, to applicable provisions of law of any State (A) governing the amount of kind of real and personal property which may be held by, or (B) otherwise limiting or controlling the ownership of real and personal property by a corporation operating in such State to transfer and convey real or personal property; to borrow money for the purposes of the corporation, and issue bonds therefore, and secure the same by mortgage subject in every case to all applicable provisions of federal or State laws; to publish a journal and other publications, and generally to do any and all such acts and things as may be necessary and proper in carrying into effect the purposes of the corporation.” 62 This is the system of Scandinavian law. Norwegian, Danish and Swedish laws require no formalities for the constitution of a non-prot association. See for Norwegian law: Woxholt: Foreningsrett, Oslo 1990, p. 27, for Danish law: Hasselbalch: Foreningsret, Copenhagen 1992, p. 50, and for Swedish law: Hemström: Organisationernas rättsliga ställning, Stockholm 1988, p. 45.

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obligations even upon their member States unless these have authorized it to do so, in the constitution or otherwise. A recent example of such uncertainty is provided by Declaration no. 24 of the Final Act of the Treaty of Lisbon, 13 December 2007, concerning the legal personality of the European Union, where it is stated that: “The Conference conrms that the fact that the European Union has a legal personality will not in any way authorise the Union to legislate or to act beyond the competences conferred upon it by the Member States in the Treaties.” And a constitutional authorization of course does not apply to non-members, which are not parties to the constitution. Thus, even if the objective international personality is admitted or recognized, this does not mean that the constitution becomes binding upon non-members or that the organization can impose obligations upon non-member States without authorization from these, any more than a State whose objective international personality is admitted or recognized can impose obligations upon other States without special authority from these. This is illustrated by a study on implied powers,63 which deals indiscriminately with cases involving: (1) Obligations of member States, (2) the competence of the organization vis-à-vis its member States to deal with matters which fall outside the stated purposes of the organization, by action which does not involve the imposition of obligations upon States, and (3) capacity to perform international acts to attain purposes stated in the constitution and which do not impose obligations on States.64 It is submitted that the methods of extensive interpretation of the constitution (by stretching words or presuming intentions of the drafters) discussed generally and partly criticised by the writer, are not relevant to the third category, which is one of inherent powers of IGOs generally, not of powers implied in the constitution of the particular organization. An important aspect of this is the consideration which is sometimes advanced that the legal capacities of IGOs must be limited in order to limit the obligation of the member States to contribute nancially to the organization’s activities. However, the question of the power of the organization to require its member States to contribute to the expenses of the organization depends, in principle, upon an interpretation of the budgetary and other provisions of the constitution of the organization concerned and of any other commitments the member States might have entered into vis-à-vis the organization.65 This internal

Rouyer-Hameray: Les compètences implicites des organisations internationales, Paris 1962. 64 Reparation for Injuries, ICJ Reports 1949, p. 179. 65 The limitation of this power was discussed by Sir Gerald Fitzmaurice in his Individual Opinion in Certain Expenses of the UN, ICJ Reports 1962, p. 198. In its work on responsibility of international organizations, the International Law Commission is divided on 63

intergovernmental organizations 61 problem is different from the question of the external legal capacities of the organization under international law,66 indeed it cannot be solved by denying the organization the capacity under international law for example to conclude international agreements or to maintain permanent representatives or by denying it the normal rights and duties of international law arising out of these or other acts, but it can be solved in part by giving external effect to constitutional limitations of a substantive (purposes) or procedural nature. It is no more illogical if these rules of the internal law of the organization and of general international law, respectively, do not coincide, than it is that associations and stock companies have full juridical personality under national law while their power to require their members to contribute to covering the costs arising out of their activities depends on their internal constitutions. A different matter is that national law (legislation) usually sets certain limits for the freedom of certain types of non-governmental organizations in this eld, and that international law also conceivably may limit the freedom of IGOs in this eld, although it is hard to nd any practice in this sense.67

Lack of resources for fulllment of obligations A further underlying reason for the reluctance of many writers to recognize the general and, in particular, the objective international personality of IGOs, may be the fact that States to a larger extent than most IGOs possess resources which enable them to fulll their obligations and against which other States can take measures to bring about such fulllment. However, the same observation may be made with regard to juridical persons of national law when compared to States. Nevertheless, despite the fact that many non-prot-making associations have very limited resources they are still recognized as juridical persons in national law. And in international as in national law the absence of any external obligation of the members will be clear to any third parties which enter into relations with the organization. At least when such third parties deal with an IGO of the usual type, or with a supranational organization in respect of organizational matters, it will be aware of the fact that the organization is not

the question of whether an obligation under international law exists for member States of a responsible organization to enable that organization, nancially or otherwise, to make reparation to a third party, cf. draft Art. 43 of the ILC’s report doc. A/62/10, pp. 216–7, and below, chapter 10. 66 This distinction was the underlying premise of Sir Gerald’s opinion, ibid. pp. 205–7, cf. pp. 199–200. 67 On the contrary, the International Institute for the Unication of Private Law was, under the original version of Article 16 of its Statute, dependent upon voluntary contributions from its member States, except for a xed contribution from Italy.

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authorized to commit its several member States. Problems arise only in certain cases when the organization has taken over powers from its member States, as in the case of functional competences of the supranational European Community.68 This is not a question of denying the objective international personality of the organization, but of whether the transfer to the organization of the particular power and obligation has resulted in liberating the member State concerned from its relevant obligations under general and particular international law. Such liberation may be denied even by a third party who has recognized the organization as a subject of international law.

Dependence upon the member States Those who advocate the responsibility of the several member States for the acts of the organization and/or deny its objective international personality have also referred to the inuence which the member States exercise upon the decisions of the organization.69 However, it is doubtful whether this fact can be given legal effect in international law to any greater extent than national law draws legal consequences from the inuence which individuals exercise upon the acts of juridical persons in which they participate. Similar considerations apply in respect of the argument which has been advanced by the same writers, that the existence of an IGO is dependent upon the will of their member States in the sense that these may dissolve it.70 This too is paralleled in national law. And even States may be dissolved, with or without their own will, without a general succession in international obligations taking place.

Confusion of objective international personality and recognition with duty to enter into ofcial relations A nal underlying reason for the general reluctance to admit the validity of the international personality of IGOs vis-à-vis non-member States which have not recognized the organization may be found in the same confusion between objective international personality, recognition and duty to enter into ofcial

Cf. Wengler, loc. cit., III, pp. 27–28. Cf. Wengler in Actes ofciels du Congrés d’études sur la CECA, III, p. 63, and Hahn, loc. cit., p. 1049. 70 Wengler, loc. cit., p. 12. 68 69

intergovernmental organizations 63 relations, which, as pointed out by Verdross71 and Bindschedler,72 may originally well have been at the root of the constitutive view of recognition also in respect of States.73 In the case of IGOs, as well as in the case of States, objective international personality merely means that the State or organization is subject to the rights and duties of international law and that it must be treated as a subject of international law by any other subject of international law which has relations with it. But it does not mean that other subjects of international law have a duty to enter into diplomatic or other special relations with it.74 Even a positive act of recognition does not oblige them to this, although recognition is usually not given until the recognizing State is prepared to enter into special relations, and this is precisely what may cause the confusion. It may of course in fact be difcult for a State to avoid any contact with another State which it does not wish to recognize, or with an important global organization like the United Nations. However, it may be quite possible to avoid contacts with less important or regional organizations. The only effect of objective international personality is that, to the extent international relations in fact exist, these create rights and duties under international law, and the organizations, rather than its several member States, is bearer of the rights and duties arising out of the acts performed by it or addressed to it.

Völkerrecht, 5th ed., Vienna 1964, pp. 246–7. Archiv des Völkerrechts, IX (1962), p. 386. Alf Ross, op. cit. above, note 47, § 18 III (§ 19 III in later editions in Danish), points to another reason why the constitutive view came about, viz. the ctitious theory of international law as a conventional law. Even if written off by most writers in respect of States, this theory may still play a role in respect of IGOs where nearly everybody takes the view that their international personality depends upon the conventions establishing them, rather than upon their objective existence. 74 Cf. Alf Ross, op. cit. It may have been this distinction which Judge Krylov had in mind when he stated in his dissenting opinion on Reparation for Injuries Suffered in the Service of the United Nations: “It is true that the non-member States cannot fail to recognize the existence of the United Nations as an objective fact. But, in order that they may be bound by a legal obligation to the Organization, it is necessary that the latter should conclude a special agreement with these States” (ICJ Reports, 1949, pp. 218–9). It is recalled that Krylov supported the unanimous conclusion of the Court that the United Nations has the capacity to bring an international claim against a member or non-member State in respect of damage caused to the organization, but that he, together with Judges Badawi, Hackworth and Winiarski, dissented from the conclusion that the United Nations has the capacity to bring such claims against a member or non-member State in respect of damage caused to the agents of the organization. 71 72 73

64 2.7

chapter two Conclusions

In conclusion, it is submitted that, although the majority of IGOs have in fact been established by an international convention between the member States, this is not from a legal point of view the crucial test of capacity to perform sovereign and international acts and thus of international personality. IGOs, like States, come into being on the basis of general international law when certain criteria exist, and these necessary criteria do not include a convention. The criteria are: International organs (i.e. organs established by two or more sovereign communities) which: (1) are not all subject to the authority of any other organized community except that of the participating communities acting jointly through their representatives on such organs, (2) act in their own name, and (3) are not authorized by all their acts to assume obligations merely on behalf of the several participating communities. It is submitted that all organizations which full these criteria are general subjects of international law, in the sense that they have the capacity to perform all types of international acts which they are in a practical position to perform, and which have not been precluded by any provision of their constitution (if and to the extent that constitutional restrictions have external effect). This means that all those organizations which are commonly referred to as “intergovernmental organizations” are international legal persons.

CHAPTER THREE

BASIC GENERAL DISTINCTIONS

3.1

Inherent versus delegated powers – as opposed to the fiction of “implied powers”

The concepts of “implied” and “inherent” capacity are sometimes confused, as they are both used to achieve the same result in substance. But they are in fact diametrically opposed in their points of departure. “Implied powers” departs from the traditional thesis in legal theory that an IGO can do only what is provided in its constitution, and then wiggles out of it in fact, without stating where the limit goes. “Inherent powers” refute the traditional thesis that an IGO can do only what is provided in its constitution – and instead denes the limit between what it can do without legal basis and what requires a legal basis, but not necessarily in the constitutional convention. This it does by making the basic distinction between, on the one hand, inherent internal jurisdiction over organs and their members as such and inherent external legal capacity to act as an equal partner, and, on the other hand, extended jurisdiction, which has been conferred upon some organizations, to make decisions binding upon parties which have a legal existence outside the organization (States, other IGOs, individuals and legal persons). While the former powers are inherent in any IGO, State or other self-governing community as a matter of customary international law, the extended jurisdiction requires a specic legal basis – i.e. an authorization from the States concerned. But even that does not have to be given in the constitution of the organization, as long as the latter does not contain limitative provisions (e.g. on purposes) which preclude such powers. “Implied powers” need only be resorted to exceptionally – but then in a genuine sense – if provisions on extended jurisdiction have been formulated too narrowly to give effect to what obviously was intended by their framers. Some writers on the law of intergovernmental organizations start out from a premise that an intergovernmental organization – in contradistinction to States and other self-governing communities – can do only what is provided in its constitution (the instrument establishing it). In its pure form, this is referred

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to as the doctrine of “attributed” or “delegated” powers – meaning powers given to the particular organization by its member States.) This concept is applied indiscriminately to all types of acts – from transactions on an equal and voluntary basis with external parties (legal capacity) to making decisions binding upon member States and other types of parties ( jurisdiction). Seeing that this is not so in practice1 and that perhaps most of the acts performed by IGOs have not been authorized by constitutional provisions (other than by falling within their dened purposes) – writers resort to the ction of “implied powers”. In theory, this concept starts out from an interpretation of what the authors of the constitution of the organization concerned are supposed to have had in mind when they drafted that particular convention. In the absence of criteria other than the ctitious intentions of the authors, the concept is in fact applied exibly whenever the need is felt. As has been stated; the most fascinating aspect of the doctrine of implied powers is its exibility. Indeed, it offers no guidance,2 merely an escape from a false point of departure. Even the International Court of Justice resorted to this ction during its rst years, when it held that the UN could claim reparation under international law for damage suffered by its ofcials and representatives in the performance of their mission for the organization,3 and when it held that power to establish an administrative tribunal to adjudicate disputes between the organization and its ofcials “arises by necessary intendment out of the Charter”.4 However, in 1962 the Court turned the presumption around,5 adopting the principle of “inherent power” advanced by the present writer in an article written for use in that case and circulated to the judges by one of them.6 However, the latter advisory opinion appears to have escaped the attention of legal writers. Or they have not noticed its diametrically opposed point of departure: “the presumption is that the organization has the power”,

1

2 3 4 5 6

See e.g. the practice reported by the present writer in IV Indian Journal of International Law (1964), pp. 74 and 233–65, and by Schermers and Blokker:, International Institutional Law, 4th ed., the Hague 2003, §§ 1594–1598. See e.g. Royer-Hameray: Les Compétences des organisations internationales, Paris 1962. Reparation for injuries suffered in the service of the United Nations, ICJ Reports 1949 p. 182. Effect of awards of compensation made by the United Nations Adminstrative Tribunal, ICJ Reports, 1954, pp. 56–7. Certain Expenses of the United Nations, ICJ Reports, 1962 at p. 168. Can the United Nations Establish Military Forces and Perform Other Acts Without Specic Basis in the Charter? XII Österreichische Zeitschrift für öffentliches Recht, 1962, pp. 188 ff., esp. p. 201 ff., reprinted in Seyersted, United Nations Forces in the Law of Peace and War, Leyden 1966, chapter IV.

basic general distinctions 67 (in casu to establish military forces other than those provided for in Chapter VII of the UN Charter), which implies that it is any limitation of the power that requires a legal basis. If one also in legal theory would turn the presumption around and make the relevant distinction between different types of “powers” – on the basis of consistent practice described by the present writer in earlier articles7 and in the present book – the problems would fall into place. It then becomes clear that there are rm principles of general customary law, common to all IGOs, which determine what an IGO can and cannot do in the absence of specic authorization in its constitution or otherwise, and that there is no need for “implied powers” as a ctitious escape. In the rst place, there is no requirement in international law practice that the legal personality (external legal capacity) of an international organization in national and international law must be laid down in its constitution or other express treaty provision. All intergovernmental organizations have – and exercise – inherent capacity to act externally as subjects of national and international law in all relations where they are in a practical position to do so (international personality follows from well established customary international law). Any limitation upon that personality requires a legal basis in the national law concerned, or in the constitution of the organization, respectively. Examples of such limitation are hard to nd8 – even harder than it is to nd provisions stating international personality. The tendency among legal writers to seek authorization in the constitution of each organization concerned may be understandable in the case of Continental European lawyers, as their national legal systems require a basis in statute for legal

7

8

International Personality of Intergovernmental Organizations, IV Indian Journal of International Law, 1964, pp. 1–74 and 233–265; Jurisdiction over Organs and Ofcials of States, the Holy See and Intergovernmental Organizations, International and Comparative Law Quarterly, 1965, pp. 33–82 and 493–527; Settlement of Internal Disputes of International Organizations by Internal and External Courts, XXIV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1964, pp. 1–121; Applicable Law in Relation between Intergovernmental Organizations and Private Parties, III Recueil des cours de l’Académie de droit international de la Haye. An enumeration in the constitution of the organization of its purposes is, in principle, limitative internally, subject to developments by internal customary law. The Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 21 March 1986 stipulates in Article 27 (2) that “an international organization party to a treaty may not invoke the rules of the organization as justication for its failure to perform the treaty”, and in Article 46 (2) that “an international organization may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of the rules of the organization regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of fundamental importance”.

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personality of associations and companies under national law. But even writers from Anglo-Saxon countries – which like Scandinavian countries require no such basis in their national law – tend to start from the opposite (and false) point of departure in international law. Indeed, it was the American judge Hackworth who took the most restrictive view (delegated powers) in the rst ICJ advisory opinion (Reparation for Injuries 1949). A parallel position was taken by communist countries – as defense against a non-communist majority of membership in IGOs. In the second place, every intergovernmental organization exercises inherent jurisdiction over its organs and their members as such. This organic jurisdiction is never stated generally in the constitution. It includes legislative, administrative and judicial power, but not power of enforcement,9 which is an aspect of territorial jurisdiction. The inherent organic jurisdiction includes the power to establish new organs – unless it should follow from the constitution that the organs established by its express provisions are to be the only ones. In practice this means that organizations cannot establish new organs to perform the decision-making powers which the written constitution has vested in specied (principal) organs, but that organizations are free to establish subsidiary organs under the principal organs, as well as judicial organs to evaluate the acts of principal and other organs. The latter was held by the International Court of Justice in its advisory opinion on the UN Administrative Tribunal of 1954, although at that time still relying upon the ction of “implied powers.” The inherent power to establish other subsidiary organs (in casu military forces) was recognized by the International Court of Justice in 1962, despite the fact that the UN Charter did contain provisions for the establishment of military forces by different organs and methods. The inherent organic jurisdiction comprises also jurisdiction over the representatives of member States as members of the organs, although there is so far no known precedent for judicial (only administrative) settlement of disputes in this regard. Both the inherent international personality and the inherent organic jurisdiction are subject to any limitations contained in the constitution of the particular organization concerned.10 However, this is not a very practical situation. In some cases, an enumeration of specic external capacities or of specic acts of internal jurisdiction could be interpreted a contrario to exclude other types. But even this is not very practical; normally any such enumeration must be considered either as descriptive examples of the organization’s legal capacity

9 Unless one includes the limited enforcement (termination of contract and wages etc.) in

the form of disciplinary sanctions imposed as a reaction to wrongful acts of ofcials of the organization in their capacity as such. 10 See ICJ Reports, 1954, at note 5.

basic general distinctions 69 or as provisions designed to specify procedures or modalities concerning the specic acts or organs concerned.11 This, too, was conrmed by the International Court of Justice in its advisory opinion of 1962 on Certain Expenses of the United Nations, when it held that the UN could establish military forces other than those provided for in Chapter VII of the Charter. On the other hand, intergovernmental organizations do not have “implied power” to impose new obligations upon member States or external parties (States or private persons). In accordance with the principle of the sovereignty of States, this requires a specic treaty provision or a unilateral commitment by the States concerned, but even this does not have to be stated in the constitution of the organization. Organizations do not even have an “implied power” to do this in substantive – or even in most organizational12 (as opposed to procedural)13 – matters unless, in exceptional cases, there has been a genuine or a necessary implication. An example of the latter could be the provision of Article 34 of the UN Charter that “the Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance or international peace and security”. This must probably imply a right of access to the territories involved for the representatives of the Security Council.14 Thus, legal theory – if it is to conform with practice – must distinguish between the inherent external legal capacity to act on a voluntary basis as an equal partner and inherent internal jurisdiction over organs and their members as such – on the one hand – and extended power to exercise functional jurisdiction over or in (i.e. to make decisions binding upon) member States or private individuals and (other) external parties, on the other hand. The former exists automatically in all IGOs as a matter of common customary law for all self-governing communities. The latter – and only they – must be conferred upon the organization concerned; and thus exist only when so provided in the constitution or other treaty or unilateral act for the specic organization concerned – such power is delegated to the organization by the member (or non-member) States concerned.

11 Normally the widely used “descriptive” personality clauses of IGOs must therefore be

interpreted as non-exhaustive, cf. also A. Reinisch, International Organisations Before National Courts, Cambridge 2000, pp. 72–3. 12 The organization cannot without legal basis impose upon member States e.g. an obligation to pay nancial contributions to the organization. 13 The organization can impose upon the representatives of member States on its deliberative organs e.g. restrictions on their right to speak (closure of debate, limited speaking time). 14 Reference may also be made to some of the opinions and cases reported by Skubiszewski, loc. cit. infra.

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Only a few writers tend in this direction – and only part of the way. Thus Skubiszewski, in an article on Implied Powers of International Organizations,15 makes the basic distinction indicated above, although not as sharply as is done here, when he underlines that more latitude can be given to implication “in the internal sphere of the organization” than when “rights and duties of member States are at stake”. Moreover, he realistically points out that “the process of implication should not be identied with the discovery of the intention of the parties” – indeed, he speaks of a “useless ction” and, in line with Bernhardt, admits that inherent powers “follow directly from the existence of the organization”.16 However, in contradiction to the present writer, Skubiszewski concludes that “it is impossible to State a general and abstract rule”. He contents himself with stating that the application of the doctrine of implication becomes easier “if obligations of States are not directly at stake”. As for terminology, Skubiszewski appropriately points out that inherence is a factor different from implication. However, many writers do not distinguish clearly between the traditional concept of “implied powers” and the term “inherent powers”. It should therefore be reemphasized that the term “inherent powers” does not start out from the common point of departure that an IGO has only such powers as follow from its constitution. Indeed, the terms “implied” and “inherent” are diametrically opposed in their points of departure. And they apply in different elds according to the basic distinctions made above: “Inherent” applies generally to internal (organic) jurisdiction and to external capacity – while “implied” may apply exceptionally to extended jurisdiction.

3.2

Organic jurisdiction and organic contra territorial and personal connecting factors

Most books on public international law describe in their parts on jurisdiction the territorial jurisdiction of States over their land, sea and air territory and the personal jurisdiction of States over their nationals and inhabitants in personal matters even when they are abroad. There are rules of public and private international law on which of these two types of jurisdiction shall take precedence in what respects.

International Law at a Time of Perplexity, Essays in Honour of Shabtai Rosenne, Dordrecht 1989, at pp. 855–868. 16 R. Bernhardt: Qualikation und Anwendungsbereich des internen Rechts internationaler Organisationen, Berichte der deutschen Gesellschaft für Völkerrecht, 7, (12. Tagung 1971) Karlsruhe 1973, pp. 27–8. 15

basic general distinctions 71 However, there is also, as will be explained in Part Two, a third type of jurisdiction which not only States, but also other subjects of international law (self-governing communities, including insurgents, the Holy See and IGOs) exercise over their organs and the members of these as such. This organic jurisdiction, although apparently ignored in legal literature, is a strong jurisdiction which, like the other two, comprises legislative, administrative and judicial competence. Like the personal jurisdiction, it does not comprise the power of (external) enforcement. It is fairly clearly delimited in practice. It is exclusive within its eld – i.e., it takes precedence over both territorial and personal jurisdiction, even if both of these are combined in another State, as they are in respect of ofcials who are both nationals of and working in the State where the organization has its headquarters or other ofces. The organic jurisdiction shows its effects, not only in the internal law of the organization and in public international law, but also in conict of laws. Here, too, one traditionally distinguishes between territorial and personal jurisdiction by applying either territorial or personal connecting factors. However, there is also the organic connecting factor which – within the eld of organic jurisdiction – is exclusive and is applied by national courts to determine the applicable law under national conict of law rules. This is even a duty under public international law: it would be a violation of international law if e.g. a State were to impose its law governing public or private employment upon foreign State or IGO ofcials working in its territory, unless they were engaged as local personnel under local private law. The internal law of an IGO may even be the applicable law pursuant to territorial or personal connecting factors in those special cases where an IGO has extended jurisdiction – over territory or over special categories of individuals e.g. refugees – but this is a different matter. There is no need to establish whether the constitution of any particular IGO authorizes it to perform specic external acts on an equal footing with other subjects of internal law, such as concluding treaties, claiming reparation, or settling disputes by courts of arbitration. Nor is there any need to explore the constitution in order to establish the organization’s power to legislate and to make binding administrative and judicial decisions on relations with and between its organs and their members as such, because that power, too, is well established customary law, common to all IGOs. It corresponds to a basic principle in the national law of democratic States,17 referred to as the principle of legality. The latter implies that the government may impose new duties upon – or reduce existing rights of – private physical or legal subjects

17

This principle of legality is also enshrined in the Treaty establishing the European Community, cf. Article 5.

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only by statute or authority delegated by statute, whereas the executive branch of government in principle has the authority to make both general regulations and administrative acts binding upon – and to establish (administrative) tribunals or other bodies to settle disputes with – members of administrative State organs as such. Thus, there is a parallel between the powers of a government to act without basis in statute and those of an IGO to act without basis in treaty. The limit is drawn in principle in the same way: Only infringement of rights and freedoms of persons existing as legal subjects outside the organization or State concerned requires specic legal basis. Other acts do not: the government or the IGO has inherent internal power ( jurisdiction) and external capacity – but no inherent external jurisdiction.

3.3

Internal law: distinct legal systems parallel to national public law, not to public international law

Studying international law in Paris after World War II, the present writer was told that there are only two types of law and that any law that is not national law is (public) international law. This was maintained, partly emphatically, by prominent writers at that time (including Battifol and Mann).18 But if one regards practice, it becomes obvious that public international law and the internal law of IGOs are different systems of law.19 Another matter is that IGOs are also subject to public and private international law (and thereby to national law) – in their external relations; that law applies externally to IGOs in essentially the same manner as it does to States, deviations are found more frequently in legal literature than in practice. The term “internal law”20 of an IGO was rst used by the Administrative Tribunal of the League of Nations in 1929. It differs from public international law and resembles (public) national law in nearly all respects:

Thus by Battifol, and by Mann: The Proper Law of Contracts Concluded by International Persons, British Yearbook of International Law Vol. XXI (1944), at pp. 11 ff. 19 On internal law of international organizations, see Recueil des cours III (1967), at pp. 529 ff. and 536–8. 20 The Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 21 March 1986, Article 2 (1) ( j) stipulates that “rules of the organization” means, in particular, the constituent instruments, decisions and resolutions adopted in accordance with them, and established practice of the organization. 18

basic general distinctions 73 1. It is a separate system of law for each organization. 2. While in public international law the sources are equal – the later supersedes the earlier, whatever its nature – the sources of internal law are hierarchical: A constitution in the form of a treaty, takes precedence over the legislative acts in the form of “regulations”. The latter are mostly administrative regulations addressed to members of the organs, but in some organizations – having extended jurisdiction over territory, individuals and/or States – they are comparable to genuine national legislation under the principle of legality referred to above. Customary internal law also comes into play at both levels: The constitutional21 and the (lower) regular customary law. All this is at both levels supplemented by general principles of law, which may be drawn from all types of legal systems – including both national and international law – but above all from the common law of IGOs. Even so, such principles become part of the particular internal law of the organization concerned and must be applied when rules on conict of laws refer to that law. In public international law, however, the sources are equal. 3. While the primary (and the only general) subjects of public international law are the self-governing communities (States, IGOs, insurgents and the Holy See), the subjects (persons) of the internal law are the organization, its member States as such and their representatives on the organs of the organization as such, its several organs and their members, including its ofcials as such. Experts on mission for the organization, however, are usually more in the nature of independent external contractors, who may have accepted in their contracts some of the regulations enacted by the organization. 4. Most important, the effects of the internal law of the organization in the national law of the member States are twofold. First, the constitution is normally embodied in a written convention, which has the same effect as other treaties (public international law) in the law of the contracting States – i.e., it is incorporated into the national law of member States in accordance with the constitutional rules of the State concerned. Second, the entire internal law – including the constitutional treaty, all regulations and customary law and supplemented by general principles of the internal law of IGOs and of national law – is applied by national and other courts in member and non-member States alike when the applicable rule

21

E.g. the practice introduced in the Security Council by Soviet Ambassador Gromyko in the 1940s, that an abstention is not a veto, despite the words of Art. 27 (3) of the UN Charter.

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chapter three of conict of laws refers to the law of the organization, i.e., in the same manner as they apply foreign national law. Early writers submitted that in such cases a substitute national law must be sought, e.g. the law of the host State. However, in practice this is not so. If the reference is by a territorial connecting factor (e.g. the place of contract or delict), it refers directly to the national law governing the territory concerned. But if the connecting factor is organic (e.g. employment of ofcials) the organization has its own law – and the administrative law of the host country has no relation to the matter.22 Personal connecting factors are less relevant to IGOs (family law, law of succession, law of minors) – but when they are relevant (legal capacity, competent organs), the answer is usually found in the internal public law of the organization or in international law. Finally, if the organization has extended territorial and/or personal jurisdiction, it also has its own relevant territorial and personal law.23

Thus there are not two, but three types of legal systems, three types of jurisdiction (of internal, national and public international law) and three types of connecting factors (in conict of laws).

Distinct legal systems parallel to national, not international law As described above,24 all IGOs (except those of the type dépendant) exercise inherent jurisdiction over their organs and ofcials and other members of the organs as such, and some organizations also exercise extended jurisdiction over territory and/or persons and States. This gives rises to an internal law for each organization. That law has in legal writings been considered part of public international law,25 although most writers now recognize the hierarchically lower part of the internal law as being distinct. In fact, the entire internal law is a distinct legal system for each organization, like national law, which is a distinct system for each State. It is also in substance more parallel to (public) national law of States than to public international law, but writers falsely apply principles of international law also to internal IGO law, instead of drawing them from national (public) law, which is the proper analogy.

22 See III Recueil des cours (1967), notably pp. 442 ff. 23 Ibid. pp. 448 ff. 24 See above, chapter 1.5. 25 Thus Batiffol, and, very emphatically, Mann. A.H. Schechter: Interpretation of Ambiguous Documents by International Adminstrative Tribunals, London 1964, compared the administrative tribunals with (each other and) traditional international law, but not with national constitutions and national administrative tribunals.

basic general distinctions 75 The confusion of the internal law with public international law has led legal writers to draw false analogies to internal law from international law. The internal law is in fact parallel to national (public) law, rather than to (public) international law, also in nearly all other respects:

Subject-matter The internal law comprises, in all organizations, constitutional and administrative law – and in many organizations also procedural law. It governs: (a) Matters falling under the organic jurisdiction, i.e., relations with, between and within the organs of the organization and the members of the organs (including representatives of members) as such. This includes the constitutional and administrative law relating to the deliberative organs (e.g. rules of procedure) and the secretariat (e.g. staff regulations and rules) and any courts or other judicial organs of the organization. (b) Organizational26 relations with the members as such, e.g. budgetary contributions. (c) Substantive matters falling under the extended jurisdiction of some organizations, i.e. relations with and between member States and/or private parties, in case of organizations which have been granted (or exceptionally assumed) powers in respect of States, territory and/or groups of individuals. These relations differ in substance from those governed by international law (this is to a great extent true even of the relations with member States and their representatives). Thus the rules governing the composition, procedure and powers of the organs are more analogous to the constitutional and administrative rules in States than to the relations between sovereign States governed by international law. Not to mention the relationship of the organization with its ofcials, or with inhabitants of a territory under its jurisdiction.

Subjects The internal law governs to a great extent, or even mostly, subjects other than the traditional subjects of international law (the self-governing communities).

26 The term “administrative” is also used, but can better be reserved for the distinction

between legislative, administrative and judicial powers.

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In addition to relations between the organization and member States as such, it governs relations with, within and between organs and their members (representatives, ofcials) as such, and in some organizations also relations with private individuals. This has given several writers who ignore the distinction between public international and internal law a false occasion to vastly exaggerate the position of individuals as subject to public international law. However, none of these are subjects of public international law, which must be dened as the law governing relations between (not within) self-governing communities.

Sources The internal law of IGOs is to a great extent lled by a customary law which in fact is common to all IGOs which do not have special deviating provisions or practice. However, the internal law is formally a separate legal system for each organization, as national law is for each State, and only the customary law developed or recognized in the practice of the particular organization concerned has a status equal to the other, written sources. Only if neither of these offers guidance, the common customary law developed within IGOs generally will be applied – in the absence of specic sources for the organization concerned. Moreover, it is via conict of laws rules, not via incorporation in national law, that the internal law of an IGO is applied by national courts – this is an important difference. In some cases there has been doubt about the nature of provisions adopted by the organization. An example was found in the “Terms and Conditions for the Utilization by Coast Earth Stations of the INMARSAT Space Segment” adopted by the former International Maritime Satellite Organization. Some considered these as purely contractual terms, which could be modied only by agreement between INMARSAT and each national or private telecommunications entity which INMARSAT authorized to use the INMARSAT telecommunications system. Others considered these as expressing an administrative power of the organization, which may withdraw and/or decide new conditions for the use of the space system.

Hierarchical levels In public international law the sources are hierarchically equal – the later source takes precedence over the older, whatever its nature. Internal law, however, like national law, has different hierarchical levels. The constitution –

basic general distinctions 77 if embodied in a treaty – can in principle be amended only by treaty (and not by any “treaty”).

External application The internal law is applied externally in the same manner as national public law under general rules of conict of laws, which will be discussed below in Part Four. The Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 21 March 1986 contains relevant rules on external application of internal law of the organization. The convention does not affect “those relations between an international organization and its members which are regulated by the rules of the organization”.27 The provisions of the 1986 convention referring to the rules of the organization are parallel to Articles 27 and 46 of the Vienna Convention on the Law of Treaties (between States) of 23 May 1969, referring to “internal law” in the sense “national law” of the State Party.

Conclusion Legal writers have tended to consider the internal law of IGOs as part of public international law. However, it will be seen that the internal law of IGOs is in most respects parallel to national (public) law; subjects, sources, different hierarchical levels, and above all in its external application: No incorporation into the national law of the member States, but general application in national law when their conict of laws refers to the law of the organization. It is thus clear that the internal law of IGOs is not part of public international law, but a distinct system of law for each organization – parallel to national (public) law.

27 Paragraph 13 of the preamble. According to Art. 2 ( j), “rules of the organization” means,

in particular, the constituent instruments, decisions and resolutions adopted in accordance with them, and established practice of the organization. Art. 6 States that “the capacity of an international organization to conclude treaties is governed by the rules of that organization”. Art. 27 (2): “An international organization party to a treaty may not invoke the rules of the organization as justication for its failure to perform the treaty”. See also Arts. 39 (2), 46 (2), 74 (3) and 84 (1).

PART TWO

INTERNAL LAW OF INTERGOVERNMENTAL ORGANIZATIONS

CHAPTER FOUR

TYPES OF JURISDICTION EXERCISED BY SELF-GOVERNING COMMUNITIES

4.1

Territorial, personal and organic jurisdiction of States

States exercise three kinds of jurisdiction – legislative, executive (administrative) and judicial – in three respects: over their (1) territory, (2) individuals (identied as nationals (citizens) or inhabitants) and (3) civil and military organs, including the ofcials and other members of the organs acting as such.

Territorial and personal jurisdiction Territorial jurisdiction relates to persons and property located, and acts performed, within the territory of the State concerned. It extends also to foreigners, in so far as they are present, or have interests, in the territory of the State. The personal jurisdiction relates to nationals of the State concerned. It extends to its nationals also when abroad. These may, for example, be called up for military service, required to pay taxes, etc., and on the other hand are accorded diplomatic and consular protection by the national State. The extent to which States may exercise their territorial jurisdiction with regard to foreigners, in competition with the personal jurisdiction of their national State, and the extent to which they may exercise their personal jurisdiction with regard to their nationals abroad, in competition with the territorial jurisdiction of the host State, is delimited by international law.1 The question to what extent States actually do exercise such jurisdiction is answered in the national law of the several States, in particular in their law concerning

1

See Oppenheim’s International Law, 9th ed., edited by Jennings and Watts, Vol. I, London 1992, chapter 3, §§ 117, 118 and 121.

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foreigners and in their conict of laws (private, criminal,2 procedural and administrative international law). Because of the interplay between territorial and personal jurisdiction which may be exercised by different States, neither of these jurisdictions can be said to be exclusive.

Organic jurisdiction While the territorial and personal jurisdiction of States (and the corresponding territorial and personal connecting factors in conict of laws) and their delimitation vis-à-vis each other have been amply discussed in legal literature on public and private international law, the organic jurisdiction has been largely ignored3 or confused with immunity, despite the fact that it is an active jurisdiction, entailing incompetence ratione materiae for anybody else. The organic jurisdiction is the only type of jurisdiction which is exercised by all kinds of self-governing communities. It thus constitutes the only condition for being a self-governing community and, thereby, an automatic (inherent) and, in principle, general subject of international law. The organic jurisdiction of a State implies that all its relations with – and all relations between and within – its organs and ofcials as such are governed by the public law and by the executive and judicial organs of that State and not by the public or private law or the organs of any other State. The organic jurisdiction is usually exercised within the territory and/or over the nationals of the State concerned, and is thus obscured behind its territorial and/or personal jurisdiction. In such cases it may not manifest itself in international law as a separate power, although it may, in national law, distinguish itself from the territorial and personal jurisdiction by the fact that it may be exer-

2

3

Criminal jurisdiction is exercised by States also in respect of the protective, the universality, and the passive personality principles. Grave international crimes are considered as part of States’ universal jurisdiction, e.g. crimes dened in the Rome Statute of the International Criminal Court (ICC), cf. also crimes treated by States according to the principle of aut dedere aut judicare (prosecute or extradite), e.g. acts of international terrorism, see further ILC’s work on the subject, doc. A/62/10, chapter IX. For an overview of extraterritorial criminal jurisdiction of States, see Brownlie, Principles of Public International Law, Oxford 2003, pp. 299 ff. An exception is Charles Rousseau: Droit international public, Paris 1974, Vol. II, pp. 284–5, who correctly described it as “a compétence relative aux services publics”, which includes their “organisation”, their “fonctionnement” and their “défence”. Werner Goldschmidt: Derecho internacional privado, 3rd ed., Buenos Aires 1977, p. 171 speaks of “the country whom a person serves” and “lex fori”, thus correctly indicating that lex fori is an (but only one) example of this connecting factor. See also van Panhuys: “In the Borderland between the Act of State Doctrine and Questions of Jurisdictional Immunities”, ICLQ , VIII (1964), pp. 1192–1213.

types of jurisdiction exercised by self-governing communities

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cised by executive rather than by legislative action (it falls outside the “legality principle”). The exclusive organic jurisdiction – or autonomy – of States arises as an inter-State problem only in those cases where civil or military organs of one State are temporarily or permanently located in the territory of another State. The most important examples of this are diplomatic and consular missions, exile governments, heads of State or government ofcials on temporary mission to a foreign government, warships visiting abroad and troops stationed abroad, the latter normally under a Status of Forces (or Mission) Agreement. In most cases where State organs are located abroad and there is thus no territorial jurisdiction to obscure the organic jurisdiction. The latter is instead covered by the personal jurisdiction and by the so-called privileges and immunities, which often go far beyond the organic jurisdiction. Thus, diplomats and heads of State are exempt from the jurisdiction of the host State, not only with regard to their public law relationship to their own government, but also in many respects with regard to their private law relations with nationals of the host country. But these exemptions, although general in the elds of civil and criminal jurisdiction and of enforcement, are far from general in the eld of substantive law.4 And privileges and immunities do not extend fully to all State organs abroad. Consular missions, clerical and other subordinate ofcials, and employees who are nationals of the host State, are examples of this. The organic jurisdiction differs from privileges and immunities in all these three respects. It is conned to the organs and ofcials acting in that capacity, including all aspects of the relationship of employment. But within this eld it comprises not merely civil and criminal jurisdiction and enforcement, but also substantive law. And it extends to all organs and ofcials, whether located at home or abroad, and without regard to the nationality of the ofcial concerned or to whether the organ or ofcial concerned enjoys privileges and immunities. In view of the overlapping with territorial and personal jurisdiction and with privileges and immunities, it is difcult to nd clear and convincing cases to prove the existence and the scope of the organic jurisdiction as a competence of States under international law. And this is probably the main reason why it has been largely ignored in legal literature. However, legal writers get into the problem in connection with the lex fori. Werner Goldschmidt,5 in the

4

5

See Perrenoud: Régime des Privilèges et Immunités des Missions diplomatiques étrangeres et des Organisations internationales en Suisse, Lausanne, 1949, p. 57; and Guggenheim: Lehrbuch des Völkerrechts I, Basel 1948, p. 468. Derecho internacional privado, Buenos Aires 1977, p. 171.

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chapter on personal connecting factors of his work on private international law, got close to the organic connecting factor when he, under the heading of personal connecting factors, included a part on the country that the person serves. He correctly points out, rst, that the term lex fori is too narrow, because the principle applies not only to judicial, but also to administrative functions. This is an adequate description of what preferably should be referred to as the organic connecting factor, as it is neither territorial, nor personal. May be the only case referred to in legal literature6 – although not as “organic jurisdiction”, which is the present writer’s term – is the case of the Casablanca Deserters, decided by the Permanent Court of Arbitration at the Hague on 22 May 1909.7 In this case the German Consulate of Casablanca had given a safe-conduct to three German deserters from the French Foreign Legion and attempted to repatriate them. This was prevented by French soldiers, who forcefully arrested the deserters and removed them from the protection of the Consulate. This involved a conict between concurrent jurisdictions. It was beyond dispute that the territorial jurisdiction of the French occupying forces, no less than that of the Sultan, was superseded by the exclusive personal jurisdiction which the German Consulate exercised, under the capitulation régime, over all German nationals. But was the latter jurisdiction, in turn, superseded by the exclusive organic jurisdiction which the French corps of occupation exercised over its members? This was the problem, which the Court propounded in the following terms: Considérant que, d’après le régime des capitulations en vigueur au Maroc, l’autorité consulaire allemande exerce, en règle générale, une juridiction exclusive sur tous les ressortissants allemands qui se trouvent dans ce pays; Considérant que, d’autre part, un corps d’occupation exerce aussi, en règle générale, une juridiction exclusive sur toutes les personnes appartenant au dit corps d’occupation; Que ce droit de juridiction doit être recunnu, toujours en règle générale, même dans les pays soumis au régime des Capitulations; Considérant que, dans le cas où des ressortissants d’une Puissance qui bénécie au Maroc du régime des Capitulations appartiennent au corps d’occupation envoyé dans ce pays par une autre Puissance, il se produit, par la force des choses, un conit entre les deux juridictions sous-indiquées;8

The Court answered the question in the following terms:

6 7

8

Rousseau, loc. cit. Reported in James Brown Scott: Les travaux de la Cour permanente d’arbitrage de La Haye, New York 1921, p. 114, and in Reports of International Arbitral Awards, XI, pp. 119 et seq. Ibid. p. 118.

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Considérant que le conit de juridictions dont il a été parlé ne saurait être décidé par une régle absolue qui accorderait d’une manière générale la préférence, soit à l’une, soit à l’autre des deux juridictions concurrentes; Que, dans chaque cas particulier, il faut tenir compte des circonstances de fait qui sont de nature à déterminer la préférence; Considérant que la juridiction du corps d’occupation doit, en cas de conit, avoir la préférence, lorsque les personnes appartenant à ce corps n’ont pas quitté le territoire placé sous la domination immédiate, durable et effective de la force armée;9

The Court thus, Solomon-like, decided that the personal jurisdiction of the German Consulate was superseded by the organic jurisdiction of the French corps of occupation, where this was cumulated with the territorial “domination”. This conrmed the existence of an organic jurisdiction, although not under that name. But the Court did not determine whether the organic jurisdiction, if standing alone, would supersede the territorial jurisdiction. That question can be clearly answered only in those exceptional cases where both the territorial and the personal jurisdiction are vested in a State other than that to which the organ belongs. Even in such cases, the issue may by confused by the fact that the organ in question may enjoy privileges and immunities. But these do not, in principle, extend to substantive law and do not transfer the legislative power from the receiving to the sending State. Probably the purest example of the organic jurisdiction of States may be found in the case of such clerical and other subordinate employees of consular ofces as are nationals, not of the State in whose employment they serve (the sending State), but of the State in whose territory they work (the receiving State or the host country). In such cases the organic jurisdiction of the sending State stands entirely alone. Nevertheless, it supersedes the combined territorial and personal jurisdiction of the host State. The relationship of employment between the sending State and the employee is subject to the public law of that State and not to the administrative or labour law of the host country.10 This was expressly laid down in the Consular Regulations of the United States in the following terms: “Foreign laws governing contracts of employment and employment benets are not considered as applicable to the ofcial employment by the United States of persons for service in American 9 10

Ibid. p. 119. However, the United Nations Convention on Jurisdictional Immunities of States and Their Property of 2 December 2004 lays down in Article 11 that a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State, unless the employee either has been recruited to perform particular functions in the exercise of governmental authority or enjoys diplomatic or consular privileges.

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diplomatic missions and consular ofces.”11 And the United States has on a number of occasions refused to comply with laws of the host country requiring advance notice or the payment of salary in lieu thereof in the case of discharge of employees from their consular ofces abroad, even when such employees were nationals of the host country.12 This stand of the sending State has been accepted, in most cases, by the judicial, quasi-judicial and administrative authorities of the host country. Thus, in Calvaruso v. Byington (1928), an Italian court refused to grant claim for damages under Italian labour law, brought against the United States Consul-General in Napoli by a discharged employee of Italian nationality. The basis of the decision was that the claimant was employed in a public capacity by the United States, that his relations with the Consul were based upon the public law of the United States, and that due respect for the sovereignty of a foreign State prevented the court from examining that law.13 A similar decision was rendered by another Italian court in 1936 in Rosati c. Rappresentanza Commerciale dell’U.R.S.S. The court held that the defendant was an organ of public law emanating from the juridical personality of the Russian State, within the meaning of Articles 2 and 3 of the Treaty of 7 February 1924 between Italy and the Soviet Union. Consequently, the employees of the delegation did not fall within the Italian law relating to private contracts of employment and Italian courts had no jurisdiction in respect of disputes arising out of such contracts.14 The Mexican Central Board of Conciliation and Arbitration of the State, in a similar decision of 1932, refused to grant the claim of a discharged ofcial of a United States consulate in that country for compensation under Mexican labour law, on the ground that the defendant was a representative of a foreign government, that the claimant was a public employee in the service of that government, and that the Board consequently was without jurisdiction and did not consider that the federal Mexican labour law was applicable.15 In 1935 a similar action founded on the local employee’s law was brought against a United States consul in Colombia by a former employee. The consul contested the jurisdiction of the court under Article V (2) of the consular convention of 4 May 1851 between the United States and New Granada, which read: “Consuls, in all that exclusively concerns the exercise of their Hackworth: Digest of International Law, IV, p. 731. Ibid. pp. 731–735, see notably the Italian case reported at p. 731 and the Belgian case reported at p. 735. 13 Ibid. p. 732. 14 (1938) 30 Rivista di diritto internazionale 226, translated in Annual Digest of International Law Cases 1935–37, p. 235. 15 Hackworth, IV, p. 734. 11 12

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functions, shall be independent of the State in whose territory they reside.”16 The United States Legation at Bogotá was instructed to bring the facts to the attention of the Colombian Foreign Ofce, to refer to the above provision, and to State that the Department of State did not consider that consuls were ordinarily amenable to local jurisdiction for acts performed in pursuance of ofcial functions. The Legation replied that the Foreign Ofce had concurred in the view of the Department of State and that the court had been advised to this effect.17 Another case, Mazzucchi v. American Consulate, was brought before an Italian court in 1931. In its decision the court said: Consuls do not possess the true and proper quality of representing the State in its international political relations; neither are they diplomatic agents. Nevertheless, in fullling their mission and in exercising the powers belonging to them they must be considered as ofcial agents of the governments by whom they are appointed. It follows that, if consuls enter into relations with private persons in order to carry out duties which appertain to the political activity of the State which they represent, no action in respect of such relations can be brought before the Courts since a foreign State cannot, in the exercise of its political functions, be subjected to the jurisdiction of another State without suffering a denial of its sovereignty. In order to be able to declare whether Mazzucchi should have a right to compensation, the Labour Court would have to ascertain as a preliminary step, whether the cause of the dismissal was just. It would have to submit to examination the motives which led the Consul to dismiss a person employed in a service of a political nature. It would have to give judgment on a step taken by the Consul with regard to the execution of a duty which has its origin in the sovereignty of a foreign State. Such examination and judgment lie outside the jurisdiction of the Italian Courts.18

A nal example is a Belgian case of 1934, Epoux Prevostchikoff-Germeau v. Canada. In this case, too, an action (against the Canadian Immigration Ofce at Antwerpen) for wrongful discharge was dismissed. The court held that the Immigration Ofce of Canada at Antwerpen was a branch of public service, and that the Canadian Government in engaging the plaintiff as its employee was acting as a sovereign State and not in its capacity as a subject of private law. Belgian courts had no jurisdiction over acts of foreign States of a political or governmental nature. In particular, they had no jurisdiction

16 17 18

Martens: Nouveau recueil général de traités (NRG) 1st ser. XV, (1857), p. 288. Ibid. note 15. Annual Digest of International Law Cases, 1931–32, Case No. 186.

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in respect of an action brought by an agent of a foreign government for wrongful dismissal.19 These decisions emphasize the exclusive (and overriding) legislative power of the sending State in relations of public employment. The consular ofce decisions emphasize the lack of both legislative and judicial power of the host State. In the last cited cases, as well as in a number of similar cases,20 only the lack of judicial power is emphasized, partly in conjunction with the exclusive executive power of the sending State. In so far as the courts refer to the exclusive legislative (and/or executive) power of the foreign State concerned, or to the lack of legislative and judicial power of their own State, the legal basis cannot possibly be any other than the exclusive organic jurisdiction of the State whose organs are involved. Neither territorial nor personal jurisdiction, nor privileges and immunities, could form the basis of any such power. These cases therefore constitute clear precedents21 for the existence of an exclusive organic jurisdiction which supersedes the combined territorial and personal jurisdiction of the host State. Although each judgment merely constitutes a precedent in respect of its own national law, it is submitted, on the basis of the uniform attitude taken by the States whose organs are involved and by the executive and judicial organs of the host State, that the exclusiveness of the organic jurisdiction also is a rule of customary international law. When the courts refer only to their lack of judicial power, the issue is not so clear. Even if the ofcials concerned do not enjoy privileges and immunities, the foreign State as such will enjoy such privileges and immunities, including full or partial immunity from suit in foreign national courts. This immunity, ratione personae, would in itself lead to the same result: dismissal of the proceedings. In many cases courts have, in fact, preferred to rely upon this immunity ratione personae rather than upon the incompetence ratione materiae which results from the exclusive organic jurisdiction of the foreign State.22 In other cases they have not made clear upon which of these two premises they relied. Most of those judgments which refer only to the lack of judicial power therefore do not constitute clear precedents for the existence and extent of the exclusive organic jurisdiction, although some of them speak in terms which

Annual Digest, 1938–40, Case No. 85. Cited in succeeding notes. Although not legally binding in future cases, since most of the States concerned have not adopted the principle that precedents are legally binding. 22 Little v. Riccio and Fischer, Annual Digest 1933–34, Case No. 68; Kazmann v. Russian Trade Delegation in Italy, ibid., Case No. 69; Franco-Franco, Journal de droit international (Clunet) 1954, p. 783. 19 20 21

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come closer to incompetence ratione materiae than to immunity ratione personae.23 However this may be it is submitted that the exclusive organic jurisdiction extends also to the judicial power.24 The exclusive (and overriding) organic jurisdiction extends to all relationships of employment of the State concerned, without distinction between higher ofcials and subordinate employees. This was clearly expressed in Mazzucchi v. American Consulate in the following terms: In the dispute in question the plaintiff maintains that this Court can hear his claim having regard to the fact that the modest duties entrusted to him were not of a consular character. In fact he asserts that he had rst the task of disinfecting emigrants, and then that of stamping the papers issued by the American Consul so as to make it possible to ascertain, at the moment of embarkation, that the emigrants had been medically examined by the sanitary ofcers of the Consulate. He does not appreciate that, although his duties were simple, they were nevertheless still relative to a service of a political nature which the American State carries on in Italian territory by means of its consuls.25

Most of the other cases, too, related to subordinate employees. Thus the duty of Calvaruso was to inspect the luggage of the emigrant embarking from an Italian port for the United States. The exclusive (and overriding) organic jurisdiction probably extends even to employees of the purely commercial agencies of a State, such as trade delegations and State railways. However, in this respect practice has not been consistent. Some French and Italian courts have declined jurisdiction in actions brought against the Soviet Trade Delegation by dismissed employees.26 But other Italian courts have assumed jurisdiction in at least one action against the Soviet Trade Delegation,27 and in one action against the Norwegian State Railways, despite the fact that the defendant in the latter case relied upon exclusive organic jurisdiction rather than upon immunity ratione personae.28 In these two cases the courts appear to have applied the distinction between governmental and commercial service, which is applicable in questions of

23

24 25 26

27 28

Thus Sakharoff c. Représentation Commerciale de l’U.R.S.S., Revue critique de droit international, Vol. 31 (1938), p. 175. In this case the plaintiff was a national of the defendant State. The precedents in this sense are clearer, in respect of intergovernmental organizations, see below. Annual Digest, 1931–32, Case No. 186. Sakharoff c. Représentation commerciale de l’U.R.S.S., Revue critique de droit international Vol. 31 (1938), p. 175, and Kazmann v. Russian Trade Delegation in Italy, Annual Digest 1933–34, Case No. 69. Slomnitzky v. Trade Delegation of the U.S.S.R. in Italy, Annual Digest 1931–32, Case No. 86. De Semenoff v. Norwegian State Railways, Annual Digest 1935–37, Case No. 92.

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immunity ratione personae, instead of the general test of public employment, which would have been more proper in questions of organic jurisdiction. Otherwise, because of the fact that the organic jurisdiction usually coincides with territorial and personal jurisdiction, or with privileges and immunities, there is little practice to indicate the extent of the organic jurisdiction of States, except for the cases and State practice reported above, which demonstrate that it comprises relationships of public employment including employment benets. It probably extends to social security insurance in so far as this is related to the employment. This means that no ofcial can be subjected to the workers social security system of another State without the consent of the employer State. Thus the Vienna Conventions of 1961 and 1963 on Diplomatic and Consular Relations, respectively, provide that staff members of the diplomatic or career consular post shall “with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State.”29 However, for obvious practical reasons an exception is made for honorary consuls and those members of a career consular post and of the service staff of a diplomatic mission who are nationals of or permanently resident in the receiving State.30 Unless this exception has given rise to new customary law, it can hardly be imposed upon States who are not parties to the conventions, but in practice they will usually nd local insurance more convenient in such cases, both from their own point of view and from that of their local employees who do not move from one country to another.31 Otherwise one may, in the absence of further evidence, nd some guidance as to the scope of the organic jurisdiction by drawing on a parallel concept of national (constitutional) law. Under many or most democratic constitutions the government may regulate private rights and duties (law in the sens matériel) only by, or by authority of a statute (law in the sens formel), whereas rules which are binding merely upon the organs of the government in many countries may be made by simple decision, usually by the executive authorities. This “particular legal sphere” of the government comprises its relations to and relations between and within, State organs and ofcials as

Vienna Convention on Diplomatic Relations of 18 April 1961, Art. 33 (1) and Vienna Convention on Consular Relations of 24 April 1963, Art. 48 (1). Cf. Luke T. Lee: Consular Law and Practice, 2nd ed., Oxford 1991, pp. 536–9. 30 Convention on Diplomatic Relations of 18 April 1961, Art. 37 (3), and Convention on Consular Relations of 24 April 1963, Art. 71. 31 See furthermore Lee, ibid. note 29, chapter 33 on Social Legislation and Public Services. 29

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such. It also comprises conclusions of contracts32 and treaties and in general such relations with other subjects of national and international law as do not involve exercise of governmental authority over the latter by making unilateral decisions binding upon them.33 As the cases referred to above demonstrate, the organic jurisdiction – in contradistinction to territorial and personal jurisdiction – is truly exclusive (and overriding) within its eld, inasmuch as it takes priority and excludes, as far as it extends, the exercise of competing territorial or personal jurisdiction of other States. Even if both territorial and personal jurisdiction is combined in one other State, the organic jurisdiction takes precedence. It is submitted that no foreign jurisdiction can, even as a preliminary issue, try the validity of acts performed in the exercise of organic jurisdiction. It is thus in the organic eld that the reciprocal respect for the internal autonomy of States (and other self-governing communities), which is the basis of international law, manifests itself in its most rigid form.34 Nevertheless, even the organic jurisdiction must, of course, be exercised in such a manner that it does not violate the rights of other States or external private parties. States have, on a number of occasions, intervened in the internal affairs of other States,35 and many writers even admit their right to do so in particular cases, notably if their own security is endangered by the internal act of the other State. In the case of State organs on foreign territory, the host State must be accorded a right to protect, not merely its security, but also its public order. Both practice and writers consider the host State entitled to infringe upon the privileges and immunities accorded to representatives

32 This may only apply to a limited extent, however, as Art. 10 of the United Nations Con-

vention on Jurisdictional Immunities of States and Their Property of 2 December 2004 applies a restrictive immunity that covers acts jure imperii, but not a State’s contractual relations with private parties as acts jure gestionis. 33 This theory of a “governmental sphere” has a parallel in English public law in the socalled Act of State doctrine, which, although rejected by the International Law Association in 1962, seems to be compatible with the exercise of exclusive organic jurisdiction as proposed here, cf. International Law Association, Report of the Fiftieth Conference, Brussels 1962, pp. xiv, 122–131 and 153–156 and I. Brownlie, Principles of Public International Law, Oxford 2003, pp. 49 ff. See also on the Act of State doctrine in national courts in A. Reinisch, International Organizations Before National Courts, Cambridge 2000, pp. 87 ff. who on p. 90 concludes that there is some authority in case law that acts of international organizations could also trigger its application. 34 This was expressed by Fauchille, Traité de droit international public, Paris 1922, I, § 259, in the following terms: “les vices de l’organisation administrative d’un Etat ne saurait autoriser les autres puissances à substituer leur propre action et à s’attribuer la direction ou la surveillance de tels ou tels services publics, alors même qu’ils auraient, par voie de répercussion, des résultats dommageables pour elles ou leurs régnicoles.” 35 See the examples quoted by Fauchille, op. cit., I, §§ 254–267, most of which, however, do not concern the organic jurisdiction.

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of foreign States where this is necessary in order to prevent the performance or repetition of acts of violence directed against the security of the State, its government,36 or even its nationals.37 It would appear reasonable to apply the same principle even to internal acts of organic jurisdiction with regard to State organs on foreign territory, if such acts might upset the security or the public order of the host country. However, no such cases are known to have arisen, apart from the recognized right of the host State to refuse, on whatever grounds it sees t, to accept the establishment of a foreign diplomatic or consular mission or other organ in its territory, or to accept a certain individual as diplomatic or consular representative.38 At any rate, any such limitation upon the organic jurisdiction would merely imply a right for the host State to protest and demand the withdrawal of the organ concerned or to take other appropriate steps within the limits of its own territorial, personal or organic jurisdiction in order to avert detrimental effects. In no circumstances could the host State itself assume the exercise of the organic jurisdiction of the sending State.

4.2

Organic and membership jurisdiction of the Holy See

The Holy See exercises a jurisdiction over its organs similar to the organic jurisdiction of States. Since the creation, under the Lateran Treaty of 11 February 1929,39 of the State of the Vatican City, the Holy See also exercises a limited territorial and personal jurisdiction over that diminutive State.40 But,

36 37

38 39 40

See the cases quoted in Oppenheim: International Law, 9th ed., London 1992, pp. 1074 and 1098. For example, temporary detention of diplomats driving motor-cars in a dangerous manner while under the inuence of alcohol. – Art. 31 (2) of the Vienna Convention on Consular Relations of 24 April 1963 provides that the consent of the head of the consular post to entry by authorities of the receiving State may be assumed “in case of re or other disaster requiring prompt protective action”. No similar provision was included in the Vienna Convention on Diplomatic Relations, and this distinction appears to have been deliberate in view of the difference between diplomatic and consular functions. Cf. also the Kosenkina case at the Soviet Consulate in New York, AJIL, Vol. 42 (1948), p. 858. At least the best known cases where the recall of diplomatic envoys has been demanded by the receiving State do not concern their exercise of organic jurisdiction. Italian text in Martens. NRG 3e sér., XXI, p. 18. English translation in British and Foreign State Papers, Vol. 130 (1929–I) p. 791 and in AJIL, Vol. 23 (1929). The relationship between the Holy See and the Vatican City is described in Crawford, The Creation of States in International Law, Oxford 2006, pp. 226–233.

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even so, its organic jurisdiction stands out more clearly than that of States, if not in legal literature,41 than in treaty and practice. The jurisdiction of the Holy See as such is set forth in the following terms: Romanus Pontifex, Beati Petri in primatu Successor, habet non solum primatum honoris, sed supremam et plenam potestatem iurisdictionis in universam ecclesiam tum in rebus quae ad dem et mores, tum in iis quae ad disciplinam et regimen ecclesiae per totum orbem diffusae pertinent. Haec potestas est vere episcopalis, ordinaria et immediata tum in omnes et singulas ecclesias, tum in omnes et singulos pastores et deles, a quavis humana auctoritate independens.

It is necessary, however, within the scope of this sweeping statement, to distinguish between jurisdiction over the central organs, the local organs and the members of the Catholic Church.

Central organs With regard to the central organs,42 there is now, in Article 11 of the Lateran Treaty, the following express provision: “The central bodies [enti ] of the Catholic Church are exempt from all interference on the part of the Italian State (except for the provisions of the Italian laws concerning acquisitions by juridical persons), and also from expropriation [conversione] with regard to real estate.” Thus Italy recognizes that the Holy See has exclusive jurisdiction, or autonomy, with regard to its central organs, including, presumably, their ofcials. This jurisdiction would include all relations with or within its organs (and ofcials) as such, but does not imply jurisdiction over outside parties. The principle probably was the same during the period 1870–1929, although the

41 The question as to over what the Pope had sovereignty before the creation of the State

of the Vatican City, was raised by Lundborg: Påvestolens Rättsliga ställning efter 1929, Copenhagen (1932), Nordisk tidsskrift for international ret, and in (1937) 52 Niemeyers Zeitschrift für Internationales Recht 136, and answered in the following terms: “Über seine eigene Person und über einen geistlichen Schatz, eine kollektive Zusammenfassung der katholischen Kirche, die eine Rechtspersönlichkeit bildete.” 42 The exemption of the Pope from the application of Italian law was expressly admitted by the Italian Prime Minister as early as 2 February 1871, in the following, very broad, terms: “Le Ministère considère le Pape comme une personne à laquelle, en aucune façon, aucune disposition de notre droit interne ne peut être appliquée, comme une être international indépendant de tout état et de toute juridiction” (Rostworowski in Annales de l’Ecole libre des sciences politiques, VII (1892), p. 117). See, however, below on the Pope’s civil obligations under the Law of Guarantees.

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Law of Guarantees of 13 May 1871,43 most of whose provisions concern the “Supreme Pontiff ”, had no clear provisions concerning the general status of the subordinate organs. Perhaps because of this lack of clarity on the part of the legislator, Italian courts on one occasion prior to 1929 took cognizance of claims advanced against the Holy See by its employees, thus disregarding the courts established by the Holy See for that purpose.44 It should be noted in this connection that the Law of Guarantees was no agreed document, but a unilateral Italian act, the validity of which was never recognized by the Holy See. The jurisdiction of the Holy See does not extend ipso jure to the private relations of its ofcials, i.e., to their rights and duties when not acting in an ofcial capacity. In the course of the discussion of the Law of Guarantees it was specied that even the Pope would be subjected to the jurisdiction of the Italian tribunals (and, presumably, to Italian law) with regard to his civil obligations.45 The Lateran Treaty, on the other hand, accords to some or all ofcials of the Holy See a number of exemptions from Italian jurisdiction in such personal matters as involve also the interests of the Holy See, e.g. military service (Article 10) and taxation of salaries (Article 17), the latter exemption applying even to temporary employees. The Italian jurisdiction over Holy See ofcials when acting in their private capacity was further curtailed by the establishment of the State of the Vatican City. A number of the ofcials of the Holy See are citizens of that State and, as such, subject to its general jurisdiction, although, in principle, only within Vatican territory.46

Diplomatic envoys The diplomatic envoys of the Holy See are – under customary international law, as conrmed by treaties47 – accorded the same “treatment,” or “prerogatives and immunities,” as the diplomatic envoys of States. The Holy See exercises the same exclusive jurisdiction over its diplomatic envoys as such as States do. In addition, the Holy See exercises a limited jurisdiction over its

French translation in Martens, NRG, XVIII, p. 41. Martinucci-Theodoli, decided by the Tribunal of Rome on August 16, 1882, and by the Court [of Appeal] of Rome on 9 November 1882. See Grunebaum-Ballin in Revue de droit international et de législation comparée, 1921, pp. 80–81. 45 M. Sibert, Traité de droit international public, Paris 1951, p. 421, note 1. 46 Lateran Treaty, Art. 9, cf. Art. 21. 47 Congress of Vienna, rules of 19 March 1815, Arts. 1 and 4, and Act of 9 June 1815; Lateran Treaty, Arts. 12 and 19. Vienna Convention on Diplomatic Relations of 18 April, 1961, cf. Arts. 14 and 16. See also the Italian Law of Guarantees Art. 11. 43 44

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envoys in their private capacity, by virtue of the fact that they are citizens of the Vatican (and of their States of origin), while serving abroad.48 Under Article 13 of the Law of Guarantees, as conrmed and expanded by Article 39 of the concordat with Italy of 1929,49 all institutions for the education of ecclesiastics (originally in the Rome area, later throughout Italy) “shall continue to depend solely upon the Holy See, without any intervention on the part of the educational authorities of the Kingdom.”

National churches: organs and members The Holy See also exercises jurisdiction over the Catholic Churches in the various countries, i.e. over their organs and members as such. But this jurisdiction is limited and precarious inasmuch as it may be exercised only to the extent permitted by the State concerned, and this varies greatly.50 Apart from what follows from modern developments with regard to human rights, there is no rule of customary international law which compels States to permit such jurisdiction. States may therefore, in principle, refuse permission, or they may impose such limitation or other conditions as they may see t from time to time. Basically, the exercise of the jurisdiction of the Holy See over organs and members of the Catholic Church in the several countries may therefore be in the same legal position as that of other churches and non-governmental organizations over their organs and members. However, most catholic and some non-catholic States have, by concordats, undertaken an international obligation to permit such jurisdiction within specied limits. They are then prevented from interfering with the jurisdiction of the Holy See within these limits, as long as the concordat remains in force.51 If no concordat has been concluded, the autonomy of the Catholic Church in church matters may

M. Sibert, Traité de droit international public, p. 11 note 4. The envoys are not mentioned in Art. 9 of the Lateran Treaty, but there is no reason why this provision, which is concerned with the specic relationship to Italy, should be exhaustive. 49 Italian text in Martens, NRG 3e sér. XXI, p. 27. English translation in British and Foreign Papers, Vol. 130 (1929), p. 801. 50 M. Sibert, ibid., § 267, and Lundborg: Påvestolens rättsliga ställning efter 1929, Copenhagen 1932 in Nordisk Tidsskrift for international ret 1932 p. 210. Cf. also Rousseau, Droit international public, Paris 1953, p. 146. 51 The concordat with Austria of 5 July 1933 recognized the right of the Catholic Church “im Rahmen ihrer Zuständigkeit Gesetze, Dekrete und Anordnungen zu erlassen” (Art. I § 2). The concordat with Italy of 11 February 1929 grants the Catholic Church “giurisdizione in materia ecclesiastica in conformitá alle norme del presente Concordato” (Art. 1, the subsequent translation in Documents on International Affairs (1929), p. 227 is incorrect). There is a number of limitations in the subsequent articles. 48

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still be recognized by the law of the State concerned, but this is unilaterally revocable. An example is Chapter II of the Italian Law of Guarantees, which provides in Article 17: “In spiritual and disciplinary matters, no complaint or appeal against the acts of the ecclesiastical authorities is admitted, nor are their acts accorded any execution by force.” The organs of the Catholic Churches of the several countries may be said to be organs of the Holy See in so far as they depend upon the Holy See for organization, appointment of ofcials, etc.52 However, only to the extent that the jurisdiction exercised by the Holy See over these Churches and their organs is an exclusive right under treaties in force may it be said to be organic in the same sense as the jurisdiction over the central organs and the diplomatic envoys. The jurisdiction over the regular members of the Catholic Church53 is of a different nature. It is not organic, but personal jurisdiction. However, it is very different from the personal jurisdiction which States exercise over their nationals. In the rst place, it is limited to ecclesiastical matters, although it may extend also to certain civil law matters, for example with respect to marriage.54 In the second place, the means of enforcement with regard to lay members are of a different nature (refusal of sacraments, etc.) from those which may be applied to nationals and organs. One may therefore prefer to consider the jurisdiction over members as such, to the extent that it cannot be interfered with by States, as a distinct fourth type of jurisdiction, “membership jurisdiction,” in addition to the territorial, the personal and the organic jurisdiction.

4.3

Organic, membership and extended jurisdiction of intergovernmental organizations

The examples given in the preceding chapters of concurrent territorial, personal and organic jurisdiction of several States, and of organic and mem52 Under the concordat with Italy of 1929, Arts. 19–23, bishops are appointed by the Holy

See, but shall swear allegiance to the Italian State (this was not required under the Law of Guarantees, Art. 15), whereas other ecclesiastics are appointed by the ecclesiastical authorities in consultation with the Italian Government. Under Art. 5, no ecclesiastic may be employed by the Italian Government without the permission of the ecclesiastical authorities. 53 See Codex iuris canonici, canon 218, § 2. 54 Italy, under Art. 34 of its concordat of 1929, and Austria, under Art. VII of its concordat of 1933, attribute civil effects to the sacrament of marriage administered according to Canon Law and undertake to give effect to decisions by ecclesiastical courts concerning annulment and abrogation of marriage.

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bership jurisdiction of the Holy See within States, demonstrate that there is nothing to prevent individuals from being at the same time subject to the jurisdiction of different sovereign communities, States or others. The delimitation of such jurisdiction may then be on a functional basis. Such concurrent jurisdiction does not detract from the sovereignty of the States concerned, to the extent that these are not themselves subject to the legal order of the other community55 There is nothing to prevent also intergovernmental organizations from acquiring jurisdiction in specic respects over individuals who are concurrently subject to jurisdiction of one or more States in other respects. Such concurrent jurisdiction, delimited on a functional basis, can likewise be exercised over territory,56 and over subjects of law other than individuals. However, intergovernmental organizations usually have neither territory nor nationals. But they all have organs. And they all have members. Thus, as far as intergovernmental organizations are concerned, it is the question of their organic and their membership jurisdiction which is of primary importance.

Organic and organizational membership jurisdiction Under well established customary law, all IGOs which do not have deviating provisions (organizations of the so-called type dépendant, where the secretariat functions are entrusted to the host State acting through its own organs) exercise legislative, administrative and judicial jurisdiction over their organs and the members hereof as such. This jurisdiction is inherent in the IGOs as it is in States and the Holy See – it requires no basis in constitutional or other provisions. The organic jurisdiction is essentially the same in States, the Holy See and IGOs. Its different aspects will be examined in the following chapters in relation to IGOs. Exceptionally, important organic jurisdiction in IGOs is vested in States. Thus in organizations of the type dépendant the secretariat are managed by the government of the host State. Another important example is international peace support operations composed on national contingents provided by troop contributing nations, where major legislative, administrative and This was pointed out already by Alfred Verdross, Völkerrecht, 1st ed. Berlin 1937, p. 46. The reservation excludes not only members of federal States, but also members of supranational organizations. 56 Thus the Permanent Court of International Justice, in its Advisory Opinion on the Jurisdiction of the European Commission of the Danube, divided the powers of the Commission and those of Romania in the ports of Braila and Galatz on a functional basis; PCIJ, Ser. B, No. 14, p. 67. 55

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judicial powers over members of the contingents remain in the hands of the national authorities providing the troops, although under unied command and control of the organization.57 The great majority of organizations – which have neither territorial jurisdiction over their premises, nor personal jurisdiction over their ofcials – are entirely dependent upon their organic and their membership jurisdiction, and particularly upon the former. This implies that the organic jurisdiction is at once more important and at the same time stands out more clearly in the case of intergovernmental organizations than in the case of States, indirect condominia and other subjects of international law that have territorial and personal jurisdiction as well. It is therefore possible in the case of such organizations to verify the existence and extent of the organic jurisdiction with much more certainty and clarity than in the case of territorial subjects of international law. The organic jurisdiction will therefore be examined in the following chapters in relation to intergovernmental organizations. The delimitation thus arrived at may offer guidance also for the delimitation of the organic jurisdiction of States, in those respects where this is of practical importance.58 Thus, while the law of intergovernmental organizations has to a great extent been built upon the law applicable between and within States (international and national law), the present book represents, in fact, a eld where guidance for the law applicable to States may be sought from the law of intergovernmental organizations. The questions of organic and membership jurisdiction arises with regard to all intergovernmental organizations. They are, in fact, the only types of jurisdiction which are common to all such organizations. Indeed, the organic and, to some extent, the membership jurisdictions are essentially the same in all intergovernmental organizations. Other types of jurisdiction – over territory, individuals and States – are vested only in certain organizations, and differ considerably in nature and scope from one organization to another. This will be surveyed below, in chapter 6 on extended jurisdiction. The organic jurisdiction and the organizational membership jurisdiction within its narrow limits are genuine jurisdictions also in the sense that it is for the organization, or the organ concerned, to decide in what manner the jurisdiction shall be exercised and how decisions shall be made – within any limits set in the constitution. Unless otherwise provided, deliberative organs

57 See Seyersted: United Nations Forces, Leyden 1966, chapter II, see also below, chapter

10.3. 58 For example in respect of the recognition of foreign judgments and the competence to

try the validity of the acts of foreign States, see below, chapter 7.

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normally make binding majority decisions on organizational matters. A clear example is the fact that rules of procedure of intergovernmental organization are adopted by majority vote.59 This is true also of staff regulations and other internal regulations – even if the constitution of the organization concerned contains no relevant provision. It has also been pointed out that members of the International Law Commission construed the similar practice of international conferences of adopting their rules of procedure by majority vote, as a subsequent factual (implied) consent by the minority that voted against, and (rightly) that this is a ction which cannot be maintained (not even for conferences, and certainly not) in intergovernmental organizations. Indeed this is yet another example of the contradiction between traditional theoretical doctrine (which governed the professors of the International Law Commission rather that the judges of the International Court of Justice) and practice – and of the kind of ction one must invoke if one fails to distinguish between, on the one hand, international law, which governs relations between equal, sovereign (self-governing) entities (and from which the International Law Commission and most writers departed) and, on the other hand, internal law, which governs internal relations within each intergovernmental organization, and which is parallel to national (public) law. While the former is based upon a requirement of common consent, the latter relies upon the unilateral jurisdiction (legislation, administration and adjudication) of the organization (within the limits that may be set by its written constitution or by constitutional customary law developed within the organization concerned). In order to explain the latter, members of the International Law Commission (not including Verdross, who already at that time was well aware of the internal law concept) adduced the fact that the outvoted minority remain in the conference as tacit acceptance of a decision that really should have been made by unanimity (or consensus). It is more sensible to regard such conferences as temporary intergovernmental organizations, which exercise jurisdiction over their organs and their members in that capacity, within the limits set by customary law relating to conferences. As part of their inherent organic jurisdiction, IGOs, like States and the Holy See, also exercise inherent jurisdiction over the representatives of member States in their capacity of members of the organs, e.g. on the right to assist at meetings, to speak and to vote. In addition, IGOs have a limited inherent power in respect of other organizational matters, such as admission to and

59 Cf. Ingrid Detter, Law Making by International Organizations, Stockholm 1965, pp.

52–55.

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exclusion from membership (but hardly with regard to nancial contributions to the budget), within the limits set by relevant constitutional provisions. However, it is at any rate necessary to distinguish between organizational and functional matters. Jurisdiction in functional matters can be exercised only if and to the extent that the States concerned have authorized the organization concerned to do so, while a limited jurisdiction over member States in organizational matters exists even if there are no relevant provisions. We shall therefore refer only to the organizational jurisdiction as membership jurisdiction and to refer to any substantive jurisdiction as extended jurisdiction. In addition to the inherent organic and the limited inherent organizational membership jurisdiction, a few IGOs also exercise extended jurisdiction over territories, specic categories of persons, States or even in States directly over their territory and persons (supranational organizations). However, this requires a special legal basis, in the constitution of the organization or in other treaty or unilateral act. International territorial administration by IGOs based on authorization of the UN Security Council in accordance with Chapter VII of the UN Charter is still a practical example and includes the recent examples of Kosovo and East Timor.60 Thus a small number of intergovernmental organizations exercise full or partial jurisdiction over a specic territory.61 The League of Nations exercised full territorial jurisdiction in the Saar until 1935, while Allied intergovernmental bodies exercised territorial jurisdiction in certain important or specic matters in Germany (and Austria) after World Wars I and II, the remainder of the territorial jurisdiction being exercised rst by the Zone Commanders and later by the national governments. Similarly, international river commissions exercise a limited territorial jurisdiction in respect of navigation on the rivers concerned, while the United Nations also exercised certain powers in respect of the former Italian Colonies.62 Even organizations which have no territorial jurisdiction in the proper sense have the capacity to exercise similar powers in respect of ships, aircraft and space vehicles registered with them and operated under their ag, rather than under that of any State, although in those few cases which have occurred so

For an overview of territorial jurisdiction by IGOs, see R. Wilde, From Danzig to East Timor and beyond: The role of International Territorial Administration, AJIL 2001 Vol. 95, pp. 583–606, and J. Crawford, The Creation of States in International Law, Oxford 2006, pp. 546–564. 61 See an article by the present writer in (1961) 37 BYIL, pp. 451–453. 62 See Annex XI to the Treaty of Peace with Italy (49 UNTS. 215), and General Assembly resolutions 289 (IV), 388 (V), 390A (V) and 530 (VI); cf. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1964, p. 49. 60

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far it has not been necessary to exercise legislative or judicial powers.63 These powers include – in addition to the organic jurisdiction over the captain and the crew, if they are ofcials of the organization – legislative, executive and judicial powers in civil and criminal matters in respect of transactions taking place and acts done on the vessel while it is outside the territorial jurisdiction of any State. However, the organization will usually nd it convenient or even necessary to delegate many of the latter powers, and particularly that of criminal jurisdiction,64 to a member State.65 In a few cases intergovernmental organizations also exercise a limited jurisdiction over specic categories of persons. Thus the Mixed Commission for the Exchange of Greek and Turkish Populations, under its constitution, a Greco-Turkish agreement of 1 December 1926, performed a number of different functions with regard to the emigration of minorities in the two countries and the liquidation of their property. These functions were expressly classied as administrative, legislative and judicial by the Permanent Court of International Justice.66 The UN High Commissioner for Refugees has assumed regulatory tasks to conduct refugee status determinations and administering refugee camps in many countries, thus exercising jurisdiction over persons in determining their legal status under the relevant provisions of international refugee law.

63 Thus in the case of the vessels operated under United Nations ag in Korea and the

Middle East, see (rst) United Nations Conference on the Law of the Sea, Geneva 1958, Ofcial Records, IV, pp. 138–140, cf. Art. 7 of the Convention on the High Seas of April 29, 1958. 64 On the capacity of the United Nations itself to exercise criminal jurisdiction, see Seyersted, United Nations Forces, Leyden 1966, chapter VIII (11). 65 This is prescribed, in respect of criminal jurisdiction, by Art. 18 of the Tokyo Convention on Offences and Certain Other Acts Occurring on Board Aircraft of 14 September 1963. It is also prescribed, in respect of civil jurisdiction, in a draft article to the Brussels Convention on Liability of Operators of Nuclear Ships of 25 May 1962, elaborated in 1964 by the Standing Committee of the Diplomatic Conference on Maritime Law. That article also prescribes delegation of most of the legislative power to the State to whose courts the judicial power is delegated, while retaining certain legislative powers with the organization. (New Art. XXV bis, paragraph 1 (c), International Atomic Energy Agency document CN-6/SC/13, 1965). No relevant provisions have as yet been made for space vehicles. Thus the constitution of the European Space Research Organisation (ESRO) of 14 June 1962 contains no provision, and that organization’s agreement with Sweden concerning the Kiruna Launching Range of 29 July 1964 merely provides, in Art. 7, that “the activities of the organisation in Sweden shall be governed by Swedish law”. United Nations General Assembly resolution 1962 (XVIII), para. 5, and the successive reports of the United Nations Committee on the Peaceful Uses of Outer Space, as well as of its legal sub-committee, deal with the problem of responsibility of the space vehicle, but not with that of jurisdiction. 66 Advisory Opinion on the Greco-Turkish Agreement of 1 December 1926, PCIJ, Ser. B, No. 16, pp. 17–18.

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A larger number of organizations, including the League of Nations,67 the United Nations,68 the World Health Organisation,69 sheries commissions70 and certain other regional organizations71 exercise a limited jurisdiction over States inasmuch as they may take certain decisions which are binding upon these. Some organizations even exercise jurisdiction within States, directly over their territory, nationals and organs, by taking decisions which are binding directly upon the inhabitants, nationals and organs; this is partly so in respect of certain acts of the European Community. Membership jurisdiction, too, is essentially jurisdiction over States. But it is convenient, for practical reasons, to make a distinction in this respect between organizational and functional72 matters. The former term refers to the organizational set-up or to the organization in general, such as membership and contributions. By functional matters is meant the specic, substantive functions performed by the organization pertaining directly to the realization of its purposes. It is convenient to refer only to jurisdiction in organizational matters as membership jurisdiction, and to refer to jurisdiction in functional matter as jurisdiction over States, inter alia, because the latter jurisdiction may be exercised also over non-member States and because it can only be exercised if and to the extent that the States concerned have authorized the organization to do so, while a limited jurisdiction over member States in organizational matter is inherent. States have, from their inception, territorial jurisdiction over their territory, personal jurisdiction over their nationals and organic jurisdiction over their organs. This follows ipso facto from their existence as States. No constitutional provision is necessary to enable a State to exercise such jurisdiction. Nor is, in principle, any act by other States necessary, although in order to come into existence the State must, of course, obtain control of a specic territory, by original or derivative acquisition. Territorial, personal and organic jurisdiction is thus inherent in States as such. After their establishment, States may extend this jurisdiction over new territory, new categories of persons, and even over other States, which thereby may lose part of their sovereignty. Such acquisition may be effected by unilat67 68 69 70 71 72

Notably under minority treaties, for example, Art. 57 of the Treaty of Peace with Bulgaria after World War I. See Art. 25 and Chapter VII of the Charter. WHO Constitution, Arts. 21–22. See, for example, the North East Atlantic Fisheries Convention of 24 January 1959. See, for example, the constitutions of the Organisation for Economic Co-operation and Development (OECD), Art. 14, and of the Arab League, Art. 7. Possible alternatives to this term are operational and non-organizational, the latter being the only term not also used in other connotations. The distinction between organizational and functional matters is different from that between procedural and substantive matters.

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eral, bilateral or multilateral State action; but it does not require any positive authorization in the constitution of the acquiring State, unless the acquisition should be contrary to an existing constitutional rule. This distinction may recall the one made more than two hundred years ago by Martens between rights which he called “absolus et innés” or “primitifs” (the present writer uses the term “inherent”) and rights which may be acquired73 – a basic distinction which subsequent writers have ignored while attending to the doctrine of “implied power”. The distinction between inherent and acquired jurisdiction is of little practical importance as far as States are concerned. But in the case of intergovernmental organizations it is of fundamental importance to establish, with regard to each particular type of jurisdiction, whether and to what extent it is inherent in all intergovernmental organizations by the mere fact of their existence as such, or whether it may be exercised only if and to the extent that the organizations concerned has been specially empowered to do so. If one talks in the rst case of inherent jurisdiction, one may in the second case talk of extended jurisdiction. No intergovernmental organization can exercise functional jurisdiction over States, or over territory, nationals and organs of States, without having been authorized to do so by these States. This follows from the established rule of law that a restriction of the sovereignty of States cannot be presumed, as was stated by an arbitral tribunal set up by UNESCO in 1949.74 However, it is not necessary – as the majority of writers assume – that this authority be contained in the constitution of the organization. As several of the examples cited above demonstrate, it is sufcient that the States concerned grant the authority by a separate treaty.75 Intergovernmental organizations may even assume extended jurisdiction without interfering with the sovereignty of any State and thus without any kind of authorization from a State, if they have, by occupation or creation, brought themselves in a position where they can exercise jurisdiction over territory, objects or persons who are not subject to the jurisdiction of any State or other sovereign community. Practical examples are ships, aircraft and space vehicles registered with and operated under the ag of the organization.

73 Prècis du droit des gens modernes de l’Europe, Göttingen, 1st ed., 1788, Livre II, chapter

I, § 34, and Livre IX, § 340 (in the 1801 edition, pp. 64 and 499, in the 1864 edition, Vol. I, p. 1124, and Vol. II, p. 383). 74 (1949) Annual Digest of International Law Cases, Case No. 113 at p. 336, citing several judgments and advisory opinions of the Permanent Court of International Justice. 75 Cf. articles by the present writer in BYIL 1961, pp. 451–460 and in Nordisk Tidsskrift for international Ret og jus gentium 1964, pp. 29–30.

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It is clear that jurisdiction over the organs of the organization does not interfere with the sovereignty of States. We shall examine in the following chapter to what extent intergovernmental organizations exercise and can exercise jurisdiction over their organs and ofcials as such without specic authority therefore. Like individuals serving as members of State organs, States and their representatives serving as members of IGO organs are, in that capacity, subject to the inherent organic jurisdiction of the organs concerned. In addition, as will be described in more detail below, in chapter 5, all IGOs exercise a limited jurisdiction over their member States as members of the organization as a whole, in organizational matters, e.g. on admission to and exclusion from membership. This membership jurisdiction over sovereign States is different from the personal jurisdiction which States and the Holy See exercise over their members, who are private individuals or legal persons. The membership jurisdiction is in many respects laid down in the constitution, e.g. admission to and expulsion from membership76 and payment of contributions to the budget. Such express provisions77 are not common law in either sense – neither customary, nor common to all IGOs. In these circumstances it is not so easy to identify sufcient practice to establish to what extent IGOs lacking express provisions have such jurisdiction under common customary law. A question on the borderline between organic and organizational membership jurisdiction is to what extent States may refuse to participate in deliberative organs. This has not been claried in practice. Members of the UN have on some occasions refused to serve on new organs not provided for in the constitution – on the basis of a new (not well-founded) charge that the organs under their terms of reference were to perform functions which they or the organizations were not legally entitled to perform. In the early days of the UN the Soviet Union refused to serve on the Interim Committee of the General Assembly established by GA resolution 111 (II), and the Ukrainian SSR refused to serve on the UN Temporary Commission on Korea.78

Cf. Nagendra Singh: Termination of Membership in International Organizations, London 1958, on the law and practice of voluntary and involuntary termination, with or without constitutional provisions. A resolution No. 47 (1) adopted later by the International Institute for the Unication of Private Law (UNIDROIT) provides that any Government which is more than four years behind in the payment of its contributions to the budget shall be excluded from membership. 77 See e.g. Arts. 4–6 and 17 (2) of the UN Charter. On the scope of the latter, see the ICJ advisory opinion on Certain Expenses of the UN, ICJ Reports, 1962. 78 The question was also debated in connection with the Special Committee on Information concerning Non-Self-Governing Territories, established by General Assembly resolution 76

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It is submitted that, in the absence of specic provisions, IGOs have an inherent power to decide admission to and exclusion from membership, but not to impose a duty to contribute to the budget79 or to accept establishment of headquarters on national territory,80 or merely to hold meeting on their territory, nor to amend the constitution of the organization other than by treaty revision. If no provision has been made in the constitution for amendments, it may hardly be amended by an informal decision, although a unanimous decision would probably be respected. At any rate, amendments may be – and have been – effected by practice which established new customary law for the organization concerned. Thus, rmly established practice has limited the scope of the domestic jurisdiction clause in Article 2 (7) and of the veto power in Article 27 (3) of the UN Charter (to the effect that abstention does not imply a veto). It is submitted that IGOs have a power to dissolve themselves by simple decision of a plenary organ or meeting. However, a dissenting minority must have the right to continue the organization and retain its assets.

Jurisdiction over member (or other) States Jurisdiction in substantive matters is denitely dependent upon special authority and thus not a matter of common law, neither in the sense of customary law, nor in the sense of law common to all IGOs. This is clearly extended jurisdiction and will be considered below in chapter 6. In that connection, we shall also have a closer look at the limits of membership jurisdiction in organizational matters, which is a subject on the border-line between inherent and extended jurisdiction.

332 (IV). Suzanne Bastid, p. 459, tends to support the view that members are under no obligation to serve. 79 On the interpretation of the relevant provision in Art. 17 (2) of the UN Charter, see Rama Rao in the Indian Yearbook of International Affairs, 1963, pp. 158 ff. 80 The latter problem was discussed already by H. Kelsen, who suggested that the silence of the UN Charter might be interpreted either way.

CHAPTER FIVE

INHERENT JURISDICTION OVER ORGANS AND OFFICIALS

5.1

Internal legislation of intergovernmental organizations

Organizational and functional regulations enacted by the organization The basic provisions concerning the internal organization of an intergovernmental organization are laid down in its constitution. However, the drafters of a constitution cannot – and do not purport to – provide an exhaustive set of rules for the internal operation of the organization. Most organizations therefore nd it necessary already at the outset to enact general legal rules to implement and to supplement the constitutional provisions. And this process continues as the organization grows and gains experience, establishes new (subsidiary) organs, and assumes new functions. The following are some of the most common types of such legislation: a. Rules of procedure for the various deliberate organs. b. Staff regulations adopted by the plenary organ and detailed staff rules enacted by the head of the secretariat.1 c. Financial regulations and audit procedures. d. Terms of reference for organs not provided for in the constitution, such as statutes of administrative tribunals,2 the Statute of the International Law

1

2

The United Nations Staff Regulations were adopted originally by General Assembly resolution 590 (VI) and later amended on a number of occasions. See also the Regulations for the United Nations Joint Staff Pension Fund, adopted originally by General Assembly resolution 248 (III) and amended by a great number of subsequent resolutions, and the United Nations Staff Assessment Plan, adopted originally by General Assembly resolution 239 (III). The specialized agencies have adopted staff regulations and rules modeled upon those of the United Nations. The European Communities have adopted common staff regulations of 29 February 1968 (as amended) entitled “The Staff Regulations of Ofcials and the Conditions of Employment of Other Servants of the European Communities” (Council Regulation No. 259/68 as amended). Citations below.

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Commission,3 the resolution establishing the United Nations (International) Children’s (Emergency) Fund (UNICEF)4 and the terms of reference of the regional Economic Commissions of the United Nations.5 Irrespective of their different denominations these are in the present book referred to generally as regulations. Important regulations are enacted by majority decisions of the plenary organ (e.g. the UN General Assembly) or by the other deliberative organs concerned. Exceptionally, they are laid down in annexes to the constitutional convention, e.g. the FAO Financial Regulations – a cumbersome method. Less important or more detailed regulations are enacted by the Secretariat, but only pursuant to authorization from the competent deliberative organ if they are directed to member States or their representatives (as opposed to ofcials of the organization). The regulations and rules have suffered innumerable amendments, but the basic substantive features of organizational regulations are similar in various IGOs. The regulations are mostly of an organizational nature, i.e., they concern the organizational set-up rather than the substantive functions of the organization. But intergovernmental organizations enact regulations also in functional matters.6 However, as pointed out below, such regulations require specic authority if they establish new obligations for member States, private individuals or other parties having a legal existence outside the organization (extended jurisdiction). Prominent examples are the World Health Regulations adopted by the World Health Organization pursuant to Articles 21–22 of its constitution,7 and the Regulations on the Registration and Publication of Treaties and International Agreements, enacted by the United Nations General Assembly to give effect to the provision in Article 102 of the Charter and containing detailed rules which are required to implement the general provisions contained in that article, not to mention the important substantive regulations enacted by the European Community and other supranational organizations. The regulations may be adopted by resolution of a deliberative organ of the organization or enacted by the Secretariat. The examples above are mostly comprehensive sets of rules, arranged in articles and/or sections, similar to statutes and regulations enacted by States. 3 4 5 6 7

General Assembly resolution 174 (II) as amended. General Assembly resolution 57 (I) and 417 (V) as amended. The rst by ECOSOC resolution 36 (IV) establishing the Economic Commission for Europe. On the distinction between organizational and functional matters, see above chapter 4.3. The regulations are discussed below, chapter 6.

inherent jurisdiction over organs and officials 109 If enacted by resolution of a deliberative organ, they are usually annexed to that resolution. General binding rules are also often enacted in less elaborate form, for example in the text of a resolution.8 And, as the examples cited above demonstrate, the rules may be enacted under different denominations: Regulations, statutes, rules, resolutions, decisions, etc. As long as they contain general binding rules, the difference is one of form rather than of substance. For convenience, the present book refers to them all as regulations, even if they were enacted under some other denomination.9

Absence of constitutional provisions Some constitutions expressly authorize the enactment by the organization of certain types of regulations, notably organizational regulations, such as staff regulations and rules of procedure. Thus the United Nations Charter provides in Article 101 (1) that “the staff shall be appointed by the Secretary-General under regulations established by the General Assembly,” and in Articles 30, 72 (1) and 90 (1) that the three Councils shall adopt their own rules of procedure, including the method of selecting their President. And Article 283 of the Treaty establishing the European Community provides that the Council shall “lay down the Staff Regulations of ofcials of the European Communities and the Conditions of employment of other servants of those Communities”. Writers on the subject of legislation by intergovernmental organizations, who usually make no distinction between the various types of regulations, frequently talk of them all in terms which seem to suggest that constitutional provisions are necessary – i.e. that regulations can be enacted only by those organizations upon which the power has been “conferred” in the constitution, and only within the elds covered by such constitutional “delegation”,10

8 For example, General Assembly resolutions determine the scale of assessments for the

apportionment of the expenses of the United Nations; and resolution 878 (IX) determined that certain types of United Nations documents should be published in the Arabic language (Arabic was subsequently made a regular ofcial language). 9 Kunz in Iowa Law Review, XXXI (1945–46), p. 53. Legislation by intergovernmental organizations – “International Administrative Ordinances” – in preference to “droit interne des communautés d’Etats” as used by Gascón y Marín and “inneres Staatengemeinschaftsrecht” as used by Verdross. However, the two latter terms are much more comprehensive, inasmuch as they also comprise the unwritten parts of the internal law. 10 In this sense, Kunz in Iowa Law Review XXXI (1945–46), pp. 52–53, mentioning as examples, inter alia, rules of procedure and staff regulations. Verdross: Völkerrecht, 5th ed., Vienna 1964, pp. 152 and 577, describes the same examples in less explicit terms. Certain other writers talk in more liberal, but still too restrictive terms. Thus M. Sibert,

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but many writers resort to an extensive interpretation of the provisions of the constitution. However, it is not possible to nd a legal basis for limitation of the legislative power which all IGOs exercise in internal matters stricto sensu and which is common customary law. Only a few constitutions contain general provisions authorizing the organs of the organization to enact the necessary regulations.11 Most constitutions merely provide for adoption of rules of procedure and staff regulations, as well as establishment of subsidiary organs. And some constitutions do not even provide for that.12 This despite the fact that all organizations – or at least all larger ones – need and enact regulations for a number of matters – including not merely staff, procedure and subsidiary organs – but also other subjects, such as nance, for which there is only in a few cases express authorization in the constitution. The only authority outside the organization itself which would have the power, without authorization, to enact regulations for the organization would be all member States acting in concert. If they do not wish to do this through the organs of the organization – i.e., by decision of the organization itself –

Traité de droit international public, Paris 1951, II, § 1399, wrote that the General Assembly of the United Nations “exerce dans une mesure déjà large le pouvoir réglementaire. Elle le tient ou de la Charte même ou de plus en plus de ce droit prétorien issu de ses propres Résolutions.” As pointed out below, an organization cannot by its resolutions authorize itself to exercise powers which it does not already possess. 11 More or less general authorizations are contained in the constitutions of the Bureau international des Poids et Mesures (Art. 15 of the Règlement annexed to the constitution), the Bank (Art. V (2) (f )), the Fund (Art. XII (2) (g)), the Council of Europe (Arts. 16–18), the former International Institute of Agriculture (Part II, Arts. 4 and 5), the former European Coal and Steel Community (Art. 16 original wording), the European Community (several Articles, some containing references to Arts. 249 ff.), the Organization of American States (Art. 52) and the organic statute of the International Institute for the Unication of Private Law (UNIDROIT of 15 March 1940, Art. 17 (1)). The latter provides: “Rules governing the administration of the Institute, its internal operations and the conditions of service of the staff shall be adopted by the Governing Council and must be approved by the General Assembly and communicated to the Italian Government.” It will be noted that the latter and some other provisions are concerned with the distribution of powers within the Organization and are worded in terms which (properly) rather presuppose the power to enact internal regulations. 12 Thus there is no provision concerning rules of procedure in the constitutions of the Organization for European Economic Co-operation (OEEC) or its successor, the Organization for Economic Co-operation and Development, no provision authorizing staff regulations in the constitutions of the League of Nations and UNRWA, and no provision authorizing the establishment of subsidiary organs in the constitutions of the International Telecommunication Union (ITU) and the former International Refugees Organisation. The constitution of the Benelux Customs Union of 29 April 1969 made no provision for organizational regulations, nor do the constitutions of most regional defense organizations, except for a provision concerning the establishment of subsidiary bodies and provisions concerning “implementation” of the provisions of the constitution or concerning “concerted action” (NATO Pact, Art. 9; former Warszawa Pact, Arts. 5–6).

inherent jurisdiction over organs and officials 111 they can do so by convention. But to conclude supplementary conventions between all member States for this purpose is a much too cumbersome, slow and inexible procedure, which was never envisaged by the drafters of the constitutions and which is not followed in practice. A legislative power for the host State or any other particular member State with regard to the internal matters of the organization would – except for special cases of express delegation – run counter to the constitutional system of organizations of the independent type, which is based upon the principles of the independence of the organization and the equality of its members. And even IGOs of the so-called type dépendant, i.e., organizations where the secretariat functions were entrusted to the host State, are not ipso facto subject to the general law of the host State, but only to regulations enacted specially for the organization by the government of that State.13 All organizations of the independent type have in fact themselves enacted those regulations which they have required14 – without regard to whether such legislation was authorized in the constitution or could be deduced from any of its provisions by some method of extensive interpretation. And organizations, whose constitutions expressly authorize legislation in certain internal matters, have also enacted regulations concerning other internal matters. Thus rules of procedure, staff regulations and terms of reference for subsidiary organs have been adopted no less by organizations lacking constitutional authorization to do so.15 And nancial and other regulations, which are not provided for in most constitutions, have been adopted by a great number of organizations, including the United Nations and a number of its specialized agencies.16

13 The former Swiss Law of 31 January 1947 on the Status of the International Ofces Placed

under the Supervision of the Authorities of the Swiss Federation provide that “the Unions and their Ofces may not be sued in a Swiss court or subject to the regulations enacted by Swiss public authorities without the express consent of the supervising authority” (Art. 4) and that “the organisation and the operation of the Ofces shall be governed by regulations to be prescribed by the Federal Council” (Art. 13). Such prescription was authorized in the constitution of the Bern and the Paris Unions for protection of intellectual property rights (Arts. 21 (2) and 13 (1), respectively, and implicitly in the constitution of the Universal Postal Union (UPU, Art. 19). After World War II organizations of the type dépendant in Switzerland have established their own secretariats and become regular independent intergovernmental organizations: ITU, UPU, World Intellectual Property Organization (WIPO) and Organisation pour transport international par Ferrocaril (OTIF). 14 In a few special elds they decided to apply the national law of the host State rather than enact regulations of their own. 15 For example, the rules of procedure of the OEEC (the forerunner of OECD), the staff regulations of the League of Nations (H. Aufricht: Guide to League of Nations Publications, New York 1951, p. 440) and the terms of reference of the Committee on Dependent Territories of the OAS and of the Co-ordination Committee of the ITU. 16 See e.g. General Assembly resolution 456 (V) and numerous subsequent amending resolutions, cf. Arts. 10 and 17 of the Charter.

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Subsidiary organs have been established e.g. also by the UN Trusteeship Council, which, in contrast to the other principal organs of the UN has no authorizing provision in the Charter to do so. The right thus assumed by IGOs to enact internal regulations is not known to have been contested by States. On the contrary, the host States and their courts – which are the only other authorities which might conceivably be in a position to assume powers of regulation, by virtue of their territorial jurisdiction over the territory upon which the organization operates and their personal jurisdiction over a great number of its ofcials – have refrained from assuming any power with regard to the internal matters of the organization.17 Host States and other external authorities assumed powers with regard to such internal matters in special cases where they have been specically authorized to do so in the constitution (e.g. the now more outdated organizations of the type dépendant) or by voluntary act of the organization itself.

Genuine legislation? As was pointed out, the internal regulations of IGOs are binding upon their organs and ofcials. However, this is true of non-governmental organizations as well. The important difference is that the power of internal legislation of intergovernmental organizations is exclusive and overrides any other law, including the mandatory law of the host State,18 and that it is supplemented by general principles of law, not by the law of the host State. Non-governmental organizations, too, make rules concerning their internal matters, and these rules, too, are binding upon their organs and their members. But such regulations must always keep within the limits set by the law of the State under whose jurisdiction the organization falls. This State has the power to enact law which is binding upon the organization and its organs and members and which takes precedence over its internal law. Gaps in the internal law of the organization are lled by the law of that particular State. In all these respects the position of intergovernmental organizations is entirely different.

Thus the United Nations Secretariat on 7 October 1965 rejected a request from a host State that all locally recruited UN employees be given employment contracts in accordance with a “form of agreement” prescribed by the Government, stating that locally recruited personnel are staff within Article 101 (1) of the Charter and that “no member State has failed to accept the application of United Nations Regulations and Rules to local personnel, of whatever nationality, within its territory” (UN Juridical Yearbook 1965, pp. 236–7). See below, chapter 5.3 with regard to Staff Regulations and other legislation concerning ofcials. 18 See below, chapter 5.7. 17

inherent jurisdiction over organs and officials 113 It does not detract from the character of IGO regulations as binding legal rules that IGOs usually do not have criminal jurisdiction19 and therefore cannot enforce their regulations by criminal sanctions (but only by disciplinary or civil action). This they have in common with many rules of national law. Ross maintained that the duties which the Statute of the International Court of Justice “apparently impose on the judges, e.g. to motivate the decision, are not real duties but a condition of the competence attributed to them as judges, the transgression of which may at most entail invalidity.”20 This statement would, a fortiori, apply to duties imposed upon judges by the Rules enacted by the Court. It is true that judges are more shielded from disciplinary and other sanctions than are other ofcials. But so are judges in States. There are even State ofcials, e.g. monarchs, who are entirely exempt from sanctions, criminal as well as civil.21 But still their duties, for example, under the constitution, are considered to be genuine legal duties. Moreover, this is not merely a matter of judges. One must consider also the ofcials of the Registry and the much more numerous ofcials of other organizations, who all have duties under regulations enacted by their respective organizations, and who are all subject at least to disciplinary sanctions. The purpose of Ross’ statement is to demonstrate that individuals are not subjects of duties under international law. However, this is not true of the internal law of international organizations (which, like the national law of States, is distinct from public international law, as Ross correctly marks inter alia in his following paragraph with regard to the European Danube Commission), not even of those parts of that law which have been laid down by treaty and thus also constitute part of international law. On the question of binding force in practice, it has been pointed out that, while violations of the constitution are always denied by resorting to liberal or excessively liberal interpretations, deviations from rules of procedure are

19 Certain international river commissions and other organizations exercising territorial juris-

diction do enforce their legislation by criminal sanctions, sometimes supported by police or military force. Such legislation is, however, not inherent, but extended. See the other examples of criminal jurisdiction referred to in Chapter VIII (11) of Seyersted: United Nations Forces, Leyden 1966, pp. 361 ff. 20 Alf Ross: Lærebog i Folkeret, 6th ed., Copenhagen 1984. English translation of rst edition entitled A Textbook of International Law, London 1947. German translation of 2nd edition entitled Lehrbuch des Völkerrechts, Stuttgart 1951, § 2 V. 21 This is the position of the King of Norway under § 5 of the Constitution. On the position in the United Kingdom, see the Crown Proceedings Act of 31 July 1947 as amended, notably Section 29 and 40.

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made openly. However, deviations from such rules should be guided by a principle of objectivity and impartiality.22 It may be argued that internal, organizational regulations are not genuine “legislation”, because they are not binding upon private individuals (they are binding upon individuals only in their capacity of members of the organs of the organization). Still, the United Kingdom and the Director-General of the World Health Organization correctly used the term “legislative” in respect of the resolution adopted by the plenary organ of that organization to specify the categories of ofcials who should enjoy privileges and immunities under the Convention on Privileges and Immunities of the Specialized Agencies.23 However, this particular resolution became binding upon the parties to that Convention pursuant to section 18 thereof. Similarly, Kelsen (rightly) refers to the United Nations Flag Code, enacted by the Secretary-General on 19 December 1947 pursuant to authorization in General Assembly resolution 167 (II), as “legislation”.24 He considers these “general rules regulating the use of the ag binding upon the member States.”25 He quotes in this context two relevant paragraphs of the Code, which, as slightly amended on 11 November 1952, read: “The ag shall not be used in any manner inconsistent with this Code or with any regulations made pursuant thereto” (paragraph 7) and “Any violation of this Flag Code may be punished in accordance with the law of the country in which such violation takes place” (paragraph 10).26 However, despite these sweeping provisions, the Code is directly binding only upon the organs of the organization and their members as such. It is not directly binding upon the member States, because, as Kelsen himself points out, neither the General Assembly nor the Secretary-General could enact regulations binding upon these without specic authorization, and the Charter contains no such authority. The UN emblem is, however, protected under Article 6 ter paragraph 1 (b) of the Paris Convention for the Protection of Industrial Property, in those countries which have

22 23 24

25

26

B. Conforti: The Legal Effect of Non-Compliance with Rules of Procedure in the U.N. General Assembly and Security Council in AJIL, Vol. 63 (1969), pp. 479–89. Ofcial Records of the World Health Organisation, No. 91, Executive Board, Twenty-third session, Part I, pp. 105–106. Recent Trends in the Law of the United Nations, London 1951, p. 938. The Flag Code was revised in 1952 and 1985, retaining the substance of paras. 8 and 11 in new paras. 7 and 10. Text in Yearbook of the International Law Commission II (1967), pp. 236–8. Judge Alvarez, speaking of the “legislative” function of the General Assembly, also use this term in the substantive sense (sens matériel) as regulations binding upon member States, ICJ Reports, LII (1951), p. 52. See also the letters, opinions and provisions published in United Nations Yearbook 1971, pp. 186 and 188–9 and 1973, p. 138 conning use of the ag to operations supported by UN or Specialized Agencies.

inherent jurisdiction over organs and officials 115 acceded to that convention.27 But the Flag Code becomes binding – as a matter of conict of laws – in both member and non-member States, upon persons subject to their law, to the extent that their legislation or conicts law refers to the law of the United Nations, expressly or by implication, on the same footing as it may refer to the ag code or a foreign State. Indeed, in principle the regulations and other internal law of the United Nations and other IGOs have the same effects under the private and criminal international law of a State as has the national law of a foreign State, and the UN has acted in this sense. For this and other reasons it is not inappropriate to refer to the Flag Code and to any other regulations enacted by IGOs as “legislation”, even if they are not ipso facto binding upon member States or external parties. Still, most writers refrain from using the terms “legislation” and “legislative power” ( pouvoir législatif ) with regard to IGOs, even when writing on regulations enacted by the international river commissions and on other legislation which is not internal stricto sensu, but extended and binding also upon member States and private individuals. Instead, they talk of “regulative power” or pouvoir réglementaire. It is true, in respect of States, that regulations which, although general, are binding upon organs only, and not upon private individuals (“members”), are not legislative in the substantive sense (sens matériel) of the term (general rules governing the rights and duties of the members of the community), but administrative. But they are partly enacted as legislation in the “formal” sense of the word (statutes enacted in the manner prescribed in the constitution, i.e. usually by Parliament). As for IGOs, regulations which are binding upon member States, and, even more clearly, regulations which are directly binding upon individuals other that ofcials (e.g. regulations of international river commissions and other supranational legislation), constitute legislation (law) also in the sens matériel.28 However, this is not true of organic legislation. On the other hand, regulations enacted by the plenary organ are comparable to legislation in the “formal” sense, even if they are binding only upon organs and ofcials. However, a number of regulations, especially in the latter category, are merely enacted by an executive council or the Secretariat and may thus not be comparable to State legislation even in the “formal” sense. For practical reasons, the present book avoids the distinctions applicable to States, and uses the terms “regulations”, “legislation” and “legislative” for any binding general rules of law enacted by an IGO, whether or

27 See UN Juridical Yearbook 1976, pp. 176–7. 28 In its advisory opinion concerning the Mixed Commission for the Exchange of Greek and

Turkish Population, the Permanent Court of International Justice spoke of the Commission as having “une fonction règlementaire ou législative dans le sens matériel du mot”, PCIJ Ser. B, No. 16, p. 18.

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not they are binding also upon subjects which have a legal existence outside the Organization, and irrespective of whether they have been enacted by a deliberative or an executive organ. As more fully explained above, in chapters 1.5 and 3.3, the regulations enacted by each intergovernmental organization form part of a distinct legal system; the internal law of the organization, which is not part of international law but in most respects comparable to the national law of States. It is applied in foreign States whenever their national rules on conict of laws refer to the law of the organization, and then without distinction as to hierarchical level or denomination.

Conclusion It is accordingly submitted that IGOs have general power of legislation in their internal organizational and even functional matters, whether or not their constitutions so provide. But such legislation is not ipso facto binding upon outside parties, otherwise than by virtue of regular rules of conict of laws or by specic authority granted in the constitution, other treaty or unilateral act. The internal legislation is ipso facto binding, in the rst place, upon the organs and the ofcials as such. It is, in fact, an organic legislative power, similar to that exercised by States and the Holy See (and any other sovereign community). The legislation is binding also upon the member States and their representatives in their capacity as members of the organs of the organization. It may also, within narrow limits, be binding upon member States in organizational matters relating to their membership of the organization as a whole. In this aspect it is a membership jurisdiction, the membership being in this case made up of States, not of individuals as in the case of the Holy See. However, to become binding in substantive matters special authority is required (extended jurisdiction, cf. chapter 6 below). This internal legislative power all intergovernmental IGOs have ipso facto, i.e. even if there is no provision in their constitution. It follows from the fact that they are intergovernmental organizations, just as the organic jurisdiction of States follows from the fact that they are sovereign States and that of insurgents and the Holy See from the fact that they are self-governing communities. Or conversely one may say that their sovereignty or self-government follows from their exclusive organic jurisdiction, which is the only common denominator (and condition) for all general and automatic subjects of international law (below, Part Three). This may remind of Grotius’ “laws of nature”, but if so it certainly is a rule of that law which has been conrmed by customary

inherent jurisdiction over organs and officials 117 law no less rmly than many a rule of traditional customary law. The scope of the inherent legislative power of IGOs over their organs and ofcials will be examined below.29 We are not here concerned with the distribution of powers within the organization, which may vary from one organization to the other according to its constitutional set-up. It may nevertheless be mentioned that what has been said above applies to a great extent also to each organ of the organization within its eld of competence, provided that nothing to the contrary follows from the constitution or from the terms of reference of the organ concerned or from some other decision of a superior organ. Thus, subsidiary organs do not have to refer back to the plenary organ or to another superior organ for enactment of rules of procedure, even if their terms of reference do not expressly authorize them to enact these themselves.30 This principle will, of course, be denied by those who deny the competence of the organization as a whole to enact regulations without constitutional authorization. Kelsen even doubted whether the United Nations General Assembly could transfer its power to establish subsidiary organs under Article 22 of the Charter to the Trusteeship Council, upon which the Charter does not confer such power.31 It is submitted that such transfer is not even necessary; the Trusteeship Council can establish subsidiary organs without any authorization and has in fact done so.32 Indeed, it is submitted that it is entirely useless to specify any power of organic legislation in the constitution of an IGO, unless this is done for the purpose of assigning the power to an organ other than that which would normally be competent, or of laying down some other specic procedure, or of limiting the power (e.g. by laying down the main principles). Otherwise the specication can only give rise to unjustied a contrario interpretations that the organization lacks legislative power over its organs in other respects, or that other organs lack the same power.

5.2

Internal administration of intergovernmental organizations

The internal jurisdiction of IGOs is not limited to the enactment of general rules. IGOs also make decisions in individual cases and perform other

Chapter 5.4 ff. But see Kunz loc. cit. p. 53 (3), and Verdross: Völkerrecht 5th ed., Vienna 1964, p. 577. 31 Kelsen, The Law of the United Nations, London 1950, p. 653, note. 32 See for example the Council’s resolutions 293 (VII) and 425 (X). 29 30

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concrete acts pertaining to the organization as such or to its functions. Such concrete acts, as far as they are not judicial, will be referred to as executive or administrative. The power of the deliberative organs and of the Secretariat to make such decisions follows in many cases from the constitution. Thus most constitutions directly empower the plenary organ to decide on the admission of new members and on the allocation of funds, and the head of the Secretariat to appoint ofcials.33 In other cases the power follows indirectly from the constitution, for example, when the budget, approved by the plenary organ in accordance with a direct constitutional authorization, in turn empowers the Secretariat to incur expenditure in concrete cases. However, most administrative powers are exercised by the various organs without any constitutional authorization. Thus the various organs of IGOs currently establish subsidiary organs, whether or not the constitution so authorizes.34 The Charter of the UN authorizes the General Assembly, the Security Council and the Economic and Social Council to establish subsidiary organs, in Articles 22, 29, 68 and Chapter XIII, but this has not prevented the Trusteeship Council and a great number of subsidiary organs not mentioned in the Charter from doing likewise. And the UN has established military (peacekeeping) forces without utilizing the provisions on military (enforcement) forces in Chapter VII of its the Charter. This was approved by the International Court of Justice in its advisory opinion of 1962 on Certain Expenses of the United Nations,35 relying on inherent powers, not on the ction of “implied powers” as it did in its earlier (1954) advisory opinion on the establishment of an administrative tribunal. IGOs even establish judicial organs not provided for in the constitution, and this was approved by the International Court of Justice in its advisory opinion of 1954 on Effect of Awards of Compensation Made by the United Nations Administrative Tribunal,36 although at that time still relying upon the ction of “implied” powers. In some cases administrative powers not authorized in the constitution are exercised pursuant to internal regulations or external treaties, the latter even if the enactment or conclusion of which are not authorized in the constitution. Thus, when the United Nations Secretariat makes administrative decisions in connection with the ling and recording of treaties not subject to registration under Article 102 of the Charter, it acts

33 For other examples, see e.g. the functions of the World Health Assembly enumerated in

the WHO constitution, Art. 18. 34 On ways of establishing organs and on types of organs see Diez de Velasco: Las orga35 36

nizaciones internacionales, 14th ed., Madrid 2006, pp. 101–9. ICJ Reports, 1962, p. 168, cf. 1954 p. 47 Advisory Opinion of 13 July I954, ICJ Reports, 1954, p. 47.

inherent jurisdiction over organs and officials 119 on the basis of Regulations on Registration and Publication of Treaties and International Agreements adopted by General Assembly resolution 97 (I). In so far as the ling and recording of such treaties are concerned, these regulations were not authorized in the Charter.37 The conclusion of contracts, which is not mentioned in most constitutions, may nd a limited authority in the general conventions on privileges and immunities, which usually confer expressly upon the organization the capacity to contract. However, these conventions are not always acceded to by all member States. Moreover, a great number of contracts are concluded by organizations which have neither a constitutional provision authorizing contracts nor a general convention on privileges and immunities. Most of the organizations constituted before the Second World War are – or were – in this position. Other examples of administrative decisions which are made very frequently without any authorization, not even in a non-constitutional regulation or in a treaty other than the constitution, are decisions concerning the distribution of work in the secretariat, concerning the administration of ofce buildings and equipment, and the “diplomatic” protection of ofcials. The right of the United Nations to exercise such protection, in casu by bringing an international claim for reparation for injuries suffered by the ofcial in the performance of his duties, has been recognized by the International Court of Justice and in certain staff regulations, without constitutional authorization, although, at that time, still resorting to the ction of powers “implied” in the constitution.38 Thus, the function of administration, no less than that of legislation, is being performed by IGOs in a great number of matters without constitutional authorization. This power is not known to have been contested by States, neither in their capacity as member, nor as host States. Indeed, it is conrmed by customary law which is even more rmly established than that relating to internal legislation. Moreover, like the internal legislative power, the internal executive power of the organization is exclusive. Neither the host State, nor any other State can assume any part thereof without delegation from the organization. A different matter is that the host State and other member States frequently attempt to inuence the competent organs of the organization in respect of the executive decisions they have to make. This is notably true in respect of appointment, dismissal and instruction of ofcials, which is discussed separately below, in chapter 5.5.

Kelsen, op. cit., pp. 703–704. See, on the whole subject of registration, ibid. pp. 698–705 and pp. 75–77. 38 See above, chapter l.6. 37

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chapter five Internal judicial power39

The inherent powers of intergovernmental organizations are not conned to legislative and executive acts. They also imply the power to establish tribunals to adjudicate upon disputes arising out of matters falling under the organization’s legislative and executive authority (over its organs and ofcials), and even the power to delegate such judicial power to external courts. As related in detail below, notably in chapter 7.4–7.6, IGOs have to a great extent established such courts – mostly without basis in any constitutional provision.40 In particular, as there demonstrated, intergovernmental organizations in fact exercise exclusive judicial powers in respect of their ofcials as such. A number of organizations have, despite the absence of any specic provisions in their constitutions, established administrative tribunals or other judicial bodies to adjudicate disputes between the organization and its ofcials arising out of the relationship of employment. These tribunals have rendered thousands of judgments in actions brought against the organization by its ofcials. Many organizations have, alternatively, conferred jurisdiction in such disputes upon the administrative tribunals of another organization, by bilateral agreement with that organization, without basis in their respective constitutions. The administrative tribunals adjudicate upon actions brought by the ofcials against the organization. In some cases, as e.g. under Article 236 of the Treaty Establishing the European Community, the internal courts of the organization are competent under their statutes also to adjudicate upon actions brought by the organization against its ofcials, although in practice it is normally not necessary for the organization to sue its ofcials, because the organization can instead make an administrative decision and leave it for the ofcial to sue the organization if she wants to contest that decision.41 Nevertheless, the organization also has an inherent power to confer upon its courts compulsory jurisdiction over its ofcials as such without basis in constitutional provisions. Indeed, as will be demonstrated below, this compulsory jurisdiction extends not only to internal disputes between the organization and its ofcials as such, but also to external disputes between ofcials and third parties arising

Cf. W. Jenks: The Proper Law of International Organizations, London 1962, chapter 8 on “Judicial Control of Discretionary Powers”. 40 NATO, which like most IGOs has no relevant provision in its constitution, has a relevant provision in its general convention on Privileges and Immunities. 41 See Smit and Herzog: The Law of the European Community, New York 1996, V, Art. 179,06. 39

inherent jurisdiction over organs and officials 121 out of the former’s ofcial acts, such jurisdiction can be made compulsory only upon the ofcials. The organization has a similar compulsory jurisdiction over its (other) organs. It may confer upon its courts compulsory jurisdiction vis-à-vis itself and its organs, although there has so far been little practical need and little practice in this respect. An intergovernmental organization may also establish courts to adjudicate disputes involving its member States. But it may confer upon such courts compulsory jurisdiction only vis-à-vis the organization, not vis-à-vis the member States without their consent. The latter is true even in respect of disputes involving the member State in its capacity as a member of a deliberative organ of the organization, despite the fact that in this respect the member States are subject to the exclusive and compulsory legislative and administrative power of the organization. Intergovernmental organizations which possess no territory may not have sufcient means for themselves enforcing judgments rendered by their courts against parties who also have a legal existence outside the organization (ofcials and member States). However, in the absence of special provisions, national courts must give the judgments the same effect as they give to judgments pronounced by other foreign (State) courts of competent jurisdiction. Indeed, IGO and State courts are courts of competent jurisdiction in respect of matters falling under the organic jurisdiction of their organization or State, respectively; in fact they are the only competent courts in these matters. The exclusive nature of the judicial power of the organization over its ofcials in internal disputes has been recognized by national courts in a number of decisions where such courts have declined competence in disputes between the organization and its ofcials arising out of the relationship of employment.42 The exclusive nature of the judicial power of the organization extends also to other internal disputes involving organs. No external court can assume jurisdiction in a dispute between two organs of the same organization – or between an organ and the organization – without the organization’s consent,

42 Amerasinghe (e.g. ICLQ XXXI (1982), pp. 750–1) has pointed out that the provisions in

the constitutions of the World Bank (Art. VII (a)), the International Development Association and the International Finance Corporation that these organizations may be sued in national courts, might have been abused by ofcials to bring also internal suits, but that this may be precluded in the US (the host State) by the International Organizations Immunities Act and judicial precedent. It is submitted that even in other countries courts cannot apply such provisions to internal, organic disputes.

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i.e. without delegation of the judicial power.43 Disputes between member States, however, may be adjudicated by external (international) courts without the consent of the organization, even if they arise out of matters which are subject to the exclusive legislative and administrative power of the organization. The organization does not have exclusive (or compulsory) judicial power over member States unless this has been specically provided, in the constitution or otherwise, as in Article 292 of the EC Treaty. But external courts must then apply the law of the organization in matters falling under its legislative and administrative jurisdiction, in accordance with the applicable rules of conict of laws described in Part Four below, where these and other relevant matters are discussed in more detail.

5.4

Scope of the inherent jurisdiction. General

It follows from the practice described in the preceding chapters, which has attained the force of customary law, that IGOs have general and exclusive legislative and administrative jurisdiction in internal organic matters, and that they also have compulsory judicial power over their organs and ofcials as such. This jurisdiction is inherent, i.e., it may be exercised, with the exceptions indicated below, by all intergovernmental organizations without specic authorization in their constitutions or otherwise. It would be a useless ction to term this jurisdiction “implied”, in the sense that it were implied in the constitution of each organization or the intention of its drafters. The exclusive internal jurisdiction – like the external (legal and) international personality – appertains to all intergovernmental organizations, whether or not the constitution so provides (which it never does generally) or its authors had it in mind, and also if there is no formal constitution at all. The jurisdiction is inherent in all intergovernmental organizations unless their constitutions should provide otherwise. In the hypothetical case that the constitution were to preclude this jurisdiction generally, then it would not be an intergovernmental organization.44 It is to the same practice that one must look, in the rst place, for a delimitation of the jurisdiction. In cases of doubt, one may perhaps also seek some guidance in the parallel delimitations within democratic States between those

And even then the external court may be prevented from assuming jurisdiction under its own law, cf. below, chapter 5.4. 44 Reference is made, in this respect, to the parallel discussion of international personality in chapter 2 above. 43

inherent jurisdiction over organs and officials 123 powers which these may exercise by executive action and those which require formal statute.

Internal relations stricto sensu The inherent organic jurisdiction exercised by intergovernmental organizations comprises all relations within the organization, between and in its various organs and ofcials as such.45 It comprises also relations with member States (and their representatives) in their capacity of members of the organs of the organization.46 This jurisdiction is exclusive – member and non-member States, as well as other organizations, are incompetent ratione materiae. Such internal relations include in the rst place organizational matters, which usually are of an internal nature or have important internal aspects. But functional matters also often have internal aspects. The rules of procedure enacted for the several deliberative organs of most organizations regulate in the rst place relations within the organ concerned, notably the rights and duties of the individual members thereof vis-à-vis the organ as a whole, but also relations with other organs. Thus, the terms of reference for a subsidiary organ adopted by the superior organ establishing it, regulate inter alia the relations between these two organs. Financial regulations govern relations within the secretariat as well as relations between the secretariat and other organs, such as the plenary organ, the executive council and the auditors. The same is true of concrete (executive) decisions made by the deliberative organs or the secretariat in pursuance of or in the absence of such regulations. Thus concrete decisions of the deliberative organs with regard to their own procedure govern relations between the organ concerned and its members or its subsidiary organs and/or between these inter se. Similarly, administrative tribunals adjudicate disputes arising out of the relationship of employment between the organization and its ofcials.

In its Advisory Opinion on Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, the International Court of Justice said that the Administrative Tribunal was functioning “within the organised legal system of the United Nations, and dealing exclusively with internal disputes between the members of the staff and the United Nations represented by the Secretary-General”, ICJ Reports, 1954, p. 56. 46 The organization may also have a limited inherent jurisdiction over the member States in their capacity as members of the organization as a whole, in such matters as their election to deliberative organs, their expulsion from the organization, or the dissolution of the organization. However, any such inherent membership jurisdiction is conned to certain purely organizational matters. This is not specically dealt with in this book. 45

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States, including the host State, refrain from exercising jurisdiction in these relations. Acting either in their capacity of member States or in that of host States, they may express legitimate views or desires – in these matters as in any other matters pertaining to the organization – either in the deliberative organs of which they are members or to the Secretariat. However, in certain respects, notably appointment of ofcials, this has gone too far and taken the form of undue intervention. While the ultimate (formal) decision rests with the organs of the organization, which alone can exercise direct jurisdiction over the organs and the ofcials as such, the appointment – and even dismissal – of ofcials has in many cases been made in reality by national governments. Such internal jurisdiction is directly and ipso facto binding only upon the organs and the ofcials and, to a limited extent, upon the members. It is binding upon them only in their capacity as ofcials or members of organs, not when they act in the capacity as private individuals or States. It is thus organic jurisdiction. Conned to organic relations, its validity cannot be contested by any outside party. It is indirectly, or pre-judicially, binding also upon external parties, just as the acts performed by a State in the exercise of its organic jurisdiction must be recognized as valid by other States and their nationals, irrespective of whether the Act of State doctrine is recognized in other respects.

Bilateral external relations The organic jurisdiction extends also to external relations (actes de liaison), i.e. relations with other subjects of national or international law, such as conclusion of contracts and treaties and performance of unilateral acts. It even extends to those functions which the organization performs with regard to relations between other subjects of international law inter se. But in both respects the organization has inherent jurisdictional powers only over the organs of the organization and not over the other party or parties. Thus intergovernmental organizations may – and do, mostly without express constitutional authorization – make regulations and administrative decisions concerning the conclusion of contracts with private individuals and rms and of treaties with States and other organizations. Thus United Nations Children’s Fund (UNICEF), which has concluded a great number of both, has adopted, on the one hand, general instructions and conditions for contracts to be concluded with suppliers of goods47 and, on the other hand, a master 47 UN document E/ICEF/19. See also “Cahier des clauses et conditions générales applica-

bles aux marchés passés par le Conseil de l’Europe”, enacted by the Council of Europe, originally on 25 January 1950 (A/745).

inherent jurisdiction over organs and officials 125 agreement to serve as a model for treaties to be concluded with the several countries receiving assistance from UNICEF.48 These are – to the extent the organs adopting them have so intended – binding upon those other organs of UNICEF which negotiate each contract or treaty. But they are not binding upon the other party until it has voluntarily accepted them (or unless the applicable system of national law refers to the internal law of the organization). As far as the other party is concerned, they represent an offer and not a decision. Similarly, any regulations of specic decisions concerning the admission of new members are binding upon the organs of the organization, but they are not binding upon the State concerned until it has voluntarily applied for or accepted membership. Furthermore, decisions to collect information from member States and/or other outside parties with regard to a specic matter will usually be binding orders as far as the secretariat is concerned, but they are not binding upon the States, unless these have undertaken, in the constitution or otherwise, to supply such information. Finally, international courts may, even in the absence of constitutional authorization, make regulations, within the general framework of their constitutions, concerning not merely their own organization, but also concerning the detailed rights and duties of the parties to disputes before the courts. But such regulations are not binding upon these parties until they have voluntarily accepted the jurisdiction of the court, expressly, by treaty or declaration, or tacitly, by appearing before the court. It may be said in general that the organic jurisdiction – as a binding jurisdiction – comprises also external relations, but only in so far as the acts of the organization are concerned. Also in this eld the jurisdiction of the organization is exclusive so far as it goes. Neither the host State, nor any other outside authority, can instruct the organs of the organization as to whether or how they should conclude contracts or treaties with other subjects of national or international law, or as to the contents of such contracts or treaties. They can only present their views and demands as the other contracting party. There is frequently confusion on the subject of the binding or non-binding nature of the resolutions of intergovernmental organizations because of failure to make this distinction between their obligatory internal effect and their nonobligatory external effect. However, some resolutions indicate this distinction by their own terms. An example of this is General Assembly resolution 268 (III) which adopted “the annexed articles relating to the composition and use of the Panel for Inquiry and Conciliation”. Under Article 1 this panel “shall” consist of persons designated by member States. But in the resolution, the member States are only “invited” to designate such persons, whereas the

48 UNTS, Vol. 65, p. 7.

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Secretary-General is “directed” to take charge of the administrative arrangements connected with the composition and use of the panel. Otherwise the articles of course become binding upon States only when these voluntarily decide to make use of the panel for the purpose of settling controversies. This distinction is, however, not always brought out so clearly as in this case. Nevertheless, even if a resolution employs obligatory terms (“decides,” “determines,” etc.), it usually cannot be interpreted as mandatory with regard to States and other outside parties, unless the organization has special authority to make decisions binding upon them.49 On the other hand, even if a resolution uses “recommends” or a similar term, it must in many respects be considered as binding so far as the Secretariat and other subordinate organs of the same organization are concerned.50 A legal opinion of the United Nations Secretariat communicated to the Security Council on 5 March 1948, may be of some interest in this connection. The opinion suggested that the Security Council had the power to accept the responsibilities assigned to it by General Assembly resolution 181 (II), which “recommended” to the mandatory and all other member States the adoption and implementation of the plan of partition of Palestine. After citing the acceptance by the Security Council of responsibilities with regard to the proposed Free Territory of Trieste51 as precedent, the opinion went on to say: It is submitted that it if the Security Council deemed that it was within its competence to accept responsibilities for the carrying out of certain provisions of a treaty negotiated and concluded outside the United Nations, it is still more appropriate that it should accept responsibilities for the implementation of a plan adopted by the General Assembly.

Cf. for example the United Nations Flag Code. Not even with regard to States is the word “recommend” always used in a non-obligatory sense, see Sloan in BYIL (XXV) 1948, pp. 13–14. – A clause “authorizing” the SecretaryGeneral to provide a committee with staff and facilities (for example, General Assembly resolution 181 (III) A in ne) is usually to be understood as obligatory. The same is true of the usual form of resolutions convening international conferences, when these “request” the Secretary-General to convene the conference at a given time and place. See, on the other hand, ECOSOC resolution 667 H, operative para. 2, which “invites,” inter alia, the Commission on Narcotic Drugs to take a certain action and the Commission’s report on the thirteenth session (OR ECOSOC, XXVI, Suppl. No. 9, paras. 114–117), from which it appears that it did not comply with the invitation. ECOSOC, in its report to the General Assembly, merely “noted that the Commission had not followed the Council’s recommendation” (OR GA, XIII, Suppl. No. 3, para. 556). It should be noted, however, that the Commission was acting under the authority of a special treaty, not under the Charter of the United Nations. 51 Cf. BYIL, 1961, pp. 451–2. 49 50

inherent jurisdiction over organs and officials 127 A leading ofcial of the Legal Department of the United Nations Secretariat has commented on this statement as follows: It may possibly be inferred from this last statement that in the view of the Secretariat the resolution of the General Assembly added to the power of the Security Council in regard to the partition plan. It is doubtful whether this was the intention. In view of the prevailing opinion that a General Assembly recommendation does not have binding force, the reference to the Assembly resolution as an “appropriate” reason for accepting responsibilities would appear to be more of an argument of policy than a suggestion that it is a legal source of power.52

Even if the resolution was merely a “recommendation” with regard to the member States, this is not necessarily signicant in respect of the organs of the United Nations.53 It is true that the distinction between binding decisions and recommendations may not be relevant in the case under consideration, because, according to the Charter, the Security Council is not subordinate to the General Assembly in so far as the maintenance of peace and security is concerned. However, there can be no doubt that the Security Council had an inherent power to accept the functions entrusted to it (which fell well within the purposes of the UN and the Security Council dened in the Charter), just as it had an inherent power to accept those entrusted to it in respect of the proposed Free Territory of Trieste,54 and that it is irrelevant from this point of view whether or not the resolution was binding upon the member States.

Unilateral external decisions Like States and other entities, intergovernmental organizations cannot without special authorization make unilateral decisions directly binding upon outside parties. They cannot even make decisions binding upon the member States other than in their role of members of the organs of the organization and in some other organizational, as opposed to functional, matters, including admission to and exclusion from membership, but excluding duty to contribute to

Schachter in BYIL, 1948, p. 100. Reference may also be made to the tendency of administrative and judicial organs of States to observe the public policy of the government, even if the policy is not laid down in a formally binding rule of national law. Similarly, the Universal Declaration of Human Rights, “proclaimed” by General Assembly resolution 217 (III), may be binding upon subordinate organs of the United Nations, even if it is not binding upon States, regarded as a binding instruction on subordinate organs. The declaration may also become binding as an expression of customary international law. 54 Cf. below, chapter 6.2. 52 53

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the budget of the organization. But States have in many cases conferred upon intergovernmental organizations functions which involve the power to make decisions binding upon these States themselves and/or upon their nationals or other parties under their jurisdiction. Such powers are, of course, not inherent, but extended – they require a specic legal basis (delegated powers).55 However, the capacity of the organization to accept even these powers is inherent. And once any such function has been conferred upon the organization, then it will also, ipso facto, have the power to make such procedural and other binding decisions as are necessary for the performance of the functions (implied powers in the proper sense – as opposed to the ctitious sense in which that term has been used by writers – both with regard to organic jurisdiction and to international personality). There are many examples both of legislative and executive action in this sense. Thus, if the constitution provides that the expenses of the organization shall be borne by the members, then it is merely an implementation of this provision if the organization determines the manner in which payment shall be made. Another example is procedural decisions made by an international court after the parties have accepted its jurisdiction. Such powers are genuinely implied in the empowering act. An example in the functional eld was the detailed Rules of Accounting for German External Assets56 of the Inter-Allied Reparation Agency after World War II. These were enacted by the Assembly of that Agency in order to implement the provisions in Article 6 of Part I of its constitution of 14 January 1946 that such assets were to be charged against the reparation share of the members within whose jurisdiction they were. In addition to imposing purely procedural duties upon member States, these Rules delimited the assets to be charged against reparation accounts. This delimitation was not, and could not be, a purely legal interpretation of the constitution. It necessarily involved to a great extent an arbitrary delimitation, which in essence amounted to waivers and imposition of specic substantive obligations within the general framework of the obligations of the member States laid down in the constitution. Under some of the provisions57 the decision was to be made in each specic case by administrative decision of the Secretary-General, subject to review by the Assembly. A more extreme example in the functional eld may be the petition with regard to mandates. Although neither the League of Nations Covenant nor the

55 Cf. below, chapter 6.5. 56 Text in Inter-Allied Reparation Agency, Report of the Secretary-General for the Year 57

1949, p. 90. Rules 9 B and 19 B.

inherent jurisdiction over organs and officials 129 mandates mention the right of petition, the Council of the League adopted provisionally on 31 January 1923 rules of “procedure” under which petitions from communities or sections of the population were to be transmitted to the League by the mandatory, who was to attach such comments as it might consider desirable.58 The International Court of Justice, in its Advisory Opinion on the International Status of South-West Africa, considered that the inhabitants had thereby acquired a “right” of petition, and that the mandatory had similarly acquired a duty to transmit the petitions to the League of Nations, or, later, the United Nations.59 In principle, however, accessory jurisdiction depends upon an interpretation of the treaty or other act conferring the extended jurisdiction upon the organization. It is a case of jurisdiction implied in the extended jurisdiction already conferred upon the organization rather than that of inherent jurisdiction as discussed in the present chapter. And it is not organic, except in so far as it is exercised over organs and ofcials. In respect of such extended jurisdiction, Judge Hackworth’s statement would have been basically correct: “implied powers ow from a grant of express powers, and are limited to those that are “necessary” to exercise of powers expressly granted”,60 although the term “necessary” cannot be interpreted too restrictively, as the examples reported above demonstrate. However, Hackworth’s statement was not correct in the context in which it was made, viz., the advisory opinion on Reparation for Injuries Suffered in the Service of the United Nations. The right to exercise functional protection of its ofcials and other agents is an aspect of the inherent organic jurisdiction and international personality of any intergovernmental organization.

The Regulations on Registration of Treaties The Regulations on Registration of Treaties were adopted by resolution 97 (I) of the First General Assembly of the United Nations, with subsequent minor amendments and additions in 1963 and 1978. They provide clear examples of the extent of the jurisdiction of IGOs in functional matters in all the three respects in the preceding chapters.

58 59 60

Journal Ofciel 1923, p. 200. ICJ Reports, 1950, pp. 137–8, cf. p. 173. ICJ Reports, 1949, p. 198.

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Part One of the Regulations61 contains rules concerning registration which, without going beyond the framework of the general duty to register treaties laid down in Article 102 of the Charter, delimit this duty positively and negatively and impose a number of specic obligations upon the contracting States. Thus the registering State or organization shall certify that the text submitted for registration is a true and complete copy of the treaty, and shall, moreover, submit the text in all original languages, with two additional copies and certain additional information (Article 5). Also subsequent action which effects a change in the parties, terms, scope or application of the treaty shall be registered (Article 2). These provisions involve implementation of the extended jurisdiction laid down in the Charter, (below, chapter 6) and are binding upon member States. Part Two of the Regulations may serve as an example of the voluntary external relations dealt with above. It imposes upon the Secretariat a duty to “le and record” treaties which are not subject to registration under the terms of Article 102 of the Charter. The submission of such treaties for ling and recording is not a duty, but a voluntary act on the part of the parties to them, and the Regulations become binding only pursuant to such voluntary submission. Finally, Part Three contains provisions of an internal (organic) nature (see above), imposing upon the Secretariat the duty to publish the treaties which have been registered or led and recorded. Of the same character is Article 4 (1) of Part One, which imposes upon the Secretariat the duty to register certain treaties ex ofcio. Kelsen, although admitting that the provision of Article 102 (1) of the Charter is insufcient, criticized Part Two, Article 2, Articles 1 (3) and 2–4 of the Regulations as going far beyond the provisions of Article 102 of the Charter.62 However, if the jurisdiction outlined in the preceding sections of the present chapter is accepted as inherent in the United Nations as in other intergovernmental organizations, there does not appear to be any foundation for such criticism. Thus the provisions in Part Two on ling and recording of treaties not covered by Article 102 are binding (only) upon the Secretariat and upon such States and intergovernmental organizations as voluntarily submit treaties for registration. Furthermore, the obligation imposed upon the contracting parties under Article 2 to register subsequent action with regard

See also Art. 80 of the Vienna Convention of 23 May 1969 on Treaties between States and Art. 81 of the Vienna Convention of 21 March 1986 on Treaties between States and International Organizations and the comments to the latter in Yearbook of the International Law Commission, 1987, Vol. II. 62 The Law of the United Nations, London 1950, pp. 699 and 703–705. 61

inherent jurisdiction over organs and officials 131 to treaties, does not go beyond the framework of the general obligation in Article 102: indeed, it is necessary in order to make that obligation effective. Article 1 (3), which provides that registration “may” be effected by any party to the treaty, does not impose any duty upon non-members (or any new duty upon members). And Article 4, which provides for ex-ofcio registration of certain treaties, imposes new duties only upon the Secretariat. Finally, Article 3 releases the parties to treaties from their obligation to register if registration has already been effected, and imposes no obligation upon such parties.

Constitutional limitations Although no constitutional authorization is required in order to enable an intergovernmental organization to exercise organic and other inherent organizational jurisdiction, such jurisdiction cannot, of course, be exercised in conict with any provision of the constitution. Any constitutional provision which might preclude exercise by the organization of its organic jurisdiction in any particular respect would clearly be binding upon the organization. But it would probably be hard to nd examples of a provision precluding organic legislative or executive functions, except by way of delegation, cf. below. The most frequent constitutional provisions which expressly authorize the enactment of rules of procedure and staff regulations and the establishment of subsidiary organs do not appear to imply any such limitations,63 unless they were to be interpreted a contrario in respect of regulations on other matters or by other organs, which in most cases would not be justied. If a constitution expressly authorizes certain of its organs to enact rules of procedure and to establish subsidiary organs, this could not usually be, and has not in practice been, interpreted a contrario to mean that the other organs may not do so. Thus the Trusteeship Council has established subsidiary organs, despite the fact that the UN Charter only authorizes the other Councils and the General Assembly to do so. Such provisions may at most be regarded as provisions concerning the distribution of powers within the organization, and may then imply that the other organs may not themselves establish rules or procedure of subsidiary organs. But even in this respect the provisions could not be, and have not in practice been, interpreted a contrario. In other words, even if not directly harmful, such provisions are certainly useless.

63 Nor do they usually confer upon the organization any powers beyond those it would have

had without express provision.

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Another matter is that all constitutions themselves contain a number of provisions on organizational and other internal subjects – including membership, elections, voting, staff and nance. Such regulations and administrative decisions of the organization on these subjects must never conict with the rules already laid down in such constitutional provisions. Constitutional provisions concerning the manner in which decisions shall be made must also be observed in the enactment of regulations and in the making of executive decisions. Difculties may arise in this respect with regard to the application of the rules of voting. These often prescribe a simple majority for procedural decisions and a qualied majority or unanimity for substantive decisions, without distinguishing, in the latter case, between internal organic jurisdiction and extended jurisdiction.64 Such provisions ignore the fact that the motivation to apply a rule of qualied majority or unanimity is often stronger with regard to extended functional matters than with regard to nonnancial internal organizational matters, because the former are more likely to affect the member States.

Public order of the host country Like States, intergovernmental organizations cannot, of course, exercise their jurisdiction in a manner which would violate the legitimate rights of States. In particular they may not upset the security or the public order of the host country. Article 25 of the Headquarters Agreement between the International Labour Organization and Switzerland provides: 1. Nothing that the present Agreement shall affect the right of the Swiss Federal Council to take the precautions necessary for the security of Switzerland. 2. If it considers it necessary to apply the rst paragraph of this Article the Swiss Federal Council shall approach the International Labour Organization as rapidly as circumstances allow in order to determine by mutual agreement the measures necessary to protect the interests of the International Labour Organization.

64

See, for example, Art. VI of the constitution of the (now inactive) Caribbean Commission of 30 October 1946.

inherent jurisdiction over organs and officials 133 3. International Labour Organization shall collaborate with the Swiss authorities to avoid any prejudice to the security of Switzerland resulting from its activity.65 With regard to the Holy See during the period 1871–1929, Article 17 of the Italian Law of Guarantees provided, inter alia, that the acts of the ecclesiastical authorities demeurent sans effet [in Italy] s’ils sont contraires aux lois de l’Etat ou à l’ordre public, ou s’ils lèsent les droits des particuliers, et ils memeurent soumis aux lois pénales s’ils constituent un delit. However, the validity of this Law was never recognized by the Holy See. At any rate, acts of organic jurisdiction could not be considered invalid merely because they were contrary to Italian law, in so far as they were addressed to the central organs of the Holy See, because Italian law was inapplicable to organic matters of the Holy See (incompetence ratione materiae).

Delegation In some cases certain legislative administrative and/or judicial powers of the organization have been delegated to another authority, usually to the host State or to another intergovernmental organization. Such delegation may have been laid down in the constitution, or the organization may voluntarily and without constitutional authorization delegate specic aspects of its jurisdiction to the host State or to the other authority concerned. This power of delegation has been recognized, in its legislative aspect, by the Italian Court of Cassation. In a dictum the Court said that substantive or procedural State law may be applicable in the organizational relations of the organization when its constitution or its internal regulations “contain a reference, by incorporation, to rules of some other system”.66 The major examples of delegation by constitutional provision are the organizations of the dependent type, where jurisdiction over its Secretariat has been delegated to the host State.67 But the examples of a limited delegation by voluntary agreement, without basis in specic constitutional provision, are probably more frequent. Organizations have found it convenient to submit in UNTS XV, p. 392, French text in Martens: Nouveau Recueil Général, XVIII, p. 41. Cf. also Art. 33 of the Treaty establishing the European Union on limits to EU’s extended jurisdiction. 66 Proli v. International Institute of Agriculture, Rivista di diritto internazionale, XXIII (1931), pp. 386–91. 67 See, for example, the constitutions of the Berne Union, Art. 21 (2), and of the Paris Union, Art. 13 (1). 65

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particular respects to the well-established law or administration of the host State.68 Thus a number of organizations have decided to take advantage for their ofcials of the social insurance system of the host country, rather than establish rules and an administration of their own in this respect.69 Furthermore the United Nations has, by an agreement with the United States approved by General Assembly resolution 454 (V), entrusted the operation of its Post Ofce in the headquarters district to the United States Post Ofce Department.70 And Inter-American Conferences were, before the switch from the Pan-American Union to the Organization of American States, convened, not by the Pan-American Union or its Governing Board, but by the government of the country where the conference was to be held. In none of these cases was there any constitutional provision authorizing delegation of the power concerned. Delegation may also be to other intergovernmental organizations. The United Nations Joint Staff Pension Fund is an example of this. By joining it, the specialized agencies delegate legislative powers over their ofcials in respect of pensions (and relevant salary deductions) to the United Nations General Assembly, as well as legislative and executive powers to the Joint

Cf. § II (1) of the Agreement of 13 January 1948 between the Preparatory Commission for the International Refugee Organisation (PCIRO) and the French Government Concerning the Establishment and Activity of the PCIRO Ofce in France may be cited in this context. It reads: “PCIRO shall fulll the functions assigned to it and authorized under its Constitution, and shall, in the discharge of such duties, be subject to the laws and regulations in force in French home territory.” Presumably, this provision envisaged only territorial jurisdiction, and was thus not an example of delegation of organic jurisdiction (cf. also the agreement of the same date between the same parties granting to the PCIRO the usual privileges and immunities). However, the provision was not clear. It was given a different form in other agreements. Thus it was provided in para. 3 of the similar agreement of 21 August 1948, between the International Refugee Organisation (IRO) and the Commander-in-Chief, European Command, as to IRO’s Operation in the U.S. Area of Control in Germany: “IRO will carry out its activities as authorised and required by its Constitution subject to the terms of this Agreement. It will operate in accordance with military regulations, military government enactments and general laws in force in the U.S. area of control, but will not be subject to specic military or military government direction in regard to its routine activities, except as provided in Paragraph 1.b. (relating to “the supreme authority of the Commander-in-Chief, European Command, as the Occupation Authority, and his responsibility for the maintenance of law, order, security and the economy in the U.S. area of control”). 69 Cf. below, chapter 5.5. 70 Postal Agreement between the United Nations and the United States approved by General Assembly resolution 454 (V). Externally, however, the United Nations Postal Administration remains a separate postal administration; represented by the United Nations, for example in the Universal Postal Union, see Agreement between the United Nations and the Universal Postal Union of 4 July 1947, Art. II. 68

inherent jurisdiction over organs and officials 135 Staff Pension Board.71 They also have delegated the relevant judicial powers to the United Nations Administrative Tribunal.72 Otherwise most specialized agencies in Europe have delegated general judicial power with regard to their relationships of employment to the Administrative Tribunal of the International Labour Organization.73 In some cases there is express authority in the constitution of the specialized agency concerned for the establishment of common services,74 in other cases there is merely a provision that they shall “establish effective relations and co-operate closely” with other intergovernmental organizations,75 and in yet other cases there is not even that. Even the specialized agencies themselves have not been expressly authorized in their constitutions to do more than appoint the staff of the Secretariat in accordance with staff regulations to be adopted by the organization,76 and in some cases not even that.77 Any delegation which is not laid down in the constitution in a mandatory way can of course be revoked, subject to the provisions of any agreement which the organization may have concluded with the authority to which delegation has been effected. It will depend upon the circumstances of each particular case to what extent the host country, or the international organ(ization) to whom the power was delegated, may act at its own discretion in the exercise of delegated jurisdiction, and to what extent it is bound by the special position and the decisions of the delegating organization. The United Nations Administrative Tribunal, in adjudicating disputes between the United Nations Joint Staff Pension Fund and an ofcial of a specialized agency, shall give “full faith, credit and respect” to “the proceedings, decisions and jurisprudence of the Administrative Tribunal, if any, of the Agency concerned relating to the staff regulations of that agency, as well as to the established procedures for the interpretation of such staff regulations.” Reference may also be made to the action taken by Brazil with regard to the convocation of the Inter-American Conference

71 Regulations of the United Nations Joint Staff Pension Fund (adopted by General Assembly 72 73 74 75 76 77

resolution 248 (III) and amended by a stream of subsequent resolutions) Arts. 3 (c) ff. By bilateral agreements (see for example UNTS Vol. 214 p. 388) concluded pursuant to General Assembly resolution 678 (VII), cf. Art. 48 of the Regulations of the Fund. Cf. Art. II (5) of the Statute of the Tribunal and, for example, ICJ Pleadings, Judgments of the ILO Administrative Tribunal (1956) pp. 17–18. UNESCO constitution Art. VI (6). WHO constitution, Art. 70. See also IMO constitution Arts. 60–61. WHO constitution, Art. 35. But see ICAO constitution, Art. 58, and IMO constitution, Art. 22. FAO constitution, Art. VIII (1). The constitutions of the Fund, Art. XII 4, and the Bank, Art. V 5, merely provide that the Managing Director (Fund) or the President (Bank) “shall be responsible for the organization, appointment and dismissal” of the staff.

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for the Maintenance of Continental Peace and Security at Rio de Janeiro in 1947. Before invitations were sent out, a new government came into power in Nicaragua “under abnormal circumstances.” It had not been recognized by Brazil, or by most of the other member States. Rather than discriminate between the member States on the basis of its own relations with them, Brazil delegated the task of inviting the member States back to the Governing Board of the Pan-American Union, which, after extended discussion, nally decided not to invite Nicaragua.78

Distinct legal units as parts of the organization Although not appropriately acknowledged by legal writers, the organic jurisdiction has apparently not given rise to serious difculties in practice, so long as it is exercised over organs which only exist as parts of the organization. In such cases no outside authority, including the member States and the host States, will easily have occasion to challenge the exclusive authority of the organization. The matter is more readily brought to an issue when the organic jurisdiction is exercised over such parts of the organization as have not been created by the organization itself, but which also have a legal existence outside the organization, viz. ofcials, representatives of member States and the member States themselves. These are in a position themselves to challenge the jurisdiction of the organization. Moreover, they are subject to the jurisdiction of the organization only in their position as parts of the organization, a fact which gives rise to special problems of delimitation. The problems which arise in this connection – and some others – are considered especially with regard to ofcials below.

78

Inter-American Conference for the Maintenance of Continental Peace and Security, Report on the Results of the Conference, submitted to the Governing Board of the Pan-American Union by the Director-General (Pan-American Union, Washington 1947), pp. 5–6.

inherent jurisdiction over organs and officials 137 5.5

Organic jurisdiction over officials. Relationship of employment

Introduction It is necessary to enter further into the jurisdiction which the organizations exercise over their ofcials, both because this is perhaps the most practical aspect of the inherent organic jurisdiction and because it illustrates well several of its general aspects. Special aspects of this have been dealt with above, including appointment and dismissal and delegation. In respect of ofcials, special problems of delimitation of the jurisdiction arise, because ofcials also have a legal existence outside the organization, where they are subject to State jurisdiction. So are also delegates, as members of deliberative organs, but they are subject to the jurisdiction of the organs in procedural matters (right to speak, speaking time, voting, time of meetings etc.). The relationship of employment in IGOs – like that of States – has certain contractual elements (grade and, thereby, salary; duration: permanent or temporary), but in most respects it is governed by the regulations and rules enacted by the organization – i.e. it is statutory. This is true of regular international ofcials. However, there are many special types of employees where the contractual element is stronger and/or where local private labour law applies in lieu of the organization’s public administrative law.79 In the following we shall concentrate upon the regular international ofcials. These are, as already stated, in their capacity of international ofcials, subject to the exclusive organic jurisdiction of the organization. This is an important aspect of their international character, which is expressly conrmed in Article 100 of the UN Charter and similar provisions in some other constitutions. In their private capacity, however, the ofcials remain subject to the territorial jurisdiction of the host State and the personal jurisdiction of their national State, except in so far as they enjoy privileges and immunities in respect of private relations, in which case the organization may have to ll the gap by extending its jurisdiction to cases where it does not wish to waive the ofcial’s immunity. The ofcials are thus subject to the concurrent

79

Cf. Diez de Velasco: Las organizaciones internacionales, 14th ed., Madrid 2006, pp. 114–20. Under Title I, Regulation 1 (d) in the OECD Staff Regulations 1, rules and instructions applicable to ofcials of the organization, local staff is subject to local (national) law if they are “to carry out transactions of a commercial nature”. Cf. also UNRWA’s “General Conditions of Service Contract”.

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jurisdiction of different communities.80 The limit between the jurisdiction of the organization and that of the States concerned is drawn according to functional criteria.81 As for the question of who are international “ofcials” and the extension of the organic jurisdiction to other categories of personnel working for the organization82 – and on many other aspects of the position of international ofcials – reference is made to an extensive literature on the international civil service,83 and to the brief examples given below, in Part Four in connection with the question of applicable law. In particular, there is a basic distinction

80 Cf. the other examples of concurrent jurisdiction by several sovereign entities over the same

persons above, chapter 4. – In its Advisory Opinion on Reparation of Injuries Suffered in the Service of the United Nations the International Court of Justice stated that “it is not possible, by a strained use of the concept of allegiance, to assimilate the legal bond which exists, under Article 100 of the Charter, between the Organization on the one hand, and the Secretary-General and the staff on the other, to the bond of nationality existing between a State and its nationals” (ICJ Reports, 1949, p. 182). 81 Cf. Seyersted: United Nations Forces in the Law of Peace and War, Leyden 1966, pp. 113–5 on the position of members of UN forces. 82 See e.g. the relatively wide denition of “United Nations personnel” and “associated personnel” in the Convention on the Safety of United Nations and Associated Personnel” of 9 December 1994, Article 1. See also Article 12, 2–3 of the Supplementary Agreement between Norway and NATO of 3 October 1968 which provided that NATO-regulations shall govern “terms and conditions of employment” for “NATO-civilians” whereas Norwegian Law shall govern those of “Local Wage Rate personnel”. Cf. Elvan and Ost: “Kollisionsrechtliche Probleme bei Arbeitsstreitigkeiten zwischen einer Internationalen Organization und ihren Ortskräften, dargestellt Beispiel der Arabischen Liga“, Praxis des Internationalen Privat- und Verfahrensrechts, Vol. 15, Bielefeld 1995, pp. 1–8. 83 On the law as applied by IGO administrative tribunals, see the books by the Executive Secretary C.F. Amerasinghe: The Law of the International Civil Service, 2nd ed., Oxford 1994, two volumes, and Case Law of the World Bank Administrative Tribunal, Oxford 1989, and Pescatore: “Les principes généraux du droit régissant la fonction publique internationale (Etude de jurisprudence comparée) in Hacia un Nuevo orden internacional: Estudios en homenaje al Profesor Don Manuel Diez de Velasco, Madrid 1993, pp. 565–86. On the relationship more broadly, see Alain Plantey: Droit et pratique de la fonction publique internationale, Paris 1977, English edition entitled: “The International Civil Service”, New York 1981, and Spanish edition: “Derecho y práctica de la función publica”, Madrid 1981; Schermers and Blokker, International Institutional Law, 4th ed., Leiden 2003, pp. 314–86; D. Bowett: The Law of International Institutions, 4th ed., London 1982, pp. 99–107; M. Diez de Velasco: Las organizaciones internacionales, Madrid 2006, pp. 114–120; C.F. Amerasinghe: Principles of the Institutional Law of International Organizations, Cambridge 1996, pp. 327–367; International Administration, Law and Management Practices in International Organizations, ed. Chris de Cooker, Dordrecht 1990, loose-leaf with subsequent supplements; M.B. Akehurst: The Law Governing Employment in International Organizations, Cambridge 1967; and I. Seidl-Hohenveldern: “Die Rechtstellung der internationalen Beamten”, Anzeiger der phil.-historischen klasse der österreichischen Akademie für Wissenschaften, 124 Jahrgang (1987), pp. 184–99; J.D. Busch: Dienstrecht der Vereinten Nationen, Das Common System in Wiese (ed.): Handbuch des öffentliches Dienstes, IV (2), Cologne 1981. The pioneer work on the subject was S. Basdevant: Les fonctionnaires internationaux, Paris 1931.

inherent jurisdiction over organs and officials 139 between international ofcials and local personnel, which is hired under local law or under conditions prescribed by the organization following local practice to the extent possible.84

Performance of ofcial duties. Functional protection The organic jurisdiction also covers the rights and duties of the ofcial in the performance of his functions. The exclusive nature of this jurisdiction has been expressly conrmed in a number of post-war constitutions. Thus it is provided in Article XII, 4 of the constitution of the European Space Agency of 30 May 1975: The responsibilities of the Director General and the staff in regard to the Agency shall be exclusively international in character. In the discharge of their duties they shall not seek or receive instructions from any government or from any authority external to the Agency. Each Member State shall respect the international character of the responsibilities of the Director General and the staff, and shall not seek to inuence them in the discharge of their duties.

Similar provisions are contained in Article 100 of the Charter of the United Nations, in Article 37 of the WHO constitution and in the constitutions of many other organizations. The principle was conrmed, in respect of the International Court of Justice, by Article IX of the 1946 agreement between the UN and the Carnegie Foundation concerning the use of the Peace Palace at the Hague (“Such ofcials shall in no way be under the authority of any other institution”). However, this is general customary law, applicable to all intergovernmental organizations which have no special deviating provisions. In its internal aspects, the organic jurisdiction of intergovernmental organizations over their ofcials with regard to the direct performance of their duties is not known to have been openly contested legally, whether or not the organization concerned has relevant constitutional provisions. Nevertheless, the jurisdiction and the independence of intergovernmental organizations has in fact (politically) been subject to serious challenge in its administrative aspect from several governments, notably in respect of national ofcials “seconded” to the organizations for a limited period of time.85 The fascist and Nazi governments before World War II and post-war governments in communist countries 84 See e.g. para. 20 of the Regulations for the UN Force in Cyprus of 24 April 1964. 85 See Seidl-Hohenveldern: “The Secondment of National Ofcials to International Orga-

nizations”, Hacia un nuevo orden internacional, Estudios en homenaje al Profesor Don Manuel Diez de Velasco, Madrid 1993, pp. 689–700.

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and the United States (during the cold war witch-hunt for “communists and fellow travellers”) in fact frequently appointed, instructed and withdrew ofcials.86 Indeed, many posts were lled more or less permanently with people from the same country, appointed and replaced in fact by their governments. There are still many elements in the practice of seconding national ofcials for temporary service with international organizations which can give certain member States undue inuence in the international secretariats.87 In its external aspects the exclusive jurisdiction of the organization was openly questioned in connection with the UN agents killed on service in Palestine in 1948 after the British surrender of the mandate over that country. Their mission followed the adoption by the UN of the Plan of Partition. It was considered by some to be for the national State of the agent, rather than for the organization, to afford him diplomatic protection vis-à-vis the State responsible for the injury. They therefore maintained that any claim for reparation in respect of the damage caused to the agent should be presented by his national government. However, the International Court of Justice, in its advisory opinion on Reparation for Injuries Suffered in the Service of the United Nations, held, by eleven votes to four: That, in the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a Member State [or of a State which is not a member], the United Nations as an Organisation has the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused to the victim or to persons entitled through him.88

In reply to a second question as to how such action by the United Nations was to be reconciled with such rights as may be possessed by the State of which the victim was a national, the Court held, by ten votes to ve: When then United Nations as an Organisation is bringing a claim for reparation of damage caused to its agents, it can only do so by basing its claim upon a breach of obligations due to itself; respect for this rule will usually prevent a conict between the action of the United Nations and such rights as the agent’s national State may possess, and thus bring about a reconciliation between their claims; moreover, this reconciliation must depend upon considerations applicable to each particular case, and upon agreements to be made between the Organisation and individual States, either generally or in each case.89

See Schermers and Blokker, op. cit., pp. 368–9, with citations. See inter alia Theodor Meron: ”L’indépendence de la fonction publique et son avenir” in Institut international d’études diplomatiques: L’avenir des organisations internationales, Paris 1984, pp. 221–40. 88 ICJ Reports, 1949, p. 187, cf. pp. 181–185. 89 Ibid. p. 188, cf. pp. 185–186. 86 87

inherent jurisdiction over organs and officials 141 Pursuant to this opinion the UN, after consultation with the governments of the States of which the victims were nationals, presented claims to the governments considered responsible for the injury. In some cases these accepted responsibility and made reparation. In other cases they denied that the deaths had been caused by persons for whom they were responsible. But none of them denied the right of the UN to exercise functional protection. This procedure was followed, not merely with regard to regular staff members,90 but also with regard to ad hoc agents.91 This was in conformity with the following statement in the Advisory Opinion: The Court understands the word “agent” in the most liberal sense, that is to say, any person who, whether a paid ofcial or not, and whether permanently employed or not, has been charged by an organ of the Organisation with carrying out, or helping to carry out, one of its functions – in short, any person through whom it acts.92

Indeed, the UN has exercised functional protection also of the members of its military peace-keeping forces composed of national contingents,93 although these are not considered as UN “ofcials” in the technical sense. In the latter and in certain other cases such functional protection has been expressly provided for in regulations enacted by the Organisation.94 However, protection was afforded long before these regulations had been enacted. Moreover, the regulations could not be based upon specic provisions of the constitution, because there were none.95 Indeed, in no case where an organization

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The rst staff member to be killed in the service of the United Nations was Ole Helge Bakke, a Norwegian national. The claim for reparation was presented to the Government of Jordan by the United Nations, after consultation with the Norwegian Government. However, the Jordanian Government declined responsibility, maintaining that the shot which killed Mr. Bakke had not been red by an Arab soldier. See Annual Report of the Secretary-General, 1950–51, p. 189, and 1951–52, p. 160, cf. ibid. 1952–53, pp. 144–145; 1953–54, p. 109; OR GA. V Annexes II, Agenda item 50; OR GA, VII. Sixth Committee, 357th meeting, pp. 293–299, and A/2180, 12 September 1952. Reparation for the assassination of the United Nations Mediator in Palestine, Count Bernadotte, a Swedish national, and Colonel Sérot, a French national, was claimed by the United Nations, after consultation with the Swedish and French governments. The government of Israel accepted responsibility and paid the reparation demanded. ICJ Reports 1949 p. 177. See Report of the Secretary-General of 5 September 1950, OR GA, V, Annexes II, A.i. 50; Annual Report of the Secretary-General 1952–53 p. 145, cf. ibid. 1950–51 p. 189, 1951–52 p. 161, and A/2180. See Seyersted, United Nations Forces, Leyden 1966, pp. 112–6. General provisions were contained in the earlier OECD Personnel Regulation 5b, in UNEF Regulation 30 and in Regulation 25 of the Regulations for the United Nations Force in the Congo. A limited provision was included in the common Art. 24 of the Staff Regulations of the European Communities. The UN and the specialized agencies and some other organizations have express provisions, not in their constitutions, but in their general conventions on privileges and immunities,

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has exercised the power of functional protection is there known to have been any provision in its constitution “conferring” such power upon it. The United Nations has extended its protection also to matters which are not directly related to the ofcial functions.96 Indeed, the relevant United Nations Regulations refer, not to “functional”, but to “legal” protection. As stated by Eagleton: “the United Nations can, of course, present no claim based merely on nationality, since it has no nationals; but it may ask reparation for losses suffered by its agent as an individual.” Eagleton also stated that “where conict arises between the claim of the State of nationality and the claim of the United Nations, the claim of the United Nations should have priority” because it “is upon a higher level than that of the State of nationality, since it is based upon the protection of its agents, whereas the claim of the State could only be based upon protection of one of its nationals.”97 In cases related to the ofcial functions this conforms with the superseding force of organic jurisdiction over (territorial and) personal jurisdiction.

Appointment and dismissal of ofcials. Their independence. Political deviations The power of the organization to appoint ofcials98 is usually expressly laid down in the constitution, but even if it is not,99 it rests exclusively with the organization. It implies, as a necessary corollary, also the power to dismiss ofcials.100 The Preparatory Commission of the United Nations decided in 1945 that this power should vest exclusively in the Secretary-General, after rejecting a proposal that appointment should be subject to the consent of the

96 97 98

99 100

Arts. VII and VIII respectively, on the issuance of laissez-passer to ofcials to serve as travel documents in lieu of or in addition to national passports. However, not all member States acceded to these conventions. Accession is no condition for the issuance of travel documents or other documents identifying agents or the organization, but a majority of the States have acceded the Convention on the Privileges and Immunities of the United Nations of 13 February 1946 and to the Convention on the Privileges and Immunities of the Specialized Agencies of 21 November 1947. See Seyersted, op. cit., p. 116. Recueil des Cours de l’Académie de droit international de la Haye, 1950 I, p. 381, cf. pp. 359–65. On “Non-conrmation of Probationary Appointments”, see C.F. Amerasinghe and D. Bellinger in BYIL 1983, pp. 167–206. As for the freedom of the organization in electing individuals as members of deliberative organs, see the UNESCO (Constitution) Case in Annual Digest of International Law Cases, 1949, Case No. 113. Art. 21 of the Statute of the Permanent Court of International Justice provided only for appointment of a Registrar. Judgment No. 19 of the United Nations Administrative Tribunal and Judgment No. 23, Judgments of the United Nations Administrative Tribunal, Numbers 1–70 (United Nations, 1958), at p. 73.

inherent jurisdiction over organs and officials 143 government of the member State of which the candidate was a national.101 Even the much (and rightly) criticised Commission of Jurists appointed by the Secretary-General in 1952 (during the McCarthy-period of communist hunt) to advise him on certain questions arising in connection with his personnel policy stated that “the independence of the Secretary-General and his sole responsibility to the General Assembly of the United Nations for the selection and retention of staff should be recognised by all member nations and if necessary asserted, should it ever be challenged”. A different matter is that several international ofcials have been appointed by the organization from national ofcials who are then “seconded” by their governments for service with the organization for a limited period (usually not more than ve years).102 These are under the same exclusive jurisdiction and power of instructions of the organization as are its permanent ofcials, but in practice seconded ofcials, notably those from communist countries and from the United States during the cold war, were more subject to undue pressure from their national governments than were other international ofcials. Member States frequently make representations and submit information to the organisation in order to obtain the appointment of certain of their nationals as ofcials, and in some cases even to obtain their non-appointment or dismissal. Some big powers have even exercised pressure or taken it for granted that if their nationals on the secretariat staff resign, they shall be succeeded by another national selected by them. Such representations have to some extent been complied with by the organization.103 However, the decision rests with the latter, and it is the organization, not the member State, which makes the appointment. As the second Secretary-General of the

101 102

103

Repertory of Practice of United Nations Organs, V, pp. 233–234; Report of the Secretary-General. OR GA, VII, Annexes II, A.i. 75, pp. 4 ff. See I. Seidl-Hohenveldern: “Die Abstellung nationaler Beamter zu Internationalen Organisationen” in Verantwortung in unserer Zeit, Festschrift für Rudolf Kirchschläger, Vienna 1990, pp. 211–20. On the practice of the League of Nations, see Ranshofen-Wertheimer: The International Secretariat, Washington 1945, pp. 326–327. As for the United Nations, see, in addition to the citations in the preceding notes, the three reports of the Secretary-General on personnel policy in OR GA VII, Annexes Vol. II, Agenda item 75; OR GA XIII, Annexes, A.i. 51, OR GA XII, Annexes A.i. 51, and Repertory of Practice of United Nations Organs under Art. 101 (Vol. V of Suppl. No. 5). On the representations which successfully prevented Italian and German plans to deport Jews and expel Allied Nationals among the ofcials of the International Institute of Agriculture (the pre-war fore-runner of FAO), see van Haastert: Het Internationaal Landbouw Instituut en de Organisatie voor Voedsel en Landbouw, s’Hertogenbosch 1947, p. 107 and International Institute of Agriculture: The Legal and Moral Position and the Diplomatic Prerogatives of the International Institute of Agriculture, Rome 1943, pp. 45 et seq. On NATO, see R.S. Jordan: The NATO international staff/secretariat, London 1967.

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United Nations, Dag Hammarskjöld, stated to the press in 1953, any government may express its views or desires, but the Secretary-General makes the nal decision in complete independence. The inconclusiveness of national administrative decisions and regulations was also reected in his nal report of 1957 on personnel policy, which stated: There are two basic underlying principles. These are: (a) The Secretary-General, in deciding whether to employ or terminate a staff member, must have sufcient information on which to make an independent decision; he cannot act on charges unsupported by satisfactory evidence. This principle derives directly from the Secretary-General’s responsibilities and prerogatives under the Charter with respect to the appointment and termination of the staff, and has been recognised by the General-Assembly; (b) The standards to be applied by the United Nations are those of the Charter, and the tests to be applied in regard to these standards are not necessarily the same as those which might be applied by a Member State in passing on questions of suitability for government employment. This principle is also based on the Charter and decisions of the General Assembly.104

As for local personnel, the situation was described as follows in paragraph 27 (c) of the host agreement of 27 November 1961 between the United Nations and the Congo: Toute décision concernant le recrutement, la continuation ou la cessation de l’emploi de tout membre du personnel local ressortit à l’autorité exclusive du Représentant spécial du Secrétaire-général; ce dernier examine, avant de se prononcer, tous les éléments qui lui sont présentés.

The question of the exclusiveness of the power of intergovernmental organizations to dismiss their ofcials was subject of a decision of 24 April 1929 by the French Conseil d’Etat.105 That court upheld a decision by the French Ministry of War refusing to interfere with a decision by the administration of the railways in the Rhineland under allied occupation, dismissing a French national from his service with that administration. It was held that the administration, which had been instituted by a decree of the Inter-Allied Rhineland High Commission, was an “organisme international dont les décisions ne relevaient pas du Ministre de la Guerre.” The latter was therefore right in rejecting, “comme porté devant une autorité incompétente,” the complaint of the ofcial concerned. Similarly, in a decision of 20 February 1953, the Conseil d’Etat declared itself incompetent in respect of a complaint by an ex-ofcial of the International Institute of Intellectual Co-operation against the French Government based

104 105

OR GA, XII, Annexes, A.i. 51, p. 21. Re Marthoud, Recueil des arrêts du Conseil d’Etat, 1929, p. 409.

inherent jurisdiction over organs and officials 145 on the latter’s failure to support his claims against the Institute and his alleged entitlement to a position with the UNESCO when this organization succeeded the Institute. The Conseil d’Etat declared that the relations of the French Government with international organisations, and its acts with respect to the candidature of French nationals to such organisations, like the appointments themselves, were outside the competence of the Conseil d’Etat.106 The question of decisions to dismiss national judicial proceedings based on a lack of jurisdiction has also been raised in international courts. In the case of Waite and Kennedy v. Germany,107 the European Court of Human Rights dismissed the claim that the respondent State had infringed the applicants’ procedural rights (under the European Convention on Human Rights) by not allowing their claims against the European Space Agency (ESA) on their status of employment with ESA to be tried before German courts for lack of jurisdiction ratione personae. The ECHR observed in a general sense that: (t)he attribution of privileges and immunities to international organisations is an essential means of ensuring the proper functioning of such organisations free from unilateral interference by individual governments (para. 63). (t)he test of proportionality cannot be applied in such a way as to compel an international organisation to submit itself to national litigation in relation to employment conditions prescribed under national labour law. To read Article 6 § 1 of the Convention and its guarantee of access to court as necessarily requiring the application of national legislation in such matters would, in the Court’s view, thwart the proper functioning of international organisations and run counter to the current trend towards extending and strengthening international cooperation (para. 72).

Indeed, while organizations have managed to defend their exclusive legislative and judicial power, their exclusive administrative power with regard to appointments and dismissal has been seriously threatened. The rst – and the most formal and open – challenge was an Italian (fascist) law of 16 June 1927 which, subject to heavy punishment, required Italian nationals (not merely governmental ofcials) to obtain permission to enter international service, and to quit if ordered by the government. The (rst, fascist) Peron regime in Argentine after World War II pressed IGOs to refuse to employ Argentinean anti-peronists.

106 107

Re Weiss, Journal de droit international (Clunet), Vol. 81 1954, p. 744, with a note by Huet. Judgment 18 February 1999, application no. 26083/94. Since Waite and Kennedy had not been directly employed by ESA, but had worked there under contract with a third person, the German courts did not consider the question of competence ratione materiae, but the Federal Labour Court observed the “rather broad competence of international organizations to regulate staff matters” cf. para. 25 of the cited judgment.

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Much more serious consequences had the practice displayed during the cold war by the communist States and the United States. They did not appreciate the principle of the independence of international ofcials and wanted in reality to decide appointments and dismissals of their nationals in secretariat posts within determined quotas and even to instruct both them and nationals of allied States in the performance of their functions. While the administrative tribunals were able to intervene against abuse in respect of dismissals, they could do nothing in respect of appointments. During the rst years of the UN, Secretary-General Trygve Lie pursued a correct course, appointing the ofcials of the Secretariat independently. Among the ofcials were a number of Eastern Europeans who really were political refugees from their countries and who were appointed because of their qualications, including the linguistic one. On the other hand there were several US nationals who had a more liberal or radical conviction than the US government and who were accused by McCarthy-adherents of being communists or “fellow travellers”.108 The administrative tribunals of the organizations concerned determined that several dismissals were not authorised in the terms of appointment (the staff regulations) or involved an abuse of right. They were backed up by two advisory opinions of the International Court of Justice.109 However, despite these decisions, the new trend survived and spread to other organizations and other countries, including all communist countries. Moreover, the tribunals did not call for reinstatement, but gave the Secretary-General (or the Director-General) the choice between reinstatement and nancial compensation. So these – and others after them – chose the latter.110 Furthermore, in its relevant judgments, the United Nations Administrative Tribunal made a preliminary statement to the effect that “under the terms of its Statute the Tribunal is not competent to pass judgment on the validity, in relation to the Charter, of an agreement made between the Secretary-General and a Member State, whatever inuence this agreement might actually have had on the decision taken in respect of the Applicant”.

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109 110

See also Bowett, The Law of International Institutions, 4th ed. London 1982, pp. 97–99. – During the communist-hunt in the United States during the McCarthy-period in the early fties – Trygve Lie unfortunately gave in to pressure from the U.S. government to discharge such American nationals. And so did the American Director-General of UNESCO, Mr. Evans. Later, other IGOs followed suit, although e.g. UN SecretaryGeneral Hammarskiöld fought for the independence of UN ofcials more bravely than did Trygve Lie. ICJ Reports 1954, p. 47, and 1956, p. 77. See the report and criticism by T. Meron: “In re Rosescu and the Independence of the International Civil Service” in AJIL, Vol. 75, 1981, pp. 910–25.

inherent jurisdiction over organs and officials 147 Indeed, in many respects particularly the two most important administrative tribunals, and notably that of the UN, displayed a weak and evasive attitude, avoiding facing the key issue of undue pressure from the big powers. The abuse also spread to the procedure of appointments. Thus, the custom developed in the UN and the specialized agencies of accepting political questionnaires from the US authorities for transmittal to applicants of American nationality for international positions. Furthermore, the custom developed of giving preference to candidates who had been proposed by their governments and even of not appointing new ofcials without rst obtaining the approval of the government concerned, a practice which obviously was detrimental to the independence of international ofcials. The US instituted under Executive order No. 10422 of 9 January 1953 an International Organization Employees Loyalty Program to screen the loyalty of US nationals in international service; however, 33 years later this was declared unconstitutional by a US District Court in that it violated the rights of American citizens under the First Amendment to the US Constitution.111 The big powers also initiated an earmarking of specic posts for candidates from specic countries, which, of course, fell nicely in with nominations from the countries concerned of specic candidates (for secondment from national government service) whom the organizations could not – or at least did not – refuse to accept. Some other States, rather than oppose the abuse, were only too willing to follow suit. Thus many appointments were in fact made by national governments – in form only by the organization.112 With the end of the cold war, member States could move back to the correct procedure: Appointment and dismissal by the organization itself – in reality as well as in form – and appointment according to personal qualications, subject to a reasonable geographic total distribution. The 1986 US District Court decision reported above was a good start. An important factual element in the independence of international ofcials is the distinction between permanent and temporary contracts of employment. Ofcials who are not given permanent contracts (career service) are appointed for a few years and may be renewed, but only up to a total of ve years. Such ofcials are frequently national ofcials who are seconded by their governments113 and who normally return to their national service at the end 111 112 113

Hinton v. Devine (Civ. Co. 84–1130) 8 April 1986, reported by Mark A. Roy in AJIL, Vol. 80 1986, pp. 984–5. It started out with the Assistant Secretaries-General of the UN, and then spread to Directors and senior ofcers, and even below. These problems of secondments and relevant decisions by administrative tribunals have been examined by Seidl-Hohenveldern: “Die Abstellung nationaler Beamten zu Internationalen Organisationen” in Verantwortung in unserer Zeit, Festschrift für Rudolf

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of their service with the organization. Such ofcials from totalitarian or big powers often found it difcult to act independently as international ofcials. The question of the extent to which an intergovernmental organization can take into account the wishes of the host State and of other member States in its personnel policy – without prejudicing its independence and the equality of its members and without violating its specic constitutional provisions safeguarding the exclusively international character of its staff114 and its staff regulations – was the subject of heated discussion, particularly in the United Nations and UNESCO during the McCarthy period of US communist hunt from 1952 onwards,115 as well as of an extensive literature116 and a number of decisions by administrative tribunals,117 followed by two advisory opinions of the International Court of Justice.118 On the whole, the courts and writers upheld the principle of the internal autonomy of the organizations concerned; some of the dismissals decided upon by the executive heads of the United Nations and UNESCO under undue pressure from certain member States

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Kirchschläger, Vienna 1990, pp. 211–20. English translation: “The Secondment of National Ofcials to International Organizations” in Hacia un nuevo orden internacional. Estudios en homenaje al profesor Don Manuel Diez de Velasco, Madrid 1993, pp. 689–99. See also Schermers and Blokker, op. cit., §§ 522 and 526; A. Plantey: The International Civil Service, New York 1981, pp. 165–67 and Theodor Meron, op. cit., pp. 910–25. See, for example, Art. 37 of the WHO constitution and Art. 100 of the UN Charter, which provide what Sir Gerald Fitzmaurice stated “must in any event result implicitly from their position as international civil servants”, BYIL, XXIX (1952), p. 11. See the reports of the Secretary-General of the United Nations cited in note 122, the Repertory of Practice of United Nations Organs, at Art. 100, the report of the Commission of Jurists referred to in the text above (reprinted in OR GA. VIII. Annexes II. Agenda item 51, pp. 23–33, cf. International Organization, VII (1953), pp. 128–130, 243–248, 421–423 and 590–591) and the criticism thereof by Henri Rolin, “Avis consultatif sur les droits et obligations des fonctionnaires internationaux, avis rédigé sur la demande de la Fédération des associations de fonctionnaires internationaux et approuvé par Tomaso Perassi et Charles Rousseau” (mimeographed, 1953). For a thorough discussion of the entire problem at the time, see S.M. Schwebel: “The International Character of the Secretariat of the United Nations”, BYIL, XXX (1953), pp. 71–115. See also L.C. Green: “The International Civil Servant. His Employer and His State”, Grotius Society Transactions 1954, pp. 147 et seq., especially pp. 168–174; Martin and Edwards: The Changing Charter, London 1955, pp. 34–36; Maxwell Cohen in AJIL, XXXXIX (1955), pp. 295–319 and the articles cited by him at p. 295; and Siotis: Essai sur le secrétariat international, Geneva 1963, pp. 209–218. See judgments Nos. 29–37 and other judgments reported in Judgments of the United Nations Administrative Tribunal (United Nations 1958) and, in particular, judgments Nos. 17–19 and 21 of the International Labour Organisation Administrative Tribunal of 26 April and 29 October 1955, summarised by Mercier in Annuaire français de droit international, 1955, pp. 302–309. On subsequent judgments of the ILO Administrative Tribunal, see Lemoine, ibid., 1960 ff. Effect of Awards for Compensation Made by the United Nations Administrative Tribunal, ICJ Reports 1954, pp. 47 ff., and Judgments of the Administrative Tribunal of ILO upon Complaints Made against UNESCO, ICJ Reports, 1956, pp. 77 ff.

inherent jurisdiction over organs and officials 149 were invalidated as not authorized in the staff regulations or as involving an abuse of power.

The relationship of employment. General Kelsen119 maintained that the relationship of employment has the character of a contract of private law, and that the organization had no power to establish, by unilateral act, duties and rights of individuals in their relation to the United Nations, but that the relationship was governed by the national law of the host State. Jessup, too, considered that “such contracts might be made with reference to the law of a particular State, such as that of the State in which the headquarters of the United Nations is located.” However, he added: It would seem more appropriate, given the acceptance of the position of the individual as a subject of international law, to conclude such agreements under international law and make that law applicable to disputes concerning interpretation and the like. On the procedural side it is to be presumed that special tribunals will be established for the solution of such controversies, but the law to be applied and developed by such special tribunals should be a branch of international law, not of some national law.120

Both of these early writers appear to have started out from the premise that there are only two types of legal system, national law and international law. As expressed by the Permanent Court of International Justice in the Serbian Loans Case: “Any contract which is not a contract between States in their capacity as subjects of international law is based on the municipal law of some country.”121 However, there is a third system, which does not presuppose the recognition of individuals as subjects of international law, namely, the internal law of the organization.122 The internal law of intergovernmental organizations constitutes a third type of independent legal systems, comparable in most respects to (public) national law, rather than to international law. It is this law which governs international ofcials as such. Like national law and unlike public international law it has a hierarchical system of sources: The constitution of

119 120 121 122

The Law of the United Nations, London 1950, pp. 313–314 and 318. A Modern Law of Nations, New York 1949, p. 132. Italics added. PCIJ, Ser. A, No. 20, p. 41. As pointed out by Jessup in a subsequent publication (Transnational Law, New Haven 1956, p. 87) this term was used already in 1929 by the League of Nations Administrative Tribunal.

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the organization takes precedence over the staff regulations enacted by the plenary organ, which, again, take precedence over the staff rules enacted by the head of the secretariat, which again, may take precedence over manuals and other documents emanating from the secretariat.123 However, the common unwritten law of IGOs and States also plays an important part. This was put on paper in Article III of the Statute of the UNRWA Special Panel of Adjudicators of 1983, which stated that the Panel shall apply the terms of employment, including all pertinent Regulations and Rules and the general principles of law, and that it shall be guided by the jurisprudence of the UN Administrative Tribunal and of other international and national administrative tribunals. The staff (of the registry) of administrative tribunals and other IGO courts are appointed and remunerated by the organization and are, in the discharge of their duties, responsible to the tribunal and to the organization. The Statute of the administrative tribunal of the World Bank provides that the Executive Secretary shall be responsible only to the tribunal (Article VI 2). On the other hand it is quite possible for intergovernmental organizations in addition to its international ofcials to hire local personnel under local law for performance of work which does not involve performing public functions, e.g. service providers. Military personnel in UN forces are a special category. These remain national personnel with regard to employment, but are international personnel with regard to performance of their functions. Thus, paragraph 6 of the Regulations for the UN Force in the Congo provided: The United Nations Force in the Congo is part of the subsidiary organ of the United Nations referred to in Regulation 5 (b) above (ONUC) and consists of the Commander and all military personnel placed under his command by Member States. The members of the Force, although remaining in their national service, are, during the period of their assignment to the Force, international personnel under the authority of the United Nations and subject to the instructions of the Commander, through the Chain of command.124

The following discussion will be conned to regular international ofcials. However, even here there are differences in the sense that even international ofcials may be given a contractual status in certain respects, notably with regard to level, salary and duration.

123 124

See C.F. Amerasinghe: The Law of the International Civil Service, Oxford 1994, pp. 146–9 on the relationship between Staff Rules and other subsidiary instruments. ONUC Reg. 6 (ST/SGB/ONUC/1, 15 July 1963). See also the similar provision in UNEF Reg. 6, UNTS, Vol. 271, p. 174.

inherent jurisdiction over organs and officials 151 Contractual or statutory?125 Private or public law? Acquired rights126 In most cases the relationship of employment is partly in the nature of a contract. International ofcials usually sign or accept a “letter of appointment”127 or other letter128 or “contract”,129 indicating their acceptance of the offer and the terms of employment.130 However, also the relationship of public employment with national governments is essentially dependent upon the consent of both parties, in so far as usually no ofcial is appointed without having indicated by application or otherwise his willingness to serve,131 and in so far as also national ofcials usually have the right to resign.132 This is so also in those States where the relationship of public employment is considered to be of a statutory, rather than of a contractual nature. The contracts or letters of appointment of international ofcials usually specify only those terms of employment which are particular to the ofcial concerned, notably his grade, his salary and the duration (type) of his contract. With regard to most other conditions of service, the contract or letter of appointment merely refers to the staff regulations and rules enacted by the organization. This in itself does not necessarily derogate from the contractual nature of the relationship since such regulations and rules are, or may

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For a clear exposition of the two opposing systems, in States and pre-war organizations, see Suzanne Basdevant (Bastid): Les fonctionnaires internationaux, Paris 1931, pp. 63–106. On acquired rights, see also Grisel: “Les droits acquis des fonctionnaires internationaux” in Im Dienst an der Gemeinschaft, Basel 1989, pp. 75–96; Arts. 13.3 and 14 of the Staff Regulations of the International Court of Justice, and C.F. Amerasinghe: Principles of the Institutional Law of International Organizations, Cambridge 1996, pp. 360 ff. On acquired rights in respect of rules on promotion, see Judgments No. 266 (of 20 November 1980) and 295 (of 6 October 1982) of the United Nations Administrative Tribunal. League of Nations Staff Regulations, Art. 13; United Nations Staff Regulation 4 (1) and Annex II, cf. Staff Rule 104,1 and the forms for “Letter of Appointment”; Inter-Allied Reparation Agency Staff Regulations, para. 11; FAO Staff Rule 301.04 and Annex II; OECD Staff Regulation 8; Staff Regulations for the Registry of the International Court of Justice, Art. 5; International Atomic Energy Agency Staff Regulation 3.05. UNESCO Staff Regulations, Art. IV.1. Experts on mission for UNESCO, however, sign an “agreement” which does not refer to the Staff Regulations and which species that the expert is not to “be considered in any sense as a member of the staff, agent or attorney of UNESCO.” ILO Staff Regulations, Art. 4 (7). ILO Staff Regulations, Art. 4 (7); Staff Regulations for the Registry of the ICJ, Art. 5; OECD Staff Regulations 8; UNESCO Staff Regulations, Art. IV 1. – The Staff Regulations of the League of Nations are found in H. Aufricht: Guide to League of Nations Publications, New York 1951, p. 440 and those of the United Nations in ST/SGB/Staff Rules/1 (Rev. 7 dated 1990). Most organizations have published their staff regulations separately. See, for example, the German Bundesbeamtengesetz, § 8 (1). Ibid., Bundesbeamtengesetz, § 30.

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be considered to have been, incorporated in the contract by reference. But the organization also has the power to amend the regulations and rules by unilateral legislative action. Such amendments are, within certain limits, binding even upon ofcials appointed prior to the enactment of the amendment. This is expressly provided in many staff regulations133 and/or in the letters of appointment.134 As stated in Judgment No. 273 by the UN Administrative Tribunal of 15 May 1981: The summary provisions contained in the letter of appointment are supplemented by documents of general application which are much more detailed. The letter of appointment refers to these in stipulating that the appointment is offered “subject to the provisions of the Staff Regulations and Staff Rules, together with such amendments as may from time to time be made to such Staff Regulations and such Staff Rules”. Thus, by virtue of that provision, documents of general application are made an integral part of the contract and the staff member accepts in advance any amendments which may be made to them. At the time of appointment, copies of the Staff Regulations and Staff Rules are transmitted to the person concerned and that fact is noted in the letter of appointment. Further, every staff member is notied of subsequent amendments to those documents through the publication of administrative circulars, which give the text of the relevant new provisions and their date of entry into force ( Judgment No. 249, Smith). On that date, the new provisions become an integral part of the contract.

In the chapter headed “General provisions”, the UN Staff regulations 12.2– 12.4 of 7 February 2003 read as follows: Such staff rules and amendments as the Secretary-General may make to implement the present Regulations shall be provisional until the requirements of regulations 12.3 and 12.4 below have been met. The full text of provisional staff rules and amendments shall be reported annually to the General Assembly. Should the Assembly nd that a provisional rule and/or amendment is inconsistent with the intent and purpose of the Regulations, it may direct that the rule and/or amendment be withdrawn or modied. The provisional rules and amendments reported by the Secretary-General, taking into account such modications and/or deletions that may be directed by the General Assembly, shall enter into full force and effect on 1 January following the year in which the report is made to the Assembly.

133 134

Thus, Art. 14 of the ICJ Staff Regulations provides that they “may be supplemented or amended by the Court, without prejudice to the acquired rights of staff member”. Thus the letters of appointment of the International Atomic Energy Agency shall State that “the appointment is subject to the provisions of these Regulations and of the rules applicable to the category of the appointment in question, and to changes which may be duly made in such Regulations and rules from time to time” (IAEA Staff Regulation 3.05 (a)).

inherent jurisdiction over organs and officials 153 These texts empower the Secretary-General to establish and amend the Staff Rules within the limits laid down by the Staff Regulations. The SecretaryGeneral has the duty to report to the General Assembly on the exercise of his rule-making authority, which is derived from the Charter and from the Staff Regulations, but the bringing into force of the provisions established by the Secretary-General, is subject to the General Assembly’s directions. The legal status of a staff member is thus governed by the provisions of the Staff rules immediately on their entry into force. The question arises, however, whether amendments may be given retroactive effect even when this would prejudice the acquired rights of the ofcials.135 This question is in some cases dealt with by express provision in the staff regulations. Thus Personnel regulation 22 (a) of the former International Refugee Organization provided that “staff members shall be required, subject to due notice in the case of acquired contractual rights, to comply with such amended regulations as the Organization may issue.” Staff regulation 12.1 of the United Nations provides: “These regulations may be supplemented or amended by the General Assembly, without prejudice to the acquired rights of staff members.” And regulation 12.5 decides that the “Staff rules shall not give rise to acquired rights within the meaning of regulation 12.1 while they are provisional”. The Staff Regulations of the League of Nations, the International Labour Organization (ILO) and other specialized agencies contain similar provisions.136 But the provisions of the League and the ILO were addressed to the Secretary-General (in consultation with other specied organs) only. The plenary organs of these organizations were empowered by another provision of the regulations to modify the terms of contracts of ofcials appointed or promoted after 1932 without reservation for acquired rights.137 And so was the Committee of Ministers under Article 11 of the Staff Regulations of the Council of Europe with regard to salary. On the other hand, the problem is not solved by a provision in the staff regulations to the effect that acquired rights shall be respected. A number of disputes have arisen, precisely with reference to organizations having such a provision, on the question of what constitutes “acquired rights”. These disputes have been decided by the administrative tribunals or the plenary organs, in

135

136 137

See e.g. the provisions in Arts. 13.3 and 14 of the Staff Regulations of the International Court of Justice; A. Grisel: “Les droits acquis des fonctionnaires internationaux” in Im Dienst der Gemeinschaft, Basel 1989, pp. 75–96; Schermers and Blokker, op. cit., § 539 and C.F. Amerasinghe: The Law of the International Civil Service 2nd ed., Oxford 1994, pp. 419–440. League of Nations Staff Regulations, Art. 80, and the old ILO Staff Regulation 14 (7). Ibid. Art. 30 bis, and the old ILO Staff Regulations, Art. 16 bis.

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the latter case usually on the basis of a report from a committee appointed for the specic purpose of studying the problem. These decisions and reports have not, however, established any settled general doctrine or practice as to what constitutes “acquired rights.” In 1932 the League of Nations Assembly – which was not bound by the provision on acquired rights addressed to the Secretary-General – decided to refrain from taking any action with a view to reducing the salaries of ofcials, following an opinion delivered by a special Committee of Jurists to the effect that it lacked the power to do so because that would violate the acquired rights of the ofcials. The Opinion stated that, although the League could have made the relationship statutory, it had in fact chosen to make it contractual but not “a legal relationship of private law within the meaning of the civil law of any country”. The question as to whether the Assembly nevertheless had the right to derogate from these contractual rights of the ofcials in the exercise of its budgetary authority did not “arise in the same manner as it arises for a Parliament which, besides its budgetary authority, has the power to legislate – that is to say, to make rules of law which can supersede other rules of law”.138 The opinion may here have confused organic and territorial/personal jurisdiction. The same view was taken by the League of Nations Administrative Tribunal, in a judgment of 26 February 1946,139 with regard to an Assembly resolution of 14 December 1939 which decided to reduce from six months to one the period of notice of termination of contract and to pay the terminal compensation in four annual installments, not in one payment as before. The Tribunal held that this could not be applied to an ofcial who had been appointed before the coming into operation (in 1932) of Article 30 bis of the Staff Regulations, which provided that the terms of appointment might be modied by the Assembly. However, the Tribunal based this in part upon an assumption that the Assembly would not have intended, by its Resolution of 14 December 1939, to affect acquired rights without expressly so stating and without even mentioning Article 80 of the Staff Regulations, which established the principle of respect for acquired rights.140 Despite this judgment, the Assembly adopted a majority report delivered by a sub-committee of its Second (Finance) Committee, to the effect that the amendment be applied to

138 139 140

Annual Digest 1931–32, pp. 408–410, full text in Journal ofciel, Supplément spécial No. 107, pp. 206–208. Annual Digest 1946, Case No. 91, pp. 199–202. Journal ofciel, Supplément special No. 194 (1946), p. 245.

inherent jurisdiction over organs and officials 155 all ofcials.141 The report held that the Tribunal had wrongly interpreted the intention of the Assembly resolution of 1939, and stated moreover that “the League does possess, in regard to the ofcials with whom it contracts, what are in effect sovereign powers . . . We think it necessary for the proper discharge of the functions of a world organization of States that it should possess a power if necessary to set aside the vested rights of private individuals employed in its administration.”142 The US pursued a policy of ousting American nationals whom they accused of being communists or “fellow travellers” from public ofce both in their own administration and in secretariats of international organizations. They pressed the Secretary-General of the UN and other organizations to discharge ofcials on the basis of new provisions in the staff regulations. This naturally gave rise to several appeals to administrative tribunals. Thus the United Nations Administrative Tribunal, in a series of decisions in 1953–54, held that ofcials could not invoke Staff Regulation 12.1 – which provided that the Regulations “may be supplemented or amended by the General Assembly, without prejudice to the acquired rights of staff members” – against new provisions in the Staff Regulations authorizing the SecretaryGeneral to terminate appointments “if, in his opinion, such action would be in the interest of the United Nations” (Article 9.1 (c)) and to “summarily dismiss a member of the staff for serious misconduct” (Article 10). The Tribunal said on this point: The Tribunal considers that relations between staff members and the United Nations involve various elements and are consequently not solely contractual in nature. Article 101 of the Charter gives the General Assembly the right to establish regulations for the appointment of the staff, and consequently the right to change them, The General Assembly under that Article established new Staff Regulations and decided that these new Staff Regulations should become effective on March 1, 1952, and supersede all previous Staff Regulations. It follows from the foregoing that notwithstanding the existence of contracts between the United Nations and staff members, the legal regulations governing the staff are established by the General Assembly of the United Nations. In determining the legal position of staff members a distinction should be made between contractual elements and statutory elements:

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This was prior to the advisory opinion of the International Court of Justice of 13 July 1954 on Effect of Awards of Compensation made by the UN Administrative Tribunal, ICJ Reports, 1954, p. 47. Italics added. Cf. the divergent interpretations given in ICJ Pleadings, Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (1954), pp. 129–130 and 165–181.

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chapter five all matters being contractual which affect the personal status of each staff member, e.g., nature of his contract, salary, grade; all matters being statutory which affect in general the organization of the international civil service, and the need for its proper functioning, e.g., general rules that have no personal reference. While the contractual elements cannot be changed without the agreement of the two parties, the statutory elements on the other hand may always be changed at any time through regulations established by the General Assembly, and these changes are binding on staff members. The Tribunal interprets the provisions of Regulation 28 of the Provisional Staff Regulations and Article XII of the new Staff Regulations in this manner. With regard to the case under consideration the Tribunal decides that a statutory element is involved and that in fact the question of the termination of temporary appointments is one of a general rule subject to amendment by the General Assembly and against which acquired rights cannot be invoked.143

The Vice-President of the Tribunal, Mr. Sture Petrén, added: On the question of acquired rights, I have reached the same conclusion as the majority of the Tribunal, as the General Assembly, in adopting the new Staff Regulations, did not contemplate a transitional stage for contracts in force at the time of its decision, and as the Applicant’s contract contained no provision prohibiting the immediate application of the new Staff Regulation 9.1 (c).

On the question of the power of the organization to cut remunerations by regulations with effect for current contracts the ILO Administrative Tribunal in its judgment No. 51 of 23 September 1960, held that “the amount of the non-resident’s allowance cannot be the subject of acquired rights” and that it could therefore be reduced with effect for contracts in force, despite the provision in FAO Staff Regulation 801.121 that the Staff Regulations may be amended without prejudice to the acquired rights; however, the reduction could not be given retroactive effect to cancel amounts earned before the date of the approval of the reduction, despite the fact that it had been more than off-set by a simultaneous rise in salary. In its Judgment No. 61 of 4 September 1962144 the same Tribunal annulled a decision by the International Telecommunication Union to apply new regulations on termination indemnities and

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Judgment No. 19 of 21 August 1953. Judgments Nos. 20–25 and 27 were in the same terms. And so was Judgment No. 53, except that it concluded that “the question of the procedure to be followed in the case of disciplinary measures is one of a general rule subject to amendment by the General Assembly and against which acquired rights cannot be invoked.” Text of the judgments in Judgments of the United Nations Administrative Tribunal, Numbers 1 to 70 (United Nations 1953), p. 260. Reported by Lemoine in Annuaire français de droit international VIII (1962), p. 407.

inherent jurisdiction over organs and officials 157 pensions to a permanent contract already in force,145 but refused to do the same in respect of new regulations relating to family allowances, because on the whole they were more favourable to the ofcials. In 1964 the United Nations family of organizations abandoned the “service benets,” but not with effect for contracts in force. Indeed, there is an administrative practice within the United Nations family of organizations not to apply to contracts in force any regulations which reduce the total amounts (“take-home money”) which their ofcials receive. An aspect of this question was put to the General Assembly at its Second Session. Speaking in the Fifth Committee in favour of the inclusion in the budget of an appropriation for reimbursement of national income taxation paid by ofcials upon their salaries, the Assistant Secretary-General for Legal Affairs stated that the tax refund constituted a material part of emoluments and constitute acquired rights and that elimination of tax exemption would therefore constitute a breach of contract.146 The appropriation for reimbursement of national income taxes was eventually approved, but at the same time the General Assembly, in resolution 160 (II), “invited” the Secretary-General to omit from all future personnel contracts any clause which would bind the United Nations to refund national income taxes in the absence of annual authorization by the Assembly.147 However, the letters of appointment of other organizations of the United Nations family, such as the International Atomic Energy Agency, continued to provide for reimbursement of income taxes in accordance with the staff regulations and rules. The UN Administrative Tribunal has held both for and against acquired rights against new rules regarding promotion.148 On the basis of the regulations and the practice cited above it is clear that intergovernmental organizations establish statutory relationships of employment with their ofcials with only a few contractual elements relating normally to type and duration of contract, grade and salary.149 Only the latter constitute acquired rights, while the former may be altered by the organization.

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146 147 148 149

In this sense also Judgment No. 273 of 15 May 1981 by the UN Administative Tribunal, on entitlement to a representation grant at the end of service, Judgments of the UN Administrative Tribunal, Nos. 231 to 300 (1978–82), p. 426 ff. OR GA, II, Fifth Committee, Summary Records, p. 333. See also A/C5/657 of 1956, conrming the resulting legal difference between ofcials appointed before and after 1947. Judgments No. 266 of 20 November 1980 and No. 286 of 6 October 1982 in Judgments of the UN Administrative Tribunal, pp. 340 ff. and 596 ff. Suzanne Bastid, the rst President of the United Nations Administrative Tribunal, wrote already in 1957: “dans beaucoup de cas, on peut dire que l’élément contractual est limité à la creation du lien juridique, l’ensemble de la situation, droit et obligations étant determine par voie des dispositions générales de facon unilateral” (Grundprobleme des internationalen Rechts, Bonn 1957, p. 37).

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It may therefore be concluded that, although the relationship of employment usually involves both a contractual and a statutory element, it bears on the whole more resemblance to public than to private law relationships,150 being subject to a great extent to the sovereign151 legislative power of the organization. Analogies must therefore usually be drawn from the public, rather than from the private law of States. Indeed, already in 1925 an ad hoc tribunal of the League of Nations applied “general principles of public law and administrative legislation” in granting a claim by an ofcial against the organization.152 And later the League of Nations Administrative Tribunal refused to apply by analogy a principle of civil law which did not also apply to an administrative relationship governed by public law.153 In 1957 the United Nations Administrative Tribunal – after citing General Assembly resolution 302 (IV) which established the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) and authorized its Director to “appoint his staff in accordance with general arrangements made in agreement with the Secretary-General, including such of the staff rules and regulations of the United Nations as the Director and the Secretary-General shall agree are applicable” – stated: It follows from this resolution that the staff of the Agency is placed under the legislative authority of the Assembly, like the whole of the staff referred to in Chapter XV of the Charter, but no provision of that Chapter obliges the Assembly to establish uniform rules for all who serve the United Nations.154

As a matter of fact, UNRWA enacted special Regulations and Rules, not only for its 152 international staff, but also for its great number of area and local staff. Indeed, the public character of the relationship of employment applies in principle to all ofcials. As was pointed out already by Borsi,155 intergovernmental organizations do not ordinarily apply the distinction, usually made in the national law of States, between ofcials who perform public functions and those who do not (for example service providers). They all have a status

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Cf. the following statement by a French court: “les fonctionnaires internationaux se reconnaissent à ce qu’ils exercent leur activité dans un interêt public mais de caractère international” (Chemidlin v. International Bureau of Weights and Measures, in Annual Digest of international Law Cases, 1943–45, p. 231. This term was used already by a League of Nations Committee. The Monod Case, Journal Ofciel 1925, pp. 858 and 1441, and Hudson: International Tribunals, p. 221. (1933–34) Annual Digest, Case No. 203. Judgments of the United Nations Administrative Tribunal, I, Judgment No. 70, p. 425. “Il rapporto d’impiegonella Società delle Nazioni”, Rivista di diritto internazionale Vol. 15 (1923).

inherent jurisdiction over organs and officials 159 similar to that of national ofcials performing public functions, subject to special rules for so-called local personnel. Kelsen’s statement (p. 318) that “an international organization, such as the United Nations, has no legislative power with respect to employment contracts” and that the relationship of employment has the character of a contract of private law is thus not in accordance with practice in respect of international ofcials. A different matter is that there may be variations between different organizations – and between different types of ofcials within an organization – as to the extent to which certain aspects of the relationship of employment even of international ofcials (as opposed to local personnel and contractors) are made contractual rather than statutory.156 As for the delimitation of acquired rights, it would seem that these, whether expressly provided for or not, exist as a barrier to the legislative authority of the organization only in matters which affect the specic status of the ofcial concerned as stated in his individual contract/letter of appointment. In other respects the organization has full legislative authority, but it cannot deprive ofcials of money already earned. It is not known whether Schermers and Blokker propose to go further in protecting acquired rights when they say that if a contract pre-dates the staff regulations, it is in general assumed that the contract prevails – “staff regulations which have been drafted subsequently cannot affect rights already acquired.” This may be a reasonable interpretation if the new rules are not clear in this respect.157 Even when the principle of acquired rights does not apply, ofcials may be protected by the principle of détournement de pouvoir, which applies generally in the public law of States as well as IGOs. Such abuse of power for illegitimate purposes has led to the annulment of several administrative decisions. It may also lead to the non-application of legislative provisions, as explained, but not done, by the World Bank Administrative Tribunal in the Merode Case.158

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On this and many other aspects of the relationship of employment, see Amerasinghe: The Law of the International Civil Service, 2nd ed., Oxford 1994, pp. 82–99. See judgments No. 266 and 295 (and the judgments cited in judgment No. 273) of the UN Administrative Tribunal and the works cited by Schermers and Blokker, op. cit., § 539 at pp. 379–80 note 473. Decision No. 1 (1981). See the full discussion of “Détournement de pouvoir in International Administrative Law” by C.F. Amerasinghe in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, XXXXIV (1984), pp. 439–81.

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Internal, not national or international courts Kelsen – invoking Article 104 of the United Nations Charter, Article I of the general Convention on the Privileges and Immunities of the United Nations and § 7 of its headquarters agreement with the United States – maintained that relationship of employment with the UN is governed by the “municipal” (a term referring to the local, State or national) law of the host country.159 However, it has been demonstrated above that the relationship of employment with intergovernmental organizations, such as the United Nations, to a great extent is of a statutory nature, and that the statutes to be applied are the regulations of the organization. There is a consistent practice on the part of other intergovernmental organizations and their administrative tribunals, and also on the part of the host States and their courts, to the effect that these are the only statutes applicable, and that even in its contractual aspects the relationship of employment is not subject to the national law of the host country, whether mandatory or non-mandatory, or to any other particular system of national law. The latter was expressly said already in an opinion of a Committee of Jurists of the League of Nations cited above. The International Labour Organization even stated this expressly in its early letters of appointment, in the following terms: This letter of appointment and your acceptance thereof by a letter of acceptance . . . will . . . constitute a contract governed by general principles of law but will not create a contractual relationship subject in any respect to the law of any one country.

The United Nations Administrative Tribunal – which under Article 2 (1) of its Statute160 is “competent to hear and pass judgment upon applications alleging non-observance of contracts of employment of staff members of the Secretariat of the United Nations or of the terms of appointment of such staff members” – has never resorted to rules of any particular system of national law in order to interpret or supplement such contracts or terms of appointment. The Tribunal has relied exclusively upon the statutory and the customary law of the United Nations – including the Charter, the Staff 159 160

The Law of the United Nations, London 1950, pp. 313–314. For § 7 of the Headquarters Agreement, see below. General Assembly resolution 351 (IV). Amerasinghe, The Law of the International Civil Service, 2nd ed., Oxford 1994, pp. 5 ff. rightly rejects both the proposition of the “municipal” and of the conicts law of the host State and describes the reasons why an independent system of law is required. Reference is also made to his thorough examination, pp. 103–200, of the sources of international administrative law. – See also on the theory of an emerging global administrative law, Kingsbury et al., Institute for International Law and Justice (IILJ) Working Paper, New York, 2004/1.

inherent jurisdiction over organs and officials 161 Regulations, the Staff Rules and other pertinent regulations – and upon general principles of law drawn from the practice of other IGOs and from the general practice of State administrations. And so do other administrative tribunals. Already in its Judgment No. 2, of 1929, the League of Nations Administrative Tribunal declared that it had to “apply the internal law of the League of Nations [. .] and the stipulations agreed upon between the administration and its ofcials.”161 It supplemented these by general principles of law. Thus it applied, for example, the principle of public law that a person cannot be responsible for fulllment of a promise which it was outside his competence to make, and the general principle of law that legal costs are payable by the unsuccessful party, as well as the doctrine of unjust enrichment, without basing this on any particular system of law.162 Even if the organization sues its ofcials in national courts, the latter must, if they assume jurisdiction, apply the internal law of the organization to the relationship of employment.163 This follows from general principles of conict of laws. Thus in an action for reimbursement of over-payment of salary, the national court must look to the internal law of the organization in order to determine whether the payment was in fact an over-payment.164 But the court may, under its conicts law, decide to apply its own national law rather than general principles of law in order to determine whether an ex-ofcial is under an obligation to reimburse such over-payment and whether the amount is to be repaid in full (condictio indebiti and the doctrine of unjust enrichment) if its relevant rule on conict of laws does not refer to foreign law in these respects.165 However, the regulations of the organization may contain provisions in these respects,166 and these must then be applied, as integral parts of the terms of appointment.

161 162 163

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Full text in Journal ofciel, Suplément Spécial No. 107 (1932), p. 207. Italics added. Schumann v. League of Nations, Annual Digest of International Law Cases, 1933–34, Case No. 203. See also Perasse v. League of Nations, ibid. p. 463. Cf. below and UN v. B and Others, Tribunal Civil de Bruxelles, 27 March 1952, text in Pasicrisie Belge, 1953, No. 10, p. 65. The judgment did not indicate which law it applied, except that it, of course, applied national (Belgian) procedural law. See also another case mentioned in the Annual Report of the Secretary-General, 1952–53, p. 149. Below, Part Four. On rules of conict of laws in this respect, see The Conict of Laws, II, Chicago 1950, pp. 366–379, Loussouarn/Bourel; Droit international privé, Paris 1993, pp. 401 and 410, and G. Kegel: Internationales Privatrecht, 7th ed., Munich 1995, pp. 526–28. The fact that the substance of a debt and certain modalities of its payment may be governed by different legal systems was emphasized by the Permanent Court of International Justice in the Serbian Loans Case (PCIJ, Ser. A. No. 20, p. 41). Cf. also Art. 38 (1) of the staff regulations of the European Communities: “Any sum overpaid shall be recovered if the recipient was aware that there was no due reason for the payment”.

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As already pointed out, the national law of the host country is applicable to the relationship of employment in those exceptional cases where this has been provided for in the constitution or specially agreed to by the organization (delegation). Organizations of the type dépendent might be an example of the former. But even in their case the general law of the host country was not applicable ipso facto.167 In the absence of constitutional provision, the national law of the host country may be referred to expressly, or by tacit implication, in the contract of employment – or the organization may specially authorize its application by unilateral regulation or by agreement with the host State. This has been done – especially in the past – in certain limited respects, notably with regard to social security insurance,168 where many organizations preferred to take advantage of the established system of the host country, rather than establish a legal regime and an administration of their own. Thus the ofcials of the former OEEC in France were included in the French social security system by an agreement of 12 July 1949 between the OEEC and France.169 With regard to auxiliary staff recruited locally for its Cambridge Research Unit, the former OEEC (now OECD) provided by regulation in general terms that they “are subject to United Kingdom Legislation, when appropriate, as to conditions of employment.”170 Similarly, the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) incorporated in its provisions for local personnel referred to above the substance of certain particular provisions of national law, for example for assessing the quantity of the compensation payable to a locally recruited staff member for an injury attributable to service, this being expressly provided for in UNRWA Area Staff Rule 106.4. At an early stage

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170

Thus Swiss law did not govern the contracts with non-Swiss ofcials of the organizations of the type dépendent. See the Swiss Law of 31 January 1947 on the Statut des Bureaux internationaux placés sous la surveillance des Autorités de la Confédération Suisse, Arts. 4 and 13. The question whether this falls under the exclusive organic jurisdiction is discussed below. With regard to family benets, the ofcials were subject to the organization’s own system. Similarly the United Nations, apparently without formal agreement, submitted to the New York Act on Workmen’s Compensation until 1951, when it set up a compensation system of its own, cf. Staff Regulation 6 and Headquarters Regulation No. 1. The International Atomic Energy Agency participates in the Austrian social security system in respect of some of its local staff, pursuant to § 26 of its headquarters agreement of 11 December 1957, which gave it the right to do so, cf. IAEA Staff Regulation 8.01. Other organizations have their own social security system. Regulation No. 25 of the Secretary-General concerning the Staff Regulations for Members of the Research Unit on National Income at Cambridge of 24 December 1949, Art. 7. Other staff of that center was subject to the regulations and rules of the OEEC (ibid. Art. 1).

inherent jurisdiction over organs and officials 163 of UNRWA’s existence, specic reference was also made to other provisions of local law.171 Subsequently, however, specic references to local law were largely removed from the Agency’s contractual and statutory conditions of service, although, in establishing and revising the conditions of employment of UNRWA’s locally recruited staff, the Agency endeavoured to take into account the relevant provisions of the national law of the country in which UNRWA is operating. Similar arrangements have been made by agreement between States, in respect of local personnel employed by one State in the territory of the other, for example, Japanese employees of United States clubs in Japan.172 But all these examples of specic delegation are exceptions to the general rule that the relationship of employment is subject to the exclusive organic jurisdiction of the (State or) organization whose ofcials are concerned.173 As explained in chapter 7 below, the relationship of employment is subject to the jurisdiction of the organization not only in its legislative, but also in its judicial aspect. The organizations themselves settle disputes with regard to this relationship by administrative appeal174 or by decision of administrative tribunals, although their constitutions contain no provision on this subject. And their competence in this respect is exclusive, i.e. no external courts can assume jurisdiction without the consent of the organization. This is conrmed by decisions made by national courts in actions brought against the organizations by former ofcials claiming compensation for the termination of their contracts. In most such cases, the ofcials based their claim partly or wholly upon the private or public law of the host country, the country where they were employed or of which they were nationals. Such actions have been unsuccessful in all cases known to the writer, except for certain actions brought against the United Nations. The pattern was set by the following pioneer cases: Proli v. International Institute of Agriculture (IIA), decided by the Italian Court

171 172 173

174

See for example the provisions discussed in Judgments of the United Nations Administrative Tribunal, I, Judgments No. 65 and 70. Administrative Agreement between Japan and the United States, Art. XV (4): quoted in a Japanese judgment reported in Japanese Annual of International Law, 1958, p. 143. Thus the terms of employment of local personnel recruited by United Nations Forces in the Middle East (UNEF) and in the Congo were prescribed by the organization even if they “to the extent practicable, follow the practice prevailing in the locality”, and even if such personnel was not subject to the Staff Regulations of the United Nations, see UNEF Regulation 19 (c) (271 UNTS 169) and ONUC Regulation 20 (c) (ST/SGB/ONUC/1) and para. 27 of the host agreement with Congo of 27 November 1961 (text in Révue générale de droit international public 1961, p. 105). See the examples given with regard to the League of Nations by McKinnon Wood in Transactions of the Grotius Society, XXX (1944), p. 144.

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of Cassation on 26 February 1931175 on appeal from a contrary judgment by the Court of Appeal of Rome,176 Chemidlin v. International Bureau of Weights and Measures (BIPM), decided by the French Civil Court at Versailles on 27 July 1945,177 Diaz Diaz v. United Nations Economic Commission for Latin America (ECLA), decided by the Mexican Supreme Court on 28 April 1954, on appeal from a contrary decision by the Arbitration Tribunal; Schuster v. United Nations Information Centre, Buenos Aires, decided, rst by the Labour Court of Buenos Aires on 10 April 1951, and then, on appeal, by the Argentine Supreme Court of Justice on 20 December 1951. Other cases have been avoided by the organization invoking its immunity from suit. In the rst three – and the fth – cases the court declined jurisdiction, basing itself, not upon the general immunity of the organization from suit in national courts, ratione personae, but upon the fact that the suit concerned a matter which was not governed by the law of the host country and not subject to the jurisdiction of its courts ratione materiae. The cases thus follow very closely the pattern of the judgments reported above in 5.1 with regard to consular employees of States.178 In none of the cases under review did the court make any reference to, or try to support its conclusion on, the particular provisions of the constitution of the organization concerned.179 The court did not even do so in the cases concerning the United Nations, although the constitution of that organization contains express provisions both concerning privileges and immunities (Article 105) and concerning the power to enact staff regulations (Article 101). It was expressly stated in the judgments that the national law of the host country was inapplicable, without any distinction being made between mandatory and non-mandatory law, and without any question raised as to whether the organizations had themselves enacted rules covering the matter. The French court held that French legislation was not applicable in the case, since Chemidlin was an international ofcial who beneted from a special status which depended on conventions and regulations outside the scope of

175 176 177 178 179

Rivista di diritto internazionale, XXIII (1931), pp. 386–91. Ibid. XXII pp. 409–426. Both decisions are reported also in Annuario di diritto comparato e di studi legislative, IX, p. 344. English translation in excerpts in Annual Digest and Reports of International Law Cases, 1943–45, p. 231. Above, but see above, chapter 4.2 for a contrary decision in respect of employees of the Holy See. Except that the judgment concerning the BIPM referred to Art. 17 of the constitution, which provided that “le directeur nommera les autres members du personnel, dans les limites établies par le Règlement établi par le Comité et xant l’effectif maximum”, without, however, basing any arguments upon it other than the conclusion that Chemidlin had been appointed in a constitutional manner.

inherent jurisdiction over organs and officials 165 French legislation. The Mexican Supreme Court stated in general terms that it was not correct, as had been held by the Arbitration Tribunal, “that international commissions, because they operate in Mexico, should be subjected to the positive legal Mexican provisions, since, as in the present case, they may enjoy the immunities recognized by international law”. The Italian court emphasized that the particular system of the International Institute of Agriculture must be self-sufcient, and that “the gaps in its substantive law are lled by means common to all autonomous legal systems, that is, by analogy and by assimilation, through a process of deduction, from the general or universal principles of law”.180 The Italian court stated in general that “the sovereignty of the Italian State, among whose attributes is the potere di giurisdizione, cannot be exercised with regard to the International Institute of Agriculture, in so far as this international body exercises an activity directed at its organization and the consequent regulation of its relations of employment”. The International Institute of Agriculture, like other organizations of the independent type, had legislative, administrative and judicial autonomy in its organizational or internal affairs. This autonomy included the power of “establishing its own organization and of regulating the organizational relations both in their normal and exceptional developments” and “whether substantive or procedural”, except when the organization consents thereto.

180

The relevant parts of the French judgment read as follows (in the heavy French onesentence-per-judgment-style): Attendu en effet que les fonctionnaires internationaux se reconnaissent à ce qu’ils excercent leur activité dans un interêt public mais de caractère international en dehors du cadre juridique de l’Etat auquel ils appartiennent – Attendu quel’Etat Français n’ayant pas été chargé en l’espèce par la convention internationale de remplir les functions necessaires à l’aide d’agent recrutés par lui, il apparait en effet, que les conventions et règlements à apprécier pour trancher le litige élevé par CHEMIDLIN étant demeurés en dehors du cercle de la législation française pour conserver leur caractère purement international, cette législation française n’est pas applicable en la circonstance. Attendu que le règlement des traitements en francs est l’une des conséquences du caractère international du contrat de travail qui fait l’objet du proces, que cependant CHEMIDLIN n’hésite pas à demander au Tribunal de juger qu’il a droit à un tel règlement. Attendu que suivre CHEMIDLIN dans l’examen de ses demandes serait s’immiscer dans de fonctionnement d’un organisme qui n’est pas régi par la loi que ce Tribunal a charge de faire respecter et provoquer des conits entre les intérèts de ressortissants des divers pays signataires. Attendu que l’ordre public s’oppose à de telles conséquences. Attendu qu’il convient donc pour ce Tribunal, non pas de déclarer l’action de CHEMIDLIN mal fondée, mais de décliner sa competence. PAR CES MOTIFS Se déclare incompétent ratione materiae sur la demande de CHEMIDLIN fonctionnaire international dirigée contre le Bureau International des Poids et Mesures.

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The judgments concluded by declaring the lack of jurisdiction of national courts in disputes concerning employment with intergovernmental organizations. It should be noted in this connection that neither in the case of the International Institute of Agriculture, nor in that of the International Bureau of Weights and Measures, was there any constitutional or other treaty provision concerning privileges and immunities, although an Italian statute conferring privileges and immunities upon the International Institute of Agriculture had been enacted prior to the second judgment (the Court of Cassation). Nor did any of these organizations have administrative tribunals for the adjudication of disputes with their employees. As the Italian court put it: “The particular system of the Institute must be self-sufcient, both in its substantive rules and with regard to rules governing the enforcement [realizzazione coattiva] of these relations of its internal life, such as those concerning employment. [. .] The gaps with regard to providing guarantees for the implementation [realizzazione] of the relations if some difculty arises in their development [. .] cannot be lled arbitrarily, even if the need is recognized for this particular system to adapt itself to the progress of the more developed legal systems.” The International Institute of Agriculture “has complete autonomy vis-à-vis any and every member State and [. .] intervention by State sovereignty is excluded even in its judicial function, regardless of what form of organization and what internal administrative institutions of justice the Union itself might have been able or intended to adopt”. The French court declared that an examination of the ex-ofcial’s claims “would mean interfering in the functioning of an organization not governed by the law which this court is called upon to enforce, and would give rise to conicts of interests among the nationals of the several signatory countries” and that such consequences would be against public order. The Mexican Supreme Court said that if one accepted in full the theory of the Arbitration Tribunal, which had assumed jurisdiction in the dispute, it “would lead to the absurd result of granting it competence in matters pertaining to foreign countries or to international organizations which are outside the jurisdiction of the Government of Mexico”. The Mexican Law concerning the Workers in the Service of the three Branches of Government did not, and could not grant competence to settle disputes involving organizations other than government agencies. The Mexican Arbitration Tribunal, in its preceding decision in the same case, had referred to earlier cases concerning other international commissions, including the Mexican-American Commission for the Eradication of Foot and Mouth Disease and the International Commission of Frontiers and Waters between Mexico and the United States. In these cases the Labour Court had assumed jurisdiction and applied the Mexican Law just referred to. The

inherent jurisdiction over organs and officials 167 Supreme Court, adopting the argument of the counsel for the United Nations, admitted the competence of the Arbitration Tribunal “to try disputes between workers and the Mexican-American Commission for the Eradication of Foot and Mouth Disease, but this was because the said commission was composed in part of Mexican ofcials, employees and workers, appointed directly by the Mexican Government and subject to the decisions of our government as regards the duration of their employment; however, this criterion cannot be extended to the case under review, since the employees of the United Nations Organization are not appointed by the Mexican State, nor are they in any way subject to its decisions”. In the fourth case listed above, Schuster v. United Nations Information Centre, Buenos Aires, events took a different turn. The Labour Court, which dealt with the case in the rst instance, observed in the rst place that, as had been pointed out during the proceedings by the representative of the Public Ministry, the case raised two questions: (1) The incompetence of jurisdiction based on the personal immunity of the Director of the United Nations Information Centre, and (2) the incompetence of jurisdiction based on the immunity of the United Nations. With regard to the rst question, the court correctly pointed out that § 22 of the General Convention on the Privileges and Immunities of the United Nations, which had been invoked by that organization, was inapplicable, since the case was not one against the Director of the Information Centre in his personal capacity. It was therefore not necessary to consider the legal problem arising from the fact that Argentina had not ratied that Convention. With regard to the second question, the court correctly observed that, the Information Centre being part of one of the Departments of the Secretariat of the United Nations, the defendant was this organization itself “which was acting as a juridical person of public international law”. Therefore the competence to judge its acts lay outside the jurisdiction of the court, “for it is evident from the preamble to decree 32347/44, ratied by law 12948, that the jurisdiction established by Article 13 of the same, refers only to cases arising between persons of real or ideal existence who have acted as legal persons of private law”. For these reasons “and on the rm basis of the statement in folios 41/44 by the Representative of the Public Ministry” the Labour Court resolved “to declare itself incompetent to continue hearing this case”. Thus, without invoking any provision of the United Nations Charter or of the General Convention on Privileges and Immunities, the court held that the acts of the United Nations, which was acting as an international person, were not subject to its jurisdiction. It does not appear quite clearly to what extent the court based this nding upon specic provisions of national law,

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upon incompetence ratione materiae, or upon immunity ratione personae. It is at any rate clear that the organization enjoyed also immunity ratione personae under Article 105 of the United Nations Charter and under general international law, as do all States and intergovernmental organizations even if no convention so provides.181 However, the Supreme Court, on appeal, reversed the decision. It disregarded expressly the question of immunity from jurisdiction, since such immunity, according to the court, had not been invoked, but in fact waived, by the United Nations. The case was pleaded by the eld ofce and a local attorney, apparently without instructions from the Legal Ofce at United Nations Headquarters. Subsequently the latter has conrmed its adherence to the principle of internal autonomy and incompetence ratione materiae advocated above. The Attorney-General had, in a written opinion submitted to the court, expressed the view that the principle of Article 96 of the Argentine Constitution should be applied by analogy to the United Nations. The article provides that: “The Supreme Court of Justice shall have original and exclusive jurisdiction in cases arising between the Nation or a province or its inhabitants and a foreign State” However, the court did not apply that article, because it held that the organization was not “a foreign State”, and because it was the “doctrine” of the Court that its original jurisdiction was not subject to extension by analogy. The Supreme Court concluded that the inapplicability of Article 96 of the Constitution – together with the facts that there was in the present case no problem of immunity from jurisdiction and that the Labour Court, although its competence had not been contested “on the grounds of subject and place, nevertheless declared itself incompetent because it felt that the defendant had immunity from jurisdiction” – would amount to depriving the plaintiff of justice. Consequently the Court declared that the case came within the original jurisdiction of the Labour Court and not within that of the Supreme Court. The parties did not, however, re-submit the case to the Labour Court, but settled it out of court. The Supreme Court did not specify what it had in mind when referring to immunity from jurisdiction. It may have envisaged in the rst place immunity from suit ratione personae. However, speaking of the decision of the Labour Court, the Supreme Court referred to competence “on the grounds of subject and place”. In view of the attitude of the Court that Argentine courts could not consider themselves incompetent for reasons not invoked by the parties,

181

Cf. Seyersted, United Nations Forces, Leyden 1966, p. 152 note 101.

inherent jurisdiction over organs and officials 169 the judgment constitutes no precedent for or against the recognition of the internal autonomy of intergovernmental organization. In the last case listed above, Mazzanti v. Headquarters Allied Forces Southern Europe, the Italian court clearly recognized its incompetence ratione materiae in respect of a (similar) action brought by a former international employee. The court declared the said Headquarters “exempt from Italian jurisdiction in so far as concerns the employment relationship involved in the case”, despite the fact that Mazzanti was an Italian national who had been employed with the Headquarters in Italian territory, and despite the fact that the constitution of the Organization merely consists of the following provision (Article 9) in the North Atlantic Treaty of 4 April 1949: “The Parties hereby establish a Council, on which each of them shall be represented, to consider matters concerning the implementation of this Treaty. The Council shall be so organized as to be able to meet promptly at any time. The Council shall set up subsidiary bodies as may be necessary; in particular it shall establish immediately a defense committee which shall recommend measures for the implementation of Articles 3 and 5.” The court relied upon, and quoted at length, the judgment in Proli v. International Institute of Agriculture. The court also referred to the more explicit reasons given in an obiter dictum of the lower court and in a subsequent obiter dictum of the Italian Court of Cassation in Branno v. Ministry of War.182 The United Nations Administrative Tribunal has conrmed that its competence extends also to United Nations ofcials serving at regional ofces and organs for which no special provisions have been made,183 although, as already pointed out, this is no condition for the incompetence of national courts. In one of the relevant cases, where the ofcial had rst instituted proceedings in the local courts, the Secretary-General stated, inter alia, that “resort to local courts by H [. .] on internal questions involving terms of his service with the United Nations [. .] violates the principle of international employment”. The

182 183

“Por la razon de la materia y del lugar” (italics added). Both obiter dicta are reprinted in International Law Reports, 1955, pp. 756–62. Judgments Nos. 57 (UNRWA) and 58 (UN Information Centre at New Delhi) and 70 (UNRWA), Judgments of the United Nations Administrative Tribunal, I, (United Nations 1958), pp. 296 et seq. and 428. The competence of the Tribunal does not extend to the ofcials of the Registry of the International Court of Justice; disputes relating to their terms of employment are decided by that Court in accordance with Art. II (and Annex VI) of the Staff Regulations of the Registry.

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case was subsequently withdrawn from the local courts and brought before the Administrative Tribunal.184 In a number of decisions after the First World War the French Conseil d’Etat held that French nationals serving with the various inter-allied commissions in occupied Germany were not French ofcials, but international ofcials. Their position was governed by “international”185 law,186 and French administrative authorities were not competent to consider questions relating to their employment. These decisions demonstrate that the organic jurisdiction of intergovernmental organizations is exclusive, not merely vis-à-vis the host State, but also vis-à-vis any (other) State of which the ofcial is a national. Although the judgments reported above formally express only the national law of the States concerned, the coinciding rule of the law of these States which they reect is derived from, and conrms, a principle of public international law which is binding upon all States and which, as has been pointed out above in chapter 4.1, applies to ofcials of foreign States as well as to ofcials of intergovernmental organizations. This principle is to the effect that ofcials in that capacity, including their relationship of employment, are subject exclusively to the legislative, executive and judicial power of the State or organization whose ofcials they are, irrespective of their nationality and place of employment and residence. The relationship between the law of the organization and that of the host State is one of conict of laws. This implies that lacunae in the internal law of the organization are not lled by local law, but by general principles of law. This was expressly stated in the Italian judgment, but it is also implicit in the general statements in other judgments to the effect that the relationship of employment is not governed by local law. This is true even of the mandatory law of the host State. Even this cannot be applied to ll lacunae in the law of the organization. And it certainly cannot overrule any contrary provision of that law. Indeed, in several of the actions referred to above the ex-ofcial was claiming precisely the application of mandatory provisions of the law of the host State. Thus, Chemidlin claimed a right to re-entry, after completed war service, in his pre-war job on the same conditions as before, pursuant to a French law which imposed this obligation upon employers. Nevertheless, the court stated expressly that this French legislation was not applicable because the matter under dispute was governed by legal norms outside the French

184 185 186

Judgment No. 57, loc. cit. at pp. 298–299 and 305. In fact, it is not a question of “international” law, but of internal law of the organization. Re Dame Adrien et autres, Sirey (Recueil général des lois et des Recueil des arréts) 1932, para. 3, p. 81, with comments by S. Basdevant. Cf. also Re Antin, Recueil des arréts du Conseil d’Etat, 1928, p. 764.

inherent jurisdiction over organs and officials 171 legal system. Similarly, the social security legislation to which the practice referred to below relates is mandatory. The judgments offer less guidance as to where the limit is to be drawn between matters governed by the organic law on employment conditions and those governed by the territorial law of the host State. Most of the judgments were concerned with termination indemnities and other rights relating to dismissal. Indeed, it is clear that all problems relating to appointment, as well as dismissal, fall under the exclusive organic jurisdiction. And so do other questions relating to employment, such as nancial and disciplinary responsibility of the ofcial vis-à-vis the organization. These matters are dealt with in the staff regulations of the organizations concerned,187 although that fact alone is not necessarily conclusive. The constitutions of the European Community and EURATOM provide expressly that “The personal liability of its servants towards the Community shall be governed by the provisions laid down in their Staff Regulations or in the conditions of Employment applicable to them.”188 The organic jurisdiction must also comprise the working conditions, at least in so far as they involve rights and obligations for the employer and do not directly affect the surrounding community. Thus even mandatory laws of the host State on matters such as maximum working hours, minimum salaries, minimum vacations, representation of workers vis-à-vis the employer and protection of their representatives, are not applicable to foreign States and intergovernmental organizations. A different matter is that the host State could make representations (but not itself assume legislative, executive or judicial powers) if the conditions of employment were such as to prejudice public order within its territory. On the other hand, safety precautions against re, accidents, etc. are not directly related to the relationship of employment and are in principle governed by the territorial law, except that the host State may be prevented from enforcing it by privileges and immunities which the foreign State or organization enjoys. The conclusion thus is that international ofcials are governed, not by national law, as proposed by Kelsen, nor by international law, as suggested by Jessup, but by the particular legal system of the organization concerned. This constitutes distinct systems of genuine law, which differ from organization to organization, although there are great similarities between the systems of the various organizations, as there are between the legal systems of States. In respect of sources, subjects, contents and hierarchical order, the internal law of intergovernmental organizations is comparable, not to international

187 188

See, for example, United Nations Staff Regulation 10.2 and Staff Rule 112.3. EC constitution, Art. 288 in ne; EURATOM constitution, Art. 188.

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law, but to national law (except that those parts of it which govern exclusively relations between entities which are also subjects of international law – i.e. the organization and its member States – are also comparable to, end even part of, particular international law). Thus the internal law of intergovernmental organizations is based upon the general principles, not of international law, but of the internal law of IGOs generally and of the national public law of States, and it is supplemented by analogies from general principles of the latter legal systems. The same is true of internal courts of intergovernmental organizations.189 Moreover, as demonstrated below in Part Four, the internal law of intergovernmental organizations must, for purposes of conict of laws, be applied in the same manner as the national law of States, whenever the applicable conict rules refer to the “personal law” of the organization.

Social security The internal autonomy extends also to social security attached to the relationship of employment. Thus, in the absence of any contrary provision in the headquarters agreement or elsewhere, the host State cannot impose its social security system upon the ofcials in their capacity as employees of the organization and upon the organization as an employer and thereby require the latter to participate in the social security system of the host State. A different matter is that the host State, by virtue of its territorial jurisdiction, can require the ofcials to participate in a personal capacity, without involving the organization or their relationship of employment, if this is not precluded by any provision of the headquarters agreement,190 by privileges and immunities or other arrangements made with the organization. As for general practice, most large organizations have established their own systems of social security, 191 which alone are applicable to their ofcials. On the other hand, many organizations have submitted to the social security system of the host State in respect of some or all of their ofcials.

189 190

191

Below, chapters 7.4 ff. For example, § 25 of the headquarters agreement of the International Atomic Energy Agency, which provides: “The IAEA shall be exempt from all compulsory contributions to, and ofcials of the IAEA shall not be required by the Government to participate in any social security scheme of the Republic of Austria.” Thus the United Nations, UNESCO (Actes de la Conférence générale de l’Organisation des Nations Unies pour l’éducation, la science et la culture, troisième session, Beyrouth 1948, p. 55), the World Health Organization and the European Communities. Similarly all those specialized agencies which are members of the United Nations Joint Staff Pension Fund in so far as pensions are concerned.

inherent jurisdiction over organs and officials 173 However, such submission has been effected voluntarily, as a matter of practical convenience, usually by a special agreement concluded between the organization and the host State. In 1951, when the United Nations ceased to submit to the New York Workmen’s Compensation System, because it had decided to establish its own system, the competent New York authorities declared that their system was not compulsory upon the United Nations, which was like a foreign State, and thus recognized that social security falls under the exclusive jurisdiction of the organization. Nevertheless, the United Nations, instead of relying upon its inherent organic jurisdiction, enacted a headquarters regulation on the subject192 under the special legislative powers conferred upon it by § 8 of its headquarters agreement with the United States of 26 June 1947,193 which reads in part: The United Nations shall have the power to make regulations, operative within the headquarters district, for the purpose of establishing therein conditions in all respects necessary for the full execution of its functions. No federal, State or local law or regulation of the United States which is inconsistent with a regulation of the United Nations authorized by this section shall, to the extent of such inconsistency, be applicable within the headquarters district.

The UN Secretariat may have overlooked that this power to enact headquarters regulations is an (extended) territorial jurisdiction, which is conferred specially upon the UN and a few other organizations. It is different from the organic jurisdiction, which is inherent in all intergovernmental organizations. While the latter applies to all ofcials in that capacity, wherever they are stationed, the former applies to everybody and everything within the headquarters district, whoever they are, in those respects in which they are governed by territorial law, but not to ofcials or other persons at regional ofces.194 This is not to say that the United Nations could not also use its territorial power under § 8 to impose social security and other organic obligations upon its

192

193 194

The text of the Regulation is annexed to GA resolution 604 (VI). See also the discussions in OR GA, V, Sixth Committee, Summary Records, 248–249th meeting (see especially Mr. Kerno’s statement, p. 266) and ibid., VI, 301st meeting. Text in 11 UN Treaty Series, and in General Assembly resolution 169 (II). The two other headquarters regulations approved by and annexed to General Assembly resolution 604 (VI) were of a territorial nature and were thus correctly enacted as headquarters regulations. It must be for the territorial sovereign to determine the qualications to be required of nurses who are to treat ofcials, delegates and visitors in the headquarters district, and the days upon which a bar serving delegates, ofcials and visitors shall be closed. Therefore, when the United Nations wanted to employ nurses who fullled requirements set by non-American legal systems, or to maintain bar service on United States election days, it had to use the territorial legislative power delegated to it under § 8 of the headquarters agreement.

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ofcials, but merely to say that it is not necessary for the organization to use this power and that, if it does, it reaches thereby only those ofcials who work within the headquarters district. The vast majority of organizations, which have no territorial legislative power, can only rely upon their inherent organic jurisdiction. And if this did not include social security, then the host State could impose its social security system upon the organization and its ofcials as such. However, no host State is known to have done this without the consent of the organization. The declaration of the competent New York authorities cited above was made before the UN had decided to enact its relevant headquarters regulation. Regarding the status of social benets provided by IGOs in the national law of the host State, headquarters agreements and actual privileges granted to the organization and its ofcials vary as does the internal law of IGOs, on the status of e.g. retirement schemes.195

5.6

Do headquarters agreements providing for application of local law within the headquarters district interfere with the organic jurisdiction?

The United Nations, unlike other intergovernmental organizations, in some early cases attempted to nd an internal or national statutory basis for the non-application of national law to internal, organic relations of the organization, rather than rely upon its inherent internal autonomy. This may have been based partly upon too wide an interpretation of a treaty provision which is peculiar to the United Nations and a few other organizations, viz. § 7 (b) of the headquarters agreement with the United States, which provides that United States law shall apply within the headquarters district.196 It is submitted that this provision, like § 8 of the same agreement, is concerned exclusively with territorial jurisdiction, and is not relevant to relationships of public employment and other aspects of organic jurisdiction. It thus does not extend the application of United States law to these matters, not even within the headquarters district, and, of course, no more in other countries. Any possible doubt on this point is removed if the clause contained in § 7 (b) is viewed in its context. § 7 reads:

195

196

Cf. the arbitral award 14 January 2003 between France and the UNESCO on the scal regime applicable to precisions payable to retired ofcials residing in France, see also O. Hamady, Revue belge de droit international, Vol. XXXIX (2006–2) pp. 742–75. Also Kelsen cites this provision, The Law of the United Nations, p. 314.

inherent jurisdiction over organs and officials 175 (a) The headquarters district shall be under the control and authority of the United Nations as provided in this agreement. (b) Except as otherwise provided in this agreement or in the General Convention, the federal, State and local law of the United States shall apply within the headquarters district. (c) Except as otherwise provided in this agreement or in the General Convention, the federal, State and local courts of the United States shall have jurisdiction over acts done and transactions taking place in the headquarters district as provided in applicable federal, State and local laws. (d) The federal, State and local courts of the United States, when dealing with cases arising out of or relating to acts done or transactions taking place in the headquarters district, shall take into account the regulations enacted by the United Nations under section 8.

It was the fact that the headquarters agreement provides for the establishment of a headquarters district which “shall be under the control and authority of the United Nations as provided in this agreement” (and that the United Nations shall have a legislative power in that district) which made it necessary to provide expressly that the “law of the United States shall apply within the headquarters district”. This provision was merely intended to preserve the normal territorial legislative power which the host State has within its territory, including the premises of an intergovernmental organization, as long as no special provisions have been made. It was in no way intended to interfere with the exclusive organic jurisdiction which the United Nations, like any other intergovernmental organization or State, enjoys over its organs wherever they are located, whether in a headquarters district, elsewhere in the United States or in other countries. Similarly, it was provided that the United States courts should have jurisdiction [also] over acts done in the headquarters district, without thereby intending to give these courts any more far-reaching jurisdiction than they normally have within United States territory, i.e. without thereby interfering with the exclusive jurisdiction of the United Nations’ own courts in organic disputes, a jurisdiction which in fact has been exercised by the United Nations Administrative Tribunal without basis in any specic treaty provision or in any prior consent of United States authorities. The headquarters agreements of UNESCO (of 2 July 1954 Article 5) and the International Atomic Energy Agency (of 11 December 1957 § 7) follow the same pattern as that of the United Nations and must obviously be interpreted in the same sense.197 And so must § 6 of the headquarters agreement of 31 October 1950, between the Food and Agriculture Organization of the United

197

The UNESCO agreement deviates from that of the two other organizations in that it provides that “the Organization shall have the right to make internal regulations applicable throughout headquarters in order to enable it to carry out its work”. The addition

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Nations (FAO) and Italy.198 Although the latter contains no provision for a legislative power of the organization, it does provide that the headquarters seat of FAO “shall be under the control and authority of FAO as provided in this agreement” and then naturally has to add, under (b), that “except as otherwise provided in this agreement, the laws of the Italian Republic shall apply within the headquarters seat”. However, the clause on local law being applicable within the headquarters district has also been copied in Article 1 of the headquarters agreement between the Council of Europe and France of 2 September 1949.199 This otherwise conforms with the usual type of headquarters agreements, in so far as it does not provide for any headquarters district under the “control and authority” of the organization (nor for any legislative power of the organization), but merely contains the usual clause on inviolability of the premises (Article 3). In these circumstances an express clause on the application of the law of the host State is out of place and unnecessary. It is obvious that French law applies in French territory within the limits of general international law, as long as no contrary provision has been made. And it was surely not the intention of the contracting parties to extend the application of French law to such matters as, under general international law, fall under the organic jurisdiction of the organization. In the absence of any evidence that the clause was so intended, it cannot be interpreted as saying any more than what would apply in any case. It is then as superuous as an express provision to the effect that the organization shall exercise exclusive jurisdiction over its organs and ofcials as such would have been. And such a provision is never included in headquarters agreements, or in other conventions on privileges and immunities, or in constitutions of intergovernmental organizations. A different matter is that, if the territorial jurisdiction of the host State is expressly stated (out of context, as it is in the headquarters agreement of the Council of Europe), the organic jurisdiction, could also have been expressly stated, to guard against any possible confusion between the two types of jurisdiction. Indeed, once one starts stating the self-evident, it is hard to know where to stop.

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of the word “internal” might indicate that the drafters had in mind organic legislation (which requires no specic authority) rather than territorial legislation. Texts in United Nations Legislative Series, Legislative Texts and Treaty Provisions Concerning the Legal Status, Privileges and Immunities of International Organizations, II, pp. 190 (FAO), 241 (UNESCO) and 330 (IAEA). Ibid., p. 396.

inherent jurisdiction over organs and officials 177 5.7

Conclusions: organic jurisdiction of States, intergovernmental organizations and other sovereign communities

It has been demonstrated above that States, the Holy See (at least as far as its central organs are concerned) and intergovernmental organizations exercise legislative, executive and judicial powers over their organs and ofcials as such, and that they exercise legislative and executive powers even over their members in their capacity as members of these organs. This is true of all States and of all intergovernmental organizations.200 This jurisdiction, which it is proposed to term organic jurisdiction, is an independent type of jurisdiction, distinct from the territorial and personal jurisdiction, which is exercised by all States and, to a limited extent, by the Holy See and a few intergovernmental organizations. Intergovernmental organizations exercise territorial and personal jurisdiction only in those exceptional cases where States, by treaty or unilateral act, have placed territory or persons fully or partly under their jurisdiction, or where the organization itself has occupied or created objects of territorial or personal jurisdiction. It is no condition that such jurisdiction is authorized in the constitution of the organization, as long as it does not fall outside any purpose stated therein.201 Territorial jurisdiction is exercised over a specic territory and over persons and objects while situated therein. Personal jurisdiction is exercised over nationals (and inhabitants) wherever they are at any given moment. Organic jurisdiction is exercised over organs and members thereof as such, wherever they are and whatever their nationality and country of residence. In the case of States, the organic jurisdiction does not usually stand out, because the organs in most cases are in the national territory and are composed of nationals of the State concerned, so that the jurisdiction over them may appear as merely territorial and personal jurisdiction. However, in certain cases States maintain organs abroad, and these frequently have foreign employees. In the case of intergovernmental organizations this is the rule. Even in such cases the “sending” State or the organization, respectively, exercise their legislative, executive and judicial powers in all matters relating to the organs and their members as such, while the host State exercises legislative, executive and judicial powers in other matters to the extent that it is not prevented by privileges and immunities. Like the territorial and personal jurisdiction, the organic jurisdiction is an active jurisdiction and should not be confused with privileges and immunities

200 201

Per denition, cf. above, chapter 1.3. Cf. Seyersted, “United Nations Forces: Some Legal Problems”, 37 British Yearbook of International Law, 1961, pp. 351–475, at pp. 449–457. On external validity of acts falling outside the purposes, see below, Part Three, chapter 8.3.

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(as many writers do) which involve merely (passive) exemption from State jurisdiction. Indeed, immunity is fundamentally different from organic jurisdiction. Immunity has a wider eld of application inasmuch as it applies to all ofcial acts – external as well as internal – and partly even to private acts. On the other hand, it only exempts from foreign judicial acts and enforcement and partly from administrative acts. It does not normally give exemption from substantive law and not even from all administrative acts. Organic jurisdiction, on the other hand, exempts from all types of external jurisdiction, including application of foreign substantive law. On the other hand, organic jurisdiction is conned to relations within and between the organs, including the internal aspects of external acts. In their relations with external parties, States and IGOs enjoy only immunity. In some cases certain aspects of the organic jurisdiction are provided for in the constitution of the State or organization concerned. However, it is never provided for in all its aspects. Yet the organic jurisdiction is fully exercised by all States and intergovernmental organizations, as well as by the Holy See, which has no written constitution. This proves that the organic jurisdiction is under customary law inherent in all State and intergovernmental organizations (as it is, per denition, in all sovereign communities). Accordingly, it would be unnecessary to attempt to make provision for the organic jurisdiction in the constitution, in an agreement on privileges and immunities or in a headquarters or host agreement. To provide for specic aspects of the organic jurisdiction, such as the right of certain organs to adopt rules of procedure or to establish subsidiary organs (unless designed e.g. to avoid interference by superior organs) is even more useless and may create confusion by inviting unwarranted a contrario conclusions. Acts of organic jurisdiction are legally binding upon the organs and the ofcials as such. They are binding upon the members of the community only in so far as they act as members of the organs. The acts are not directly binding upon external parties. However, like territorial and personal legislation, the organic legislation must, for purposes of conict of laws, be recognized by external parties as part of the internal law of the community (State, IGO or the Holy See). Similarly, judgments rendered by the internal courts of the community in disputes falling under the organic jurisdiction must probably, in the absence of any contrary provision, be recognized as binding by foreign courts. The organic jurisdiction is exclusive as far as it goes. No external authority may assume any part of it without delegation or consent from the community concerned by treaty, unilateral act or otherwise. Also in this respect is practice sufcient to constitute customary law. This applies even to the judicial aspect of the organic jurisdiction: External courts are incompetent ratione materiae in matters falling under that jurisdiction. The most spectacular conrmation

inherent jurisdiction over organs and officials 179 of the exclusive nature of the organic jurisdiction may be found in those judgments where courts of a host State have declined competence in actions brought by nationals of that State against a foreign State or an intergovernmental organization in respect of a relationship of employment with that State or organization in the territory of the host State. Indeed, in most cases no attempt is made to bring such actions in the courts of the host State. The organic jurisdiction is different from the powers which non-governmental organizations exercise over their organs and employees in that it is “sovereign”. Non-governmental organizations exercise jurisdiction over their organs only to the extent and on the conditions prescribed by the applicable territorial and personal law. Mandatory laws of the host State are binding upon them even in their internal relations. And where their internal regulations contain no provisions, they are supplemented even by the non-mandatory rules of the applicable territorial or personal law. Organic jurisdiction exercised by a State, the Holy See or an intergovernmental organization, on the other hand, is not subject to the limitations which follow from the mandatory laws of the host State or of any other State. And lacunae are lled, not by the law of any particular State, but by general principles of law. The organic jurisdiction is thus a sovereign jurisdiction, and the law created under it – the internal law of the organization – constitutes an independent system of genuine law. The organic jurisdiction comprises the internal relations of the “government” of the State or organization concerned, i.e. the relations with, between and within its organs and ofcials and other members of the organs (including delegates and committee members) as such. The organic jurisdiction covers also the external relations of the “government,” inside or outside the State or organization concerned, such as the conclusion of contracts and treaties and the performance of functional or “legal” protection, however, only as far as the acts of the organs of the State or organization are concerned, since the organic jurisdiction is directly binding only upon these. Indeed, the main limitation of the exclusive organic jurisdiction is twofold: First, it is binding only upon the organs and the constituent parts thereof. Secondly, it binds these only in so far as they act as organs or parts thereof. Both these limitations are clear in principle. However, the second may give rise to some practical difculties of delimitation. As far as ofcials are concerned, there is sufcient practice to prove that the exclusive organic jurisdiction comprises both the performance of the ofcial functions and the relationship of employment. The former extends also to the right to exercise protection whenever they act or travel in their ofcial functions, while diplomatic protection in relations which have no connection with the ofcial functions remains within the competence of the State of which the ofcial is a national. The relationship of employment probably extends also to social security attached to that relationship, but not to social security attached to persons irrespective of employment.

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The organic jurisdiction is in certain respects more absolute than territorial and personal jurisdiction. The territorial jurisdiction of a State over a given territory must suffer certain diminutions because of the personal jurisdiction of other States over their nationals in that territory, and because of the organic jurisdiction of other sovereign communities over their organs therein. Similarly, the personal jurisdiction of a State over its nationals must suffer radical diminutions because of the territorial jurisdiction of the States in whose territory they stay and because of the organic jurisdiction of other sovereign communities with which they may be employed. The organic jurisdiction, however, is absolute within its eld; it supersedes concurrent territorial and personal jurisdiction, even if the two are combined in one (other) State, as they are in the case of local employees of diplomatic missions and intergovernmental organizations. The practice in this sense constitutes clear customary law. The difference in legal force between organic and other jurisdiction is particularly striking in the judicial eld. Within the limits of their own law of venue, courts are not prevented from assuming jurisdiction in a dispute merely because it arises out of a matter which is governed by the territorial or personal law of a foreign State, or of an intergovernmental organization upon which territorial or personal jurisdiction has been conferred. Indeed, it does happen in practice that courts adjudicate upon disputes arising out of matters falling under the territorial or personal jurisdiction of a foreign State, and they then, in accordance with their own conict rules, apply foreign territorial or personal law to the substantive aspects. However, practice demonstrates that no court can assume jurisdiction in disputes of a foreign State or intergovernmental organization,202 unless that foreign community has delegated its jurisdiction or has consented to its exercise by the court concerned, for example, by suing, or by accepting suit without objection. And even then the court may not feel competent under its own law to accept jurisdiction, because incompetence ratione materiae is more extensive than immunity ratione personae. Up to this point practice is sufciently consistent to constitute customary law. However, the difference between organic jurisdiction and territorial/personal jurisdiction probably goes further than that. It is submitted that a court cannot even as a preliminary issue (question préjudicielle) try the validity of an act performed by a foreign State or intergovernmental organization in the exercise of its organic jurisdiction. This is so despite the fact that otherwise (i.e. in respect of territorial or personal jurisdiction) the so-called Act of State doctrine is not recognized as a binding rule of general international

202

See notably the cases reported above.

inherent jurisdiction over organs and officials 181 law. Indeed, unless otherwise provided, even courts which do not normally recognize the binding force of foreign judgments must recognize the binding force of foreign judgment rendered in disputes arising out of such matters as fall under the organic jurisdiction of the State or organization concerned. However, in this respect the present writer is not aware of sufcient practice to justify a submission that this constitutes customary law. The organic jurisdiction is of particular theoretical and practical importance in respect of intergovernmental organizations and other sovereign communities which have no territory properly speaking. It is also of practical importance in respect of States and other territorial communities in so far as they maintain organs abroad. Even in respect of State organs in the home territory it is of some importance to distinguish between the seemingly coinciding organic and territorial/personal jurisdiction, because acts performed in the exercise of organic jurisdiction in some respects have stronger legal effects abroad than acts performed in the exercise of territorial or personal jurisdiction. This is quite apart from any internal, constitutional differences, notably in the sense that – under the principle of “legality” of many democratic countries and certain intergovernmental organizations – the territorial and personal jurisdiction, but not the organic jurisdiction, requires basis in formal statute. In summary, it follows from fairly consistent practice, which no doubt constitutes customary international law, that organs and ofcials of States, intergovernmental organizations and other sovereign communities are, in their capacity as organs or ofcials, subject exclusively to the legislative, executive and judicial power of these communities, unless these delegate their power to an external authority. Indeed, it is submitted to be the basic criterion of a sovereign community that its organs are not subject to the authority of any external organized authority, except to that of the members of that community acting through those very organs. If the denition of international law is extended from comprising the law governing relations between sovereign States as such to comprising the law governing sovereign communities as such – as it must be in order to take into account the facts of international life – then the exclusive organic jurisdiction stands out as the only common denominator of subjects of international law and as the only necessary condition for international personality. Finally, it should be reemphasized that the practice reported in this chapter demonstrates that the general organic jurisdiction is not “implied” in the special provisions contained in the constitution of each State or organization concerned – it is inherent in, and common customary law for, all States, IGOs and other self-governing communities. In addition to the organic jurisdiction, IGOs also have a limited membership jurisdiction over their member States. Even this is inherent for certain

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organizational matters, e.g. admission to membership. But in other organizational matters, e.g. budgetary contributions,203 and in all functional (substantial) matters it is not inherent but depends upon special provisions for each organization (in the constitution or otherwise) whereby the member States delegate to the organization concerned the power to make decisions binding upon them in certain respects (extended jurisdiction). This is not common law in either sense, but will, nevertheless, be briey described in the following chapters.

203

See also ILC’s proposed draft Article 43 on responsibility of international organizations, doc. A/62/10 (2007), pp. 214–7, and chapter 10 below.

CHAPTER SIX

EXTENDED JURISDICTION OF SOME ORGANIZATIONS IN SUBSTANTIVE MATTERS (DELEGATED POWERS)

6.1

Introduction

The extended jurisdiction which some IGOs exercise over territories, categories of persons and in or over States, is not common law, but special law for each organization – and it requires a legal basis in each case. Still, we shall survey it in the present book in order to complete the picture of IGO-law, to offer guidance (choice of alternatives) for establishment of new extended jurisdiction, and, primarily, to illustrate the relevant aspects of common law, notably what kind of legal basis is required for extended jurisdiction. As we shall see, there is even here no basis in practice for the general evasive point of departure of legal writers that the authority must be laid down or “implied” in the constitution of the organization concerned, which has given rise to purely ctitious assumptions and offers no guidance. Even in respect of extended jurisdiction the approach of writers that the powers of an IGO must be prescribed or “implied” in its constitutional instrument is false. IGOs in practice assume governmental powers over their territories, categories of persons, or States on bases other than their written constitutions; e.g. by occupation or by transfer from States or other intergovernmental organizations. It serves no useful purpose to attempt to interpret such powers into constitutional provisions that were never meant to cover them and the lack of which does not rule them out. The present writer has collected ample material from practice which demonstrates that the power of IGOs to assume such extended jurisdiction and to perform external acts under international law is not contingent upon relevant constitutional provisions, as long as there is no provision precluding it. But it does require some legal basis – in the form of an act by the organization or by the other parties concerned. Moreover, any such existing provisions authorizing specic powers cannot automatically be interpreted a contrario.

184 chapter six 6.2

Territorial jurisdiction

Internationalized territories Although most IGOs do not have a territory of their own in the same sense as States, the League of Nations, the UN and other IGOs have, on several occasions, been granted, or decided to assume, full or limited powers of jurisdiction over certain disputed or other territories – mostly on a temporary basis. In other cases a special IGO was established to govern the area. The League of Nations after World War I exercised limited powers in respect of fourteen mandated territories1 in accordance with explicit provisions in Article XXII of its constitution and the UN did likewise after World War II over eleven trust territories in accordance with Chapter XII of its Charter.2 All of these subsequently became independent States. Under Article 81 of the UN Charter, the administering authority of a trusteeship territory “may be one or more States or the Organisation itself ”. The latter happened with regard to South-West Africa for a transitional period after the UN General Assembly terminated the mandate exercised by South Africa.3 But even in this case the functions of the organization were conned to the more limited supervisory functions involved when States are entrusted with trusteeship. In addition, both the League of Nations and the UN have exercised territorial powers without basis in relevant constitutional provisions: Thus the League exercised full powers of government in the Saar from 1920 to 1935, through a Governing Commission appointed by and responsible to the League4 and limited powers in respect of Danzig, through a High

1

2

3 4

The resolution on mandates adopted by the Institut de droit international in 1931, Annuaire de l’Institut de droit international XXXVI (1931), II, p. 53, may have overstated the independent legal position of mandates. On South-West Africa’s transformation from LN mandate to UN trusteeship, see the ICJ advisory opinion on the International Status of South-West Africa in ICJ Reports, 1950, esp. pp. 136–8 and 143. See also the advisory opinion on Admissibility of Hearings of Petitioners by the Committee on South-West Africa ibid., 1956, pp. 23 ff. For details of the trusteeship system, see Oppenheim: International Law, 9th ed., Harlow 1992, pp. 295–318. Cf. also e.g. Art. 7 of the Trusteeship Agreement for the Territory of Tanganyika of 13 December 1946, which provided that the Administering State undertakes to apply “the provision of any international conventions and recommendations” drawn up by the UN or by the specialized agencies “which may be appropriate to the particular circumstances of the Territory and which would conduct to the achievement of the basic objectives of the International Trusteeship System” (UNTS, Vol. 6, p. 96). General Assembly Resolution 2145 (XXI) 1966, paras. 4–6. Treaty of Versailles, Arts. 45–50 with Annex; cf. Council Resolution of 13 February 1920, Société des Nations, Journal Ofciel, 1920, p. 50. Cf. also the powers of the Western

extended jurisdiction of some organizations 185 Commissioner appointed by the Council.5 This was provided in the Treaty of Versailles, which was only one of the ve peace treaties into which the Covenant was incorporated, and which was not ratied by all members of the League. Later the League also, through a Commission, administered the Leticia area, which was disputed between Colombia and Peru, for one year 1933–34, keeping order by means of a few Colombian troops wearing LN armbands and placed under the League’s command and regarded as an international force. After World War II, the United Nations has, on certain occasions, decided to assume limited governmental functions in disputed territories, although the Charter contains no provisions authorizing it to exercise jurisdiction in respect of territories other than trust territories.6 The annexes to the Treaty of Peace with Italy conferred upon the UN Security Council certain limited functions relating to the government of the proposed Free Territory of Trieste, and the Council, after a juridical debate, on 10 January 1947 by ten votes to none and with one abstention adopted a resolution approving the relevant annexes to the Peace Treaty and accepting the responsibilities devolving upon it under the Treaty. Some members of the Council questioned its competence to assume these responsibilities in the absence of specic authorization in the Charter.7 These objections were met, inter alia, by a reference to Article 24, which confers on the Security Council “primary responsibility for the maintenance of international peace and security”, without saying anything about power to exercise territorial jurisdiction. However, the arguments of the opposition and the ensuing discussion referred only to the power of the Security Council, and thus, like Article 24 itself, appear to have been concerned primarily with the distribution of powers within the organization, rather than with the power of the organization as a whole, acting through the General Assembly, although this

5 6

7

European Union to supervise the implementation of the French-German agreement on the Status of the Saar of 23 October 1954. Treaty of Versailles, Arts. 100–108; cf. Council Resolution of 13 February 1920 dening the duties of the High Commissioner, ibid., p. 53. See The Charter of the United Nations, A Commentary, edited by Bruno Simma, Oxford 1994, pp. 933–8; S.M. Schwebel: “Human Rights in the World Court”, Vanderbilt Journal of International Law XXIV (1991) describes, at pp. 950 ff. and 961 ff., the role of the Permanent Court of International Justice in protecting human rights in Danzig before World War II and of the International Court of Justice in protecting human rights in South-West Africa/Namibia immediately after World War II. Kelsen: The Law of the United Nations pp. 833–4 unduly denied the competence of the Security Council because no provision in the Charter authorizes it to exercise rights of sovereignty over a territory which is not a trust territory.

186 chapter six distinction was brought out by one delegate only.8 However, the plan was never implemented. Another abortive decision was the General Assembly’s adoption later in the same year, of a plan for partition of Palestine whereby the UN would assume certain governmental functions in the country, notably in respect of the City of Jerusalem, which was to be established as a corpus separatum under a ‘special international régime’. More specically, the City was to be administered by the UN through a Governor, appointed by and responsible to the Trusteeship Council and assisted by an administrative staff classed as international ofcers within the meaning of Article 100 of the Charter. The Governor was to exercise on behalf of the UN all powers of administration, including the conduct of external affairs.9 As was expressly stated in a subsequent report to the Trusteeship Council, the City was not to be a trust territory, and Chapters XII–XIII of the Charter were not generally applicable.10 Nevertheless, the partition plan was adopted by 33 votes to 13 (ten Islamic and three non-Islamic States), with ten abstentions.11 However, it was never executed. When some IGOs did not carry out governmental functions assigned to them, this was not due to any legal incapacity of the organization, but to lack of co-operation of the States having control over the territories. Indeed, if The Polish delegate, who appropriately stated: “We do not have any legal qualms about the Security Council accepting the responsibilities it is asked to accept. I know that it may be somewhat difcult to point to a specic phrase in the Charter which would justify the taking over of the functions we are asked to assume. However, I think it would be entirely within the general spirit of the Charter of the United Nations, if it were decided to form a Free Territory under a quasi-international administration. We believe it is only proper that the United Nations, as an Organization, should be given the responsibility of supervision over its administration. And since it is a matter which involves international peace and security, we believe that the Security Council is the logical organ to carry out these functions.” OR SC, 1974, pp. 4–19 and 44–61. See also Schachter in BYIL, XXV (1948), pp. 96–101. 9 General Assembly Resolution 181 (II), Annex, part III; cf. General Assembly Resolutions 194 (III) and 303 (IV) and Trusteeship Council Resolution 234 (VII). 10 Kelsen, op. cit., p. 687, with citations. On this basis the competence of the Trusteeship Council was denied by those opposed to the partition plan (Kelsen, loc. cit., who also himself denied the competence pp. 133–4). This denial disregards the inherent power of the General Assembly to delegate its powers to other organs of the Organization, rather than the competence of the organization as a whole (acting through the General Assembly) to govern a territory. – In addition, several speakers of the opposition challenged the legality of the entire partition plan because it was said to violate the right of self-determination of the peoples, exceed the terms of the mandate, and for other reasons, but apparently without alleging (at least in the plenary meetings) any incompetence of the organization to assume territorial jurisdiction not specied in the Charter (OR GA, 2nd session, plenary meetings, pp. 1310–1427), although certain statements might be interpreted as hints in this sense (ibid., pp. 1326–7, 1329, 1338–9, 1371). 11 Ibid., pp. 1325, 1327; cf. pp. 1370–71. 8

extended jurisdiction of some organizations 187 the UN and other modern organizations have only to a limited extent exercised territorial jurisdiction, it is for the external reason that most territory is under the control of States, and that the UN, like any other authority, cannot assume jurisdiction over such territory unless these States cede their powers. An intergovernmental organization cannot without specic legal basis impose its jurisdiction upon States. But in those cases where the States concerned have ceded their powers, or where there is no territorial sovereign, it has rightly not been considered necessary to look for a provision in the constitution of the organization concerned authorizing it to exercise territorial jurisdiction.12 An example of the latter was the successful administration of West New Guinea (Irian Barat/West Irian) by the UN from 1 October 1962 to 1 May 1963 through a Temporary Executive Authority comprising thirty-two nationalities, including Dutch and Indonesian personnel. As has already been explained elsewhere, full authority to administer that Territory was conferred upon the organization by a bilateral Agreement of 15 August 1962 between Indonesia and the Netherlands.13 The General Assembly conned itself to adopting a resolution in which it: 1. Takes notes of the Agreement; 2. Acknowledges the role conferred upon the Secretary-General in the Agreement; 3. Authorizes the Secretary-General to carry out the tasks entrusted to him in the Agreement.14 No objection was made against this resolution on legal grounds. No member voted against. And those 14 members who abstained appear to have done

During the consideration of military enforcement measures at the San Francisco Conference, an amendment presented by the Norwegian delegation, to provide that the Security Council may ‘take over on behalf of the Organization the administration of any territory of which the continued administration by the State in possession is found to constitute a treat to the peace’, was withdrawn, after it had been indicated that such a reference to a particular procedure could be interpreted as restrictive and of such nature as to limit the eld of application of measures at the disposition of the Council (Report of Rapporteur of Committee III/3 to Commission III on Chapter VIII, Section B, Doc. 881), part II B, United Nations Conference on International Organization, San Francisco 1945, Selected Documents (Washington 1946). This Conference thus appeared to take the view that a general provision authorizing the Council to make binding decisions and to apply military sanctions constituted sufcient authority for it to establish cession of jurisdiction, and that no specic mention of territorial jurisdiction was necessary to enable the Organization to assume such jurisdiction. 13 Cf. Seyersted: United Nations Forces in the Law of Peace and War, Leyden 1966, pp. 76–79. 14 Resolution 1752 (XVII) of 21 September 1962. 12

188 chapter six so on other grounds.15 Only two of them explained their abstention, stating partly that a referendum under neutral control should have been held before any transfer of the territory, and partly that this important decision should not have been made in such haste, without adequate study. Another post-war project, which was implemented, was the Saar, which after 1955 was under supervision of the Western European Union, acting through a European Commissioner appointed by and responsible to the Council of Ministers.16 After World War II the UN also exercised certain functions in respect of the former Italian colonies. On the other hand, the UN is not known to have used the power expressly conferred upon it in Article 81 of the Charter to act itself as administering authority of a trusteeship territory, as it might have done e.g. on the basis of General Assembly resolution 2145 (XXI) on South-West Africa. In none of the above cases where IGOs assumed territorial jurisdiction did the constitution of the organization contain provisions authorizing it to exercise even temporary jurisdiction over the territory concerned. The Covenant of the League of Nations and the UN Charter had only provisions for mandates17 and trust territories18 to be administered by an administering State, with only supervisory functions for the organization.19 Article 81 of the UN Charter provides that “the administering authority may be one or more States or the Organization itself ”; however, the several cases where the UN did itself exercise the jurisdiction were not trusteeships based upon that provision. Indeed, it was assumed already at the 1945 San Francisco Conference, which adopted the UN Charter, that the UN had the power to exercise territorial jurisdiction. At that conference the correct view was taken that military sanctions constituted sufcient authority and that no specic mention of territorial jurisdiction was necessary to enable the Organization to assume such jurisdiction. In some cases – such as (indirect) condominia and coimperia – a special IGO is established to govern a territory – fully or in certain respects, cf. below. In such cases the territorial jurisdiction will normally follow from the treaty

15

16 17 18 19

Seyersted, op. cit. p. 141. No-one suggested that UN participation in the transfer of authority was ultra vires, see Crawford, The Creation of States in International Law, Oxford 2006, p. 556. European Statute for the Saar, signed at Paris on 23 October 1954, Arts. 2 and 5, cf. Keesing’s Contemporary Archives, 1954, pp. 138–45. Cf. Oppenheim’s International Law, I, 9th ed., Harlow 1992, pp. 295–307. Cf. ibid., pp. 308–18. Cf. the Text of Agreements of (nine) Trust Territories in UN, Ofcial Records of the Second Part of the First Session of the General Assembly, Suppl. No. 5 (1947), and Ofcial Records of the Second Session, Suppl. No. 10 (1948).

extended jurisdiction of some organizations 189 establishing the regime (and the capacity to act externally on behalf of the territory follows from the jurisdiction). A historic example is the International Commission of the Cape Spartel Lighthouse20 established by a convention of 31 March 1958, which left the administration of the lighthouse in the hands of the local sovereign, the King of Morocco. Other examples were the Inter-Allied Rhineland High-Commission after World War I21 and other intergovernmental occupation regimes during or after a war, including those in Germany (and Austria) after World War II. In later years there has been resurgence in international territorial administration by IGOs.22 We have thus seen pre-existing IGOs (UN, NATO) exercising territorial jurisdiction both in respect of civil administration and military security with wide powers covering a broad range of activities in parts of the former Yugoslavia (Bosnia and Kosovo) and in East Timor.23 The legal basis for IGOs exercising such territorial administrative powers may be vested in the consent of the former sovereign power or an authorization of the UN Security Council, alternatively on a combination of the two (e.g. in which the UN Security Council takes note of an agreement between the sovereign power and an IGO.) However, there is no legal obstacle to the UN or another IGO assuming the territorial legislative, administrative, judicial and other functions which devolve upon an occupying power under customary international law – despite the fact that the codication of these rules in Article 42 et seq. of the Regulations on Land Warfare annexed to the Fourth Hague Convention of 1907 and in the Fourth Geneva Convention of 1949 Relative to the Protection of Civilian Persons in Time of War and its First Additional Protocol of 1977 may only be acceded to by States.24

20 Cf. Manley Hudson: International Legislation, VI, p. 851. 21 Cf. Clunet, LIII (1926), pp. 1045 and 1048, and Annual Digest of International Law

Cases, 1925–26, Case No. 36. 22 As described by Wilde, From Danzig to East Timor and Beyond: The Role of International

Territorial Administration, AJIL Vol. 95 2001, pp. 583 ff. In the case of Kosovo, UN Security Council Resolution 1244 (1999) authorizes both an international civil and security presence with broad mandates to the effect that the province of Kosovo is subjected to international administration. The Kosovo Force (KFOR) is a NATO-led security presence in Kosovo. The international civil presence is led by United Nations Mission in Kosovo (UNMIK). Other intergovernmental organizations assist in the performance of UNMIK’s mandate, such as the Organization for Security and Co-operation in Europe (OSCE), the European Union (EU) and the Council of Europe. The United Nations Transitional Authority in East Timor (UNTAET), established by UN Security Council Resolution 1272 (1999), was empowered to exercise all legislative and executive authority, including the administration of justice during the three year transitional period to independence. 24 Regardless of this limitation, the better part of the laws of occupation aimed at protecting civilians and other non-combatants is now considered part of customary international law and as such also binding on IGOs when engaged in a situation regulated by humanitarian 23

190 chapter six Except for mandates, trust territories, condominia and coimperia – there was in none of the cases cited above any constitutional provision authorizing the organization to exercise territorial jurisdiction.

Condominia and coimperia In joint military occupation regimes and other cases where two or more States exercise joint territorial jurisdiction (condominium or coimperium)25 through joint organs established specially for the purpose, the question arises whether jurisdiction and international responsibility vest in the participating States severally and jointly (direct condominium or coimperium) or in the joint organs they have established to govern the territory, as an IGO having its own international personality identical to that of the territory (indirect condominium or coimperium). Whatever the answer, a territory which is not subject to the sovereignty of one State, must constitute a distinct subject of international law, as it cannot at the same time be part of the international personality of two or more States. This will normally be the case26 and was on good grounds decided in respect of the Inter-Allied Rhineland High Commission by a Belgian courtmartial (acting as court of occupation) by a decision of 9 April 1926, upheld by the Court of Appeal at Aachen on 9 June 1926.27 The distinction – and the question – is well put in Article 35 (5) of the ILO constitution: A declaration accepting the obligations of any [International Labour] Convention may be communicated to the Director-General of the International Labour Ofce . . . a) by two or more Members of the Organisation in respect of any territory which is under their joint authority; or b) by any international authority responsible for the administration of any territory, in virtue of the Charter of the United Nations or otherwise, in respect of any such territory.

law, see Henckaerts and Doswald-Beck, Customary International Humanitarian Law, International Committee of the Red Cross, Cambridge 2005, pp. 299 ff. 25 Some writers use the term condominium, others coimperium. Verdross has pointed out that condominium is the proper term where the governing States share the sovereignty over the area (Gebietshoheit ausüben), while coimperium is the term where they merely jointly administer a territory which belongs to another State. A. Verdross: Völkerrecht 5th ed., Vienna 1964, pp. 297–8. 26 Cf. the examples cited by Lawrence: The Principles of International Law, p. 172 and by Kunz; Staatenverbindungen, pp. 281–2. 27 Clunet: LIII, pp. 1045 and 1048; Annual Digest of International Law Cases, 1925–26, Case No. 36.

extended jurisdiction of some organizations 191 This is an aspect of the question of the lower limit for and denition of IGOs.28 However, when a pre-existing IGO takes over administration of a territory, there is no doubt that jurisdiction and responsibility vest in the organisation alone,29 despite the fact that some writers have used the terms “condominium”30 and “coimperium” even in such cases.31

International rivers As described in chapter 1 above, the rst known IGO to be established was the Central Commission for the Navigation on the Rhine of 1815, which is still operating. Another well-known river commission, the European Danube Commission, was established in 1856 and continued in operation until it after World War I was replaced by two commissions, one for the river’s mouth and one for the rest of the river. Several such international river commissions exercise binding legislative, administrative, judicial and scal powers to co-ordinate, regulate and control the use of the rivers, notably the navigation on the rivers concerned of ships of both member and non-member States, normally on the basis of express provisions in the constitutional (and subsequent amending) conventions. The riparian States have thus ceded to the organization sovereign authority within the limited territory and the limited functional elds concerned. Most of these river commissions exercise their authority by decisions made by weighted voting, directly or in disguised form. In some cases, however, the decisions of the organization are not directly binding upon the ships, but merely upon the contracting States, which enforce them upon their ships via their own national legislation. In such cases we are not faced with territorial IGO jurisdiction, but merely with jurisdiction over States. This is also the method used in order to prevent or limit pollution of the rivers, notably by the Commission internationale contre la pollution du Rhin.

Above, chapter 2. Although controversial in relation to a mounting number of international peace support operations, this position has been strengthened by the Grand Chamber decision of the European Court of Human Rights as to the admissibility of the joined cases Behrami and Behrami v. France and Saramati v. France, Germany and Norway of 2 May 2007, which rejected as inadmissible claims holding troop contributing States responsible for alleged wrongful acts committed during the conduct of a peace support operation under international unied control and command, see further below, chapter 10. 30 Oppenheim: International Law I, in respect of the Free Territory of Trieste. 31 Verdross: Völkerrecht, in respect of the UN Headquarters District in New York. 28 29

192 chapter six Ships, aircraft and space vessels 32 In many of those cases where IGOs operate ships and aircraft, these have been lent by member States and remain on their register even if they y the organization’s ag. They are then subject to the national territorial law of the State concerned. However, in several cases IGOs themselves own and operate ships, aircraft and space vessels.33 This occurred rst by a pre-existing organization – the UN – operating ships under its ag after World War II in Korea and the Middle East34 and subsequently in Western New Guinea (1962–63). Later we got IGOs specially established for the purpose of launching and operating space vessels (satellites), notably for telecommunication purposes;35 Intelsat, Intersputnik,36 Inmarsat,37 Eutelsat, Arabsat,38 and the European Space

32

33

34

35

36

37 38

Cf. also the report of E. du Pontavice on “Les aspects juridiques de l’exploitaton des maisons sous la mer” in International Law Association, Report of the Fifty-Seventh Conference, Madrid 1976, pp. 344–95. – On the position of ships in the territorial sea, see Arts. 14–23 of the Convention on the Territorial Sea and the Contiguous Zone of 29 April 1958 and Arts. 17–33 of the 1982 UN Law of the Sea Convention. On criminal jurisdiction over aircraft while in the air above national and international land or sea territory, see Arts. 3–4 of the Convention on Offences and Certain Other Acts Committed on Board Aircraft of 14 September 1963. On the latter, see G. Causacchi di Amelia: “Les véhicules spatiaux et le droit international in Um Recht und Freiheit, Festschrift für Friedrich August Freiherr von der Heydte, Berlin 1977, pp. 123–32 and A. Javenko: “International Space Law: Urgent Issues” in International Affairs, XXXXV (1999), pp. 82–92. On liability for space objects (satellites) of IGOs, see below. See report of 8 May 1956 by J.P.A. François, Special Rapporteur on the Right of International Organizations to Sail Vessels Under Their Flags in Yearbook of the International Law Commission 1956, II, p. 103; note by the UN Secretariat in United Nations [rst] Conference on the Law of the Sea, 1958, Ofcial Records, II, pp. 102–3 and IV pp. 65–76, 129 and 138–40, and United Nations Review, IX (1962), No. 12, p. 26; H. Meyers: The Nationality of Ships, the Hague 1967, pp. 323–51 described early practice and relevant agreements and the problems involved. On many of these and other relevant global and regional IGOs, see N. M. Matte: Droit aérospatial de l’exploration scientique à l’utilisation commerciale, Paris 1976, and: “Aerospace Law: Telecommunication Satellites” in Recueil des Cours de l’Academie de droit international, 1980 I, at pp. 145 ff. and 151 ff., and K.H. Böckstiegel and M. Benkö (eds.): Basic Legal Documents, Dordrecht 1990, Vol. Two A Intersputnik is an intergovernmental organization with 25 member States. The constitutional agreement of 15 November 1971 (UNTS Vol. 862) refers to the Treaty of 27 January 1967 governing the Activities of States in the Exploration and Use of Outer Space, and has been supplemented by an agreement of 20 September 1976 on the Organization’s legal capacity and privileges and immunities. Inmarsat was, like Intersat and Eutelsat, originally established as an IGO by an Agreement and an Operating Agreement of 3 September 1976, cf. above chapter 1, note 32. Arabsat is an intergovernmental organization founded by the Arab League in 1976. It is governed by the General Assembly, the Board of Directors and the Management Committee. The relevant constitutional conventions of these and other regional and global space organisations are listed in N. Jasentuliyana: International Space Law and the United Nations, the Hague 1999, pp. 7–8.

extended jurisdiction of some organizations 193 Agency.39 In modern times we have also permanent manned space stations. The station “Freedom” was established internationally by Agreement of 29 September 1988 between the US, the member States of the European Space Agency, Japan and Canada, on Cooperation in the Detailed Design, Development, Operation and Utilization of the Permanently Manned Civil Space Station.40 The relevant treaties contain some provisions on jurisdiction on the vessels and on responsibility, but they do not carry far. When IGO vessels are in national territory, they are under the territorial jurisdiction of the State concerned, subject to any applicable privileges and immunities. The crew, if they are international ofcials, is subject to the organic jurisdiction of the organization wherever the vessel is. The former was expressly stated in an agreement of 29 July 1964 between the European Space Research Organisation (ESRO) and Sweden concerning the Kiruna Launching Range: “The activities of the organization in Sweden shall be governed by Swedish law” (italics added). However, it was added in Article 6: Sweden shall not incur by reason of the activities of the Organisation on its territory any international legal responsibility for acts or omissions of the Organisation or of its agents acting or abstaining from acting within the limits of their functions. If Sweden, however, should incur such responsibility, Sweden shall have the right of recourse to the Organisation.41

When outside national territory – i.e. in the global commons – the vessels are subject to the territorial jurisdiction and international responsibility of the ag State. This is stated expressly for ships in Article 92 of the 1982 UN Convention on the Law of the Sea.42 If they have not been registered with –

Convention for the Establishment of a European Space Agency of 30 May 1975, International Legal Materials, XIV (1975) pp. 864 ff. Cf. F.G. von der Dunk: Private Enterprise and Public Interest in the European Spacescape, Leiden 1998, pp. 229–39. 40 Space Station Freedom was the name given to NASA’s project to construct a permanently manned earth-orbiting space station. Although approved by then US president and announced in the 1984 State of the Union Address, Freedom was never constructed or completed as originally designed, and after several cutbacks, the remnants of the project became part of the International Space Station, a joint project between ve space agencies: the National Aeronautics and Space Administration (NASA, the US), the Russian Federal Space Agency (Roskosmos, Russian Federation), the Japan Aerospace Exploration Agency ( JAXA, Japan), the Canadian Space Agency (CSA, Canada) and the European Space Agency (ESA). Full English text on “Freedom” in European Space Agency publication SP-305 (1990), on an International Colloquium of 1989 on Les Stations spatiales habitées, Aspects juridiques, at pp. 147–172, cf. an additional bilateral agreement between the European Space Agency and the US National Aeronautics and Space Administration at pp. 173–224, and commenting articles at pp. 27–34 and 55–77. Cf. also E. Kamenetshaya: “Large Space Systems Belonging to International Organizations: Certain Problems of Registration, Jurisdiction and Control” in the earlier Proceedings of the Twenty-Third Colloquium on the Law of Outer Space, p. 179. 41 Cf. also Arts. 12–14 of the Agreement. 42 See also Art. 6 of the Convention on the High Seas of 29 April 1958. 39

194 chapter six and/or y the ag of – a State, they are subject to the territorial jurisdiction of the organization (in addition to its organic jurisdiction over members of the crew who are international ofcials), whether or not the vessel formally ies the ag of the organization and/or is registered with it, as done in certain cases. It is also conceivable that IGO-vessels may be registered with and/or y the ag of a specialized agency or other relevant central organization – e.g. the International Maritime Organization for ships and the International Civil Aviation Organization for air-vessels.43 Whatever model is chosen, IGOs normally lack an applicable law and courts as States have. The question of ships under UN ag was raised by the UN Secretariat at the rst UN Conference on the Law of the Sea in 1958. However, the problem was too novel for the Secretariat or delegates to take a position, particularly during the cold war. Instead, the Conference adopted the following reservation (proposed by the present writer for Norway and co-sponsored by Mexico, United Arab Republic and Yugoslavia) as Article 7 of the Convention on the High Seas of 29 April 1958: The provisions of the preceding articles do not prejudice the question of ships employed on the ofcial service of an intergovernmental organization ying the ag of the organization.44

Afterwards the then communist States realized that also NATO could benet from such a general provision and they therefore caused the corresponding Article 93 of the 1982 Convention on the Law of the Sea to be conned to “ships employed on the ofcial service of the United Nations, its specialized agencies or the International Atomic Energy Agency”. It is submitted that the latter article cannot be given limitative (a contrario) effect – precluding ships ying the ag of other IGOs – not even between the contracting parties, and certainly not in common law. As for registration, we already have provisions for international registration of aircraft, adopted by the International Civil Aviation Organization (ICAO). Article 77 (cf. Articles 78–79) of its constitution provides that “the Council shall determine in what manner the provisions of this Convention relating to nationality of aircraft shall apply to aircraft operated by international operating agencies”. ICAO, by its relevant resolution,45 established two types of nonnational registration, described as follows in Appendix 1 to the Resolution: 43 Cf. Bin Cheng: “Nationality of Aircraft Operated by Joint or International Agencies” in

Yearbook of Air and Space Law, Montreal 1966, pp. 5–31. 44 Cf. United Nations [rst] Conference on the Law of the Sea, Ofcial Records, IV, pp. 45

138–40, and Yearbook of the International Law Commission, 1956, II, pp. 102–3 and 279. Council resolution of 14 December 1967 on joint and international registration of aircraft, doc. 8722-C/976.

extended jurisdiction of some organizations 195 For the purpose of this Resolution – the expression “joint registration” indicates that system of registration of aircraft according to which the States constituting an international operating agency would establish a register other than the national register for the joint registration of aircraft to be operated by the agency, and – the expression “international registration” denotes the cases where the aircraft to be operated by an international operating agency would be registered not on a national basis but with an international organization having legal personality, whether or not such international organization is composed of the same States as have constituted the international operating agency.

The basic distinction between these two types is not the legal personality46 – because the “joint registration” may well involve establishment of international organs which constitute a modest new IGO for the special purpose. The difference is that “international registration” involves a pre-existing IGO which (also and primarily) works for broader purposes, e.g. ICAO or a regional organization such as the League of Arab States. As for space vessels, the early treaties on Principles Concerning the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies of 27 January 1967 and on the Return of Astronauts and the Return of Objects Launched into Outer Space of 22 April 1968, speak of States only. The subsequent conventions on the Liability for Damage Caused by Space Objects of 22 March 1972 and on Registration of Objects Launched into Outer Space of January 1975 speak of the “launching State”, which includes “a State which launches or procures the launching of a space object” or “a State from whose territory or facility a space object is launched” (Article I). But the Registration Convention adds, in Article VII: 1. In this Convention, with the exception of Articles VIII to XII inclusive [the nal clauses], references to States shall be deemed to apply to any international intergovernmental organization which conducts space activities if the organization declares its acceptance of the rights and obligations provided for in this Convention and if a majority of the States members of the organizations are States Parties to this Convention and to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. 2. States Members of any such organization which are States Parties to this Convention shall take all appropriate steps to ensure that the organization makes a declaration in accordance with paragraph 1 of this article.

46 As assumed by a Panel of the International Law Association, cf. Bin Cheng, op. cit. at

pp. 16 ff. He considers, for other reasons, that joint registration is not permissible under the Chicago Convention (the ICAO constitution).

196 chapter six And the Liability Convention provides the same in its Article XXII (3) that the “organization and those of its members which are States Parties to this Convention shall be jointly and severally liable if the organization has not paid within six months”. The Treaty of 27 January 1967 on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, was (also) evasive in its Article XIII: The provisions of this Treaty shall apply to the activities of States Parties to the Treaty in the Exploration and use of outer space, including the Moon and other celestial bodies, whether such activities are carried on by a single State Party to the Treaty or jointly with other States, including cases where they are carried on within the framework of international intergovernmental organizations. Any practical question arising in connection with activities carried on by international intergovernmental organizations in the exploration and use of outer space, including the Moon and other celestial bodies, shall be resolved by the States Parties to the Treaty either with the appropriate international organization or with one or more States members of that international organization, which are Parties to this Treaty.

The immediately succeeding provision in Article 6 of the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space of 22 April 1968 was more advanced: For the purposes of this Agreement, the term “launching authority” shall refer to the State responsible for launching, or, where an international intergovernmental organization is responsible for launching, that organization, provided that that organization declares its acceptance of the rights and obligations provided for in this Agreement and a majority of the States members of that organization are Contracting Parties to this Agreement and to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.

However, even this Agreement was, under its Article 7 open only to States for regular signature and ratication. A similar provision is contained in Article XXII of the subsequent Convention of 29 March 1972 on International Liability for Damage Caused by Space Objects: 1. In this Convention, with the exception of Articles XXIV to XXVII, references to States shall be deemed to apply to any international intergovernmental organisation which conducts space activities if the organisation declares its acceptance of the rights and obligations provided for in this Convention and if a majority of the States members of the organisation are State Parties to this Convention and to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 3. If an international intergovernmental organisation is liable for damage by virtue of the provisions of this Convention, that organisation and those of its

extended jurisdiction of some organizations 197 members which are State Parties to this Convention shall be jointly and severally liable; provided, however, that: (a) any claim for compensation in respect of such damage shall be rst presented to the organisation.

Global commons47 This modern term, like the term “the common heritage of mankind”48 comprises areas which under customary international law – partly conrmed in express treaty provisions – are not subject to appropriation by any State: The high seas, the international sea-bed and outer space. Antarctica, whose status is controversial, will be dealt with separately below. The Commission on Global Governance’s 1996 report “Our Global Neighborhood” recommended amending Chapters XII and XIII of the UN Charter to give the Trusteeship Council authority over the global commons, but this has not been followed up. The high seas The high seas49 are a exible concept, as they are delimited by various types of costal zones50 of States (and even of IGOs when they exercise jurisdiction

47 Cf. M. Diez de Velasco: Institutiones de derecho international publico, 11th ed., Madrid

1991, pp. 485–595; Young and Oskerenko (eds.): Polar Politics Creating International Environmental Regimes, Ithaca and London 1993, with contributions on, inter alia, the formation of international regimes and on regimes for land and sea areas and for the stratosphere. 48 R.M. Malkassian: “Contenido del principio de patrimonio comun de la humanidad” in Anuario Argentino de Derecho Internacional, II, 1984–86, uses the term”patrimonio comun de la humanidad”, but speaks only of outer space and the international sea-bed. T. Fitschen: “Common Heritage of Mankind” in Wolfrum/Philip (eds.): United Nations Law, Policies and Practice, Dordrecht 1995, pp. 149–59, includes in this concept primarily the high seas and outer space. 49 Cf. International Organizations and the Law of the Sea, Documentary Yearbooks issued by the Netherlands Institute for the Law of the Sea, the Hague; N. Grief: Public International Law in the Airspace and the High Seas, the Hague 1994; C.C. Joyner: Antarctica and the Law of the Sea, the Hague 1992; United Nations: The Law of the Sea. Multilateral Treaties, revised edition 1997; E. Franck: Maritime Claims in the Arctic, Dordrecht 1993; K. Baslar: The Concept of the Common Heritage of Mankind in International Law, the Hague 1998, pp. 205–42; R. Wolfrum: Die internationalisierung staatsfreier Räume, Berlin 1984, pp. 101–268 and 328–679; F. Wolf: “L’organisation Internationale du Travail et la convention des Nations Unies sur le droit de la Mer” in Y. Dinstein (ed.): International Law at a Time of Perplexity, Dordrecht 1989. 50 See Arts. 2 ff., 33 and Parts V and VI of the 1982 Convention on the Law of the Sea. These zones are relevant also for IGOs when they, exceptionally, have jurisdiction over land territory, as exemplied above. For a general survey of the various parts of the high seas outside the limit of the territorial sea, see M. Diez de Velasco, op. cit., pp. 393–456.

198 chapter six over an international land territory). These zones were developed in modern customary law, partly because there was (as yet) no way of exercising effective international control as necessitated by modern technical developments. The law on the high seas was codied in the 1958 Convention on the High Seas of 29 April 1958, in the adoption of which the present writer took an active part. A revised version was incorporated as Part VII of the UN Convention on the Law of the Sea of 10 December 1982, which entered into force in 1994. That convention contains special provisions on IGO jurisdiction over their ships (Article 93) and on the jurisdiction of the International SeaBed Authority (Part XI)51 both of which are discussed separately below. The convention also contains in its Annex VI provisions on the International Tribunal for the Law of the Sea, with unclear provisions for a limited access for IGOs to act as parties to disputes (Articles 20–22 of Annex VI). In addition, Annex IX to the Convention contains some not very clear provisions for limited participation by IGOs in the Convention generally.52 However, these provisions give neither States nor IGOs genuine jurisdiction over the high seas proper. We also have a great number of separate international conventions which establish IGOs to adopt binding regulations for sheries and exploitation of other living resources of the high seas. However, these are so far not examples of territorial jurisdiction binding upon everybody operating in the territory, but of decisions which become binding upon the contracting States only, cf. above, chapter 4.2. Under customary law the high seas are not subject to State sovereignty beyond the limits of the national coastal zones. This was conrmed in Article 2 of the (rst) 1958 convention on the High Seas and in Article 89 of the 1982 UN Convention on the Law of the Sea which provides that no State may validly purport to subject any part of the high seas to its sovereignty. It is submitted that these provisions do not prevent the UN or a specially established global IGO from assuming the power to exercise binding territorial authority on the high seas. We already have an example: The International Sea-Bed Authority.

51 Cf. Art. 8.2 of the Agreement of 28 July 1994 relating to the implementation of Part XI 52

of the 1982 Law of the Sea Convention. Cf. Arts. 305.1 (f ) and 307 of the 1982 Law of the Sea Convention, and Art. 8.2 of the Agreement of 18 July 1984 relating to the implementation of Part XI of that Convention.

extended jurisdiction of some organizations 199 The international sea-bed53 A rather special provision, in the form of a “recommendation” with legal effects, is Article 76 (8) of the UN Convention on the Law of the Sea of 10 December 1982: 8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be nal and binding.

Under Article 6 (2) of Annex II the Commission shall decide by a majority of two thirds.54 The last sentence of Article 76 (8) implies that other States lose their right to object if the coastal State follows the recommendation; otherwise they retain that right. Outer space55 While the air-space is part of national land territory or of the high seas, outer space is one of the global commons. As described above, we have a number of IGOs which operate their own satellites and services in outer space. We

Cf. Said Mahmoudi: The Law of Deep Sea-Bed Mining, Stockholm 1987; B. Ellingsen Tunold: “The Deep Sea-Bed Regime: An Introduction to Major Problems. Innovation or a Perpetuation of the Status Quo?” in Koers and Oxman (eds.): The 1982 Convention on the Law of the Sea, Honolulu 1982. 54 Cf. also Said Mahmoudi, op. cit., p. 78. 55 Cf. inter alia (even this long listing is far from complete) the following books: K. Nyman Metcalf: Activities in Space – Appropriation or Use?, Uppsala 1999; R.L. Malkassian: “Contenido del principio de patrimonio común de la humanidad en el derecho internacional positivo” in Anuario argentino de derecho internacional, II, 1984–86, pp. 277–86, K.H. Bøckstiegel and M. Benko: Space Law – Basic Legal Documents, Dordrecht 1991; Zhukov and Kolosov: International Space Law, New York 1984; B. Cheng: Studies in International Space Law, Oxford 1997; F. Francioni and F. Pocar (eds.): Il regime internazionale dello spazio, Milano 1993; M. Diez de Velasco: Instituciones de derecho international, I, 9th ed., Madrid 1991, pp. 456–71; Dutheil de la Rochère: Droit de l’espace, Aspect récents, Paris 1988; J. Fawcett: Outer Space, New Challenges to Law and Policy, London 1984; T. Zwan: Space Law, Views of the Future, Denver 1988; G. Lafferanderie (ed.): Outlook on Space Law Over the Next 30 Years, Dordrecht 1997; C. Christol: The Modern Law of Outer Space, New York 1982; N. Jasentuliyana: International Space Law and the United Nations, the Hague 1999; M. Smith: International Regulation of Satellite Communication, Dordrecht 1990; N. M. Matte: Legal Implications of the Exploration and Uses of the Moon and Other Celestial Bodies (with innumerable references), published by the International Astronautical Federation; the UN publication on Space Activities of the 53

200 chapter six also have several UN resolutions56 and treaties on space vessels and outer space itself. However, the treaties are concluded between States and open for accession by States only.57 One important exception is the Convention on International Liability for Damage Caused by Space Objects of 29 March 1972.58 It provides in Article XXII: 1. In this Convention, with the exception of articles XXIV to XXVII, references to States shall be deemed to apply to any international intergovernmental organization which conducts space activities if the organization declares its acceptance of the rights and obligations provided for in this Convention and if a majority of the States members of the organization are States Parties to this Convention and to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. 2. States members of any such organization which are States Parties to this Convention shall take all appropriate steps to ensure that the organization makes a declaration in accordance with the preceding paragraph.

United Nations and International Organizations, a Review of the Activities and Resources of the United Nations, of its Specialized Agencies and of Other Competent International Bodies Relating to the Peaceful Uses of Outer Space, New York 1980; and the publications of the European Centre for Space Law and of the Centro de Investigación y Difusión Aeronautico y Espacial, Montevideo, Uruguay, including Estado actual de los problemas juridicos del espacio ultraterrestre and Problematica juridica de los recursos naturales de la luna (1981). A.S. Piradov: International Space Law, Moscow 1976, concentrates on the rôle of States, but mentions the rôle of IGOs in law-making, pp. 77–9. – See also articles by R. Steinhardt in Schachter and Joyner (eds.): United Nations Legal Order, Cambridge 1995, at pp. 733–87 with citations; by L. Sittenfeld in Fordham International Law Journal, 1980–81, No. 1, pp. 199–212, by C.Q. Christol on “The Moon Treaty Enters Into Force” in AJIL, Vol. 79 (1985), pp. 163–8; by Andrzej Gorbiel on “Twenty Years of the International Space Law Development in the United Nations”, by H. van Traa-Engelman: “Settlement of Space Law Disputes” in Leiden Journal of International Law, Vol. 3 (1990), pp. 139–55. 56 Starting out with General Assembly Resolutions 1472 (XIV) of 12 December 1959, 1721 (XVI) of 20 December 1961 and 1962 (XVIII) of 13 December 1962. 57 Thus, the following important conventions are open for accession only by States: The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies of 27 January 1967, the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space of 22 April 1968, and the Convention on Registration of Objects Launched into Outer Space of 14 January 1974. 58 An exception is also the draft Convention on Settlement of Disputes Related to Space Activities, which the International Law Association in 1998 proposed for signature and ratication by States and IGOs. Subsequently, the ILA Space Law Committee and its reporter, Sylvia Maureen Williams, elaborated a comprehensive report and further proposals for discussion at the International Law Association’s conference year 2000. The report, the discussion and the resolution are reproduced in International Law Association, Report of the Sixty-Ninth Conference (2000). Particular attention is drawn to the contribution by Vladimir Kopal of the University of Pilsen on “Existing UN Space Treaties: Strenght and Needs”.

extended jurisdiction of some organizations 201 3. If an international intergovernmental organization is liable for damage by virtue of the provisions of this Convention, that organization and those of its members which are States Parties to this Convention shall be jointly and severally liable; provided, however, that: (a) Any claim for compensation in respect of such damage shall be rst presented to the organization; (b) Only where the organization has not paid, within a period of six months, any sum agreed or determined to be due as compensation for such damage, may the claimant State invoke the liability of the members which are States Parties to this Convention for the payment of that sum. 4. Any Claim, pursuant to the provisions of this Convention, for compensation in respect of damage caused to an organization which has made a declaration in accordance with paragraph 1 of this article shall be presented by a State member of the organization which is a State Party to this convention.

Another exception is the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of 18 December 1979, which permits IGOs to become parties. The relevant treaties and resolutions have not as yet established any IGO or other international authority for outer space itself, as has been done for the International Sea-Bed. Instead, they formulate important principles, on the basis of existing customary international law. Already in 1961, in its unanimous resolution No. 1721 (XVI), the UN General Assembly declared that outer space and celestial bodies are “not subject to national appropriation” (italics added). This was repeated in Article 2 of the basic treaty of 25 January 1967 on Principles Governing the Activities of States in the Exploration and Use of Outer Space – which, like the Law of the Sea Convention, has been ratied by a majority of the States of the world – as follows: “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” This does not preclude international occupation. In addition to this early negative or passive prohibition, the UN has also, in its subsequent resolutions and conventions, introduced more positive, active concepts, such as res communis and “the common patrimonium (or heritage) of mankind”.59 Such concepts leave the road open for – or even point to – the possibility of establishing some international government for the global common by global, open and representative IGOs. And this is not precluded by the prohibition of “national appropriation.”

59

Cf. C.Q. Christol, op. cit., pp. 164–8.

202 chapter six This could be done most effectively by the UN or a special global and representative IGO established for the purpose (parallel to the International Seabed Authority) occupying outer space and thereby acquiring legislative and other territorial powers. It would enable the organization to establish further rules with effect for all States, whether or not they are parties to the 1967 treaty. Politically, it would of course be necessary rst to negotiate the terms of an international regime for outer space. But a formal occupation would prevent such regime from being stopped or disobeyed by a minority of States, as it would give the regime legal effect vis-à-vis all States. This would be the most effective follow-up of the statement of the World Commission for Environment and Development, in its UN Report of 1987, that the international society should try to establish a governing organ to secure that outer space remain a peaceful area for the benet of all. Antarctica60 In the Arctic, all land territory is national and territorial dispute is conned to the question of expansion of national jurisdiction to ice-covered and open parts of the sea.61 For the large, but uninhabited continent of Antarctica the situation is more complex and controversial. Seven States claim sectors, but their claims have not been recognized by most other States. Moreover, three States are claiming much the same part of the most important sector (the Graham Peninsula south

60 Cf. F. Francioni and T. Scovazzi (eds.): International Law for Antarctica, 2nd ed., the

Hague 1996; O.S. Stokke and D. Vidas (eds.): Governing the Antarctic. The Effectiveness of the Antarctic Treaty System, Cambridge 1996; with special articles on inter alia the effectiveness of the 1980 Convention on the Conservation of Antarctic Marine Living Resources and its two-tired institutional structures (pp. 120–51) and the convention on the Regulation of Antarctic Mineral Resource Activities of 2 June 1980 (text ibid., Vol. XXVII (1988) pp. 868–900); C.E. Joyner: Antarctica and the Law of the Sea, the Hague 1999; E.J. Rey Caro: “Antarctica” in M. Bedjaoui (ed.): International Law, Achievements and Prospects (UNESCO 1991) pp. 778 ff., esp. p. 984; D.R. Rothwell; The Polar Regions and the Development of International Law, Cambridge 1996; F. Francioni: “Resource Sharing in Antarctica; For Whose Benet?” in European Journal of International Law, Vol. I (1990) pp. 258–268; R. Wolfrum: Die Internationalisierung staatsfreier Räume, Berlin 1984, pp. 30–100; K. Baslar: The Concept of the Common Heritage of Mankind in the International Law, the Hague 1998, pp. 243–76. 61 Cf. Erik Frank: Maritime Claims in the Arctic. Canadian and Russian Perspectives, Dordrecht 1993, and D. Pharand: “Les problèmes de droit international dans l’Arctique” in Etudes internationales, XX (1989), who proposes (pp. 162–3) development on the basis of Art. 123 of the 1982 Law of the Sea Convention.

extended jurisdiction of some organizations 203 of South-America). Only one sector (Eastern Pacic) has not been claimed and may thus be regarded as uncontested global commons. The claimant and a number of non-claimant States have through the Antarctic Treaty of 1 December 1959 established a successful co-operation – though a modest IGO, consisting of regular meetings (without a permanent secretariat) which have adopted a great number of Recommendations and Agreed Measures by unanimity. Article IX of the Treaty, which is in fact the constitution of the organization, reads: 1. Representatives of the Contracting Parties named in the preamble to the present Treaty shall meet at the City of Canberra within two months after the date of entry into force of the Treaty, and thereafter at suitable intervals and places, for the purpose of exchanging information, consulting together on matters of common interest pertaining to Antarctica, and formulating and considering, and recommending to their Governments, measures in furtherance to the principles and objectives of the Treaty, including measures regarding: (a) use of Antarctica for peaceful purposes only; . . . (c) facilitation of international scientic cooperation in Antarctica; (d) facilitation of the exercise of the rights of inspection provided for in Article VII of the Treaty; (e) questions relating to the exercise of jurisdiction in Antarctica; (f ) preservation and conservation of living resources in Antarctica. 2. Each Contracting Party which has become a party to the present Treaty by accession under Article XIII shall be entitled to appoint representatives to participate in the meetings referred to in paragraph 1 of the present Article, during such time as that Contracting Party demonstrates its interest in Antarctica by conducting substantial scientic research activity there, such as the establishment of a scientic station or the dispatch of a scientic expedition. 3. Reports from the observers referred to in Article VII of the present Treaty shall be transmitted to the representatives of the Contracting Parties participating in the meetings referred to in paragraph 1 of the present Article. 4. The measures referred to in paragraph 1 of this Article shall become effective when approved by all the Contracting Parties whose representatives were entitled to participate in the meetings held to consider those measures.

Thus, only those contracting parties which conduct substantial scientic research in Antarctica, including all claimant States, are recognized as “consultative parties”, which may take part in the meetings and the decisionmaking (Articles IX (2) and (4)). And – more important – the measures they adopt become binding only upon the participating States. The measures are thus, legally speaking, not territorial jurisdiction binding upon everybody, but treaties adopted by a simplied procedure and formally binding only upon the consultative parties.

204 chapter six A more specialized treaty is the subsequent Convention on the Conservation of Antarctic Marine Living Resources of 20 May 1980.62 It established a Commission for the Conservation of Antarctic Marine Living Resources, as a regular IGO with elected ofcers, a permanent secretariat in Australia and a Scientic Committee (Articles VII–XX). The convention also provides, in Article XXIII, that the Commission and the Scientic Committee shall co-operate with the “Antarctic Treaty Consultative Parties”, which thus may become the name of the rst – general, but legally more modest – IGO for Antarctica. Under Article IX of the Living Resource Convention the Commission shall adopt conservation measures which become binding upon all members who do not object within 90 days. Article IV provides that “with respect to the Antarctic Treaty area, all Contracting Parties, whether or not they are Parties to the Antarctic Treaty are bound by Articles IV and VI of the Antarctic Treaty in their relations with each other”. This means that no national claims shall be affected – in a positive or negative sense. Indeed, this convention, too, is in the nature of decisions binding upon member States, rather than of territorial jurisdiction. The same is true of the Convention on the Regulation of Antarctic Mineral Resource Activities of 2 June 1988.63 It established an Antarctic Mineral Resources Commission which takes decisions governing exploitation and protection of mineral resources by consensus or a 3/4 majority of the members present and voting (Article 22). The Convention also established several subsidiary organs and – in an Annex – an Arbitral Tribunal. The subsequent Protocol of 4 October 1991 on Environmental Protection to the Antarctic Treaty64 established a more modest Committee for Environmental Protection, which is more closely linked to the Antarctic Treaty Organization. There are also other treaties on protection of the environment in Antarctica which, however, do not as yet provide for binding decisions.65 The Antarctic Treaty of 1959 establishes certain international obligations,66 but it does not solve the basic and controversial problem of territorial sov-

62 Text in International Legal Materials, XIX (1980), pp. 837–59. 63 Text in International Legal Materials, Vol. 27 (1988), pp. 868–900. 64 International Legal Materials, Vol. 30 (1991), pp. 1461–86. 65 See M. Diez de Velasco: Instituciones de derecho internacional publico, I, 10th ed., Buenos

Aires 1994, pp. 546 ff., esp. pp. 549–51, who also discusses the maritime areas, and the literature he cites pp. 556–7. 66 And so do some other conventions which do not fall into the IGO-sphere of the “consultative parties” of the 1959 Antarctic Treaty, including the Protocol to the Antarctic Treaty of 4 October 1991 on Environmental Protection, International Legal Materials, XXX (1991), pp. 1455–86.

extended jurisdiction of some organizations 205 ereignty. On the contrary, it provides in Article IV that nothing it contains shall be interpreted as a renunciation by any “Contracting Party” or “State” of previously asserted rights of or claims to territorial sovereignty or of any basis of such claim – but that activities taking place while the Treaty is in force shall not constitute a basis for such claims, and that no new claims may be asserted while the Treaty is in force. Other basic weaknesses of the system lie in the fact that each consultative party has a veto and that the decision may be considered binding only upon the consultative parties unless they occupy Antarctica. However, the Treaty may be seen as an implicit occupation of – at least – the unclaimed sector. Already before the Antarctic Treaty was concluded, proposals were advanced for full or partial internationalization of Antarctica which would imply genuine territorial jurisdiction – such as establishment of a condominium or a trusteeship territory, or a combination of restricted national sovereignty and international control.67 Also the exploitation of resources, which is not now covered by the Antarctic Treaty, should be included in an international territorial governance system, which would have effect vis-à-vis all States, rather than be left to separate treaties which are binding only upon the contracting parties. The most effective solution would be a territorial occupation by the Antarctic Treaty Organization. This should at least be done for the unclaimed sector. But also in the other sectors, the present national claims should be replaced by such an international occupation. In 1983, Malaysia proposed that Antarctica should be regarded as common heritage of mankind and not just the exclusive preserve of a few nations that have access to it. This was subsequently supported by the non-aligned countries, but not by those States which are most active in the area. It would place Antarctica on line with the global commons (the high seas and outer space) where, however, so far effective international jurisdiction has developed only for the international sea-bed. Indeed, also for the high seas and outer space territorial jurisdiction should be established for relevant existing or new IGOs.

67 See the review of these early proposals in J.C. Puig: La Antartida Argentina ante el

derecho, Buenos Aires 1960, pp. 87–104. Later F.M. Auburn: “Offshore and Oil and Gas in Antarctica” in German Yearbook of International Law, Vol. 20 (1977), p. 73 (cf. pp. 139–172) stated pessimistically: “Various proposals are being canvassed within the framework of the Antarctic Treaty. All may founder on the rock of national sovereignty. Unanimity requirements ensure that any Consultative Party has a veto. The most practical solution would seem to be in limited bilateral agreements”.

206 chapter six Territorial jurisdiction erga omnes or only decisions binding upon the participating States Some of the powers exercised by IGOs in the global commons described above is territorial jurisdiction, because otherwise regulations enacted by the organization might not be binding erga omnes, but only upon – and via – its member States. This limitation is expressly stated e.g. in Article IX 6 of the Convention on the Conservation of Antarctic Treaty of 1 December 1959 which wisely steers away from clarifying the problem. Article IX 4 of the 1959 Antarctic Treaty merely provides that the measures adopted at the meeting of the Contracting Parties shall “become effective when approved by all the Contracting Parties whose representatives were entitled to participate in the meetings held to consider those measures”. Antarctica is a special case, because here we also have national territorial claims. But the problem arises in full in respect of the unclaimed sector and in respect of the other global commons. The 1982 Law of the Sea Convention provides that the International SeaBed Authority can, by a 2/3 majority, adopt rules, regulations and procedures relating to “prospecting, exploration and exploitation” in the International Sea-Bed Area (Articles 160 (2) (f ) and 162 (2) (o)), without making clear whether this is merely a contractual power between the contracting States, or also assumption of a territorial power vis-à-vis everybody, as a unilateral occupation of the territory by the organization. If the latter is admitted in the case of the Antarctic treaty – and of the International Sea-Bed Authority – these will be the rst examples of global commons, which by denition are precluded from occupation by States, being occupied by competent IGOs in order that the organization may exercise jurisdiction with effect erga omnes. However, any such occupation should be claried or conrmed by the several organizations thus established. The Argentine author E.J. Rey Caro wrote in 1993 that the Antarctic Treaty is one of those which, by establishing an “objective regime”, may be opposable “erga omnes”, a claim which has been accepted by “calicada doctrina y jurisprudencia internacionales”.68 This despite the fact that unlike the Law of the Sea Convention, only a minority of the States of the world are parties to the Antarctic Treaty; however all States who are active in the area are parties. The most effective method to obtain this could be for the Antarctic Treaty Organization to occupy Antarctica, which would imply an amalgamation of the national territorial claims. If not all claimant States can accept this, the

68

La Antardida a nes del siglo XX, Academia Asturiana de Jurisprudencia, Oviedo 1993, discussing inter alia the future of the Antarctic Treaty System.

extended jurisdiction of some organizations 207 organization could at least occupy the unclaimed sector, in order to be able to exercise powers inter alia for protection of the environment and avoidance of conicts. International occupation We have rm customary law to the effect that the global commons are not subject to national territorial occupation or jurisdiction. We also have UN resolutions and conventions that State this. In the global commons States may only exercise territorial jurisdiction over their vessels and personal jurisdiction. However, it is submitted that a competent intergovernmental organization could occupy a global common and thereby acquire unilateral territorial jurisdiction, and even sovereignty, which must be respected by States. Thus the Antarctic Treaty Organization could occupy the unclaimed sector in Antarctica – or even the entire Antarctic area, if the claimant States agree – and then enact regulations for all States acting in the area. Occupation of a global common could also be undertaken by the UN – or by IGOs specially established for the purpose as already done by the International Sea-Bed Authority under Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982. Nuclear safeguards A very special and limited type of “territorial” jurisdiction is the nuclear safeguards which the International Atomic Energy Agency69 exercises under safeguards agreements which it concludes with States which assist in developing nuclear energy for peaceful purposes. The safeguards imply periodic international inspections on the spot to verify that no nuclear weapons are produced or prepared. The safeguards are described in Article XIII of the constitution of the Agency, but authority for the Agency to carry out the functions in a given country is provided by separate bilateral treaty between the Agency and the State concerned or in separate multilateral treaties, e.g. including the treaty of 1969 on non-proliferation of nuclear weapons and the Tlatelolco Treaty (Treaty for the Prohibition of Nuclear Weapons in Latin America) of 1967 prohibiting nuclear weapons in Latin America.70

Cf. also the rôle the European Nuclear Energy Agency under the Convention on the Establishment of a Security Control in the Field of Nuclear Energy of 20 December 1957. 70 See Hans Blix: “Aspects juridiques des garanties de l’Agence internationale de l’energic atomique” in Annuaire français de droit international XXIX (1983), pp. 37–53. 69

208 chapter six 6.3

Personal jurisdiction

Many IGOs exercise limited jurisdiction over individuals, more or less linked with other types of jurisdiction (organic or extended). There are also some organizations which exercise a clearly separate jurisdiction over certain categories of individuals. An example of the former is:

Inhabitants of a territory administered by the organization When an IGO governs an inhabited territory, it usually exercises – in addition to the territorial jurisdiction over everyone and everything within that territory – also a personal jurisdiction over the inhabitants, or nationals, of the territory wherever they are. This jurisdiction is similar to the personal jurisdiction of States over their nationals, which also applies when the inhabitants or nationals are abroad. In these cases the organization acquires the personal jurisdiction by the same act as it acquires its territorial jurisdiction – i.e. in most cases without any relevant provision in its constitution. On the other hand, when international river commissions exercise jurisdiction over individuals – viz. those who navigate the river – this is not a personal jurisdiction which applies to the persons wherever they are, but a purely territorial (and functional) jurisdiction over persons while navigating within a specic territory.

Private relations and taxation of international ofcials and other agents As described above, IGOs have inherent jurisdiction over their ofcials as such. But this is organic, not personal jurisdiction, and extends only to their activities in an ofcial capacity. However, in certain cases IGOs extend their jurisdiction also to include personal relations of their ofcials and other agents (experts), which are normally governed by the personal law of their national States. (a) An example is the laissez-passers which IGOs issue to their ofcials and which these used even generally as travel documents, in addition to or in lieu of national passports.71 (b) The organization may also wish to regulate personal relations because of the bearing they may have upon the ofcial functions of the staff. Thus a number of IGO staff regulations, enacted unilaterally by the organization, 71 See Schermers and Blokker: International Institutional Law, 4th ed., Leiden 2003, §§

1863–6.

extended jurisdiction of some organizations 209 limit the right of ofcials to engage in political activities and to receive decorations and other favours from governments.72 As long as such staff regulations do not impose obligations upon other parties and do not conict with the law of the host State, IGOs have power to enact them unilaterally – i.e. without consent of the State under whose territorial or personal jurisdiction the ofcial belongs. Such regulations cannot be contested, even though the regulations govern the ofcial’s relations, not with the organization, but with third parties. The Swiss Government recognized this right lex lata by declaring that: “L’organisation peut leur imposer l’obligation de ne pas jouer un rôle actif dans la vie politique du pays.”73 Such power may be exercised even by non-governmental organizations and is not necessarily a genuine legislative power, comparable to that of States. (c) IGOs may also wish to assume civil jurisdiction over their ofcials in personal matters in order to ll the lacuna arising from exemptions from State jurisdiction (privileges and immunities) which IGO ofcials enjoy even outside the eld or organic jurisdiction. Criminal jurisdiction, however, usually assumes territorial power.74 One example, albeit poor, is taxation of salaries of IGO ofcials. Under express provisions in conventions on privileges and immunities and other treaties ofcials are to be tax-exempt in member and host States. However, the US already at an early stage refused to accept this and insisted upon taxing US nationals working e.g. with the UN in New York. The UN General Assembly (and later other IGOs) then, by its resolution 973 (X), introduced its own nominal, taxing system (“Staff Assessment”) in order to avoid US and other national taxes as creating double taxation. This IGO taxation is, however, not real, as the salaries were correspondingly increased to compensate for the deducted tax to the organization – and this was fair enough, as the salaries had originally been stipulated on the basis that they would be tax-exempt. A more relevant example is the lacuna resulting from the ofcials’ immunity from suit. International ofcials enjoy immunity from legal process in respect of their ofcial acts under customary international law, usually conrmed in conventions on privileges and immunities.75 These are acts of the organization,

72 Se e.g. the staff regulations of the Inter-Allied Reparation Agency, paras. 4 and 5; of the

UN, Arts. 1 (6) and (7). Message du Conseil fédérale concernant le statut juridique en Suisse de l’Organisation des Nations Unies, d’institutions spécialisées de Nations Unies et d’autres organisations internationales, Bern 28 July 1955, p. 9. 74 § 10 of the UN-US headquarters agreement envisages the penalty of expulsion or exclusion (of visitors) from the New York headquarters district. 75 See e.g. Section 18 (a) of the Convention of the Privileges and Immunities of the United Nations, adopted by the UN General Assembly on 13 February 1946. 73

210 chapter six for which the organization itself is responsible. On the other hand, international ofcials cannot claim immunity in respect of their private acts unless this has been specically provided. Such provisions – for diplomatic privileges and immunities – are usually made for the highest ofcials – in the general conventions on privileges and immunities,76 in certain bilateral headquarters and host agreements,77 and in some IGO constitutions.78 In the case of national diplomats such immunity does not leave a vacuum, since they may be sued instead in their national courts. And so may members of permanent delegations to IGOs (who are also usually accorded diplomatic privileges and immunities), since these, too, are State ofcials. Even international ofcials have been assimilated to diplomats in this respect in at least one case where a civil action was successfully brought in the courts of the State of which the ofcial was a national.79 However, here the analogy does not apply. International ofcials must be treated as such also in their home State. General conventions on privileges and immunities and headquarters agreements provide that the organization shall make provision for “appropriate modes of settlement” of disputes involving any ofcial who by reason of his ofcial position enjoys immunity, if immunity has not been waived by the organization.80 Indeed, it is submitted that IGOs have an inherent power to establish internal courts to adjudicate private claims against their “diplomatic” ofcials and that such judgments must be recognized – even in non-member States – to the same extent and on the same conditions as they recognize judgments rendered by foreign national courts. In order to prevent a denial of justice, without allowing the international status of their ofcials to be violated, IGOs may establish their own courts for adjudication of private claims against those of their ofcials who enjoy diplomatic immunity (or they may confer jurisdiction in such cases upon their administrative tribunals), but this need does not appear to have arisen in practice as yet.81 The organizations in practice so far appear to have pre-

76 E.g. the general conventions on the privileges and immunities of the United Nations, 77 78 79 80 81

Section 19, and of the Specialized Agencies, Section 21. E.g. Art. 16 of the headquarters agreements of the ILO and the WHO with Switzerland. E.g. the League of Nations Covenant, Art. 7 (4). Avenol v. Avenol, Annual Digest, 1935–37, Case No. 185. E.g. the General Convention on the Privileges and Immunities of the Specialized Agencies, § 31 (b), and the Headquarters Agreement between Switzerland and the WHO, Art. 23 (b). See Message du Conseil fédéral concernant le statut juridique en Suisse de l’organisation des Nations Unies, d’institutions spécialisées des Nations Unies et d’autres organisations internationales, 28 July 1955, p. 9, where the Swiss Government stated that the extended immunity accorded to certain catagories of higher international ofcials have never given rise to difculties “car les organsations interviendraient d’elles-mêmes avec énergie contre

extended jurisdiction of some organizations 211 ferred simpler solutions, such as waiver of immunity82 or resort to external, arbitral or ad hoc courts. IGOs may even assume criminal jurisdiction over their ofcials in certain cases where national courts are deprived of jurisdiction by the ofcial’s immunity. This may be practical in respect of members of a UN or other IGO military force, as described in an earlier book by the present writer.83 However, enforcement may require co-operation of a territorial sovereign. As a response to reports indicating that UN personnel have conducted serious criminal acts while serving in international missions, an Ad Hoc Committee on criminal accountability of United Nations ofcials and experts on mission was established on 4 December 2006.84

Refugees and stateless persons85 This is a clear example of unilateral assumption by IGOs of “vacant” personal jurisdiction. The Nansen ofce after World War I and the International Refugee Organization after World War II, followed by the permanent UN High Commissioner for Refugees86 issued laissez-passers or other ofcial identity papers and travel documents (“Nansen passports”, the (1951) “convention travel document”)87 – and rendered international (legal and political)

82 83 84 85

86

87

tout fonctionnaire qui ne se conformerait pas au droit en vigueur ou dont la conduite donnerait lieu à des plaintes”. Cf. e.g. § 22 of the Convention on the Privileges and Immunities of the Specialized Agencies of 21 November 1947. See Seyersted, United Nations Forces in the Law of Peace and War, Leyden 1966, pp. 364 ff. See doc. A/RES/61/29. The committee held its rst session 9–13 April 2007, see its report in doc. A/62/54. Refugees are still governed by the Convention relating to the Status of Refugees of 28 July 1951 and the Protocol Relating to the Status of Refugees of 31 January 1967, both of which have been adhered to by 144 States as of 1 December 2006, Cf. A. Grahl-Madsens two books: International Refugee Law to-day and to-morrow, Tybingen 1982, and The Emergent International Law Relating to Refugees, Bergen 1985; G.S. Goodwin-Gill: The Refugee in International Law, Oxford 1996, esp. at pp. 207 ff. on international institutions for protection; UN General Assembly Resolutions Nos. 150–2 of 21 December 1995; I. Khan: “UNHCR’s Mandate Relating to Statelessness and UNHCR’s Preventive Strategy”, in Austrian Journal of Public and International Law 1995, pp. 93–98; and the Report from the New Dehli Workshop on International Refugee Law published in The Indian Journal of International Law, Vol. 39 (1999), pp. 1–31. Established by General Assembly resolution no. 428 (V) of 14 December 1950 and the Annexed Statute of the Ofce of the United Nations High Commissioner for Refugees. Cf. V. Türk; Das Flüchtlingskommissariat der Vereinten Nationen, Berlin 1992, which gives a detailed and comprehensive analysis of the High Commissioner’s competence and functions. Cf. also the Agreement of 30 June 1928 Concerning the Functions of the Representatives of the League of Nations High Commissioner for Refugees. See A. Grahl-Madsen; “The Refugee Problem on Universal, Regional and National Level”, in Thesaurus Acroasium, Vol. XIII, Thessaloniki 1987, esp. at pp. 230–4.

212 chapter six protection and various forms of assistance – to refugees and stateless persons who lacked diplomatic protection from their home State. The power of the International Refugee Organization was laid down in Article 2 (1) of its Statute – to the effect that the Organization should render “legal and political protection” – and in the Agreement concerning the Functions of the Representatives of the League of Nations High Commissioner for Refugees of 30 June 1928, Article 1.88 The agreements concluded by the International Refugee Organization with, for example, Brazil and Denmark authorized the Organization to exercise the same protection in respect of persons within its mandate as that which consuls exercise in respect of nationals of their country.89 The Statute established legal obligations for refugees only as condition for assistance. The powers of the High Commissioner are not laid down in the UN Charter, but in UN General Assembly resolution 428 (V) of 1950 which established his ofce and in subsequent resolutions and conventions. However, their powers have been exercised generally; vis-à-vis all States, whether or not they were members of the UN or parties to any relevant conventions. The functions are thus examples of IGOs, even unilaterally, assuming extended jurisdiction which is “vacant” and are thus parallel to assumption of powers in stateless territory. The customary law of armed conict and the 1949 Geneva Conventions on warfare recognize the right of neutral States to act as “protecting power” for prisoners of war and other war victims. It is submitted that a competent IGO – like the UN or the UN High Commissioner for Refugees – must have a similar right in respect of persons who cannot be adequately protected by a State. Thus, writers90 submit that the UN High Commissioner for Refugees may substitute for the protecting power according to Article 5 of Additional Protocol I to the 1949 Geneva Conventions for the protection of victims of armed conict. Indeed, this right must be admitted despite the absence of conventional provisions to that effect, except that the right must be exercised

88 UNTS, XCIII, p. 379. 89 See also the Agreement with France of 15 January 1948 (IRO doc. DC/LEG/11); the

Convention Relating to the Status of Refugees of 28 July 1951, Arts. 1, 25 and 35 (UNTS, Vol. 189, p. 170); the Statute of the UN High Commissioner for Refugees, adopted by UN General Assembly resolution 428 (V), paras. 1 and 8; the agreements concluded by the High Commissioner with e.g. Italy in April and in July 1952, cf. the Italian Act of 15 December 1954 (reported by Grahl-Madsen: The Status of Refugees in International Law). On the possible conict between such international protection by IGOs and consular protection by States, see Grahl-Madsen in Journal of Peace Research, 1966, at p. 284, and UN Conference on Consular Relations, OR, II, pp. 52 and 67, and I, pp. 96–97, 218–229 and 238–239. 90 V. Türk, op. cit., at pp. 218 ff.

extended jurisdiction of some organizations 213 by a neutral organization. If the UN has declared sanctions against an aggressive State, that State cannot be expected to recognize the organization as a neutral protecting power. IGOs may – by analogy with States – grant asylum to refugees in the cases described above where the organization has a territory of its own. Otherwise the organization may only provide “temporary refuge” as an ofce of humanity91 on its premises, including any headquarters district, “in quite exceptional circumstances, as in the case of breakdown of civil authority of the host State”.92 The Mixed Commission for the Exchange of Greek and Turkish Populations performed a number of different functions with regard to the emigration of minorities in the two countries and the liquidation of their property. These functions were expressly laid down in its constitution, a Greco-Turkish agreement of 1 December 1926 and were classied as administrative, legislative and judicial by the Permanent Court of International Justice.93

International crimes94 Criminal jurisdiction is generally regarded as a territorial power, which can be exercised only by the territorial sovereign, who normally is a State.95 However, this is required only in respect of enforcement of the punishment

91 Cf. “diplomatic asylum” in Latin America. 92 A. Grahl-Madsen: The Status of Refugees in International Law, II, Leiden 1972, p. 76.

Cf. also K.-S. Cavellin: UNIFIL och dess rätt att bevilja intern asyl, Uppsala University 1986. Cf. also UN attempts at creating “safe zones” in Rwanda and Bosnia. 93 Advisory Opinion on the Greco-Turkish Agreement of 1 December 1926 PCIJ Ser. B No. 1, pp. 17–18. 94 H. Ahlbrecht: Geschichte der völkerrechtlichen Strafgerichtsbarkeit im 20. Jahrhundert, unter besonderer Berücksichtigung der völkerrechtlichen Straftatbestände und der Bemühungen um eienen ständigen internationalen Strafgerichthof, Baden-Baden 1999; H. Ball: Prosecuting war crimes and genocide: The twentieth-sentury experience, Kansas 1999; Y. Dinstein and M. Tabory (eds.): War Crimes in International Law, the Hague 1996, including M. Bothe: “War Crimes in Non-International Armed Conicts” at pp. 293 ff. (see esp. pp. 299–301 on an international power and duty to punish violations of the law relating to non-international armed conict); D. Joyce: “The historical functions of international criminal trials: Re-thinking international criminal law” in Nordic Journal of International Law, Vol. 73 2004, pp. 461–484. 95 Cf. Roger S. Clark: “Offences of International Concern: Multilateral State Practice in the Forty Years Since Nuremberg” in Nordic Journal of International Law LVII (1988), pp. 49–118, who points out that, so far, jurisdiction has been left to national authorities, except for the war crime tribunals – and for the openings in Article VI of the convention on the Crime of Genocide of 9 December 1948 (GA Res. 174 (III)) and Article IV (b) of the International Convention on the Suppression and Punishment of the Crime of Apartheid of 30 November 1973 (GA Res. 3068 (XXVIII)).

214 chapter six (prison, nes). There is no legal impediment to IGOs establishing their own “criminal” tribunals within their general eld of organic jurisdiction,96 but if the organization has no territory of its own, it will need the co-operation of States to arrest people and to enforce sentences on imprisonment or on nes which cannot be deducted in salaries. This is what may make it practical to reserve criminal (but not disciplinary) jurisdiction for States, as has been done e.g. by the UN leaving criminal jurisdiction over members of a UN military force to the States contributing contingents.97 Still, after World War II we have had several examples of international criminal tribunals to adjudicate in specic post-conict situations cases of certain grave international crimes:98 (a) The Nuremberg Tribunal for the major German war criminals, established by inter-allied treaty of 8 August 1945; (b) The International Tribunal for the Far East in Tokyo, established by the allied powers on 19 January 1946 to prosecute Japanese war criminals; (c) The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (ICTY), established by Security Council resolution no. 827 on 25 May 199399 under Chapter VII of the UN Charter, which can be resorted to only when there is a “threat to the peace, breach of the peace or act of aggression”; (d) The similar tribunal established for crimes committed in Rwanda (ICTR) by Security Council resolution no. 995 of 8 November 1994; (e) The International Criminal Court (ICC) is a treaty based permanent criminal court with jurisdiction “limited to the most serious crimes of concern to the international community as a whole”100 and with a mem-

96

97

98

99 100

Impediment was, however, specically established by Art. 10 of the UN-US headquarters agreement, where the US expressly reserved for itself the power to impose penalties other than expulsion or exclusion from the headquarters district. Se the full discussion of the UN’s powers in respect of its military forces in Seyersted: United Nations Forces in the Law of Peace and War, Leyden 1966, pp. 361 ff., esp. pp. 364–72. See also C.L. Blakesby: “Obstacles to the Creation of a Permanent War Crimes Tribunal” in C. Ku & P.F. Diehl (eds.): International Law, Classic and Contemporary Readings, London 1998, pp. 281 ff. Cf. also above, chapter 1.4, including also comments on “mixed” or “hybrid” criminal tribunals. The Institut de droit international in 1999 concluded a J. Brown Scott/Louis Renault prize competition on the Criminal Tribunals established by the Security Council, Annuaire de l’Institut de droit international, Vol. 69. The relevant texts are published by the Tribunal in Basic Documents, the Hague 1995. According to the Rome Statute of the ICC, Article 5, which gives the Court jurisdiction with respect to (a) the crime of genocide; (b) crimes against humanity; (c) war crimes;

extended jurisdiction of some organizations 215 bership of 105 States parties and further 41 signatories, as of July 2007. Following the adoption of the Rome Statutes of the court in 1998, the treaty entered into force on 1 July 2002, which also signies that the court can only prosecute crimes committed after that date. The ICC’s jurisdiction is complementary to the primary jurisdiction of the national State, either where the crime was committed or where the offender is a national. Similarly, the court may only investigate situations where the alleged crime has been committed in the territory of a State party or where the alleged offender is a national of a State party, unless a situation is referred to the court by decision of the UN Security Council.101

6.4

Decisions binding upon States

Organic jurisdiction over representatives of member States102 As described above in chapter 5, all IGOs (except those of the type dépendant, whose secretariat functions are performed by the host State), exercise, under rmly established common customary law, exclusive legislative administrative and judicial jurisdiction over their organs and the members thereof as such. No express or (ctitious) “implied” power is required. This inherent organic jurisdiction comprises all members of the organs, including the representatives of member States in that capacity. The jurisdiction is exercised by the

and (d) the crime of aggression. However, the Court will not exercise its jurisdiction over the crime of aggression until such time as the States parties agree on a denition of the crime and set out the conditions under which it may be prosecuted. 101 The case regarding the situation in Darfur (Sudan) since 1 July 2002 was referred to the ICC by UNSCR 1593 of 31 March 2005. 102 Also some of the constitutional provisions listed above in connection with territorial (or personal) jurisdiction are in reality merely decisions binding upon States. Thus the measures adopted by the Contracting Parties to the Antarctic Treaty become binding only upon these Parties. For a thorough discussion of this important, modern development, see Schermers and Blokker, op. cit., esp. §§ 1173 ff. and 1318 ff. See also M. Diez de Velasco: Instituciones de derecho internacional publico, 11th ed., Madrid 1997, pp. 178–90 and Las Organizaciones Internacionales, 14th ed., Madrid 2006, pp. 138–42, R.-J. Dupuy: Manual sur les organisations internationals, Dordrecht 1988, pp. 320 ff., Oscar Schachter: International Law in Theory and Practice, Dordrecht 1991, pp. 74–75, Martin Martinez: National Sovereignty and International Organizations, the Hague 1996, and D.W. Bowett: The Law of International Institutions, 4th ed., London 1982, pp. 344–5. For an evaluation of the legal effects of UN General Assembly resolutions and declarations, see Eek, Bring, Hjerner: Folkrätten, 4th ed., Stockholm 1987, pp. 269–74. See also M. Diez de Velasco, Instituciones de derecho internacional publico, op. cit., pp. 191–3.

216 chapter six president/chairman or as well by (a majority vote103 of ) the organ as a whole, unless otherwise provided. Thus, the rules of procedure enacted for the various deliberative organs govern the rights and duties of the representatives of the member States on these organs. Such rules of procedure regulate e.g. the right of member States to request the convocation of meetings, their duty to provide their representatives with credentials, and the right for these to speak and move proposals. The chairmen of the organs concerned, or the organs themselves by majority vote, make (administrative) decisions concerning these and other procedural matters. This they do even if there is a dispute between the various representatives on a legal question, although the organ may decide, by majority vote, to request an advisory opinion from the International Court of Justice or to submit the question to a committee of jurists or some other legal (but not necessarily judicial) body.104 In many cases the constitution authorizes the organization or the organ concerned to exercise these powers. Thus, a number of organs have been expressly authorized to adopt their own rules of procedure, which may then regulate the various matters mentioned above. However, IGOs exercise these powers also in those many cases where they have not been expressly empowered to do so. There is never any question of working out the rights and duties of representatives as such by agreement between the organization and each representative or his government. The organization does that unilaterally, and its decision is binding upon the representative and his government, no matter whether the organ concerned has or has not been expressly authorized to adopt e.g. rules of procedure. The members can legally prevent the application of such rules and decisions only by claiming that they violate the rules of a higher order, as express provisions in the constitutional convention. IGOs thus have an inherent jurisdiction over the member States and their representatives in their capacity as members of the deliberative organs of the organization. This is an aspect of the organic jurisdiction, which comprises all members of the organs in that capacity. This power is inherent in all IGOs which do not have express, limitative provisions.

The Organization for Economic Cooperation and Development (OECD) extended its unanimity rule even to organizational and organic matters, such as election of judges for its court for atomic energy security control established by a convention and additional protocol of 20 December 1957. 104 Below, chapter 7. 103

extended jurisdiction of some organizations 217 Organizational membership jurisdiction In addition to the organic jurisdiction over the representatives of member States, IGOs also exercise a limited membership jurisdiction in organizational matters over their member States in their capacity as members of the organization as a whole. Parts of this organizational membership jurisdiction are more frequently than the organic jurisdiction laid down in express constitutional provisions.105 However, even if not, IGOs have an inherent power to e.g. admit new members, suspend membership or exclude members by majority decisions, if the constitution does not provide otherwise. Similarly, IGOs may by majority elect members to sit on organs of restricted membership; however this, too, is usually expressly provided for,106 and is moreover, closely linked to the organic jurisdiction. One may or may not infer from constitutional provisions establishing an executive council or other deliberative organ with restricted and rotating memberships that member States are under a duty to accept election to (non-plenary) organs of limited membership. But it is not generally accepted that such duty exists with regard to organs not envisaged in the constitution. Member States of the UN have on several occasions refused to serve on such organs, although usually, or always, on the basis of a charge that the organs, under their terms of reference, were to perform functions which they, or the organ as a whole, were not legally entitled to perform.107 IGOs probably have no inherent power to require member States to pay nancial contribution to the budget of the organization. Most IGO constitutions therefore provide for contributions, like Article 17 (2) of the UN Charter. However, even if that is not the case, it cannot require much to consider such a duty to be (genuinely) implied if the constitution foresees expenses without having provided for their coverage. Unless otherwise provided, a majority may decide to dissolve the organization. IGOs probably have an inherent power to dissolve themselves by mere decision of their plenary organ, if the decision is unanimous. If not,

See e.g. Arts. 4–6 of the UN Charter, Art. 7 of the Treaty establishing the EU and the examples cited by M. Diez de Velasco, Las Organizaciones Internacionales, op. cit., pp. 93–96. 106 E.g. Arts. 23, 61 and 86 of the UN Charter. 107 The Soviet Union refused to serve on the Interim Commission of the UN General Assembly, established by General Assembly resolution 111 (II), and that of the Ukrainian SSR to serve on the UN Temporary Commission on Korea, established by General Assembly resolution 112 (II). The question was also debated in connection with the Special Committee on Information concerning Non-Self-Governing Territories, established by General Assembly resolution 332 (IV). Bastid tends to support the view that members are not obliged to serve. 105

218 chapter six it is submitted that even a minority may claim the right to continue the organization.108 Kelsen raised the question whether the members of the UN are under an obligation to permit the organization to establish its headquarters in their territory. He suggested that the silence of the Charter in this respect might be interpreted either way. It is submitted that no such obligation is inherent in membership of an IGO, not even a right to hold meetings in the territory of a specic member State. IGOs may certainly not amend their constitutions, not even by unanimous vote, if no provisions has been made in the constitution itself for such deviation from the normal procedure of treaty revision as done e.g. in Articles 108–109 of the UN Charter. A different matter is the factual treaty revision which is effected by the practice of the organization. Thus, Article 27 (3) of the UN Charter (the voting rule in the Security Council) has been modied by a consistent practice, which has developed into customary law, to the effect that an abstention does not constitute a veto. Interesting developments have also taken place with regard to Article 2 (7) (the domestic jurisdiction clause). On the whole, the inherent membership jurisdiction of IGOs, i.e. the jurisdiction they may exercise over their member States without special authority beyond what follows from the organic jurisdiction, is limited. Whether wide or limited, and whether inherent or laid down in the constitution, there can be no doubt as to the exclusiveness of the membership jurisdiction. Relations between the organization and its members – which are sovereign States – are not subject to jurisdiction of the host State, any particular member State or any other authority. The jurisdiction of the organization is exclusive as far as it goes. And where it stops, there remains only the sovereign independence of the member States. The law of the several member States is not applicable to the organization and procedure of the organization or its particular organs, not even insofar as the rights and duties of their own representatives on such organs are concerned. Thus the rule which has developed in the constitutional practice of certain States, and which prevents government ofcials from serving on committees together with members of Parliament, applies only to national committees. International committees are not bound by such national rules, even with regard to the representatives of the particular State concerned. A

108

See on this problem Fitzmaurice in BYIL XXIX (1952), p. 7. Judge Reed, in his separate opinion in the case of the International Status of South-West Africa (ICJ Reports, 1950, p. 167), recognized the right of the League of Nations to liquidate itself, but based this partly upon the provision in Art. 3 (3) of the Covenant. He appeared, moreover, to assume the necessity of a unanimous vote.

extended jurisdiction of some organizations 219 different matter is if the State concerned should interpret its domestic law as applying also to its representatives to IGOs. An example on the border-line between organizational and functional membership jurisdiction is the usual constitutional provision for amendment of the constitution, e.g. Article 108 of the UN Charter: Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratied in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.109

Such amendments may also be made to constitutive provisions of a substantive nature.

Functional jurisdiction. Introduction110 While it is doubtful to what extent IGOs have an inherent membership jurisdiction in organizational matters, it is clear that they have no inherent jurisdiction over their member States in functional (substantive) matters. This is a clear matter of extended jurisdiction, which is not common law, but special law for each organization concerned – it may be exercised only if and to the extent that the States concerned have authorized the particular organization. However, even this need not be done in the constitution of the organization as most legal writers assume. And even non-member States may authorize this. It is therefore convenient to reserve the term “membership jurisdiction” for organizational matters and to refer to binding functional decisions as “jurisdiction over States” or “decisions binding upon States”. The traditional method for binding regulation of the action of States in substantive matter is by way of treaties concluded between, or with, the States, and which become binding only upon those States which voluntarily conclude or accede to them.

Similar provisions are found in a number of IGO constitutions. Cf. M. Diez de Velasco, op. cit., pp. 131–34 and the literature there listed. J. Gold: “The Amendment and Variation of their Charters by International Organizations” in Revue Belge de droit international, 1973, pp. 50–76 gave a survey of provisions which authorize amendment, without acceptance by all member States, of constitutional provisions of an organizational or substantive nature. 110 Cf. E. Pecourt: “La accion normativa de las Organisationes internacionales” in Anuario de Derecho Internacional, 1974 I, pp. 165–222; Seyersted: “Die Internationale Atomenergie – Organisation, ihre rechtlichen Aufgaben und Funktionen”, Beiträge zum Internationalen Wirtschaftsrecht und Atomenergierecht, Göttingen 1966, esp. at pp. 20–29. 109

220 chapter six However, notably after World War II, new methods have developed to establish rules by simpler and quicker methods. These were not listed in 1945 in Article 38 of the Statute of the International Court of Justice as one of the sources of international law to be applied by the Court. The methods have differing denominations and entail differing procedures. We shall in the following look at the various methods employed, which represent a progression from non-binding to binding rules and, as for the latter, from treaty-like to legislation-like procedures. The relevant provisions are special for each organization. However, we shall list them in a systematic manner and quote the examples in order to allow for a comparative evaluation of the different types of methods used, which, it is hoped, may be useful lex ferenda when establishing new IGOs or conferring new powers upon existing organizations.

Soft law111 The traditional – and the still prevailing – method for IGOs to regulate the conduct of member (and other) States, is by way of non-binding resolutions, which may be presented as recommendations, declarations, model rules, standards, codes etc. These do not require – and are mostly without – basis in the constitution or other treaty.112 Especially when adopted by unanimity or consensus,113 such texts may be fairly consistently applied in practice and thus develop into customary law – in the internal law of the organization – or even in public international law.

Recommendations or representations which provoke sanctions if not complied with In some cases non-compliance with “recommendations”, decisions or rules established by IGOs may be met by sanctions. Thus the constitution of the African Union provides in Article 23 (2) that any member State that fails to comply with the decisions and policies of the Union may be subjected to sanctions, such as denial of transport and comCf. Dinah Shelton: The Role of Non-Binding Norms in the International Legal System, Oxford 2000. 112 The International Labour Organization has an express provision in Art. 19 (6) (cf. 5) of its constitution. 113 Cf. M. Diez de Velasco, Las Organizaciones Internacionales, op. cit., pp. 109–12 and 9th ed. (1995), pp. 129–30; A. Cassese: “Consensus and Some of its Pitfalls” in Rivista de diritto internazionale, LVIII (1975) pp. 754–61; and Schermers and Blokker, op. cit., § 775, pp. 525–6. 111

extended jurisdiction of some organizations 221 munication links with other member States, and other measures of a political and economic nature to be decided by the Assembly. According to Article 7 the Assembly shall take its decisions by consensus or, failing this – which would normally be hard to achieve when preparing to impose sanctions on a member State being in arrears of commitments to the organization – by a two-thirds majority. Chapter VI of the Convention on International Civil Aviation of 7 December 1944, which is the constitution of ICAO, provides that the Council of ICAO by majority decisions shall adopt and amend from time to time “international standards and recommended practices and procedures” on a number of matters concerned with the safety, regularity and efciency of air navigation (Articles 37, 52 and 54 (1)). States which do not comply shall notify all other States through ICAO, and their aircraft which do not satisfy the international standards may not enter the territory of other States without their consent (Articles 38–40). A similar procedure applies in the International Monetary Fund. Under Article IV 5 of its original constitution of 1945 it might object to changes that member States proposed to make in the par value of their currencies. Decisions were to be taken by majority vote according to a weighted voting system, each member having 250 votes plus votes in proportion to its investment share in the Fund (Article XII 5). “If a member changes the par value of its currency despite the objection of the Fund, in cases where the Fund is entitled to object, the member shall be ineligible to use the resources of the Fund unless the Fund otherwise determines” (Article IV 6). And “if, after the expiration of a reasonable period, the difference between the member and the Fund continues” the Board of Governors may require the member to withdraw from membership in the Fund. It followed from an a contrario interpretation of the term “obligation” in Article XV 2 (b) that members were not considered to be under a legal obligation in the technical sense to refrain from making the change that the Fund objected to, but the member had to accept the sanctions if it did not make the change.

Unanimous decisions which become binding when implemented or approved or not objected to by the member States (simplied treaty procedure) The constitution of the Organization for Economic Co-operation and Development 114 (OECD) of 14 December 1960 provides in Articles 5 and 6 that:

114

Cf. Puissochet: Jurisclasseur OECD, pp. 13–16.

222 chapter six In order to achieve its aim, the Organisation may: (a) take decisions which as otherwise provided, shall be binding on all the Members; ......... 1. Unless the Organisation otherwise agrees unanimously for special cases, decisions shall be taken and recommendations shall be made by mutual agreement of all the Members. 2. Each Member shall have one vote. If a Member abstains from voting on a decision or recommendation, such abstention shall not invalidate the decision or recommendation, which shall be applicable to the other Members but not to the abstaining Member. 3. No decision shall be binding on any Member until it has complied with the requirements of its own constitutional procedures. The other Members may agree that such a decision shall apply provisionally to them.

The Pact of the League of Arab States of 22 March 1945 provides in Article VII (cf. Article VII): Decisions of the Council taken by a unanimous vote shall be binding on all the member States of the League; those that are reached by a majority vote shall bind those that accept them. In both cases the decisions of the Council shall be executed in each State in accordance with the fundamental structure of that State.

The Antarctic Treaty of 1 December 1959 – which is concerned inter alia with protection of the environment – provides in Article IX (1) and (4): 1. Representatives of the Contracting Parties named in the preamble to the present Treaty shall meet at suitable intervals and places, for the purpose of exchanging information, consulting together on matters of common interest pertaining to Antarctica, and formulating and considering, and recommending to their Governments, measures in furtherance of the principle and objectives of the Treaty, including measures regarding: (a) use of Antarctica for peaceful purposes only; (b) facilitation of scientic research in Antarctica; (c) facilitation of international scientic co-operation in Antarctica; (d) facilitation of the exercise of the rights of inspection provided for in Article VII of the Treaty; (e) questions relating to the exercise of jurisdiction in Antarctica; (f ) preservation and conservation of living resources in Antarctica. ... 4. The measures referred to in paragraph 1 of this Article shall become effective when approved by all the Contracting Parties whose representatives were entitled to participate in the meetings.

extended jurisdiction of some organizations 223 The Convention of February 1972 for the Preventions of Marine Pollution by Dumping from Ships and Aircraft provides in Article 18 (2): Recommendations for modication of the Annexes to this Convention in accordance with Article 17 (d) shall be adopted by a unanimous vote in the Commission, and the modications contained therein shall enter into force after unanimous approval by the Governments of the Contracting Parties.

The provisions of these organizations follow in substance the regular treatymaking procedure (i.e. subject to ratication) – the difference being the formal and simplifying one, that the binding text is approved orally at a meeting (by resolution), rather than embodied in an instrument signed by all parties (treaty). Less specic provisions are found in Article 3 (2) of the Inter-American Treaty of Reciprocal Assistance of 1947, which provides, inter alia, that the Organ of Consultation shall “agree” upon “the measures of a collective character that should be taken” – and in Article 6 of the constitution of the Caribbean Commission of 30 October 1964, which provides that decisions other than those relating to procedure shall not be taken without the concurrence of the representatives of all members. It is not stated whether these decisions are subject to subsequent national approval or whether any national constitutional requirements are presumed to have been complied with before the decision is made in the Commission. The Nordic Co-operation Agreement of 23 March 1962, as revised, notably by an agreement of 13 February 1971 and by later amendments, provides in Article 62 that the decisions of the Nordic Council of Ministers shall be unanimous. Article 63 provides: The decisions of the Council of Ministers are binding for the several countries. Decisions which under a country’s constitution requires approval by the publicly elected assembly, are not binding upon that country until the assembly has approved the decision. If such approval is required, the Council of Ministers shall be informed before making its decision. The other countries, too, are not bound by the decision before the approval has been obtained.

These various provisions imply in fact a simplied treaty procedure.

Unanimous decisions binding upon adoption In some cases binding decisions are made without basis in any provision of the constitution or other treaty. The Council of the European Union sometimes makes unanimous binding decisions – referred to in German as “uneigentliche

224 chapter six Organbeschlüsse” – outside the eld where it has competence to make binding decisions under the (Community) Treaties.115 This implies that they take off their EU-hats and constitute themselves as an intergovernmental conference and enter into an oral treaty. Also the Council of the North Atlantic Treaty Organization makes unanimous decisions – without basis in any provision of the North Atlantic Treaty of 4 April 1949. These, too, are said to become binding upon those members who vote in favour; however, this may be in a political rather than in a legal sense. Unanimous decisions by some other organizations have similarly been considered binding. Such decisions may fall outside the realm of the internal law of the organization. In other cases there are express provisions to the effect that decisions become binding upon all member States – or upon all States that vote in favour – from the moment the vote has been taken: The forerunner of the OECD, the Organization for European Economic Cooperation (OEEC) – which was a strictly regional organization having regular members only in Western Europe – had a stronger provision than the subsequent and broader OECD (above) in Article 14 of its constitution of 16 April 1948: Unless the Organization otherwise agrees for special cases, decisions shall be taken by mutual agreement of all the Members. The abstention of any Members declaring themselves not to be interested in the subject under discussion shall not invalidate decisions, which shall be binding for the other Members.

The constitution of the European Free Trade Organization (EFTA) of 4 January 1960, as amended by the Vaduz Treaty of 21 June 2001, provides in Article 43 (4–5): 4. In exercising its responsibility under paragraph 1 of this Article, the Council may take decisions which shall be binding on all Member States and make recommendations to Member States. 5. Decisions and recommendations of the Council shall be made by unanimous vote, except in so far as this Convention provides otherwise. Decisions or recommendations shall be regarded as unanimous unless any Member State casts a negative vote. Decisions and recommendations which are to be made by majority vote require the afrmative vote of three Member States.

The Pact of the League of Arab States of 22 March 1945 provides in Article 7: The decisions of the Council taken by a unanimous vote shall be binding on all the member States of the League; those that are reached by a majority vote shall bind only those that accept them.

115

See Heinz Wagner: Grundbegriffe des Beschlussrechts des Europäischen Gemeinschaften, Cologne 1965, pp. 224–24.

extended jurisdiction of some organizations 225 In both cases the decisions of the Council shall be executed in each State in accordance with the fundamental structure of that State.

The constitution of the European Community provides in Article 308: If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.

The Governing Board of the International Energy Program shall, under Article 61 of the Agreement on an International Energy Program of 18 November 1974 make most of its substantive decisions by unanimity, “in particular decisions which impose on Participating Countries new obligations not already specied in this Agreement”. These “shall be binding on the Participating Countries” (Article 52).

Majority decisions binding upon States that do no opt out The Board of Governors of the International Monetary Fund could – under Article IV 7 of its constitution of 1945, by majority decision under its weighted voting system – “make uniform proportionate changes in the par value of the currencies of all members provided each such change is approved by every member that has ten percent or more of the total of the quotas”. The change did not apply to members who objected within 72 hours. This provision was later taken out of the constitution. Article 21 of the constitution of the World Health Organization of 22 July 1946 provides: The Health Assembly shall have authority to adopt regulations concerning: (a) sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease; (b) nomenclatures with respect to diseases, causes of death and public health practices; (c) standards with respect to diagnostic procedures for international use; (d) standards with respect to the safety, purity and potency of biological, pharmaceutical and similar products moving in international commerce; (e) advertising and labelling of biological, pharmaceutical and similar products moving in international commerce.

Article 22 provides: Regulations adopted pursuant to Article 21 shall come into force for all Members after due notice has be given of their adoption by the Health Assembly except for such Members as may notify the Director-General of rejection or reservation within the period stated in the notice.

226 chapter six It is expressly stated e.g. in Article 105 (1) of WHO Regulations No. 2 (International Sanitary Regulations) that the Regulations apply “as between the States bound by these Regulations and as between these States and the Organization”. In practice the regulations are adopted by consensus. If not, they should be considered as “important questions”, which under Rule 72 of the rules of procedure require a two-thirds majority, even if they are not expressly listed as important questions. These patterns of qualied majority decisions which become binding upon all members who do not object (reserve their position, opt out) within specied time period, have also been adopted in several conventions for the conservation of the living resources of the sea. Thus the International Convention for the Regulations of Whaling of 2 December 1946 provided in Article V (1), cf. Article III (1) that the International Whaling Commission may adopt regulations with respect to the conservation and utilization of whale resources, xing: (a) protected and unprotected species; (b) open and closed seasons; (c) open and closed waters, including the designation of sanctuary areas; (d) size limits of each species; (e) time, methods, and intensity of whaling (including the maximum catch of whales to be taken in any one season); (f ) types and specications of gear and apparatus and appliances which may be used; (g) methods of measurement; (h) catch returns and other statistical and biological records.

Under Article V (3) these regulations shall become effective with respect to all Contracting Governments which have not presented objection within 90 days. The convention of 18 November 1980 on Future Multilateral Cooperation in North East Atlantic Fisheries established a North-East Atlantic Fisheries Commission to adopt, by qualied majority, “recommendations concerning sheries conducted beyond the areas under sheries jurisdiction of Contracting Parties” (Article 5). Under Article 12 a “recommendation” shall become binding on Contracting Parties which have not objected within specied time limits. “If three or more Contracting Parties have objected to a recommendation it shall not become binding on any Contracting Party”. The North-West Atlantic Fisheries Convention of 8 February 1949 contains similar provisions in Article VII with an additional provision giving the members the right to denounce the decision after one year. The Convention on the Conservation of Antarctic Marine Living Resources of 20 May 1980 provides in Article IX that the Commission for the Conservation of Antarctic Marine Living Resources shall, inter alia, “formulate, adopt

extended jurisdiction of some organizations 227 and revise conservation measures on the basis of the best scientic evidence available”. The conservation measures shall be decided by the Commission by consensus (Article XII) and “shall become binding upon all Members of the Commission” who do not reserve their position within 90 days (Article IX 6). The Agreement for the Establishing of the Indian Ocean Tuna Commission, approved by the FAO Council on 25 November 1993, provides that conservation and management measures adopted by a two-thirds majority shall become binding upon all members who do not object. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) of 3 March 1973, provides in Article XV that amendments to Appendices I and II “shall be adopted by a two-thirds majority of Parties present and voting” and that “Amendments adopted at a meeting shall enter into force 90 days after that meeting for all Parties except those which make a reservation in accordance with paragraph 3 of this Article”. The last paragraph of the article provides that during a period of 90 days any party may by notication in writing to the Depositary Government make a reservation with respect to the amendment. Until such reservation is withdrawn, the Party shall be treated as “a State not a party to the present Convention with respect to trade in the species concerned”. La Commission Centrale pour la Navigation du Rhin takes its decisions by majority or unanimity. In the latter case, the decisions are binding unless governments within one month refuse approval or make reservations. Majority decisions binding upon members who do not object have also been adopted under many maritime regulatory conventions, but partly by more complicated provisions. Thus, the International Convention of 1978 on Standards of Training, Certication and Watchkeeping for Seafarers provides in Article XII (1) (a) (vii)–(ix) that an amendment to the Annex to the Convention (not to an article of the Convention itself ) shall be deemed to have been accepted two years (or less) after it was communicated to the Parties for acceptance unless “more than one third of Parties or Parties the combined merchant eets of which constitute not less that 50 per cent of the gross tonnage of the world’s merchant shipping of ships of 100 gross register tons or more notify the Secretary-General that they object to the amendment”. If objections are raised only by a smaller part of the Parties the “amendment to the annex shall enter into force with respect to all Parties except those which have objected”. Similarly, the complicated convention on Prevention of Pollution from Ships (MARPOL) of 2 November 1973 (cf. Additional Protocol of 17 February 1978) provides, inter alia, in Article 16 (2) (g) (iii) that:

228 chapter six an amendment to an appendix to an Annex to the Convention shall be deemed to have been accepted at the end of a period to be determined by the appropriate body at the time of its adoption, which period shall be not less than ten months, unless within that period an objection is communicated to the Organization by not less than one third of the Parties or by the Parties the combined merchant eets of which constitute not less than 50 per cent of the gross tonnage of the world’s merchant eet whichever condition is fullled;116

Similar complicated provisions are contained in Article VIII (b) (vi) (2) of the Safety of Life at Sea (SOLAS) convention of 1. November 1974, which entered into force on 25 May 1980. The much simpler provision in Article VI of the Convention on International Regulations for Preventing Collisions at Sea of 1972 implies that amendments to the Regulations “adopted by a two-thirds majority of those present and voting in the Assembly” of the International Maritime Organization shall – unless “more than one third of the Contracting Parties notify the Organization of their objection to the amendment” – “for all Contracting Parties which have not objected to the amendment, replace and supersede any previous provision to which the amendment refers”. The International Convention on Load Lines of 1966 provides, in Article 29 (2), that any amendment to the Convention: shall enter into force twelve months after the date of its acceptance by all Contracting Governments unless an earlier date is agreed upon. A Contracting Government which does not communicate its acceptance or rejection of the amendment to the Organization within three years of its rst communication by the latter shall be deemed to have accepted the amendment.

Article 29 (3) provides an alternative procedure for “amendment after consideration in the Organization”, viz. that an amendment “adopted by a twothirds majority of those present and voting in the Assembly” and subsequently accepted by two-thirds of the members “shall come into force with respect to all Contracting Governments except those which, before it comes into force, make a declaration that they do not accept the amendment”. Weaker provisions are contained in Article 17 (3) and (4) of the Basel Convention on Movements of Hazardous Wastes of 22 March 1989 and in the Chicago Convention on International Civil Aviation of 7 December 1944 Article 37. The former reads: 3. The Parties shall make every effort to reach agreement on any proposed amendment to this Convention by consensus. If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be

116

Italics added.

extended jurisdiction of some organizations 229 adopted by a three-fourths majority vote of the Parties present and voting at the meeting, and shall be submitted by the Depositary to all Parties for ratication, approval, formal conrmation or acceptance. 4. The procedure mentioned in paragraph 3 above shall apply to amendments to any protocol, except that a two-thirds majority of the Parties to that protocol present and voting at the meeting shall sufce for their adoption.

The Chicago Convention provides in Article 37 that the International Civil Aviation Organization “shall adopt and amend from time to time, as may be necessary, international standards and recommended practices and procedures dealing with” safety of air trafc and other matters. Article 38 provides: Any State which nds it impracticable to comply in all respects with any such international standard or procedure, or to bring its own regulations or practices into full accord with any international standard or procedure after amendment of the latter, or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, shall give immediate notication to the International Civil Aviation Organization of the differences between its own practice and that established by the international standard. In the case of amendments to international standards, any State which does not make the appropriate amendments to its own regulations or practices shall give notice to the Council within sixty days of the adoption of the amendment to the international standard, or indicate the action which it proposes to take. In any such case, the Council shall make immediate notication to all other States of the difference which exists between one or more features of an international standard and the corresponding national practice of that State.

The methods listed so far are in substance parallel to treaty-making in so far as no State is bound involuntarily. The decisions are in fact oral treaties or other simplied treaty procedure. It is a matter of interpretation of the constitution and of each decision – and more specically of the custom of the organization concerned – whether the decisions become binding upon adoption (i.e. any national constitutional requirements having been complied with in advance of the decision) or whether they are subject to subsequent approval according to each State’s constitutional requirements. The great advantage of the methods – as compared to formal treaty-making or amendment – is that they are more expedient and make it simpler to revise existing provisions. However, there are also examples of genuine IGO legislation or other jurisdiction over member States in form of binding majority decisions.

230 chapter six Majority decisions binding upon all members117 We have several constitutional provisions to the effect that decisions adopted by a qualied majority become binding upon all member States – without other right to opt out than to denounce membership. This is the most effective method of international legislation – short of supranational jurisdiction. A broad example is the amendment of IGO constitutions by a qualied majority vote, as exemplied by Article 108 of the UN Charter, which was quoted above as such provision usually concern organizational, rather than functional (substantive) matters. A special, but important, substantive example is the UN Security Council.118 Under Article 25 and Chapter VII of the UN Charter members of the UN (including the great majority who are not represented on the Council) are bound by decisions of the Security Council119 made by qualied majority. An example is the sanctions against Iraq.120 In its binding resolutions the Security Council (already before membership of the UN became universal) even call upon “all States” to comply, cf. Article 2 (6) of the Charter, which provides: The Organization shall ensure that States which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.121

Also organizations of the States, including the UN itself and its specialized agencies, must comply although they are distinct legal persons. This course 117

118 119

120 121

Cf. D.W. Bowett, op. cit., pp. 140–7, 344 and 401–11 and Schermers and Blokker, op. cit., §§ 789 and 867. On the whole problem of the unanimity rule and the exceptions to it after the establishment of the League of Nations, see Tammes: Hoofdstukken van internationale organisatie, pp. 74–134. Cf. K. Herndl: “The “forgotten” competences of the Security Council” in Verantwortung in unserer Zeit, Festschrift für Rudolf Kirchschläger, 1990, pp. 83–91. This was conrmed by the International Court of Justice in its advisory opinion on Namibia (ICJ Reports, 1971, p. 53) – On the competence to lift sanctions, see an article by the then Legal Counsel of the UN, Erik Suy: “Some Legal Questions Concerning the Security Council” in I. von Münch (ed.): Festschrift für Hans-Jürgen Schlochauer, Berlin 1981, pp. 677–89 and D. Sarooshi: The United Nations and the Development of Collective Security. The Delegation by the UN Security Council of its Chapter VII Powers, Oxford 1999. Cf. resolution 687 (1991) – and resolution 715 (1991) on monitoring and verication. Thus, in para. 8 of its resolution of 31 March 1998 (UNSCR 1160) the Council “Decides that all States shall, for the purposes of fostering peace and stability in Kosovo, prevent the sale or supply to the Federal Republic of Yugoslavia, including Kosovo, by their nationals or from their territories or using their ag vessels and aircraft, of arms and related matériel of all types, such as weapons and ammunition, military vehicles and equipment and spare parts for the aforementioned, and shall prevent arming and training for terrorist activities there”.

extended jurisdiction of some organizations 231 was followed by the organizations in respect of the sanctions against Iraq, although Security Council resolution 661 of 6 August 1990 merely “calls upon all States (italics added), including States non-member of the United Nations, to act strictly in accordance with the present resolution”, and although different terms were used in the different specialized agencies on the legal aspects for the extension of this to include the organizations. The Arab League Treaty of Joint Defence and Economic Co-operation of 18 June 1950 established a military alliance with provisions for automatic collective self-defence similar to those of NATO. However, in contradistinction to the North Atlantic Treaty, the Arab League Joint Defence Treaty provides, in its Article 6, that the Joint Defence Council, composed of the Foreign and Defence Ministers or their representatives, shall make its decisions concerning the implementation of the treaty by a majority of 2/3 and (expressly) that these decisions “shall be binding on all the Contracting States”. An example in the eld of protection of the environment is the Convention on the Regulation of Antarctic Mineral Resource Activities of 2 June 1988, which by its Articles 21–22 and 41–42 authorize the Antarctic Mineral Resources Commission to make decisions by three-quarters majority (or by consensus in some cases) for a number of purposes, including: Designation of “areas in which Antarctic mineral resource activities shall be prohibited or restricted” (Arts. 21 (1) (b) and 13) Adoption of “measure for the protection of the Antarctic environment” (Art. 21 (1) (c)) Identication of “an area for possible exploration and development” (Art. 21 (1) (d)) and Determination of maximum drilling depths (Arts. 1 (8) and 21 (1) (e) (ii)).

Another environmental example is the Montreal Protocol of 16 September 1987 to the Vienna Convention for the Protection of the Ozone Layer of 22 March 1985. It provides inter alia that the Parties by unanimity or a two-thirds majority may decide adjustments to the ozone depleting potentials specied in the Annex to the Protocol. The relevant parts of Article 2 read: 9. (a) Based on the assessments made pursuant to Article 6, the Parties may decide whether: (i) adjustments to the ozone depleting potentials specied in Annex A should be made and, if so, what the adjustments should be; and (ii) further adjustments and reductions of production or consumption of the controlled substances from 1986 levels should be undertaken, and if so, what the scope, amount and timing of any such adjustments and reductions should be; (b) Proposals for such adjustments shall be communicated to the Parties by the secretariat at least six months before the meeting of the Parties at which they are proposed for adoption.

232 chapter six (c) In taking such decisions, the Parties shall make every effort to reach agreement by consensus. If all efforts at consensus have been exhausted, and no agreement reached, such decisions shall, as a last resort, be adopted by a two-thirds majority vote of the Parties present and voting representing at least fty per cent of the total consumption of the controlled substances of the Parties. (d) The decisions, which shall be binding on all Parties, shall forthwith be communicated to the Parties by the Depositary. Unless otherwise provided in the decisions, they shall enter into force on the expiry of six months from the date of the circulation of the communication by the Depositary. 10. (a) Based on the assessments made pursuant to Article 6 of this Protocol and in accordance with the procedure set out in Article 9 of the Convention, the Parties may decide; (i) whether any substances, and if so which, should be added to or removed from any annex to this Protocol; and (ii) the mechanism, scope and timing of the control measures that should apply to those substances: (b) Any such decision shall become effective, provided that it has been accepted by a two-thirds majority vote of the Parties present and voting.

A rather special provision is Article 76 (8) of the UN Convention on the Law of the Sea of 10 December 1982: Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be nal and binding.

Thus, if the Commission’s recommendation to the coastal State is applied by the latter, the parties to the Law of the Sea Convention are bound by the limits thus approved. Under Article 6 (2) of Annex II to the convention, the Commission shall decide by a majority of two thirds. The International Civil Aviation Organization (ICAO), under Articles 12 and 90 of its constitution, adopts – by a two-thirds majority vote of its Council – binding rules for air trafc over the high seas. These shall be applied and enforced by the member States. However, these regulations are (so far) not territorial provisions for air-space in general, but apply only to aircraft of or registered with the member States, and are enforced by these severally.122

122

See J. Carroz: “Die internationale Gesetzgebung für die Luftfahrt über hoher See” in Zeitschrift für Luftrecht, VIII (1959), pp. 3–24, English version in The Journal of Air Law and Commerce, XXVI (1959), pp. 158–172.

extended jurisdiction of some organizations 233 This is thus not territorial jurisdiction, but merely rules which become binding upon the contracting States, although this limitation means little in practice in the case of an organization with global membership. The same is true of the several regional conventions which regulate sheries on the high seas and in coastal zones, e.g. the weak and complicated convention on North-East Atlantic Fisheries of 18 November 1980. A more limited example is Article IX 2 of the Agreement of 15 April 1994 Establishing the World Trade Organization, which provides: “The Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements” and these decisions “shall be taken by a three-fourths majority of the Members”. It may be added that binding rules applicable to two or a few States may also be laid down by an arbitral commission or an international organization entrusted with this task by the States concerned. An example of the latter is the guarantees to inhabitants of the Åland Islands which the Council of the League of Nations undertook to determine in 1921, when it decided to accord the sovereignty over these islands of Swedish-speaking population to Finland. In actual fact, the task was solved by the two countries agreeing on the text of the guarantees in negotiations presided over by a member of the Council, so that the Council could simply approve them and annex them to its resolution.123 However, the behind-lying power of the Council may have been a factor to make the parties agree. An example of rules laid down by an arbitral commission was the Geneva Convention on Fishing and Conservation of the Living Resources of the High Sea of 29 April 1958 which never entered into force. It provided in Article 4: 1. If the nationals of two or more States are engaged in shing the same stock or stocks of sh or other living marine resources in any area or areas of the high seas, these States shall, at the request of any of them, enter into negotiations with a view to prescribing by agreement for their nationals the necessary measures of the conservation of the living resources affected. 2. If the States concerned do not reach agreement within twelve months, any of the parties may initiate the procedure contemplated by Art. 9.

Article 9 provided for an arbitration procedure by an ad hoc commission, composed of individuals and deciding by majority. No such procedure is foreseen in Articles 116–120 of the 1982 Law of the Sea Convention.

123

Tore Modeen: De folkrättsliga garantierna för bevarandet av Ålandsöarnas karaktär, Åbo 1973, pp. 33–36.

234 chapter six The European Community also employs decision-making by (weighted) qualied majority in the Council to quite some extent. This often also implies comprehensive (supranational) jurisdiction, which will be dealt with below.

Decisions binding upon non-member States We even have organizations which have been authorized to make decisions which become binding upon the States concerned even if they are not members of the organization. Unless otherwise provided, the organization will then apply its own internal law in adopting and implementing such decisions. One example is the peace treaties concluding World Wars I and II. These, inter alia, referred the nal determination of certain territorial questions to the Council of the League of Nations and the General Assembly of the UN respectively. Thus, Article 3 (2) of the Treaty of Lausanne after World War I referred the question of the delimitation of the frontier between Turkey and Iraq to the Council of the League of Nations, and Annex XI to the Treaty of Peace with Italy after World War II, referred the question of the disposition of the former Italian colonies to the UN General Assembly. At the time of conclusion of these treaties, the defeated powers had not yet been admitted to membership in the League or the UN, respectively. The Permanent Court of International Justice held that if in such cases there was no special provision to the contrary, the general rules of the organization and procedure of the organ to which the matter had been referred (in casu the rule of unanimity with the limitation that the votes cast by the interested parties do not affect the required unanimity) would apply. Another example is the great number of treaties which authorized the Presidents of the Permanent Court of Justice and the International Court of Justice and the UN Secretary-General, respectively, to appoint arbitrators in disputes irrespective of whether the parties to the disputes were members of the League or the UN or parties to the Statute of the Court.124 Other examples are the original and the revised General Acts for the Pacic Settlement of International Disputes of 26 September 1928 and 28 April 1948,125 which were open for accession also by States which were not members of the League of Nations or of the UN. These conventions authorized the President

Already in 1948 the Systematic Survey of Treaties for the Pacic Settlement of Disputes, published by the UN, could quote 37 such treaties at pp. 100–105. 125 League of Nations Treaty Series Vol. CVII, p. 564 and UNTS Vol. LXXI, p. 101, respectively. 124

extended jurisdiction of some organizations 235 of the Organization’s Court of Justice in the Hague to appoint arbitrators if it proved impossible to have these appointed in the prescribed way. Similarly, the peace treaties concluded after World War II with the Axis satellites that were at that time not members of the UN, provided for appointment by the UN Secretary-General of the third member of the commission designated to settle disputes.126

Are binding decisions of intergovernmental organizations “treaties” in relation to national constitutions? The question whether each new binding decision adopted by the organization must be considered a new treaty requiring compliance with national constitutional requirements for approval of treaties, including approval by Parliament if required, is a matter of interpretation of the basic treaty (in most cases the constitution of the organization concerned) and of the national constitution concerned. (a) If the basic treaty provides for decisions binding upon all members to be taken by a (qualied or simple) majority, this implies a delegation of power which obviates further national steps of approval of each decision (but not of implementation in national law wherever required). This may be the correct interpretation even if there is a right to opt out, because this is usually subject to time limits which hardly were intended to sufce for normal ratication and legislation procedures. (b) If the basic treaty requires unanimity, the States are not committed until they vote in favour. It may then be argued that each new decision is, in substance, a new treaty. However, one of the reasons why a different form was chosen will normally have been a desire to simplify and expedite the procedure to avoid the complications and delays involved in compliance each time with national constitutional requirements. It will then be more appropriate to interpret even a treaty requiring unanimity as implying a delegation of power to the organization. (c) More doubtful is the position if there is provision for a right to opt in. An example is the bilateral agreement between the International Energy Agency (IEA) and Norway of 7 February 1975 which associated Norway with the work of the IEA, with a right, but no obligation, to accept (and thereby

126

See e.g. Arts. 35 and 40 of the Treaty of Peace with Hungary (UNTS Vol. 41 pp. 206–210), cf. the advisory opinion of the International Court of Justice of 18 July 1950 (Recueil des arrêts, 1950, p. 221).

236 chapter six become internationally bound by) each specic decision unanimously adopted by the regular members of the IEA.127 (d) Indeed, one of the practical advantages of international regulations is precisely that binding decisions authorized in the constitution or other treaty, do not constitute new treaties for national constitutional purposes. Once the treaty laying down the power of an IGO to make binding decisions has been approved in the manner prescribed in the national constitution – including Parliamentary approval as appropriate – it should not be necessary to submit each so authorized decision to Parliament before adoption.

Effects of binding substantive decisions in national, international and internal law (a) Decisions by IGOs which are binding upon the member States become part of the (extended) internal law of the organization and must be applied also by external parties when their conicts law refers to the law of the organization. (b) However, the decisions also establish particular public international law – in relation between subjects of that law (the organization and its member States). The decisions must be applied in that law – together with its other customary and general principles. If binding IGO-regulations are not listed in Article 38 of the Statute of the International Court of Justice as one of the sources to be applied by the Court, this is probably due to the fact that the system of binding regulations was relatively unknown in 1945. However, such regulations may also be considered as covered by Article 38 a, since the binding force of substantive regulations normally follows from constitutional or other conventions. As for priority, IGO regulations cannot take precedence over the treaties which authorize the organization to enact the regulations.

127

When Norway on 20 May 1976 informed the IEA that it accepted the decision on a long-term co-operation program which the IEA had adopted in January of the same year under its constitution of 15 November 1974, Norway did so with adequate political backing from the majority political parties, but without formal parliamentary approval as the constitution requires for entering into new treaty obligations. It is a matter of interpretation of the basic agreement and its submission for parliament approval whether such approval implied a delegation of power to the organization to make specic decisions (this should, of course, have been made clear when the basic treaty was approved). It appears, however, also in this case to have been a purpose of the procedure to establish a more efcient rule – and decision-making procedure – than could be provided by the traditional treaty-making procedure. This simplication at the international level would obviously be rendered less effective if the State internally were to treat each decision as a new “treaty”.

extended jurisdiction of some organizations 237 Otherwise the regulations are equal to treaties and the other sources: The later takes precedence, whether it is a treaty, a binding decision or customary law. (c) In national law the effects of binding decisions are in principle those of treaties. However, in most countries provisions have been made to assure that, once the IGO constitution or other authorizing treaty has been ratied in accordance with the national constitution, it is not necessary to repeat these constitutional procedures for each new regulation. It is this latter fact which gives the great, simplifying and time-saving effect which is the main purpose of the method of binding decisions, as compared to treaties. However, this depends upon to what extent also implementing authority has (thereby) been delegated to the executive branch of government. (d) As for hierarchical order – i.e. priority in case of conict – there is a basic difference between national and internal law, on the one hand, and public international law on the other. Both national and internal law have a clear hierarchical system: The constitution takes precedence over regulations and decisions by organs, and regulations and decisions by higher (principal) organs take precedence over those enacted by lower (subsidiary) organs. In international law, however, the sources (treaty and custom) are equal: The later takes precedence over the earlier. However, if binding substantive regulations and decisions of IGOs are considered part of public international law in so far as they establish rights and duties for States and IGOs, this cannot alter the fact that these regulations enacted by IGOs are subject to a hierarchical order of priority which places them below the conventions which authorize their enactment. This is a good reason for keeping even substantive binding decisions within the concept of internal, rather than international law. (e) Similarly, the question arises whether even binding IGO decisions, because of their effects, must be considered as treaties in relation to national constitutional provisions on conclusion of treaties – notably whether each new decision must be submitted to the relevant constitutional requirements, e.g. approved by Parliament, if its contents so require because the decision establishes new rules binding upon the State. The prime purpose of the modern procedure of binding substantive decisions is to simplify and thereby facilitate their adoption. However, it is equally important to facilitate their implementation in each country. This new source of (IGO and international) law was not sufciently developed in 1946 to be included in the list of sources enumerated in Article 38 of the Statute of the International Court of Justice. The Institut de droit international in its 1993 resolution on “The activities of national courts and the international relations of their State”, gave a (not too clear) indication in Article 6, which reads

238 chapter six National courts should determine with full independence the existence or content of any general principle of law in accordance with Article 38 (1) of the Statute of the International Court of Justice, as well as of binding resolutions of international organizations.128

It is submitted that it is an important purpose of binding IGO decisions also that they shall be quickly implemented in each member State. It is therefore a natural part of the ratication process of the IGO constitution that national provisions are made for implementation of the binding decisions automatically or by simple administrative measure.

Comprehensive (supranational) jurisdiction The nal – and most far-reaching – type of extended jurisdiction is the socalled supranational jurisdiction. This is comprehensive, in so far as within dened substantive areas, the organization takes over direct jurisdiction in its member States, both territorial and personal – in addition to the power to make decisions binding upon the member States themselves. This is thus not merely jurisdiction over member States as described above, but direct comprehensive jurisdiction in member States. The international river commissions may be seen as a modest example. They do not exercise full territorial jurisdiction over the rivers, but jurisdiction over everything and everybody concerned with navigation on the rivers. The European Community represents the obvious and to date the most fully developed example of supranational jurisdiction, rst and foremost characterized by community competence over broad policy areas related to upholding the freedoms of the internal market, trade policy and to resource management, primacy of community legislation also in national forums and direct effect of community legal acts in national law of the member States regardless of existing national implementing action. Decision-making is mostly by (weighted) majority voting, see below chapter 6.5. This very special organization is wellknown and amply described in a rich literature and will not be described in the present book on common law of IGOs except that we shall in Part Four have a look at the position of Community law in conict of laws.129 A similar

128 129

Annuaire de l’Institut de droit international, Vol. 65 II (1994), p. 323, italics supplied. On the external aspects reference is also made to Kapteyn and VerLoren van Thermaat: Introduction to the Law of the European Communities, 3rd ed., London, the Hague, Boston 1998, pp. 771–88, cf. also Rachel Frid: The Relations between the EC and International Organizations, the Hague 1995.

extended jurisdiction of some organizations 239 system of direct effect in member States is foreseen in the treaty framework establishing the Andean Community.130

6.5

Legal basis for extended jurisdiction

Does extended jurisdiction require constitutional authority? It will be seen that in most cases where an IGO has assumed territorial jurisdiction, and in some cases of personal jurisdiction, there was no provision authorizing this in the constitution of the organization concerned. On the other hand, several cases of jurisdiction over member States were laid down in express constitutional provisions. Examples are: International courts which have compulsory jurisdiction under the treaty creating them (mostly ad hoc courts), boundary commissions, the Arab League Article 7, the International Whaling Commission Article III 2 cf. Article V, OEEC Article 14 cf. Article 13 (a), and the UN Security Council. In the last mentioned case the constitution even contains cumulative provisions.131 However, in the greater number of cases even the jurisdiction over States in substantive matters has not been conferred or authorized by constitutional provisions, but separate inter-State treaty or by other acts. In this manner organizations have been able to acquire functional jurisdiction also over non-member States and/or functional jurisdiction not necessarily including all member States. It is thus clear that no constitutional provision is necessary to enable IGOs to exercise jurisdiction over States, members or non-members. All that is required is that the States concerned have given their consent in some form or other, expressly or tacitly. We even have examples where IGOs in fact have made decisions binding upon States which had not consented to being bound.132 Indeed, binding decisions authorized in the constitution or in other treaty are

Comunidad Andina de Naciones (CAN), cf. The Treaty creating the Court of Justice of the Cartagena Agreement, as amended by the Protocol of Cochabamba 28 May 1996, Article 3, which provides that: “Decisions of the Andean Council of Foreign Ministers or of the Commission and Resolutions of the General Secretariat shall be directly applicable in Member Countries as of the date they are published in the Ofcial Gazette of the Agreement, unless they indicate a later date”. Article 4 of the Protocol imposes on Member States the obligation to take the necessary measures to comply with such decisions of the organization. 131 Article 25 and Chapter VII of the UN Charter. 132 Sloan BYIL (XXV) 1948, pp. 21–25. 130

240 chapter six a simpler and more efcient method than going through the treaty-making procedure every time rules have to be amended or added.133

Regulations contra treaties Despite the great number of constitutional and other provisions for binding IGO-decisions listed above, the traditional recommendations and conventions still remain the basic tool of unifying national rules of international concern in non-supranational organizations. Even organizations as the World Health Organization, which have the power under their constitutions to adopt binding regulations, continue to use the traditional methods of conventions and, especially, of non-binding recommendations.134 However, conventions take a long time to negotiate, ratify and enter into force – without on the other hand offering any assurance of ratication and implementation by all States. This complicates and delays current amendments required to keep up with developments. Binding decisions is a more expedient and effective method. This was why the Hague Declaration on the environment of 11 March 1989 by 24 Heads of State and Government called for “a new approach [. . .] including new and more effective decision-making and enforcement mechanisms”.

Protection of the environment It will be seen from the various provisions cited in chapter 6.3 above, that a number of IGOs have the power to make binding decisions in specic elds of environmental protection – including conservation of the living resources of the sea, protection of the ozone layer in the atmosphere and environment protection in Antarctica (generally – and for marine and mineral resources in particular). Other organizations have powers which could be used for protection of the environment. However, none of these powers extends so far as those of the UN Security Council, whose decisions are binding also for States which do not take part in the decision-making.

Cf. the memorandum submitted by J. Hostie, legal expert-counsellor at the WHO at the time of the introduction of the World Health Regulations (WHO document A/3–4/SR 4 of 16 March 1951). 134 Cf. a paper prepared by the Legal Counsel of the WHO in 1989 on “The World Health Organization’s Contribution to International law”. 133

extended jurisdiction of some organizations 241 Weighted voting The present system in the UN and most other international organizations is “one member one vote”, which implies that a State of 100.000 inhabitants has the same voting weight as a State of 1.000.000.000 inhabitants. This may be acceptable for recommendations, which States can ignore and which they frequently do ignore. But for binding decisions the big powers will not readily accept to be outvoted by a two-thirds majority of small States, as has happened several times. The veto power in the Security Council is a very arbitrary means of avoiding this: Any one of the ve permanent members of the Security Council which took part in the founding of the UN has an absolute right of preventing a binding decision, whereas the other big States have no stronger voting power than very small States. A solution to such imperfections of governance may be found in a system of weighted voting, where each State is accorded a voting power according to its population, its contribution to the budget of the Organization and/or to other relevant criteria. There need be neither “one State one vote”, nor voting strength in proportionality to population or other criteria – but a compromise between the two: More voting strength for the big powers, but not veto for any one. Such systems have been introduced in some organizations which have the power to make important decisions: Thus in two specialized agencies of the United Nations – the International Bank and the International Monetary Fund – each member has 250 votes plus an additional number of votes proportional to its paid-in quota of the capital stock (with some further adjustments in the case of the Fund) – see Article XII section 5 of the constitution of the Fund and article V section 3 of the constitution of the Bank. This gives, in the Bank, the United States 19.29 per cent, the Nordic countries 3.48 and Bhutan 0.03 per cent of relative voting rights. In international organizations which provide satellites for international telecommunication the members vote in substantive matters in proportion to their capital investment shares in the Organization, which in turn are adjusted regularly in proportion to their utilization of the system. Other examples are the numerous international commodity agreements. Thus the constitution of the Cocoa Producers Alliance of 24 March 1970 provided in Article 8 (1) that 200 out of the 1000 votes shall be equally distributed among the member States and that the remaining 800 votes shall be distributed in proportion to “the highest annual production of cocoa by each member” during the six preceding years. In the Council of the European Union those decisions which require a qualied majority are taken by weighted voting according to a scale corresponding

242 chapter six to population. Thus, Article 205 of the EC Treaty allocates 29 votes to the four largest member States and from 3 to 27 to the others.135 In several of these cases the decisions taken by weighted voting do not involve exercise of powers over or within the member States, but merely over important sums contributed by member States to the capital and the budget of the Organization. In the Council of the European Union, however, the provisions on weighted voting were a necessary tool to make the bigger countries agree to confer upon the Community the power to make decisions binding upon and within the several member States.136

The legal basis The extended jurisdiction described above differs from the inherent powers described in other parts of the present book, in so far as the extended powers are not inherent in all IGOs, but are specically vested in certain organizations only, and that they require a specic legal basis for each organization concerned. The supranational powers of the European Community (and international river commissions) are laid down in their constitutional conventions. And so are in most cases powers to make decisions binding upon member States; however, here there are important exceptions where the power is laid down in another treaty or in practice (e.g. NATO, if its unanimous decisions are considered legally binding). On the other hand, it will be seen from the examples listed above that in the vast majority of cases of extended territorial and personal jurisdiction there is no provision on the subject in the constitution. Instead, the jurisdiction is in many cases laid down in another treaty. In other cases the organization has assumed “vacant” territorial or personal powers unilaterally. The clear conclusion is that even in respect of extended jurisdiction there is no basis in practice for the current theoretical point of departure that an When decisions under the EU Treaty require a qualied majority in the Council, the relevant articles refer to Article 205 of the EC treaty, see Articles 23 and 34 (3) of the EU Treaty. The Treaty of Lisbon 13 December 2007 will change the majority requirement in the enlarged Union. 136 If a system of weighted voting were introduced in the Security Council, it should be possible to mitigate or eliminate the present, arbitrary, veto power for certain members. This, in turn, would enable the Council to make more use of its power to make binding decisions. If introduced in the General Assembly or in other international organizations, a system of weighted voting might enable the big powers to agree according to that organ or those organizations a power of making decisions binding upon the member States. 135

extended jurisdiction of some organizations 243 IGO can only do what is provided or “implied” in its constitution.137 And the ction of “implied powers” would here be even more articial and useless than it is in respect of inherent organic and organizational jurisdiction. Still, there is a basic and important difference between extended jurisdiction and the inherent powers described in other parts of the present book, in that extended jurisdiction requires some legal basis. This may be the constitution, some other treaty, a unilateral act from those being subjected to the jurisdiction, or – in the case of “vacant” powers – a unilateral act (“occupation”, assumption) by the organization itself. An example of the latter is personal jurisdiction over refugees and stateless persons. Another example could be territorial jurisdiction in Antarctica (if the unclaimed sector or the entire continent had been placed under territorial administration of an IGO, see above). It is submitted – but this may be more debatable – that a competent IGO – being different from a State – may even assume certain powers which States could not assume under existing international law, e.g. in respect of the “global commons” (the high seas, outer space). Extended powers may in special cases even be stretched somewhat beyond the strict words of the constitution or other treaty or unilateral act which institute them, if this must be presumed to have been the implied or logically necessary intention of the authors. However, this would be implied powers in a genuine and very restrictive sense – entirely different from the wide and undened abuse of the concept to which writers resort in order to escape the contradiction between practice and their false point of departure of delegated jurisdiction over organs and their members and delegated international and legal capacity. Summing up: While in some cases the extended jurisdiction is laid down or authorized in provisions of the constitution of the organization concerned, in the majority of cases it is not, but based upon other treaty, or unilateral act from those which had and ceded the power – or upon unilateral act by the organization itself in the case of “vacant” powers. Indeed, IGOs have an inherent capacity to accept or assume even extended jurisdiction in these circumstances, as long as constitutional or other provisions do not preclude it. It is thus even here unnecessary to resort to the ctitious and undeterminable application of the concept of “implied powers”. Even when international law prohibits national occupation, competent and representative IGOs – and notably the UN which has universal membership –

137

See Schermers and Blokker, op. cit., § 1320, pp. 823–4.

244 chapter six are not necessarily bound by this, but must – in certain cases be entitled to assume “vacant” governing powers, e.g. in the “global commons”. The question of limited extended powers for certain IGOs – beyond the organic and limited organizational membership jurisdiction which is inherent in all IGOs – arises only in respect of jurisdiction. As we shall see in the following parts of the present book, the capacity to act externally as equal partners and subjects of international and national law is inherent in all IGOs and general, i.e., applies also (and especially) when the organizations act externally on the basis of their extended (internal) jurisdiction. The general approach of legal writers that the powers of an IGO must be prescribed or “implied” in its constitutional convention is thus false, also in respect of extended jurisdiction. IGOs in practice assume governmental powers over territories, categories of persons, or States on bases other than their written constitutions; e.g. by occupation or by transfer from States. It serves no useful purpose to attempt to interpret such powers into constitutional provisions that were never meant to cover them and lack of which does not rule them out. Ample materials collected from practice demonstrate that the power of IGOs to assume such extended jurisdiction and to perform external acts under international law is not contingent upon relevant constitutional provisions, as long as there is no provision precluding it. And such existing provisions authorizing specic powers cannot automatically be interpreted a contrario. But extended jurisdiction does require some legal basis – in the form of an act by the organization or by the other parties concerned.

CHAPTER SEVEN

SETTLEMENT OF INTERNAL DISPUTES

7.1

Introduction

The exercise by an IGO of its legislative and administrative functions, in the organizational as well as in the functional eld, frequently gives rise to internal legal disputes. Such disputes may concern the interpretation of provisions of the constitution, of regulations enacted by the organization, of treaties or other acts conferring upon the organization the power to make legislative and administrative acts binding upon States and/or private individuals (extended jurisdiction), or they may concern questions for which no written rules have been laid down. The disputes may arise within or between organs of the organization, between the organization and its members or its ofcials, or between members or between ofcials inter se. In the case of those organizations which have been given extended jurisdiction by provisions in their constitutions, in other treaties or in unilateral acts – as for example international river commissions or supranational organizations like the European Community – disputes of an internal nature, largo sensu, may arise also between the organization and individuals other than ofcials, in those elds where such individuals have been placed under the legislative and/or administrative authority of the organization,1 or between such individuals inter se. We shall now discuss the various modes of settlement in relation to these different types of disputes,2 in particular to establish to what extent judicial

1

2

In working out procedures for the administrative and judicial settlement of disputes between the organization and its ofcials or other individuals under its jurisdiction, guidance may be drawn from a comparative study of the practice of States in this respect, undertaken by the Institut international des sciences administratives: Puget and Maleville: La révision des décisions administratives sur recours des administrés, Bruxelles 1953. Giorgio Malinverni: “The Settlement of Disputes within International Organizations” in Mohammed Bedjaoui (ed.) International Law; Achievements and Prospects, Paris 1991, pp. 545–587 describes notably the settlement methods for disputes between member States provided for in specic organizations and gives an extensive list or relevant literature for different groups of organizations, Schermers and Blokker, International Institutional Law,

246 chapter seven powers may be exercised in these respects by the organization, even if its constitution does not provide for judicial powers, and by external courts. External disputes of national or international law will only be touched upon in special contexts. Inherent capacity of IGOs to settle external disputes of international law by international procedures in the same manner as disputes between States – including arbitration or decision by other international courts – follows from their general international capacity (personality), cf. chapter 2 and Part Three.

7.2

Constitutional provisions

The constitutions of some – but far from all – IGOs contain express provisions which prescribe specic procedures for the settlement of disputes concerning the interpretation or application of the constitution. The procedures provided for are usually settlement by decision either of an administrative organ of the organization3, or of an external or internal judicial body, usually an ad hoc arbitral tribunal4 or the International Court of Justice,5 or both. Most of

3

4

5

4th ed., Leiden 2003, make a comprehensive survey of the judicial organs established by the several organizations (pp. 427–489) and of the organs and methods of interpretation (pp. 839–871). The most comprehensive survey is D. Bindschedler: “Le règlement des différends relelatifs au statut d’un organisme international” in Recueil des Cours de l’Académie de droit international, 1968 II, pp. 459–547. See also D. Simon: L’interprétation judiciaire des traités d’organisations internationals, Paris 1981. ICAO (International Civil Aviation Organization) 7 December 1944, Art. 84; IMF (International Monetary Fund) 27 December 1945, Art. XVIII, Sec. 4 (a)–(b), IBRD (International Bank for Reconstruction and Development) 27 December 1945, Art. IX (a)-(b); International Wheat Council Art. 8. Different types of provisions are International Maritime Organization Art. 69 and the abortive International Trade Organization Arts. 94–95. ICAO, Arts. 84–86; IMF, Art. XXIX (c); IBRD, Art. IX (c); ITU (International Telecommunication Union) 9 December 1932, Constitution Art. 56 and Convention Art. 41; UPU (Universal Postal Union) 1 June 1878, Art. 32; WMO (World Meteorological Organization) 11 October 1947; Danube Commission (European Commission of the Danube) 2 November 1865. Although the International Court of Justice is the principal judicial organ of the UN, the UN Charter contains no such specic references to the Court. The same applies to many of the specialized agencies of the UN. Provisions referring disputes concerning the interpretation of the constitution to the International Court of Justice may be found, however, in the constitutions of many specialized agencies: ILO (International Labour Organization) 28 June 1919, Arts. 29 (2) and 31–32; FAO (Food and Agriculture Organization of the United Nations) 16 October 1945, Art. XXVI (1); UNESCO (United Nations Educational, Scientic and Cultural Organization) 16 November 1945, Art. XIV (2); WHO (World Health Organization) 22 July 1946, Art. 75; ICAO, Arts. 84–86; IAEA (International Atomic Energy Agency) 26 October 1956, Art. XVII A. Similar provisions may be found in the constitutions of several organizations not related to the UN:

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these provisions confer compulsory jurisdiction upon the organ or court, but some require agreement between both parties to the dispute. Many provisions, however, envisage only disputes arising out of the constitution itself. Moreover, several of the provisions envisage disputes between member States only.6 In addition to these limited provisions for binding administrative and/or judicial settlement, the constitutions of the UN and of some of the specialized agencies provide that the organization may request an advisory opinion from the International Court of Justice on “any legal question”.7 The constitution of the African Union provides in its Article 18, cf. Article 5 (1) (d) for the establishment of a Court of Justice. The competence of the Court of Justice is set out in the Protocol of Maputo of 11 July 2003, which in its Article 19 on competence/jurisdiction confers broad powers to decide in all disputes relating to the AU Constitution, as well as the interpretation, application or validity of Union treaties and all subsidiary legal instruments adopted within the framework of the Union.8 The Court of Justice of the Andean Community is the judicial authority of the community. The functions of the court is closely interlinked with the provisions dening the legal system of the Andean Community, which confers on individuals and legal

6

7

8

IARA (Inter-Allied Reparation Agency) 14 January 1946 (Resolution No. 8 (adopted at the constitutive conference); WEU (Western European Union) 17 March 1948, Art. 26 VII; Bern Union, Art. 33 (1); CERN (European Organization for Nuclear Research) 1 July 1953, Art. XI, and ICEM (Intergovernmental Committee for European Migration), 19 October 1953, Art. 31. The texts of these and other provisions are reproduced in ICJ Yearbook, Chapter III. See however, the constitutions of IMF, Art. XIXX and IBRD, Art. IX, which refer to disputes between the organization and member States. Nor are the constitutions of UNESCO Art. XIV, FAO Art. XVII and some others restricted to disputes between member States. UN Art. 96, FAO Art. XVII 2, WHO Art. 76, IMO Art. 70, IAEA Art. XVII B. The question of who was to interpret the UN Charter was discussed at the San Francisco Conference, see especially United Nations Conference on International Organization, San Francisco 1945 (UNCIO) VII, pp. 709–710, referred to below, notes 135 and 141. On the interpretation of the UN Charter see also ICJ Reports 1948 p. 61, 1950 pp. 6 and 137–140 and 1962 pp. 155–156; Kopelmanas: L’Organisation des Nations Unies I, Paris 1947, pp. 254–278, and Goodrich and Hambro: Charter of the United Nations, 3rd ed., New York 1969, pp. 547–551. On the question of the interpretation of the League of Nations Covenant, see the documents listed in Walter Shiffer: Repertoire of Questions of General International Law before the League of Nations 1920–1940, Geneva 1942, p. 237. Article 19, (c), (e), (f ) and (g) of the Maputo Protocol even extends competence to AU Court of Justice to assume jurisdiction of “any question of international law”, “all matters specically provided for in any other agreements that States Parties may conclude among themselves or with the Union and which confer jurisdiction on the Court”, “the existence of any fact which, if established, would constitute a breach of an obligation owed to a State Party or to the Union”, and “the extent of the reparation to be made for the breach of an obligation”.

248 chapter seven persons the right to appeal to the court in the event of infringements of community law.9 The constitution of the European Community provides for the establishment of a common Court of Justice with wide powers for binding judicial settlement of internal disputes other than those relating to the constitution and other than those arising between member States.10 And so do the constitutions of some European river commissions. Other IGOs have established similar systems of settlement of disputes short of creating an internal court of justice. Thus, both the North American Free Trade Agreement (NAFTA) and the Mercado Común de Sur (MERCOSUR) count on national sections for the surveillance of correct national implementation of common standards, and these also function as a contact point for individual complaints in this respect.11 However, most constitutions of intergovernmental organizations do not prescribe modes of settlement for internal disputes. Nevertheless, the disputes must be settled if the organization is to be able to carry out its functions. And in practice they are settled, either by administrative or by judicial means.

7.3

Settlement by administrative decision of the organization

Decisions by administrative organs Like most disputes within the governments of States, internal disputes of IGOs are usually settled, not judicially, but by administrative decision of the deliberative or executive organ where the question arises, or of a superior organ.12 Thus, where the competence of a deliberative organ to discuss a certain matter or to take specic steps, or the propriety of the procedure adopted by the chairman of the organ, is challenged by a member of the organ concerned, the matter is decided by a vote of the organ itself.13 And so 9

10

11

12 13

Cf. the Cartagena Agreement as amended by the Protocol of Trujillo 10 March 1996, Articles 40 and 41, and the Treaty creating the Court of Justice of the Cartagena Agreement, as amended by the Protocol of Cochabamba 28 May 1996. EC Arts. 220–245 and EURATOM Arts. 136–160. The association agreement to provide access for certain EFTA-States to the European internal market (the Agreement on the European Economic Area of 2 May 1992), Arts. 107, 111 and Protocol 34, are more restrictive and more complicated. Cf. Article 2002 of the North American Free Trade Agreement (NAFTA) and Article 40 of the Protocolo de Olivos (MERCOSUR) 18 February 2001, which also establish a system of arbitration, cf. Articles 9–23. See also the examples from different organizations related in Schermers and Blokker, op. cit., §§ 1355–62. Cf. the rules of procedure of the General Assembly (New York 1985), Rules 79 and 121 on questions of competence and Rules 71 and 113 on points of order.

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are disputes concerning the representatives of a member State on the organ – e.g. their credentials or their right to speak and vote. Similarly, disputes with regard to the nancial contributions of a member State to the budget of the organization, including the effects of non-payment, are, in the rst instance, decided by the plenary organ. Furthermore, if two organs, or two departments of the Secretariat, disagree with regard to their respective competences in a specic matter, the dispute is decided by the superior organ.14 If one of the parties to a dispute is dissatised with the decision made by the competent organ, the matter may in many cases be brought before a superior organ.15 In most of these cases there is no constitutional provision authorizing the organ concerned to settle the dispute. Nevertheless, such administrative settlement has been the prevailing procedure in all IGOs, even in those whose constitutions prescribe judicial settlement. And there can be no doubt that, in either case, the several organs of the organization – no less than those of national States – are entitled to decide internal disputes themselves.16 This was conrmed in a report of Committee IV/2 of the San Francisco Conference which established the UN Charter (the report was approved unanimously by the Conference) in the following terms: In the course of the operations from day to day of the various organs of the Organization, it is inevitable that each organ will interpret such parts of the

14 The report of Committee IV/2 of the San Francisco Conference (UNCIO Vol. 13, pp.

709–10) – discussing differences of opinion between two organs – did not envisage such reference to the superior organ. The rapporteur appears, however, to have been thinking primarily in terms of disputes between the General Assembly and the Security Council which are, in functional and some organizational matters, on an equal hierarchical level, and which have no common superior organ. 15 By a resolution of 17 December 1920 the Assembly of the League of Nations expressly decided, before the establishment of its Administrative Tribunal, to give a right of appeal to the Council, in case of dismissal, to all members of the Secretariat holding ve-year appointments (McKinnon Wood in The Grotius Society, Transactions for the Year 1944 Vol. 30 p. 144). Similarly, chapter XIII 1 of the Staff Regulations of the Scandinavian Training Hospital in Korea (the National Medical Center in Korea), adopted by the Scandinavian Committee on 7 June 1957, expressly provided that ofcials might appeal to the Committee in cases of disputes between them and the Director of the Hospital concerning the interpretation of the Staff Regulations or concerning the relationship of employment. – An express provision for bringing before a Joint Committee disputes between members concerning the interpretation or application may be found in the Agreement on the European Economic Area of 2 May 1992, Article 111. The UN Model status of forces agreement for peace-keeping operations provides in para. 52: “Disputes concerning the terms of employment and conditions of service of locally recruited personnel shall be settled by the administrative procedures to be established by the Representative/ commander”. 16 This is expressly provided in the IMO constitution Art. 69 in ne. Art. 75 of the WHO constitution envisages settlement by the Health Assembly. It would not be proper to interpret either of these self-evident provisions a contrario as precluding other deliberative organs or the secretariat from deciding legal disputes arising within the scope of their functions.

250 chapter seven Charter as are applicable to its particular functions. This process is inherent in the functioning of any body which operates under an instrument dening its functions and powers. It will be manifested in the functioning of such a body as the General Assembly, the Security Council, or the International Court of Justice. Accordingly, it is not necessary to include in the Charter a provision either authorizing or approving the normal operation of this principle.17

Reference may be made also to the following statement by the International Court of Justice in its advisory opinion on Effect of Awards of Compensation Made by the United Nations Administrative Tribunal: In the absence of the establishment of an Administrative Tribunal, the function of resolving disputes between staff and Organization could be discharged by the Secretary-General by virtue of the provisions of Articles 97 and 101. Accordingly, in the three years or more preceding the establishment of the Administrative Tribunal, the Secretary-General coped with this problem by means of joint administrative machinery, leading to ultimate decision by himself.18

It is submitted that this power of the Secretary-General existed irrespective of the express provisions cited by the Court. Indeed, the power has been exercised by the administrative heads of all organizations also where the constitutions do not contain any relevant provisions. The inherent power to settle internal disputes by administrative decision applies also to internal disputes arising out of extended jurisdiction conferred upon the organization (internal disputes largo sensu). Reference may be made to a statement by the Permanent Court of International Justice in its advisory opinion on the Greco-Turkish Agreement of 1 December 1926. In this opinion the Court settled a dispute “between the two States members” of the Mixed Commission for the Exchange of Greek and Turkish Populations. This dispute concerned the question of who was to invoke the procedure laid down in Article IV of an annex to an agreement conferring extended jurisdiction upon the Commission for the settlement of specic disputes. After having pointed out that the disputed provision “expressly contemplates questions which may arise within the Mixed Commission”, the Court said: But, that being so, it is clear – having regard amongst other things to the principle that, as a general rule, any body possessing jurisdictional powers has the right in the rst place itself to determine the extent of its jurisdiction – that questions affecting the extent of the jurisdiction of the Mixed Commission must be settled by the Commission itself without action by any other body being necessary.19

17 18 19

UNCIO, Vol. 13, p. 709. ICJ Reports, 1954, p. 61. Permanent Court of International Justice, Ser. B, No. 16, p. 20, cf. p. 8.

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Similarly a court in the Saar in the inter-war period – rejecting a claim for compensation brought against the Governing Commission of the Saar by a dismissed ofcial – expressed the view that not only sovereign States have the capacity to determine the legal scope of their competence, but that the Governing Commission also had that power. The court, however, based this statement upon the fact that the Governing Commission, although not the government of a sovereign State, exercised the State imperium (i.e. territorial jurisdiction) – rather than upon the fact that the Commission was an organ of the League of Nations.20 As indicated by the examples given, the power of settling internal disputes by administrative decision is not conned to questions of interpretation of the constitution of the organization concerned. It extends also to the interpretation of regulations enacted by the organization (including the terms of reference of the organ concerned) and of customary law developed by it, as well as to the determination of other legal questions concerning the powers and procedure of the organ. Such decisions are preliminary – and essential – to the exercise of its legislative and administrative powers. The right to make them is therefore inherent in these very powers, whether these have been laid down in the constitution or in another treaty, or whether they devolve upon the organization without specic provision as inherent organic or membership jurisdiction.21 This right has been exercised consistently by intergovernmental organizations in respect of both inherent and extended powers.

Advisory opinion from a legal body22 There is nothing to prevent the organ concerned from submitting the legal question to an internal or external legal organ for advice before it makes its decision. Such a procedure has in some cases been expressly provided for in the constitution. Thus the General Assembly and the Security Council of the UN are empowered, under Article 96 (1) of the Charter, to request an advisory opinion from the International Court of Justice on any legal question. Under Article 96 (2) the General Assembly is empowered to extend this authorization to other organs of the UN and to the specialized agencies.23 Annual Digest of International Law Cases, 1925–26, Case No. 37. Above, chapter 1. See H.W.A. Thirlway: “Advisory Opinions of International Courts” in Encyclopedia of Public International Law, Amsterdam 1981, pp. 4–9. 23 The International Law Association in 1956 very appropriately recommended an amendment to Art. 96 “to empower the General Assembly to authorize other public international 20 21 22

252 chapter seven This has been done by bilateral agreements between the UN and each specialized agency approved by General Assembly resolutions.24 In this manner the power to request advisory opinions has been granted not merely to those specialized agencies whose constitutions envisage such procedure,25 but also to those agencies whose constitutions do not.26 Advisory opinions have in fact been requested on a number of disputes of an internal nature,27 also by specialized agencies whose constitutions do not provide for resort to such opinions.28 Furthermore, as pointed out by Schermers and Blokker, the Committee of Ministers of the Council of Europe may request advisory opinions from the European Court of Human Rights on the procedure, and on the functioning of the different organs, under the European Convention on Human Rights.29 There are also many examples of reference of internal legal questions to ad hoc internal legal organs for advice, even when no constitutional provision prescribes or authorizes such procedure. Thus the League of Nations, refusing to submit to proceedings in Swiss courts to determine whether it was liable to pay pensions to ve ex-ofcials of the Saar Territory whom

24

25 26 27

28

29

Organizations, whether general or regional, to request advisory opinions of the Court” (International Law Association, Report of the Forty-Seventh Conference held at Dubrovnik 1956, p. 104, cf. p. 129). See for example Article 7 (2) of the agreement between the UN and the ITU, approved by GA resolution 124 (II). The powers to request advisory opinions have also been granted to most of the other Specialized Agencies upon their request and to the International Atomic Energy Agency cf. the ICJ Yearbook. E.g. IMO constitution, Art. 70. E.g. ITU constitution, Art. 150. See for example the two advisory opinions on the admission of a State to membership in the UN (ICJ Reports, 1948, p. 57, and 1950, p. 4, respectively), the opinion on the Effect of Awards of Compensation made by the UN Administrative Tribunal (ibid., 1954, p. 47), and the opinion on Certain Expenses of the United Nations (ibid. 1962, p. 150). See also the advisory opinion of the Permanent Court of International Justice on the Designation of the Workers’ Delegates for the Netherlands at the Third Session of the International Labour Conference (PCIJ, Ser. B, No. 1) and the three advisory opinions on the competence of the ILO in regard to (i) international regulations of the conditions of labour of persons employed in agriculture (ibid. No. 2), (ii) organization and development of the methods of agricultural production and other questions of a like character (ibid., No. 3), and (iii) incidental regulation of the personal work of the employer (ibid., No. 13). Thus the advisory opinion on Judgments of the Administrative Tribunal of the ILO upon Complaints Made against the UNESCO (ICJ Reports, 1956, p. 77) was given at the request of UNESCO, whose constitution merely provides for reference to the International Court of Justice “for determination” of disputes “concerning the interpretation of this Constitution”. See also, generally, the literature from the 1970s cited by Schermers and Blokker, op. cit., § 1366, note 106. Ibid. § 1371. An example is the request for an advisory opinion decided by the Committee of Ministers at its meeting 11–12 July 2007 concerning aspects of the election by the Parliamentary Assembly of judges to the Court.

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the Governing Commission had failed to bring within the settlement of the pensions of ofcials which it negotiated with Germany, submitted the case to a legal committee of the organization itself, which held that there was no legal liability.30 Similarly, the Secretary-General of the UN had recourse to an ad hoc committee of jurists in order to seek a solution to certain problems of principle arising out of his personnel policy.31 Legal questions are also frequently referred to a permanent internal legal organ for advice.32 Thus the legal division of the secretariat is frequently asked to give a legal opinion – for the decision-making division or deliberative organ to take into account. Other examples of advisory legal organs are the appeal boards or committees established by the UN and the specialized agencies and other organizations to consider and advise their administrative heads regarding appeals made by members of the staff against decisions relating to their employment.33 However, the terminology is sometimes confused, because the “Appeals Board” of e.g. the Council of Europe is a genuine administrative tribunal.34 Prior to appealing to that board, the staff member or the Secretary General

30 McKinnon Wood in The Grotius Society, Transactions for the Year 1944, Vol. 30, p. 144.

31

32

33

34

But for World War II, the case would subsequently have come before the Permanent Court of International Justice for an advisory opinion. The latter procedure – in contradistinction to the reference to the legal committee – was expressly authorized by the terms of Art. 14 of the Covenant of the League. A/INF/51, 5 December 1952. The contents of the report of the committee (A/2364) was severely (and rightly) criticized, both inside and outside the Organization, see for example: Henri Rolin, Avis consultative sur les droits et obligations des fonctionnaires internationaux, avis rédigé sur la demande de la Fédédation des associations de fonctionaires internationaux et approuvé par Tomaso Perassi et Charles Rousseau (mimeographed, 1953). – Reference may also be made to Art. II (1)–(2) of the Staff Regulations for the Registry of the International Court of Justice and its Annex VI. GATT appoints a panel to investigate substantive violations by member States and to propose sanctions. These are then adopted by the plenary organ in accordance with express provisions in Art. XXIII of the constitution. This procedure is also applied to disputes between the European Community and non-EC, WTO member States. Thus the “Provisional” Staff Regulations of the International Atomic Energy Agency, adopted by its Board of Governors, provide, in Regulation 12.01: “The Director General shall establish administrative machinery with staff participants to advise him/her in case of any appeal by a staff member against an administrative decision in which the staff member alleges the non-observance of the terms of his/her appointment, including all pertinent Regulations and Rules, or of appeals against disciplinary actions.” The Staff Rules, approved by the Director General, provide, in Rule 12.01.1 (A): “A joint Appeals Committee shall be established to advise the Director General regarding appeals by staff members under Provisional Staff Regulation 12.01”. Also the former “Appeals Board” of the OECD was a judicial body making binding decisions (and replaced on 19 December 1991 by an “Administrative Tribunal”). However, the Organization also has a “Joint Advisory Board”, established pursuant to Staff Regulation 22 (a).

254 chapter seven may refer the matter to an Advisory Committee on Disputes. These organs have been established by Articles 59 and 60 (and Appendix XI) of the staff regulations, without specic basis in the constitution, Article 36 (c) of which merely provides that the staff “shall be appointed by the Secretary-General, in accordance with the administrative regulations”. Thus, with or without constitutional provision, those organs of the organization which in the performance of their regular functions have to decide legal questions often refer such questions to other organs for advice before making their decisions. Such reference is made to administrative and judicial organs, to permanent as well as to ad hoc organs, and even to organs outside the organization insofar as such organs under their own constitutions or terms of reference are able to give legal advice to the organization requesting it. The right to seek such legal advice, even if the constitution does not so provide, was conrmed in the report of Committee IV/2 of the San Francisco Conference in the following terms: It would always be open to the General Assembly or to the Security Council, in appropriate circumstances, to ask the International Court of Justice for an advisory opinion concerning the meaning of a provision of the Charter. Should the General Assembly or the Security Council prefer another course, an ad hoc committee of jurists might be set up to examine the question and report its views. It would appear neither necessary nor desirable to list or to describe in the Charter the various possible expedients.35

Is the administrative decision binding? The modes of settlement discussed so far – which are those employed in the prevailing number of cases – are, however, merely administrative decisions – either express decisions made separately, or preliminary decisions implied in other administrative or legislative decisions made by the organ concerned. Even if advice is sought from another organ, and even if this is legal or close to judicial, the decision is usually made by the organ where the question arose, or by a superior organ, in the form of an administrative (or legislative) decision. This applies in principle also in those cases where an advisory opinion is obtained from the International Court of Justice.36 Only in certain cases – 35 UNCIO, Vol. 13, p. 710. 36 On the binding effect of advisory opinions of the International Court of Justice, see

inter alia F.B. Sloan in California Law Review Vol. 38 (1950), pp. 830–59; Lissitzyn: The International Court of Justice, New York 1951, pp. 84–85; Kopelmanas, op. cit. pp. 274–5; and Humber in: Die Friedens-Warte Vol. 51 (1951–53), pp. 143–50. Cf. also PCIJ, Ser. B, No. 14, p. 21.

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where this has been expressly provided in the constitution or in another multilateral, bilateral or unilateral act – is the organization (and the other parties) bound to accept as binding the opinion of the Court or the other legal body to which the dispute is referred.37 When express provision is made in the constitution for the reference of certain disputes to a specic administrative organ of the organization,38 it frequently follows from the provision that the decision of the administrative organ shall be binding upon the parties ipso facto39 or unless appeal is made to a specied superior administrative organ40 or judicial body,41 whose decisions shall then be nal (even if still administrative). Thus the decision must be presumed to be binding if the dispute is referred to the organ concerned “for decision” and, usually,42 if provision is made for further appeal.43 Otherwise it is not always clear that it has been the intention that the decision shall be any more binding than are administrative decisions generally.44 And in the great majority of cases, where no express provision has been made for decision by the administrative organ concerned, it is quite clear that the decision made by this organ – in pursuance of its inherent organic jurisdiction or of the powers implied in its extended jurisdiction – are not binding upon the parties in the same sense as a judicial decision would have been.45 They may

37 See below, chapter 7.9, cf. 7.10. 38 Examples in Schermers and Blokker, op. cit., §§ 1356–62, pp. 853–7. 39 International Wheat Agreement 1986 Art. 8. 40 The constitutions of the Fund Art. XXIX (a)–(b) and of the Bank, Art. IX (a)–(b). However,

41

42 43 44 45

none of these provisions sets a time limit for the appeal. For a criticism of the granting of such powers to one of the parties to the dispute, see Seidl-Hohenveldern in Österreichische Zeitschrift für öffentliches Recht Vol. 8 (1957–58) pp. 82 et seq., cf. also Aufricht ibid., pp. 26 et seq. ICAO constitution Art. 84, which sets a time limit of sixty days for the appeal, and the constitution of the International Commission of the Danube Art. 38 (League of Nations Treaty Series Vol. 26, p. 193). Cf. the abortive constitution of the International Trade Organization, Arts. 94–95. International Monetary Fund constitution, Art. XXIX (b). This may not have been the intention in Art. 69, rst sentence, of the constitution of the International Maritime Organization, which refers the dispute “for settlement”. This was pointed out, with regard to differences of opinion concerning the interpretation of the UN Charter, by Committee IV/2 of the San Fransisco Conference, in the following terms: “It is to be understood, of course, that if an interpretation made by any organ of the Organization or by a committee of jurists is not generally acceptable it will be without binding force” (UNCIO Vol. 13 p. 710). Kopelmanas: L’Organisation des Nations Unies Vol. 1, Paris 1947, para. 137 made two important reservations to the statement of the Committee on this point. He pointed out in particular that “le fait pour un organe d’émettre un vote dans les conditions établies par les dispositions qui régissent sa compétence et son fonctionnement, confère à l’interprétation qu’implique le contenu de son acte une valeur identique à celle qui est reconnue à l’acte lui-même et si l’acte doit s’imposer à l’observation de tous les Membres de l’Organisation, l’interprétation impliquée produira automatiquement le même effet”. If no judicial recourse is open to the State

256 chapter seven contest the legality of the decision if the organ making them has violated the rules governing its competence or procedure, at least if they do so within a reasonable time after the decision was made.46 It does not add any more binding force to the decision if it is made in the form of a distinct resolution of (abstract) “interpretation”, as is the custom of the General Assembly of the International Institute for the Unication of Private Law, except that in this case its applicability is not conned to any concrete dispute.47 contesting the validity of the decision, “il devra se soumettre à la décision de l’organe et accepter l’interprétation qu’elle contient. S’il persiste à ne pas la reconnaître, le problème changerait entièrement d’aspect, car il ne s’agirait plus d’un conit d’interprétation, mais de l’inexécution par l’Etat d’une décision valablement prise aux termes de la Charte”. On the other hand, Kopelmanas pointed out that any binding force resulting from the express or tacit acceptance by all the member States would apply only to the concrete conict which has given rise to the question of interpretation. That an administrative decision is not binding as a precedent in another, analogous case was conrmed in the judgment of the Hungarian-Czechoslovak Mixed Arbitral Tribunal of 31 January 1929 in Pallavicini v. the Czechoslovak State (AJIL, Vol. 33, 1929 p. 857 and Annual Digest of International Law Cases, 1929–30, p. 443). In its advisory opinion on Certain Expenses of the United Nations, the International Court of Justice stated: “Each organ must, in the rst place at least, determine its own jurisdiction. If the Security Council, for example, adopts a resolution purportedly for the maintenance of international peace and security and if, in accordance with a mandate or authorization in such resolution, the Secretary-General incurs nancial obligation, these amounts must be presumed to constitute ‘expenses of the Organisation’ ”. (ICJ Reports, 1962, p. 168; see also ICJ Pleadings, Certain Expenses of the United Nations, pp. 220–2, cf. p. 205). The International Court of Justice, in its advisory opinion on Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, stated: “Should the General Assembly contemplate, for dealing with future disputes, the making of some provision for the review of the awards of the Tribunal, the Court is of opinion that the General Assembly itself, in view of its composition and functions, could hardly act as a judicial organ – considering the arguments of the parties, appraising the evidence produced by them, establishing the facts and declaring the law applicable to them – all the more one party to the dispute is the United Nations Organization itself ” (ICJ Reports 1954, p. 56, cf. also p. 89). 46 Art. 230 in ne of the constitution of the European Community sets out a two months’ deadline for appeal to the European Court of Justice. The rst draft articles on “Recours judiciaire à instituer contre les décisions d’organes internationaux”, submitted by Wengler to the Institut de droit international, read in part: “A défaut d’un recours judiciaire spécial contre les décisions d’un organe international, et à défaut de dispositions les rendant dénitives, la validité de ces décisions pourra être contestée à tout moment et devant toute instance d’après les règles générales du droit international, si l’organe a violé les règles determinant sa compétence, sa procédure, ou le contenu de ses décisions” (Annuaire de de l’Institut de droit international, Vol. 45 (1954 I) p. 266, cf. pp. 283–4). The nal resolution of the Institut (ibid., Vol. 47 (1957 II), p. 476) does not refer to this problem. See also Wengler’s report, ibid. Vol. 44 (1952 I), pp. 268–70, cf. pp. 293 (par. 9), 315–6, 323, 347, 350 and 357. Cf. also Art. 38 of the Convention Instituting the Denitive Statute of the Danube of 23 July 1921 (LNTS Vol. 26, p. 178). On the possibility of challenging the validity of the decisions in national courts, see below, chapter 7.8.3. 47 See the resolution adopted by General Assembly on 30 April 1953, which interpreted Art. 7 bis of the constitution. Another resolution, which was adopted by the General Assembly

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Nevertheless, as long as there is no judicial authority having compulsory jurisdiction in the matter, the organization cannot be prevented from acting in accordance with its own decision. Since the execution in internal matters rests, in most cases, with the organization, this means that the decision is in fact binding, unless the organization voluntarily agrees to submit the dispute to a judicial organ for nal determination. Such administrative decision is sufcient for the purpose of most organizations, in most respects, especially with regard to organizational matters. This is particularly true if the dispute is one within or between its own organs and does not involve parties which also have a legal existence outside the organization (ofcials and member States). The question of settlement of disputes in substantive matters is a matter of extended jurisdiction, which has been considered in chapter 6 above.

7.4

Internal courts for disputes involving officials

It will be demonstrated that intergovernmental organizations have the inherent capacity to establish judicial organs for the settlement of internal disputes if this proves desirable,48 although some writers have tended to deny their competence to do so on the basis of the view that each organization can only perform such acts as are authorized, expressly or by implication, in its particular constitution.49 Moreover, it can be argued that the right to a remedy against an IGO is a norm of customary international law.50 As observed by

on 29 April 1957, and which gave an “authentic interpretation” of Art. 46 (3) of the (Staff ) Regulations of the Institute, was binding in the same manner as the Regulations themselves, since the resolution was approved by the same organs and by the same majority as prescribed for amendments of the Regulations, see Art. 17 of the constitution (Statute) of the Institute. 48 As also underlined by the International Law Association in its nal report of the 2004 Berlin conference on accountability of international organizations, p. 35. 49 Thus, during the discussion in the Sixth Committee of the General Assembly, at its fth session, of the power of the UN to enact headquarters regulations pursuant to § 8 of its headquarters agreement with the United States, it was claimed that “the Secretary-General would never be able to promulgate laws, impose penalties or set up juridical organs, as under the Charter neither he nor the General Assembly had the power to do that” (OR GA V, 6th Committee, 248th meeting, p. 265). 50 The ICJ stated in the case of Effects of awards of compensation made by the UN Administrative Tribunal that not affording judicial or arbitral remedy would “hardly be consistent with the expressed aim of the Charter to promote freedom for individuals an with the constant preoccupation of the UN to promote this”, Advisory Opinion 13 July 1954, ICJ Reports 1954, p. 47 at p. 57. This does not necessarily mean that a right to judicial remedy in cases concerning appointment of ofcials is also conferred on the member States of which the ofcial is a national, see ECJ’s judgment 15 March 2005 (Grand Chamber) in Case C-160/03, Spain v Eurojust (Rec. 2005, p. I-2077).

258 chapter seven Arsanjani, it would be quite ironic to deny the rights of individuals on the assumption that they would be incompatible with the functions of IGOs.51 The practical need for judicial decision has arisen mostly in those cases where the dispute involves parties which, although forming part of the organization and acting in that capacity, also have a legal existence outside the organization, viz. ofcials and member States.

Actions by ofcials against the organization: administrative tribunals 52 A great number of organizations – including inter alia the League of Nations, the International Institute of Agriculture, the International Labour Organization (ILO), the United Nations,53 the Organization for Economic Co-operation and Development (OECD) and the International Institute for the Unication of Private Law – have established so-called administrative tribunals or similar judicial organs, where ofcials54 may sue the organization in matters concerning the relationship of employment.55 This they have done

51 M. Arsanjani, Claims against International Organizations: Quis Custodiet Ipsos Custodes?,

Yale Journal of World Public Order, 1980, p. 175. 52 Regulations and other provisions establishing the various existing administrative tribu-

nals (under whatever denomination) were collected in C.F. Amerasinghe: Documents on International Administrative Tribunals, Oxford 1989. And the law applied by the tribunals was described in his preceding books on The Law of the International Civil Service, 2nd ed. Vol. I–II, Oxford 1994, and Case-Law of the World Bank Administrative Tribunal, Oxford 1989. On the jurisdiction of administrative tribunals, see W. Able: Les conditions de recevabilité de la requête devant les tribun aux administratifs de l’ONU et de l’OIT, Paris 1991. See also two articles in Blokker and Muller (eds.): Towards More effective Supervision by International organizations, Dordrecht 1994, by Pescatore and Amerasinghe, pp. 214–254. 53 Its judgments are published by the UN in Judgments of the United Nations Administrative Tribunal. 54 Also former ofcials and persons entitled to rights under their contracts or terms of appointment are entitled to sue, see e.g. the statutes of the ILO Administrative Tribunal Art. II 6; of the UN Administrative Tribunal Art. 2, and of the former OEEC-OECD “Appeals Board” Art. 1. 55 The Statute of the League of Nations Administrative Tribunal was adopted by the Assembly on 26 September 1927 (text in H Aufricht, Guide to League of Nations Documents and Publications, p. 485, and in Clunet, Vol. 77 (1950), p. 346). The documents relating to the establishment of the Tribunal are listed in ICJ Pleadings, Judgments of the ILO Administrative Tribunal (1956), pp. 22–23. Its Rules were adopted by the Tribunal on 2 February 1928 (text in: Clunet, op. cit., p. 352). An ad hoc forerunner of the Tribunal was the “collège” established by the Council’s resolution of 8 June 1925. By a resolution adopted by the Assembly of the League on 18 April 1946 on the dissolution of the League, the League of Nations Administrative Tribunal was transformed into the International Labour Organization Administrative Tribunal. It had by 7 February 2007 rendered 2618 judgments. – The “Appeals Board” of the former OEEC and the subsequent OECD – which in contradistinction to the appeals boards of other organizations

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although the constitution in most cases contains no provisions authorizing the establishment of such tribunals.56 Some organizations, which have only a limited number of ofcials and which therefore do not require permanent administrative tribunals, have included in their staff regulations less elaborate provisions for the settlement of disputes with their ofcials, by an ad hoc court of arbitration57 or before a court established for other purposes.58 In most of these cases, too, there was, and is, no relevant provision in the constitution.59 The former European Coal and Steel Community under its constitution had an internal Court of Justice established for other purposes, which also exercised compulsory jurisdiction in disputes between the organization and its ofcials. This was done by simple regulation,60 although the Court

56

57

58 59 60

is a real judicial body – was established originally on 8 January 1950 (text in: Clunet, op. cit., p. 368), pursuant to Art. 19 (later Art. 16) of the Staff Regulations of the OEEC. Its judgments are published in Commission de Recours de l’OCDE: Recueil des decisions. – The Administrative Tribunal of the International Institute for the Unication of Private Law was established by an amendment, adopted on 18 January 1952, to Arts. 4 (5) and 7 bis of the constitution (quoted below). The administrative tribunals of most of the other IGOs were established by mere decisions of their plenary organs. These are – or were – all standing tribunals. The statute of the administrative tribunal of the former International Institute of Agriculture, adopted by its General Assembly in 1932 merely provided for the establishment of an ad hoc tribunal for each case. Cf. Chiesa in Revue internationale des sciences administratives Vol. 20 (1954), pp. 77–80. The Administrative Tribunal of the International Institute for Unication of Private Law was established by an amendment to its constitution (Arts. 4 (5) and 7 bis). Before the entry into force of the amendment, an Arbitral Commission exercised the functions and the powers of an arbitral tribunal pursuant to a decision by the Governing Council of the Institute and to a clause inserted in each contract of employment. Other constitutions do not provide for administrative tribunals, but merely contain a general provision for legislative power in staff matters. Thus the constitutions of the UN (Art. 101) and the ILO (Art. 9) provide that the staff shall be appointed by the Secretary-General under regulations established by the plenary organ. The constitution of the Council of Europe (Arts. 16 and 36 c) contains a similar reference to staff regulations. The UNRWA Special Panel of Adjudicators was established by the UNRWA Commissioner-General on 3 December 1983 under UNRWA Area Staff Regulation 11 (2). The constitution of the International Institute of Agriculture (forerunner of FAO) merely contained a general provision (Art. 5) that the General Assembly shall approve “les projets [. . .] relatifs à l’organisation et au fonctionnement intérieur de l’Institut”. The Covenant of the League of Nations did not even provide for legislative power. Chapter XIII (2)–(3) of the staff regulations of the Scandinavian Training Hospital in Korea (the National Medical Center in Korea), adopted by the (Scandinavian) Committee on 7 June 1957. It may be questioned whether the court of arbitration established by this provision was an internal court of the organization. However, it was still less a national or an international court. The original arbitral tribunal of the Council of Europe also apparently was set up ad hoc, like that of the International Institute of Agriculture. Art. 11 of the staff regulations of the International Court of Justice and of the Permanent Court of International Justice. The Statute of the International Court of Justice contains no provision, nor did that of the Permanent Court of International Justice. Now Art. 91 (8) of the staff regulations, cf. Annex IX.

260 chapter seven subsequently held (unnecessarily) that its competence could be deduced from certain articles of the constitution. The constitutions of the European Community and EURATOM expressly provide that the Court shall decide disputes between the Community and its employees.61 Similar provisions are found in the constitutions of the African Union62 and the Andean Community.63 Other organizations, instead of relying upon tribunals of their own, make use of the administrative tribunals established by other organizations,64 also without express constitutional authorization.65 The judicial nature, and the binding character vis-à-vis the administrative organs of the organization, of the judgments of such administrative tribunals, was conrmed by the International Court of Justice in its Advisory Opinion on Effect of Awards of Compensation Made by the UN Administrative Tribunal. In this the Court held that an examination of the relevant provisions of the Statute (enacted by the UN General Assembly) shows that the Tribunal is established, not as an advisory organ or a mere subordinate committee of the General Assembly, but as an independent and truly judicial body pronouncing nal judgments without appeal66 within the limited eld of its functions.67 The Court thus rejected the contention that the Tribunal is a “subsidiary organ” of the General Assembly which had been established pursuant to Article 22 of the Charter and to which the Assembly had delegated its own powers, indeed the power to adjudicate had not been given to the General Assembly by the Charter.68 The Court concluded, by nine votes to three, that

61

62

63

64 65

66

67 68

EC constitution Art. 236, EURATOM constitution Art. 152. The judgments of the Court are published in European Court Reports (ECR) and Common Market Law Reports (CMLR). By Council Decision of 2 November 2004, a European Union Civil Service Tribunal was established to hear disputes involving the European Union civil service, cf. Ofcial Journal of the European Union L 333 9 November 2004, pp. 7 ff. Article 18 (1) (c) of the Protocol of the Court of Justice of the African Union, signed in Maputo 11 July 2003, stipulates that a member of staff of the Commission is eligible to submit a case to the Court in a dispute “within the limits and under the conditions laid down in the Staff Rules and Regulations of the Union”. Article 40 of the Protocol of Cochabamba lays down that the Court of Justice of the Cartagena Agreement “is competent to hear such labor disputes as may rise within the bodies and institutions of the Andean Integration System”. See below, chapter 7.11. The constitution of FAO, however, contains an express provision in Art. XVII. The constitutions of other organizations merely contain the usual provision that the staff shall be appointed in accordance with regulations to be approved by the plenary organ or similar general formulations. A right of appeal, by seeking an advisory opinion from the International Court of Justice, was instituted subsequently by GA resolution 957 (X). Such right of appeal had been established earlier in respect of the ILO Administrative Tribunal by Art. XII of its Statute. ICJ Reports, 1954, supra, note 50. Ibid. at p. 61.

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the General Assembly has not the right on any grounds to refuse to give effect to an award of compensation made by the Administrative Tribunal of the United Nations in favour of a staff member of the United Nations whose contract of service has been terminated without his assent.69 The Court thus recognized that the Administrative Tribunal of the UN has in this respect a position vis-à-vis the General Assembly similar to that of the national courts of democratic States vis-à-vis Parliament. The statutes of some of the other tribunals contain express provisions to this effect.70 The Court based this partly upon the principle it had adopted in its earlier advisory opinion – that the organization must be deemed to have those powers which are conferred upon it by necessary implication as being “essential to the performance of its duties”71 – and partly upon specic provisions of the UN Charter.72 In so doing the Court was, it is submitted, acting ex abundante cautela. It was not necessary to rely upon either of these considerations in order to establish the power of the UN to create an administrative tribunal.

69 Ibid. at p. 62. Cf. GA resolution 888 (IX), which accepted the advisory opinion, while

raising the question of judicial review of the judgments of the Administrative Tribunal which led to GA resolution 957 (X). For a summary, and an unconvincing criticism, of the written and oral statements submitted to the Court and of the opinion of the Court, see L. Green in: The Grotius Society, Transactions for the Year 1954, Vol. 40, pp. 158–68. 70 Art. 14 of the Statute of the UN Administrative Tribunal provides expressly that agreements concluded with specialized agencies, extending the competence of the Tribunal to internal disputes of these organizations, “shall provide that the agency concerned shall be bound by the judgments of the Tribunal and be responsible for the payment of any compensation awarded by the Tribunal in respect of a staff member of that agency”. The agreements extending the jurisdiction of the Tribunal to the specialized agencies with respect to applications by their staff members alleging non-observance of the Regulations of the UN Joint Staff Pension Fund merely provide, in Art. II, that the agency “agrees, insofar as it is affected by any such judgment, to give full effect to its terms” (see, for example, UNTS Vol. 394, p. 336 and Vol. 219, pp. 390 and 394), because liability for payment vests in the UN Joint Staff Pension Fund rather than in the specialized agency concerned. Art. 48 of the Regulations of the UN Joint Staff Pension Fund provides that applications alleging non-observance of the Regulations arising out of the decisions of the Board may be submitted to the UN Administrative Tribunal, whose decisions “shall be nal and without appeal” – Art. IX (3) of the ILO Administrative Tribunal and its annex merely provide that any compensation awarded by the Tribunal shall be chargeable to the budget of the Organization. In its advisory opinion the Court also discussed the preliminary question of whether the UN had “been given [. . .] by the Charter” the power to establish “a judicial tribunal to adjudicate upon disputes arising out of the contracts of service”. The Court found that the power to establish a tribunal, to do justice as between the Organization and the staff members, was essential to ensure the efcient working of the Secretariat, and to give effect to the paramount consideration of securing the highest standards of efciency, competence and integrity. Capacity to do this arises by necessary intendment out of the Charter, supra note 50 at p. 57. 71 Ibid., p. 56; cf. ibid., 1949, p. 182, and PCIJ, Ser. B, No. 13, p. 18. 72 In particular Art. 101 (3): “the paramount consideration [. . .] shall be the necessity of securing the highest standards of efciency, competence and integrity”.

262 chapter seven The constitutions of the League of Nations and the International Institute of Agriculture contained no similar provisions. And yet both these organizations established administrative tribunals (like several other organizations). The Italian Court of Cassation in Proli v. International Institute of Agriculture referred to the fact that the League had established a tribunal and that the Institute might do likewise, without questioning their competence to do so.73 There is no reason why other intergovernmental organizations should not have the same power. Indeed, it is submitted that no such organization can be denied the power to establish an administrative tribunal on the ground that its constitution does not contain clauses which could (be stretched to) provide some basis for this power, as long as the constitution does not contain any provision which excludes the creation of administrative tribunals. Nor can an organization be denied this power on the ground that an administrative tribunal could not be considered “essential to ensure the effective working of the Secretariat” or to the performance of the duties of the organization. This is for the competent organs themselves to evaluate. Indeed, it would have been quite possible for the UN, as well as for the other organizations concerned, to carry out their functions without administrative tribunals – as in fact they did for many years before they established such tribunals. The true theoretical basis for the power to establish administrative tribunals which may render binding judgments is, it is submitted, the inherent and exclusive jurisdiction which all intergovernmental organizations, like States, possess over their organs and their ofcials as such,74 rather than a “necessary intendment” on the part of the drafters of the constitution of the particular organization concerned. Indeed, the inherent jurisdiction over own organs, which has been described above in chapters 5 and 6 with regard to legislative and administrative power, extends also to judicial power. In most cases administrative tribunals have been given jurisdiction only in actions brought against the organization. They thus have compulsory jurisdiction over the organization, but not over the ofcials, who are free to decide for themselves whether they want to sue the organization. However, if they do not sue, they have to accept its administrative decision, which it usually has the power to carry out, as most IGOs cannot be sued elsewhere because of their immunity from suit and because foreign courts are incompetent

Rivista di diritto internazionale Vol. 23 (1931), p. 386. The judgment was rendered in 1931, four years after the establishment of the Administrative Tribunal of the League of Nations and two years before the establishment of that of the International Institute of Agriculture. 74 A contractual basis may also be found in many cases. 73

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ratione materiae in matters falling under the organic jurisdiction of an IGO (or another State) and the ofcials therefore have no alternative but to accept the jurisdiction of the administrative tribunal if they want a judicial settlement of their claims. The jurisdiction is thus compulsory as far as the organizations are concerned and exclusive as far as the ofcials are concerned.

Actions by the organization against its ofcials There is usually no need for the organization to sue its ofcials. Most disputes concern matters to be performed by the organization, and this can then make an administrative decision, and leave it for the ofcial to bring an action before the administrative tribunal if he wants to challenge the decision. Indeed, the statutes of administrative tribunals frequently open only for actions against the organization, although in some cases the tribunal has had to establish specic obligations of the ofcial who originally brought an action against the organization.75 The ILO Administrative Tribunal has held that it cannot, under Article II of its Statute, accept a suit by an organization against a staff member.76 Nevertheless, the competence of internal courts of intergovernmental organizations is not always conned to actions brought by the ofcials. Thus it was provided in Article 17 of the original staff regulations of the International Court of Justice: Any dispute arising between the Registrar and a member of the staff of the Registry regarding the application of these Regulations or the conditions laid down in the letter of appointment may be submitted, either by the Registrar or by the person concerned, to the Court, for settlement according to the procedure which the Court may prescribe.77

Reference may also be made to Article 7 bis of the constitution of the International Institute for the Unication of Private Law – and to Article 236 of the constitution of the European Community (and Article 152 of the constitution of EURATOM) which read:

75 76 77

Examples cited by Suzanne Bastid in Recueil des Cours, Vol. 92 (1957 II), p. 445. Judgment No. 173, International Labour Ofce, Ofcial Bulletin Vol. LV, 1972. ICJ Yearbook 1964–47, p. 68. Italics added. Cf. Rosenne: The International Court of Justice, Leiden 1957, p. 201, Langrod in Revue du droit public et de la science politique Vol. 57 (1951), pp. 81–82, note and OR GA, IV, 5th Committee, Annex I, p. 159. The ICJ Staff regulations in force at the time of writing do not contain any provision corresponding to the one quoted in the text, but instead refers to the Staff Regulations of the UN.

264 chapter seven The Court of Justice shall have jurisdiction in any dispute between the Community and its servants within the limits and under the condition laid down in the Staff Regulations or the Conditions of Employment.

The subsequent common Staff Regulations of the European Communities, Article 91 (1) reads: The Court of Justice of the European Communities shall have jurisdiction in any dispute between the Communities and any person to whom these Staff Regulations apply regarding the legality of an act adversely affecting such person within the meaning of Article 90 (2). In disputes of a nancial character the Court of Justice shall have unlimited jurisdiction.

The effect of these provisions, too, would seem to be able to allow actions brought by the organization against its ofcials, although the drafters of some of the provisions may have had in mind only actions brought by the ofcials against the organization. However, the European Community also has a provision which clearly aims at action by the Community against its ofcials, in Article 22 of the Staff Regulations: An ofcial may be required to make good, in whole or in part, any damage suffered by the Communities as a result of serious misconduct on his part in the course of or in connection with the performance of his duties. A reasoned decision shall be given by the appointing authority in accordance with the procedure laid down in regard to disciplinary matters. The Court of Justice of the European Communities shall have unlimited jurisdiction in disputes arising under this provision.

Although the latter provision, too, authorizes the organization to sue its ofcials, it is more likely that the organization will make an administrative decision pursuant to the second paragraph and that it will then be for the ofcial to sue the organization pursuant to the third paragraph if he wants the Court’s decision. In the case of the EC and EURATOM, this provision of their Staff Regulations may nd a basis in Articles 236 and 152, respectively, of their constitutions as quoted above. A more explicit, but limited, provision is contained in Article 213 (2) of the EC constitution, which relevant part reads: In the event of any breach of these obligations, the Court of Justice may, on application by the Council or the Commission, rule that the Member concerned be, according to the circumstances, either compulsorily retired in accordance with Article 216 or deprived of his right to a pension or other benets in its stead.

Most of the provisions cited above are laid down in the constitution of the organization concerned or might be considered to be based upon constitutional articles. However, some provisions, including the most explicit of the

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general provisions relating to the International Court of Justice, have been established by regulation, without constitutional authorization.78 It is submitted that these examples reect a general principle – applicable to all IGOs whose constitutions do not provide otherwise – to the effect that such organizations have the power to confer upon their internal courts compulsory jurisdiction in disputes between the organization and its ofcials arising out of the relationship of employment or of their ofcial acts, even if the action is brought by the organization. It has been clearly established in practice that the organization has exclusive legislative and administrative jurisdiction over its ofcials with respect to the relationship of employment. This jurisdiction extends to all relations between the organization and its ofcials acting as such. Thus the UN and the specialized agencies have, like the European Community, in their staff rules reserved the right to require reimbursement for any nancial loss suffered by the organization as result of the negligence of an ofcial or of his having violated any regulation or instruction.79 Such reparation is made effective by administrative decision. But from an internal legal point of view80 there is no substantive reason why the organization could not do this instead by bringing an action before its administrative tribunal – or before other internal courts. The legal basis for the compulsory judicial power of IGOs over their ofcials in internal matters may be sought in their inherent (unilateral) legislative power over their organs and ofcials as such. But it may also be sought in the (bilateral) contract concluded between the ofcial and the organization. In

78 The constitution of the Council of Europe merely provides (in Art. 36 (c), cf. Art. 16) that

the staff shall be appointed by the Secretary-General in accordance with the administrative regulations adopted by the Committee of Ministers. The Statute of the International Court of Justice does not provide even that. It merely stipulates that the Court “may provide for the appointment of such [. . .] ofcers as may be necessary” (Art. 21 (2)) and, generally that “the Court shall frame rules for carrying out its functions” (Art. 30 (1)). The President of the Court has relied upon these articles in arguing (successfully) that it is not for the General Assembly of the UN, but for the Court itself, to establish judicial procedures for the settlement of disputes with ofcials of the Registry (OR GA IV, 5th Committee, Annex 1, p. 158) – as it has done, cf. above. Whatever it may be possible to deduce from these articles, it should be noted that they do not say more than what applies to any intergovernmental organization – whether or not its constitution says so (cf. Seyersted: United Nations Forces, Leyden 1966, pp. 144 ff.). 79 See, for example, rule 13.034 of the Staff Rules of the International Atomic Energy Agency. This rule is not necessarily based upon a genuine legislative power. In substance it says no more than what follows from general principles of law. – Art. 64 of the Regulations of the International Institute for the Unication of Private Law (UNIDROIT) contains a provision of a different kind. It provides that the Secretary-General may, as a disciplinary sanction, reduce the salary for a given period of “any ofcial or employee found guilty of serious fault or voluntary negligence in the performance of his duties”, if the ofcial is “coupable de faute grave, de manquement ou de negligence volontaire dans le service”. 80 The external effects of internal judgments are discussed below.

266 chapter seven the former case, the regulations which establish the administrative tribunals are regarded as binding legislative acts. In the second case they are regarded as binding parts of the contract of employment, into which they have been incorporated by express reference or tacit understanding. The substantive difference between the two legal bases, and the test case of their validity, appears if the regulations are amended with retroactive effect although the contract or the original regulations did not specify that they might be so amended. The UN Administrative Tribunal has held that matters which affect the personal status of each staff member (e.g. nature of his contract, salary, grade) are contractual and thus subject to protection as acquired rights,81 but that matters which in general affect the organization of the international civil service (general rules that have no personal reference) are statutory and may be amended with effect for current contracts of employment. Administrative tribunals and other judicial matters fall within the latter category.82

Actions by third parties against ofcials of the organization or members of a UN force Certain organizations exercise extended jurisdiction over individuals and other “external” subjects of law in certain limited respects. This is per denition the case of the so-called supranational organizations. In such cases it depends upon the constitution or the other act conferring the extended jurisdiction upon the organization whether it also has the power to exercise compulsory judicial powers over them. In the usual case, where the organization has no extended jurisdiction, disputes with external parties are not internal, but external disputes, and are governed, not by the internal law of the organization, but by national law. In such cases the organization cannot exercise compulsory jurisdiction over these external parties without authorization from the State under whose jurisdiction they belong. Thus the organization clearly could not unilaterally 81 The staff regulations of the International Court of Justice provided, rst, that appoint-

ments “shall be made on the basis of these Regulations” (Art. 2), that the regulations “may be amended” and that “the amended provisions shall replace the old provisions in respect of all members of the staff ” (Art. 19), and later that “the present Regulation may be supplemented or amended by the Court, without prejudice to the acquired rights of staff members” (Art. 14 of the 1979/87 version). 82 However, Art. 65 of the Regulations of the International Institute for the Unication of Private Law provided for express provisions: “Dans tous les contracts conclus par l’Institut avec les membres du personnel il sera inséré une clause prévoyant la compétence du Tribunal administratif, conformément aux dispositions de l’article 7 bis du Statut Organique”.

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confer upon its courts jurisdiction in actions brought by ofcials against third parties without their consent. Actions brought by third parties against ofcials in respect of their ofcial acts are in a different position. Jurisdiction in these cases implies compulsory jurisdiction only over the ofcials, and only in respect of acts with regard to which they are subject to the organic jurisdiction of the organization. This, it has been demonstrated, comprises not only legislative and administrative, but also judicial powers. The latter, as was submitted above on the basis of the practice of several organizations, comprises the power to confer upon the internal courts of the organization compulsory jurisdiction over its ofcials in internal disputes with the organization, whether this is considered a unilateral or a contractual power. Are disputes with third parties in any different position? There is no doubt that organizations exercise their legislative and administrative jurisdiction over their ofcials in respect of any ofcial acts performed by them, whether these form part of relations with organs or members of the organization or with third parties. In one case as in the other the ofcial – but not the third party – is bound by the regulations and the administrative decisions of the organizations. Is the judicial power any more limited? Or can the organization confer upon its courts jurisdiction even in respect of external acts, making such jurisdiction compulsory for its ofcials, but not for third parties? The judicial power against ofcials of the European Community is conned to actions by the Community, as set out in Article 288 of the EC Treaty. Other organizations are not known to have similar provisions in their constitutions. Yet, they all have, even without constitutional provision, legislative and administrative jurisdiction over the ofcial acts of their ofcials and judicial power in internal disputes. It is submitted that they have the same judicial power in external disputes as well. As long as their constitutions do not provide to the contrary, the organizations may by simple regulation confer upon their internal courts jurisdiction – whether such regulations be considered as genuine legislation or as parts of the contracts of employment. If no organizations are known to have done so in a general way, this is not because they lack the power, but because there has not been sufcient practical need for it, notably because the organizations have considered it more appropriate to assume responsibility themselves for acts performed on their behalf. These are, indeed, the acts of the organization itself, and in many countries it is customary to sue the institution rather than its head or any other person thereof. It is then for the organization to sue its ofcial at fault for redress before (national or) its internal courts, as e.g. authorized in Article 236 of the Treaty establishing the European Community.

268 chapter seven Nevertheless, there may be a need and justication for IGOs to establish internal courts where their ofcials can be sued when these enjoy immunity from suit in national courts, since there is then no alternative jurisdiction which could reasonably contest the jurisdiction of the organization. Indeed, all detailed treaties which have been concluded on privileges and immunities of intergovernmental organizations expressly provide that the ofcials shall enjoy immunity in respect of their ofcial acts. However, it is submitted that international ofcials are entitled to such immunity to the same extent as State ofcials even if there is no relevant treaty provision. A number of the treaties which provide for immunity for ofcials in respect of their ofcial acts provide at the same time that the organization shall make provision for appropriate modes of settlement of disputes involving any ofcial who by reason of his ofcial position enjoys immunity, if immunity has not been waived by the Secretary-General.83 In such cases the organization may support its judicial power upon this provision, vis-à-vis States which are contracting parties to the treaty concerned. It is submitted, however, that the organization will have the power to confer jurisdiction upon its own courts even if there is no such additional provisions – i.e., that even this power is inherent in all IGOs. The immunity of international ofcials extends in certain cases even to their private acts. It is possible that the organization may, in these special cases, derive a power to extend its compulsory jurisdiction to disputes arising out of such acts from the provisions granting the extended immunity or from companion clauses requiring the organization to provide alternative modes of settlement (in order to avoid a denial of justice).84 With this reservation, the jurisdiction which the organization may assume unilaterally over its ofcials extends only to disputes arising out of their ofcial acts. The jurisdiction is compulsory as far as the ofcials are concerned. The third parties involved are free to decide

83 See e.g. the general Convention on the Privileges and Immunities of the Specialized

Agencies § 31 (b) and the Agreement on the Status of the Western European Union Art. 26 (b). 84 Or in order to avoid that the national courts of their home country assume jurisdiction as if they were diplomats of that country, as a French court did in respect of the Secretary-General of the League of Nations, Avenol v. Avenol, Annual Digest of International Law Cases, 1935–37, Case No. 185. This case was reported in a New York judgment as follows: “It is interesting to note that research discloses a similar attempt to escape punishment by one [sic] Avenol in the Courts of the Republic of France in 1934, when he was being held to account for alleged failure to support his family, he then being the Secretary-General of the ill-fated [sic] predecessor to the present international organization – namely, the League of Nations. The judgment in that instance refused to accord the claimed immunity, with the comment: “No one may claim to be immune from suit in fty States. That is practically in all the world. Such a privilege would be abhorrent to the fundamental idea of justice”. (Ranallo case, City Court of New Rochelle, N.Y., OR GA, I, Second Part, Sixth Committee, Summary Records, p. 223).

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whether they want to submit to the jurisdiction of the court. However, if the ofcials enjoy immunity, the third parties will have no choice if they want to seek a judicial settlement of their claims. Thus, even in relation to third parties the jurisdiction is in fact exclusive. It has been proposed to amend the Statute of the International Court of Justice “so as to bring employees of international organizations enjoying immunity in the several member countries under the jurisdiction of the Court”.85 However, it would rather alter the nature of the International Court of Justice, which is primarily an international court, concerned with international law disputes between subjects of international law,86 to bring within its competence such disputes of internal law stricto sensu.87 In any case this would require a revision of the Statute, which is not so easily done. It appears more natural, and easier, to establish internal courts of the organization for the purpose, since this may be done without constitutional amendment or other treaty provision. This may also be done jointly by several organizations by agreement between them. What has been said above probably applies also to actions by third parties against members of a United Nations Force.88 This is obvious in the case of those members of the Force who have been individually enlisted, since these normally will be ofcials of the organization, even if they are not considered regular ofcials for internal purposes. But members of national contingents, too, have temporarily been placed under the jurisdiction of the organization to the extent that their national States have not retained powers over them. Their position vis-à-vis the UN is that of international personnel under the authority of the United Nations and subject to the instructions of the Commander, through the chain of command. However, the troop contributing State is responsible for all disciplinary matters (including criminal jurisdiction) concerning the conduct of its own personnel.89 Moreover, the members of

85 86 87 88

89

International Law Association, Second Report on the Review of the United Nations, London 1956, p. 43 (Austrian Branch Committee proposal). See below, chapter 7.9. See below, chapter 7.7, on the dangers involved in this. According to the UN Department of Peace-keeping Operations there are currently more than 100,000 personnel serving on 18 UN-led peace support operations on four continents – and in addition a number of other eld missions for observation, verication and other purposes – (www.un.org/Depts/dpko/factsheet.pdf – visited September 2007). Cf. Article 7 ter (1) of the revised draft model memorandum of understanding between the UN and troop contributing States (UN doc. A/61/494 3 October 2006): “The Government acknowledges that responsibility for disciplinary action in respect of all members of its national contingent while they are assigned to the military component of [United Nations peacekeeping mission] rests with the commander of that contingent. The Government accordingly undertakes to ensure that the commander of its national contingent is vested with the necessary authority for the purpose of maintaining discipline and good

270 chapter seven national contingents have been granted immunity from suit in the courts of the host State “in any matter relating to their ofcial duties” and, partly, even in respect of their private acts.90 In matters of a private law character the UN has assumed the power to establish commissions for binding settlement of claims against members of the Force.91 Such procedures, providing for courts of arbitration and claims commissions with compulsory jurisdiction to be established by the UN and the Congolese Government, were already agreed upon in paragraphs 10–11 of the host agreement with the Congo. Similar provisions had earlier been made in paragraph 38 of the host agreement with Egypt and in UNEF Regulation 34. In the case of UNEF, these documents were incorporated as annexes to the agreements concluded by the UN with the States providing contingents.92 However, this was in most cases done only subsequently. Thus, at least from a formal point of view, the UN assumed the power unilaterally, merely on the basis of the general placing of the contingents under its authority. In the case of the UN Forces in the Middle East and in the Congo the UN chose to establish external courts of arbitration or commissions rather than internal courts of the organization. However, from the point of view of the powers of the organization vis-à-vis the members of the Force it can hardly make any difference what kind of courts it establishes. The crucial fact is that the courts are established and given compulsory jurisdiction vis-à-vis the ofcials without their prior consent.

Internal enforcement of judgments The real problem is, however, not whether the organization is entitled, vis-àvis its ofcials, to establish internal courts with compulsory jurisdiction over order among all members of the national contingent and, in particular, ensuring that they comply with the United Nations standards of conduct, Mission standards of conduct and local laws and regulations. The Government further undertakes that the commander of its national contingent shall for that purpose take all appropriate steps to exercise that authority”. 90 Under the model Status of Forces Agreement concluded between the UN and host State, see UN doc. A/45/594, 9 October 1990, annex. 91 This is also set out in the model Status of Forces Agreement, which in its Article 51 refers “any dispute or claim of a private law character to which the UN peace-keeping operation or any member thereof is a party and over which the courts of [host country/territory] do not have jurisdiction because of any provision of this Agreement” to a standing claims commission to be established for that purpose. In practice, such private law claims are settled without resort to the establishment of standing claims commissions, but are instead handled by local claims review boards, cf. M. Zwanenburg, Accountability of Peace Support Operations, Leiden 2005, p. 90. 92 UNTS Vol. 271.

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them – but how the judgments rendered by such courts can be enforced. We may rst examine whether they can be enforced by internal action within the organization. Those organizations which have established administrative tribunals are not known to have made provisions for internal execution of the judgments rendered by these tribunals. Thus the Statute of the UN Administrative Tribunal merely provides, in Article 9 (3), that the compensation awarded by the Tribunal shall be “paid by the United Nations”. And the Statute of, and Annex to, the Administrative Tribunal of the International Labour Organization, which is also competent in respect of most of the specialized agencies in Europe and a large number of other IGOs, provide that “any compensation awarded by the Tribunal shall be chargeable to the budget of the international organization against which the complaint is led”, Article IX 3. In the absence of any provision for execution – and since IGOs, unless otherwise provided, enjoy immunity from national measures of enforcement without their consent93 – there are no means whereby ofcials and third parties may have judgments enforced against the organization without its consent. As was pointed out in the United Kingdom oral statement during the hearings preceding the advisory opinion on Effects of Awards of Compensation Made by the UN Administrative Tribunal, the General Assembly has no legal right to refuse to meet a liability arising from a judgment of the Administrative Tribunal, “though it has the power to omit to make provision for it in its Budget”.94 However, the organization will usually comply with judgments rendered against it by its own tribunals.95

93 According to Art. 1 of the Protocol on the Privileges and Immunities of the European

Communities, measures of enforcement may be undertaken against their assets with the consent of their own Court of Justice (cf. Art. 256 of the EC constitution). In the case of other intergovernmental organizations, national enforcement of judgments rendered by internal IGO-courts will be precluded already by the fact that States do not enforce foreign judgments unless they have specically agreed to do so. 94 ICJ Pleadings, UN Administrative Tribunal (1954), p. 362, cf. p. 361, italics added. In Norwegian constitutional law it is assumed that the Administration must comply with a judgment rendered by a Norwegian court, even if Parliament refuses to appropriate the money. 95 The only known exception in practice is the refusal of the Assembly of the League of Nations on 13 April 1946 to pay compensations awarded in thirteen judgments rendered by the League of Nations Administrative Tribunal. The basis of this decision, however, was a holding by a sub-committee of the Second (Finance) Committee of the Assembly, that the awards made by the Tribunal were invalid because they sought to set aside a legislative act of the Assembly, viz. its resolution of 14 December 1939 amending the staff regulations (Société des Nations, Journal ofciel, 1939, p. 424). The decision, which was an administrative one, was made during the winding up of the League, by 16 votes to 8 (mostly Benelux and Scandinavian members constituting the minority), with 5 abstentions (ibid., Supplement special No. 194, pp. 130–33; text of the report of the SecretaryGeneral at pp. 245–9 and of the sub-committee and the Second Committee at pp. 261–4;

272 chapter seven Enforcement against the ofcials may be done by the organization itself by measures within the framework of its organic jurisdiction – or, more specically, within the framework of the relationship of employment. In particular the organization may apply disciplinary measures, including dismissal, and salary deductions.96 But the territorial sovereignty of States prevents the use of regular measures of execution against individuals, property or rights within their territory by the organization itself. These are measures which only the territorial sovereign may perform and which he usually will not delegate. Thus, if measures within the framework of the relationship of employment do not sufce, the organization will have to look to States for assistance. This raises the question of the external effects of judgments.

External effects of judgments States are under no obligation to execute judgments rendered by courts of another jurisdiction, unless this has been specically provided for.97 This is true of judgments of internal courts of IGOs no less than of judgments of foreign national courts. In the case of the European Community and EURATOM, there is a specic provision in the constitutions that the judgments of the Court of Justice shall be enforceable in the member States.98 Other organizations are not known to have any similar arrangements. In their case, therefore, neither the host State, nor other member or non-member States, is under any obligation to execute the judgments of the internal courts of the organization.

for a summary and an evaluation of the case, see Pleadings, UN Administrative Tribunal (1954), pp. 129 and 171–81). 96 If the ofcial is no longer employed with the organization, these measures cannot be applied. He is then no longer subject to the organic jurisdiction of the organization, and must be sued in the national courts which have territorial jurisdiction over him and his assets. The UN has done this on at least two occasions in respect of claims for reimbursement of overpayment of salary (Annual Report of the Secretary-General, 1952–53, p. 149; the text of one of the judgments is printed in the Pasicrisie Belge, 1953, No. 10, p. 65). The available texts of the relevant judgments do not indicate what law was applied. It is submitted, however, that the national court in such cases must apply the internal law of the organization in order to determine the basis of the claim. But it will apply national law in order to determine whether the claim is still recoverable (condictio indebiti, prescription, compensation), since the claim is no longer internal, between parties both of whom form part of the organization. 97 The Lugano Convention of 16 September 1988 and Council Regulation (EC) No. 44/2001 of 22 December 2000 (Ofcial Journal of the European Communities Vol. L 12 16 January 2001, p. 1) on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters relate only to judgments by European national courts. 98 EC Art. 244; EURATOM Art. 159. Cf. Art. 1 of the Protocol on the Privileges and Immunities of the Communities.

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On the other hand, national courts do not always ignore foreign judgments. The national courts of several countries will recognize them as binding (res judicata) and enforce them under their own law99 under certain conditions, if they have been given by a court which had “international competence” according to the procedural international law of the State where execution is sought, i.e. according to the rules governing the international competence of its own courts.100 In these cases, even if it is necessary to obtain a new judgment in the State where execution is sought, such judgment is granted without enquiring into the merits of the case (“action on the judgment”, action judicati).101 In other cases an examination of the substance is admitted, but the foreign judgment is considered as proof of the validity of the claim, subject to the right of the losing party to submit counterproof.102 It has been held in certain English judgments, and by certain writers of other countries, that States are under an obligation of international law to accord such binding effect to foreign judgments. However, this assumption is not supported by any uniform practice. But, whether the problem arises as a question of international law or as one of the national law of the State concerned, it is submitted that the same principles should be applied to judgments of internal courts of intergovernmental organizations as are applied to those of foreign national courts. Thus, if judgments of foreign courts of competent jurisdiction are recognized as binding under certain conditions, then judgments of internal courts of intergovernmental organizations, too, should be so recognized if they fulll these conditions,103 including in particular This is also the rule under Art. 256 of the Treaty establishing the European Community. Riad: La valeur internationale des jugements en droit comparé, Paris 1955, pp. 184–6. See also Riezler: Internationales Zivilprozessrecht, Berlin 1949, § 52, cf. p. 453, the German Zivilprozessordnung §§ 328–223 a. The Danish law on civil procedure of 10 November 1992, as amended 1994 and 1995, authorizes the Minister of Justice to enact regulations making foreign judgments binding in Denmark, even if no treaty has been concluded to this effect, but on condition of reciprocity. 101 See Riezler, op. cit. § 58 in initio and the German Zivilprozessordnung § 328, cf. Hambro in International and Comparative Law Quarterly, Vol. 6 (1957), pp. 606–7, and also the English case Goddard v. Gray (1870 L.R.Q.B. 138) and the French case Charr c. Hasim Ullasahim (Clunet, Vol. 83 (1965), p. 165). See also the draft principles discussed by the International Law Association, Report of the Forty-Eighth Conference, New York 1958, p. 118 (“shall be given conclusive effect”). 102 Cf. Riezler, op. cit. § 50 No. 10, and Rammos: “Die Beweiskraft ausländischer Urteile vor den griechischen Zivilgerichten” in: Grundprobleme des internationalen Rechts, Bonn 1957, pp. 363–8. 103 The condition of reciprocity would probably be met, in theory, by intergovernmental organizations and their courts. Since in practice these will only rarely be faced with questions of national law, the condition of reciprocity may be more simply satised, formally, by a provision in the statute or the rules of the IGO court concerned that it shall be bound by judgments of foreign (State or IGO) courts of competent jurisdiction. It may be noted, however, that the International Law Association in 1958 adopted a resolution approving “the principle that recognition and enforcement of foreign judgments ought 99 100

274 chapter seven the condition that the courts are “internationally competent”.104 On this point, it is submitted that internal courts of intergovernmental organizations are internationally competent in respect of actions (against the organization and) against ofcials arising out of their ofcial acts, in respect of which they are subject to the organic jurisdiction of the organization. It might be objected that the procedural international law of the State where execution is sought, which denes the international competence of courts of that State, is based upon territorial and personal criteria, and that these are of no relevance to courts of intergovernmental organizations except to the extent that these may have been granted extended territorial and/or personal jurisdiction. Indeed the jurisdiction of internal courts of IGOs which do not exercise relevant extended jurisdiction is based upon the inherent jurisdiction of the organization over its organs (organic jurisdiction). This comprises not only exclusive legislative and administrative power, as described above in chapters 5 and 6, but also exclusive judicial power. However, the procedural international law of States, too, is in fact based also upon organic criteria, even if this is not identied by legal writers. In practice national courts always assume jurisdiction in disputes on matters falling within the organic jurisdiction of their State, such as disputes between the government and its ofcials arising out of the relationship of employment, even if they involve ofcials of foreign nationality and arise in foreign territory. On the other hand, national courts decline jurisdiction in matters falling under the organic jurisdiction of a foreign State, even if the matter would otherwise fall under the territorial (and personal) jurisdiction of the court. A striking example is actions brought against a government by its employees who are employed in a foreign country and who themselves are nationals of that country, in respect of the relationship of employment.105 Thus, an organic link with one legal system overrides territorial (and personal) links with another system. Similarly, national courts declare themselves incompetent in disputes concerning matters falling under the organic jurisdiction of an intergovernmental organization, even if the matter would otherwise fall under the territorial (and personal) jurisdiction of the State concerned, as in the case of the relationship of employment of their nationals working for the organization in their own national territory. It is thus clear that national courts, in determining questions of their internot to depend on reciprocity” (Report of the Forty-Eight Conference, New York 1958, p. x). 104 The question whether courts of member States should recognize as binding the judgments of internal courts of the organization even where they do not so recognize judgments of courts of foreign States, is left aside. 105 See, for example, the cases reported in Hackworth: Digest of International Law (Washington 1940–43, Vol. 4, pp. 732–4), which were based upon incompetence ratione materiae, rather than immunity ratione personae.

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national competence, pay due attention to the organic jurisdiction of States as well as of IGOs – they allow it to override otherwise applicable territorial and personal jurisdiction. It is submitted, accordingly, that internal courts of intergovernmental organizations are “internationally competent” in disputes falling under the organic jurisdiction of the organization concerned.106 Indeed, they are the only courts which are internationally competent in disputes between parties under the jurisdiction of the organization arising out of matters falling under its organic jurisdiction. Thus, if an ofcial whose contract of service has been terminated by the organization sues the organization before its administrative tribunal for terminal indemnities, and if the tribunal rejects his claim, and if, subsequently, the organization sues him in a national court for reparation for injury caused by him during his service or for reimbursement of overpayment of salary, the national court cannot grant a counterclaim for such terminal indemnities as were refused by the administrative tribunal, if the national court concerned recognizes as binding judgments delivered by foreign national courts in similar circumstances. Indeed, judgments rendered by foreign (State or IGO) courts on the basis of exclusive organic jurisdiction probably must be recognized as binding (res judicata, but not as enforceable) even in countries which do not normally recognize foreign judgments as binding. If only one of the parties to the dispute is subject to the jurisdiction of the organization, the dispute is no longer internal, and its courts are not the only competent courts. But even in such external disputes they are still courts of competent jurisdiction if the dispute concerns ofcial acts (including private law acts, e.g. contracts, performed on behalf of the organization) or private law acts in respect of which the ofcial enjoys immunity because of his ofcial status – and the other party himself institutes proceedings before the court of the organization or otherwise voluntarily submits to its jurisdiction. This is in accordance with the principle of consent, recognized in the procedural international law of most or all States.107 This covers the case, dealt with above, of

Although the drafts submitted to the International Law Association’s Conference in 1958 were concerned with commercial judgments and thus obviously did not have in mind claims involving State and IGO ofcials, they did not preclude organic criteria. Thus the Model Act on enforcement of foreign money judgments provided in par. 3 that “The foreign court which rendered the judgment shall be deemed to have had international jurisdiction if; (b) The whole cause of actions arose within the foreign jurisdiction;” (see Report of the Forty-Eighth Conference, New York 1958, p. 120, cf. also p. 119, under (4), and 129, under 1). The nal text, as adopted at the 1960 Conference, was conned to judgments of courts of “a foreign State”, and did not contain the provision in par. 3 (b) of the draft, but merely a provision that the bases for recognition listed are not exclusive (Report of the Forty-Ninth Conference, Hamburg 1960, p. ix). 107 Cf. also the Model Act adopted by the International Law Association (Report of the Forty-Ninth Conference, Hamburg 1960, pp. vii–viii). It may also be argued that a 106

276 chapter seven third parties suing ofcials in respect of their ofcial acts. It also covers the case of third parties suing the organization itself in disputes of national law. The question of the external effects of judgments of internal courts of intergovernmental organizations is a new one.108 However, the general question of the recognition of judgments rendered by foreign judicial authorities other than courts of States is not new. It has arisen e.g. in respect of judgments rendered by religious courts, although these are not comparable to courts of intergovernmental organizations unless they are organs of a subject of international law (the Holy See); if not they will presumably be considered binding abroad only if they are binding under the law of the country where they were rendered, and for that reason.109 It may also be mentioned in this connection that the UN Joint Staff Pension Board has taken the position that

judgment given with the consent of the third party concerned cannot be given less effect than a foreign arbitral award. 108 But see Seidl-Hohenveldern: “The Foreign Litigant before the Court of Justice of the European Communities” in Journal of Business Law (1964), pp. 183–4 on the possible effect in third States of decisions by the Court of Justice of the European Communities rendered by virtue of arbitration clauses. 109 According to Riad, op. cit. pp. 99–100, the majority of German writers considered that no distinction could be made between judgments of courts of foreign States and judgments of other foreign authorities, such as religious courts. At least the case cited by Riad (Warneyer: Die Rechtsprechung des Reichsgerichts, Vol. 17 [1925] No. 133 [178]), which was merely an obiter dictum concerning a divorce by ecclesiastical administrative act, was concerned with an act which apparently was recognized as binding by the State in which it was rendered, and which could, on that basis, be assimilated to judgments rendered by the regular courts of that State. Cf. also Riezler, op. cit. p. 117. Riad adds that the Reichsgericht later took a contrary view. However, the case he cites (Ehem. M. v. Ehefr. M., Entscheidungen des Reichsgerichts in Zivilsachen, Vol. 136, p. 142) is not in point. It concerns not a judgment of a foreign religious court, but a simple administrative act of an administrative authority of a foreign State. Indeed, the refusal of the Reichsgericht to recognize that act as binding in Germany was based on the fact that the act was administrative and not judicial. The relevant provision in German law (Zivilprozessordnung § 328) speaks of “the recognition of the judgment of a foreign court”. Reference may be made also to the provisions governing the effects in Italy of judgments pronounced (in that country) by ecclesiastical authorities. The Law of Guarantees of 13 May 1871 (Legge sulle prerogative del Sommo Pontice e della Santa Sede, e sulle relazioni dello Stato con la Chiesa, Legi e Decreti del Regno d’Italia, Vol. 31 (1871). p. 1014 No. 214 [Serie 2 a]; French translation in Martens: Nouveau Recueil Général, 2e série Vol. 18, p. 41) merely provided, in Art. 17, that acts of the ecclesiastical authorities were not to be enforced in Italy, and that it was for the civil courts to determine their legal effects. The Lateran Treaty of 11 February 1929 gave such acts made in pursuance of organic or (extended) personal jurisdiction executory force by its Art. 23, which provides that: “sentences and decisions pronounced by ecclesiastical authorities, which have to do with ecclesiastical or religious persons in spiritual or disciplinary matters, and which are ofcially communicated to the civil authorities, will have full juridical efcacy immediately in Italy even so far as the civil effects are concerned” (Italian text in: Martens, op. cit., 3e série, p. 18. English translation in AJIL, Vol. 23 (1929), Suppl. p. 194). This provision does not apply to judgments pronounced by the courts of the State of the Vatican. Art. 23 provides that for the execution of these “the principles of international law will be applied”.

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the UN Administrative Tribunal, in passing judgments upon applications alleging non-observance of the Regulations of the UN Joint Staff Pension Fund, shall give “full faith, credit and respect” to the “proceedings, decisions and jurisprudence” of the administrative tribunals of the several specialized agencies concerned, relating to their own staff regulations. By bringing a new action in the courts of a State which recognizes the binding force of foreign judgments – in general or when based upon organic jurisdiction – the winning party can have the judgments of the internal court of the organization enforced by execution of the authorities of the State under which the court belongs. It is, however, a condition for this procedure that the organization waives the immunity of the ofcial if he is the defendant before the national court. It is, furthermore, a condition that the national court concerned does not consider itself incompetent ratione materiae.110 This it must do if the dispute is one between the organization and its ofcial and is under the exclusive organic jurisdiction of the organization,111 but this monopoly of the organization does not extend to enforcement of a judgment rendered by its own competent courts. National courts cannot as such consider themselves incompetent if the dispute involves a third party, since external disputes are not subject to the exclusive organic jurisdiction of the organization.112 In this case only the question of immunity (ratione personae) arises.

Conclusions It is submitted, in conclusion, that IGOs in the absence of any contrary provision in their constitutions, have an inherent capacity to establish courts to adjudicate upon disputes between the organization and its ofcials.

On the distinction between immunity ratione personae and incompetence ratione materiae, see BYIL 1961, p. 454, note 2. See also Lord Millett’s statement in Reg. v Bow Street Magistrate Ex parte Pinochet (No. 3) [2000] 1 AC 147, pp. 268–9, on immunity ratione materiae as a subject-matter immunity that “operates to prevent the ofcial and governmental acts of one state from being called into question in proceedings before the courts of another, and only incidentally confers immunity on the individual. It is therefore a narrower immunity but it is more widely available. It is available to former heads of state and heads of diplomatic missions, and any one whose conduct in the exercise of the authority of the state is afterwards called into question, whether he acted as head of government, government minister, military commander or chief of police, or subordinate public ofcial. The immunity is the same whatever the rank of the ofce-holder. This too is common ground. It is an immunity from the civil and criminal jurisdiction of foreign national courts, but only in respect of governmental or ofcial acts.” It is submitted that ofcials of intergovernmental organizations are protected also by immunity ratione materiae to the same extent as ofcials of foreign States as far as their exercise of governmental functions is concerned. 111 Ibid. pp. 448–9, and above, chapter 1. 112 Indeed national courts have assumed jurisdiction in disputes between the organization and its former ofcials. 110

278 chapter seven There can be no doubt that the organizations can establish such courts to decide actions brought against them by their ofcials, and this is conrmed in practice by the fact that a great number of organizations have established administrative tribunals for this purpose, despite the absence in their constitutions of any provision authorizing them to do so. However, IGOs must also be entitled to establish tribunals to adjudicate upon actions which they bring against the ofcials in that capacity, i.e. if the action relates to their service or their relationship of employment. The statutes of some internal courts of intergovernmental organizations allow such actions, and some of these statutes have been enacted by the organization concerned without basis in a relevant constitutional provision. If most organizations have in fact refrained from establishing courts for this purpose or from actually bringing actions against their ofcials in their internal courts, this is not because the organizations lack the power to do so, but because they do not need to do so or because the judgments of such courts would not be directly enforceable by the authorities of the host State or the ofcial’s home State. It is much simpler, and equally fair to the ofcials, for the organization to make an administrative decision, which the ofcial may challenge before the administrative tribunal if he wants to seek a judicial settlement. It is also submitted that intergovernmental organizations, in the absence of any contrary provision in their constitution or in other treaty, have inherent competence to confer upon their internal courts power to adjudicate upon disputes between their ofcials acting as such and third parties, although such jurisdiction can be made compulsory only in respect of actions brought against the ofcials. Only one organization is known to have done this, by virtue of an express constitutional provision. However, if other organizations have not done the same, it is submitted to be not because of any inherent incapacity, but because claims advanced against ofcials by third parties will usually be settled by the organization itself if they arise from ofcial acts, since such acts are properly the acts of the organization. If not, the organization may waive the immunity of its ofcial from suit in national courts. Within the limits indicated above, it is submitted that the internal courts of the organization must be considered as courts of competent jurisdiction and that their judgments must be given effect by national authorities on the same conditions and to the same extent as these give effect to judgments of other foreign courts, unless there is a basis in an applicable treaty or in the law of the State concerned for treating them differently.113 In respect of private acts of the ofcials, the organization can only confer compulsory jurisdiction upon its own courts if the States concerned have

113

The constitution of the European Community provides for full executory force, see above.

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conferred upon it the power to do so, for example by a provision in the constitution or in a convention on privileges and immunities that the ofcial shall enjoy immunity also in respect of such acts (“diplomatic” immunity) and a companion provision that the organization shall establish alternative modes of settlement of disputes involving such ofcials. The judgments rendered by the courts of the organization in such cases must probably be given the same effect as other judgments of foreign courts of competent jurisdiction are given by the authorities of those States which have, expressly or by implication, conferred the power upon the organization.

7.5

Internal courts for other disputes

Disputes with private individuals It has been pointed out above in chapter 7.3.3 that the organization may confer upon its internal courts competence to adjudicate upon disputes between third parties and ofcials of the organization, but that such jurisdiction may be made compulsory only upon the ofcials. The question now to be discussed is whether the organization may confer jurisdiction upon its internal courts in disputes between itself and physical or legal persons other than ofcials.

Individuals under the extended jurisdiction of the organization The practical need for judicial settlement of disputes involving other parties arises primarily in organizations having extended jurisdiction over individuals and member States, such as the European Community. As for the UN, the Security Council is increasingly exercising an extended jurisdiction over private individuals and entities, notably in the form of imposing targeted sanctions.114

114

As may be illustrated by the sanctions list adopted by the Sanctions Committee under UNSCR 1267 (1999) and later resolutions concerning individuals, groups and entities deemed to belong to or act in support of the Taleban or al-Qaeda (see www.un.org/sc/ committees/1267/consolist.shtml, visited September 2007), which entails an obligation on member States to freeze without delay funds and economic resources belonging to or controlled by listed persons and entities. Some modest but important steps have been taken to address the lack of judicial guarantees for such listed persons, inter alia by adopting UNSCR 1730 and 1735 (2006). UNSCR 1730 establishes a de-listing procedure by which adversely affected individuals and entities may challenge a decision to impose sanctions through a designated UN contact point.

280 chapter seven Internal disputes involving physical or legal persons other than ofcials may arise in those cases where the organization has been granted extended jurisdiction over individuals (and companies) other than ofcials. As described in chapter 6 above, such jurisdiction may have been granted in the form of territorial jurisdiction, such as that of certain international river commissions; or of personal jurisdiction, such as that of the Mixed Commission for the Exchange of Greek and Turkish Populations or that of the European Nuclear Energy Agency under the Convention on the Establishment of a Security Control in the Field of Nuclear Energy of 20 December 1957;115 or of decisions binding upon States; or of comprehensive jurisdiction as that of supranational organizations. In such cases there may be a practical need for judicial settlement of disputes arising out of the exercise by the organization of its legislative and/or administrative powers over these parties. The constitution of the European Community provides that the Court of Justice shall be competent in actions brought against the Community by natural or legal persons under its extended jurisdiction.116 But there can be no doubt that other organizations, too, are entitled to establish courts for the adjudication of such disputes, which are internal largo sensu. The individuals and companies concerned may be given the right to sue the organization before such internal courts.117 And if they consent, they may themselves be sued by the organization or by third parties. The question whether the organization may confer upon its internal courts compulsory jurisdiction over the individuals and companies concerned, i.e. jurisdiction in actions brought against them without their consent, cannot be answered in general terms. It depends upon an interpretation of the act conferring the extended jurisdiction upon the organization. In the case of organizations exercising complete territorial jurisdiction, such as indirect coimperia, it goes without saying that the compulsory judicial power of the organization extends as far as its legislative and administrative powers. Ref-

Text in the International Atomic Energy Agency’s Legal Series No. 1, entitled “Multilateral Agreements”, Vienna 1959, p. 187. 116 See Art. 232 of the Treaty Establishing the European Community, cf. also the competence of the EFTA Court to hear disputes raised by private individuals laid down in the ESA/Court Agreement Arts. 36 (2) and 37 (3). 117 The semi-judicial Eligibility Review Board of the International Refugee Organization was to hear and determine appeals from individual refugees against administrative decisions by the Organization denying them status as refugees eligible for assistance. See resolutions nos. 53 and 70 of the Preparatory Commission for the International Refugee Organization (Prep./154/Rev. 1/pp. 10 and 25, and Prep./195/Rev. 1/pp. 18–19 and 36). This Board, however, was never established. Moreover, it was not to be concerned with disputes arising out of genuine jurisdiction over private individuals, since the Organization did not have the power to impose duties upon the refugees other than as a condition for receiving aid from the Organization. 115

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erence may also be made to the Western European Union, which had been empowered by the German-French agreement on the Status of the Saar of 23 October 1954 to supervise the implementation of its provisions. Judicial powers were not specically mentioned, but in 1955–56 an internationally composed tribunal was established to adjudicate upon any complaints by Saarlanders of political persecution in connection with the referendum provided for in the agreement.118 The compulsory judicial power of international river commissions, on the other hand, usually extends only to cases expressly provided for. The power conferred upon the UN in respect of its headquarters district in New York by § 8 of its headquarters agreement with the United States is expressly conned to a legislative power, the judicial power remaining with the US.119 The European Court of Justice has not been given compulsory jurisdiction with direct effect over enterprises subject to the community’s legislative and administrative authority or over other private parties, except insofar as this might in principle be provided by the State under whose general jurisdiction they belong. The latter was expressly provided in Article 43 of the constitution of the former Coal and Steel Community, but it goes without saying that the other Communities, too, like any other intergovernmental organization, have the power to confer such compulsory jurisdiction upon their courts if the competent States so provide.120 Otherwise the Court may exercise compulsory jurisdiction over private individuals only indirectly. Thus, in the rst place, if the individual is sued in a national court in a matter which raises, as a preliminary issue, the question of the validity of a decision of the organization, the Court of the Community has exclusive jurisdiction in respect of this question.121 In the second place, Article 104 of the constitution of EURATOM provides that, on a petition by the Commission of the Community, See Deruel: Le Tribunal international de la Sarre in Annuaire français de droit international, Vol. 2 (1956), pp. 509–16. 119 Cf. § 7 (c) and (d) of the headquarters agreement. It was in the context of a discussion of these provisions that the restrictive statement quoted above, in note 49, was given. It was unfounded even in that context, since the UN does exercise legislative powers over private individuals within the headquarters district and could have exercised judicial powers as well if the headquarters agreement had so provided, despite the absence of any provision in the Charter to that effect. 120 Private parties may, furthermore, be sued before the Court if they have consented thereto by a clause in a contract, cf. the constitutions of the EC Art. 238 and EURATOM, Art. 153. 121 EC Art. 234 and EURATOM Art. 150. National courts cannot themselves nd a Community measure to be invalid, see ECJ judgment in case C-314/85 of 22 October 1987, Foto-Frost/Hauptzollamt Lübeck-Ost, in which it was stated that if a national court (against whose decision there is a judicial remedy) has doubts about the validity of a Community measure, it must stay the proceedings and ask the Court of Justice to give a preliminary ruling on the matter (Rec. 1987, p. 4199). Cf. also ESA/Court Agreement Article 34 concerning the EFTA Court. 118

282 chapter seven the Court of Justice shall rule as to the compatibility with the constitution of any agreement or convention concluded by any person or enterprise with a third country, an international organization or a national of a third country, where such agreement or convention has been concluded after the date of the entry into force of this Treaty. Thirdly, if a dispute is brought before a national court, that court may, or shall, ask the EC Court for a preliminary ruling on the interpretation of relevant aspects of EC law as specied in Article 234 of the Treaty Establishing the European Community and Article 150 of the EURATOM constitution. Otherwise the individuals themselves are forced to sue the organization before its Court of Justice if they want to contest the validity of a decision of the organization. The constitutions contain a number of provisions authorizing them to do so.122 The incentive to bring such action is particularly manifest in respect of decisions of the Commission imposing monetary obligations upon individuals, since these decisions have been given direct executory force in the member States.123 The European Convention on the Establishment of a Security Control in the Field of Nuclear Energy of 20 December 1957 provides in Article 13 that “any Government party to the present Convention or any undertaking concerned may bring before the Tribunal set up under Article 12 appeals against certain decisions made by the European Nuclear Energy Agency” (an autonomous organ of the Organization for Economic Co-operation and Development) in connection with the security control. The tribunal may declare that the decision appealed against is contrary to the convention or to the security regulations enacted or agreements concluded pursuant thereto, and it may oblige the Agency to pay reparation for any damage suffered by the undertaking. The Convention then goes on to provide, in Article 14: The Tribunal shall be competent to decide on any other question relating to the joint action of the Member countries of the Organization in the eld of nuclear energy submitted to it by agreement between the parties to the present Convention concerned.

Such competence has indeed been granted to the Tribunal by several conventions. Article 16 of the Convention of 20 December 1957 on the Constitution of the European Company for the Chemical Processing of Irradiated Fuels (Eurochemic)124 provides that “any dispute arising between Governments

See for example EC constitution Arts. 232–235 and EURATOM constitution Arts. 146–51. 123 EC constitution, Arts. 244 and 256; EURATOM constitution, Arts. 159 and 164. 124 International Atomic Energy Agency, Legal Series No. 1 (Vienna 1959), p. 218. 122

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party to the present Convention concerning the interpretation or application thereof ” may be submitted to the Tribunal “by agreement between the Governments concerned”. On the other hand, Article 17 of the [European] Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy and Article 17 of the Supplementary Convention thereto of 31 January 1963 provide that “any dispute arising between two or more Contracting Parties concerning the interpretation or application of this Convention [. . .] shall, upon the request of a Contracting Party concerned” be submitted to the European Nuclear Energy Tribunal. It is submitted that, even in the absence of Articles 13 and 14 of the European Convention on the Establishment of a Security Control in the Field of Nuclear Energy, the organization could have established a tribunal with the competence stated in these provisions, although its competence could then not be made exclusive since the provisions do not impose compulsory jurisdiction upon the contracting parties or the undertakings, but only upon the organization. Furthermore, if there had been no such provisions, any member of the organization could accept the jurisdiction of the Tribunal as compulsory upon them or upon individuals under their jurisdiction, as members have done in two of the conventions quoted above. The legal signicance of Article 14 is not that it authorizes the organization and the Tribunal to accept extension of its competence, but that it gives the contracting States a legal right to require the Tribunal to adjudicate in circumstances covered by the provision, and, possibly, that it prevents the Tribunal from accepting jurisdiction in circumstances not covered by the provision. At any rate, it is quite clear that Article 14 does not authorize the organization to confer upon the Tribunal compulsory jurisdiction over enterprises or other private persons without the agreement of their governments. The means of enforcing judgments rendered by the internal court of an IGO against a private individual similarly depend upon an interpretation of the act conferring the extended jurisdiction upon the organization. In the case of complete territorial jurisdiction, the organization may enforce its judgments by the same means as a State. The European Community has, pursuant to Articles 81 ff. of its constitution, instituted nes to the Community upon undertakings which violate EC competition rules.125 These nes may also hit

125

See the Regulations on unlimited jurisdiction in the matter of nes in Court of Justice of the European Communities, Selected Instruments relating to the Organization, Jurisdiction and Procedure of the Court (Luxemburg 1993), pp. 229–32 and Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law, 9th ed., Oxford 2006, pp. 635 and 637–8. See also Lasok and Bridge: Law and Institutions of the European Union, London 1994, pp. 251–76.

284 chapter seven enterprises outside the EC-area, if their acts take place or produce effects in the EC internal market. In other cases the organization may enforce its judgments only by withholding payment of sums due to the losing party or by withholding other benets or rights accruing to it within the organization.126 In such cases it may be necessary that the States concerned undertake to enforce the judgments, as they have done in the case of the European Community. Even in the absence of such provisions, national courts should, it is submitted, attribute the same force to judgments of an IGO of competent jurisdiction as they do to judgments of a foreign national court of competent jurisdiction.

Individuals not under the jurisdiction of the organization Intergovernmental organizations may also establish courts for the adjudication of disputes between the organization and individuals who are not subject to its organic or extended jurisdiction, or between the organization and individuals concerning matters which fall outside the legislative and administrative jurisdiction of the organization. This may be important to ll the gap left open by the organization’s immunity from suit in national courts. Such disputes are not internal. Still, the method of settlement has been established in certain cases by constitutional provision.127 But it may also be done without such provision, as has been done by the International Labour Organization and the Council of Europe. Article II (4) of the Statute of the Administrative Tribunal of the International Labour Organization provides: The Tribunal shall be competent to hear disputes arising out of contracts to which the International Labour Organization is a party and which provide for the competence of the Tribunal in any case of dispute with regard to their execution.

Article 21 of the General Agreement on Privileges and Immunities of the Council of Europe provides for a more external procedure: Any dispute between the Council and private persons regarding supplies furnished, services rendered or immovable property purchased on behalf of the

The constitution of the former European Coal and Steel Community provided that even decisions of administrative organs of the Community might be enforced by these and other means, see Arts. 63 (2), 66 (5)–(6) and 91. 127 See notably the constitutions of the following organizations: EC Arts. 235 and 238; EURATOM Arts. 151 and 153; UNIDROIT Art. 7 bis, cf. the interpretative resolution adopted by the General Assembly at its second session (1953) in order to bring the provision into conformity with Italian legislation. 126

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Council shall be submitted to arbitration, as provided in an administrative order issued by the Secretary-General with the approval of the Committee of Ministers.

This agreement is not part of the constitution of the organization, but it has been ratied by the host country, where a number of the contracts in connection with the construction of the building of the Organization were made. The provision has been followed up by Rule No. 481 enacted by the Secretary-General of the Council of Europe on 27 February 1976, whose Article I provides: Any dispute relating to the execution or application of a contract covered by Article 21 of the General Agreement on Privileges and Immunities of the Council of Europe shall be submitted, failing a friendly settlement between the parties, for decision to an Arbitration Board composed of two arbitrators each selected by one of the parties, and of a presiding arbitrator, appointed by the other two arbitrators . . .

Finally, this provision is followed up by a clause in each contract on the following model: Any dispute between the Council of Europe and . . . regarding the execution or application of this contract shall, failing a friendly settlement between the parties, be submitted to arbitrate in accordance with the appended Rule no. 481 issued by the Secretary General with the approval of the Committee of Ministers as provided in Art. 21 of the General Agreement on Privileges and Immunities of the Council of Europe.

It should be noted, however, that such disputes are not internal, but external, and are governed, not by the internal law of the organization, but by national law, although the internal law of the organization must be applied where the applicable rules of conict of laws refer to its “personal” law. The organization cannot assume compulsory jurisdiction over the individuals concerned without the authorization of the State under whose jurisdiction they belong. But if they sue, or consent to being sued, before the courts of the organization, the judgment given must, it is submitted, be considered by national courts as a judgment given by a court of competent jurisdiction or, at least, by an arbitration court.128

128

Indeed, most of the cases dealt with under (3) might be covered by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (UNTS Vol. 330, p. 38, cf. Art. II thereof ), except that the convention is only open for accession by “States”.

286 chapter seven Internal courts for disputes with or between member States or other States under the jurisdiction of the organization Internal disputes stricto sensu Certain constitutions expressly authorize the organization to establish tribunals for the settlement of disputes concerning the interpretation and application of the constitution itself.129 Or the reference of such disputes to administrative organs of the organization for binding decision is subject, in some organizations, to a right of appeal to an ad hoc or standing (external) tribunal.130 Some of these provisions refer only to disputes between member States, but FAO’s constitution, Art. XVI, prescribes settlement by the International Court of Justice or “such other body as the Conference may determine”. At its rst session the Conference adopted a resolution according to which such disputes, pending the entry into force of the Statute of the International Court of Justice, “shall be referred to such arbitral tribunal as the Conference shall appoint” (FAO, Report of the First Session of the Conference, pp. 55–56). UNESCO’s constitution, Art. XIV (2), similarly provides for “determination” by the International Court of Justice or “an arbitral tribunal, as the General Conference may determine under its rules of procedure”. Rule 33 (4) of the latter provides that disputes to which the organization is a party may “be submitted for nal decision to an Arbitral Tribunal, arrangements for which shall be made (institué) by the Executive Board”. An arbitral tribunal was set up in 1949 (under Rule 33 [2] as then worded) to adjudicate upon a dispute which had arisen within the General Conference (between member States). It was composed of a President designated by the President of the International Court of Justice and two other judges (assesseurs) designated by the Executive Board itself, and the tribunal was serviced by the Legal Division of the Secretariat of UNESCO. Member States were allowed to “le with the secretariat of the tribunal such observations as they may think t to proffer on the matter” (UNESCO doc. 4 C/PRO/4; the judgment is also reported in Annual Digest of International Law Cases 1949 Case No. 113). This must be considered as an internal, not an international court. Arts. 220 et seq. of the Treaty establishing the European Community establishes an internal Court of Justice which “shall ensure that in the interpretation and application of the Treaty the law is observed”. If a member State fails to fulll an obligation under the Treaty, the Commission may bring the matter before the Court of Justice (Art. 226). According to Art. 227 such an action can also be brought by another member State; for political reasons, however, that has only been done very seldom so far (e.g. Cases C-141/78: France v. United Kingdom (1979) ECR 2923 (1980), C-388/95: Belgium v. Spain (Rec. 2000, p. I-3123). In these matters the Court’s jurisdiction is compulsory and exclusive. A member State can also bring an action concerning the legality of acts adopted by any of the European Community institutions before the Court (Art. 230), and the same applies if any of the institutions fail to act (Art. 232). The disputes dealt with in Art. 37 (2) of ILO’s constitution (disputes relating to conventions elaborated by the ILO) may be viewed as falling outside the scope of the internal law of the organization. 130 See especially the constitutions of the Bank, Art. IX (a)–(b); the Fund, Art. XXIX (a)–(b); and ICAO, Arts. 84–86. In some other cases it is not clear whether the settlement by the administrative organ is intended to be binding and nal. See for example the constitution of FAO, Art. XVII (1) in ne. 129

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in most cases they are general and thus comprise also disputes between the organization and member States.131 It is not known whether organizations which have no such constitutional provision have established tribunals for the adjudication of disputes concerning internal matters stricto sensu (organizational matters) which arise between member States or between the organization and a member State.132 However, they cannot be denied the power to do so, as long as the constitution does not preclude it, for example by providing for another exclusive mode of settlement.133 The organization may confer upon such tribunals compulsory jurisdiction vis-à-vis the organization itself, e.g. in actions brought against it by a member State. The member State is then free to decide for itself whether it wants to institute judicial proceedings or whether it prefers to accept the administrative decision of the organization. On the other hand, an intergovernmental organization can hardly – without authorization in its constitution or other treaty with, or act by, its member States – confer upon its tribunals compulsory jurisdiction vis-à-vis member States, i.e. in actions brought against these by the organization or by another member State.134 The members are sovereign States and are as such subject to the jurisdiction of other authorities only when they have expressly or tacitly accepted such jurisdiction. Even if they, by becoming members of the organization, have tacitly accepted its legislative and administrative jurisdiction in many organizational matters, it does not necessarily follow that they have also accepted its judicial power in the same matters.135 At any rate, there is no practice to support any inherent 131

132

133

134 135

Thus Art. XVIII of the constitution of INTELSAT (International Telecommunications Satellite Organization) of 12 February 1973 prescribed arbitration as the last resort settlement of disputes between Member States or between Member States and the Organization relating to rights and duties under the constitution. § 29 of the General Convention on the Privileges and Immunities of the United Nations and the corresponding provisions of other general conventions on privileges and immunities relate to what is more properly considered as external disputes. Rule 38 (1)–(2) of the rules of procedure of the General Conference of UNESCO provides that “the Legal Committee may be consulted on any question concerning the interpretation of the Constitution and the rules and regulations” and that the Committee’s decision “shall be taken by a two-thirds majority” (in the original wording unanimity was required). However, such “decisions” are probably not binding, cf. paras. 3–4 and the constitution, Art. XIV (2). An example of the latter is Art. 37 of the ILO constitution, cf. Jenks in BYIL, Vol. 22 (1945) p. 64, note, and International Labour Conference, 27th Session, Paris 1945, Report IV (1), Matters Arising out of the Work of the Constitutional Committee, Part I, p. 107. The treaty establishing the European Community authorizes both types of action. As far as disputes relating to the interpretation of the constitution are concerned, see Kopelmanas, L’Organisation des Nations Unies, Vol. 1, Paris 1947, p. 263, who stated that the absence in the Covenant of the League of Nations of any provision concerning

288 chapter seven power for intergovernmental organizations to assume compulsory judicial authority over their member States. Accordingly, it is submitted that intergovernmental organizations cannot assume compulsory judicial powers over member States even in disputes arising out of internal matters stricto sensu – i.e., of (organizational) matters falling under the inherent organic or membership jurisdiction of the organization – without authorization in the constitution or other treaty or undertaking by the States. Internal disputes largo sensu Intergovernmental organizations may also establish internal courts to adjudicate upon disputes arising out of internal matters largo sensu – i.e. matters falling under an extended jurisdiction of the organization. Unless otherwise provided in the constitution of the organization or in the treaty conferring upon it the extended jurisdiction, it may confer upon such internal courts compulsory jurisdiction in actions brought against the organization or its ofcials as such. But the question of its power to confer upon such courts compulsory jurisdiction over the States concerned depends upon an interpretation of the act conferring the extended jurisdiction upon the organization. This need not be a provision of the constitution of the organization, but may be another treaty136 or a unilateral act. And this act need not specify the judicial power. Several examples of this may be cited. Thus the General Assembly of the UN twice established tribunals for the compulsory adjudication of disputes arising out of the extended jurisdiction conferred upon it by Annex XI to the Treaty of Peace with Italy.137 This authorized the General Assembly to make a binding recommendation concerning the “disposal” of the former Italian colonies. This the General Assembly did by its resolution 289 (IV), which “recommended” that Libya should be constituted a sovereign State, and by resolution 390 A (V), which

its interpretation “témoigne nettement l’intention de ses auteurs de revenir à la solution du droit commun qui laisse aux Etats membres la competence pour interpreter, en dernier resort, chacun en ce qui le concerne, les termes du document fondamental de l’institution créé.” The report of Committee IV/2 of the San Francisco Conference – after rejecting the idea of including in the Charter an express provision referring disputes between two organs to an international tribunal – merely States that if two member States “are at variance concerning the correct interpretation of the Charter, they are of course free to submit the dispute to the International Court of Justice as in the case of any other treaty” (UNCIO Vol. 13, p. 709). 136 An example would be the (European) Convention on the Establishment of a Security Control in the Field of Nuclear Energy referred to above, except that the jurisdiction established by that Convention is compulsory only in respect of the organization. 137 UNTS, Vol. 49, p. 215.

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“recommended” that Eritrea be constituted an autonomous unit federated with Ethiopia. The General Assembly, furthermore, by resolutions 388 (V) and 530 (VI), “approved” detailed economic and nancial provisions relating to the two territories. But the General Assembly did not conne itself to these legislative and administrative steps. Although the Peace Treaty made no mention of judicial powers, the General Assembly by the two latter resolutions also established UN Tribunals for Libya and Eritrea, respectively, to decide, on the basis of “law”, all disputes arising between Italy, the Administering Powers and the government of the territory concerned relating to the interpretation and application of the said economic and nancial provisions. The resolutions provided expressly that the Tribunal should be seized of any such disputes upon the unilateral request of one of the parties. Thus, in these cases the legislative and administrative powers clearly conferred upon the organization were held to be accompanied by judicial powers, although it probably did not occur to the parties when concluding the Peace Treaty that in so doing they also accepted the compulsory judicial power of the UN in disputes arising out of the legislation enacted by the UN pursuant to the Treaty. It should be noted that internal courts do not provide the only possible fora for judicial settlement of internal disputes (stricto or largo sensu) involving member States. Indeed, it is more common to envisage settlement of such disputes by external, international courts,138 either pre-existing international courts or ad hoc arbitral tribunals, the composition, competence and procedure of which is determined, not by the organization, but by the parties to the dispute or by an external treaty or authority.139 This mode of settlement will be discussed below.

Internal courts for disputes between organs Disputes between an organ of an intergovernmental organization on one side, and ofcials, private individuals or member States on the other, constitute disputes between the organization as a whole and the ofcial, individual or State concerned. The settlement of such disputes has been discussed in the preceding chapters. They all involve parties which also have a legal existence outside the organization.

138 139

Below, chapter 7.9. FAO’s constitution, Art. XVII (1), and UNESCO’s constitution, Art. XIV (2), appear to leave a choice between internal or external courts. In fact these organizations appear to have preferred internal courts.

290 chapter seven The position is different in respect of disputes between two organs of the same organization. There is usually no practical need for judicial settlement of such disputes. They can be settled satisfactorily by administrative decision of the superior organ, or by the plenary organ of the organization, in the same manner as disputes between two organs of a State. The need for judicial settlement may arise, however, if an organ has been granted in the constitution an independent position, in certain respects, visà-vis the plenary organ, in the sense that the latter is not entitled to interfere in all aspects of the exercise by the “subordinate” organ of the powers conferred upon it. This is the position in the European Community. The constitution of the EC confers upon the Court of Justice the power to adjudicate upon certain actions brought by one organ against another relating to the legality of its acts or its failure to act.140 The problem may arise also in the United Nations, as far as the relationship between the General Assembly and the Security Council is concerned. However, both the General Assembly and the Security Council have the power to request advisory opinions from the International Court of Justice, and there is then probably no need for settlement by contentious proceedings before an internal court141 (or before the International Court of Justice, acting as an internal court of the Organization, which it in most See notably EC constitution, Arts. 230 and 232, and EURATOM constitution, Arts. 146 and 148, and several cases where the Commission or the Council had failed to consult the European Parliament, e.g. Case 302/87, Parliament v. Council (Comitology Case), ECR 5613, Case 70/88, Parliament v. Council (Chernobyl), 1990 ECR 1–2041 and judgment 13 September 2005 in Case C-176/03, Commission v Council (competence to lay down provisions to harmonize national criminal provisions to protect the environment). 141 Committee IV/2 of the San Francisco Conference, in its report to the Conference, conned itself to stating that “the nature of the Organization and of its operation would not seem to be such as to invite the inclusion in the Charter of any provisions” for judicial settlement of “a difference of opinion among the organs of the Organization concerning the correct interpretation of a provision among the organs of the Organization concerning the correct interpretation of a provision of the Charter” (UNCIO, Vol. 13, pp. 709–10). The position of the UN was well described by Lissitzyn in the following terms: “It is to be doubted whether much would be gained in the formative stage of world organization by placing the action of an already weak Security Council under the control of an even weaker Court. A clash between the Council and the Court might be fatal to both. Yet an organization whose various organs and members all have the power to interpret the basic constitutional instrument without denite legal effect on the other organs and members can hardly be viable. At present, the weakness of the organization largely protects its members from abuse of power. If the organization is to gain strength, the authority to give binding interpretation of the Charter, at least in matters directly affecting the rights and duties of States, must be lodged somewhere, preferably in a judicial organ. The long-range purpose and policies laid down in the Charter must be given some protection against the possible short-range aberrations of the political organs. Power without law is despotism.” The International Court of Justice, New York 1951, pp. 96–97. 140

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cases cannot do under Article 34 (1) of its present Statute). Internal disputes between two organs of the same international person could not appropriately be settled by contentious proceedings before an international court.142 Questions of delimitation of the powers of the General Assembly as against those of the Security Council have in fact been the subject of advisory opinions of the Court.143 Questions of the delimitation of the powers of deliberative organs vis-à-vis those of administrative tribunals, and vice versa, have also been the subject of advisory opinions.144 Similarly, the International Atomic Energy Agency has been authorized to request advisory opinions of the International Court of Justice, and may thus solve in this manner any dispute arising from the fact that, in this organization, an organ of restricted membership, the Board of Governors, has major powers in the exercise of which the plenary organ cannot interfere otherwise than by recommendations.145 Those organizations which do not have the power to request advisory opinions from the International Court of Justice may instead submit the legal questions involved in a dispute to an ad hoc legal committee for advice. Such advisory procedure, followed by an administrative decision, will in most cases appear more adequate than contentious proceedings between two organs of the same organization before an internal court, not to mention the International Court of Justice or another international court. Should the need arise, nevertheless, for genuine judicial settlement of disputes between two organs of the same organization, there can be no doubt that the organization has the power, even in the absence of constitutional provision, to establish internal courts for the compulsory adjudication of such disputes, unless the constitution precludes this by providing for other exclusive

The American Branch sub-committee of the International Law Association Committee on the Charter of the UN nevertheless proposed (in 1955) the inclusion in the Charter of provisions for the settlement of disputes between two organs of the same organization by contentious proceedings before the International Court of Justice, but later conned its proposal to provisions for advisory opinion (par. 26 of the Report, nal version in: International Law Association, Second Report on the Review of the Charter of the United Nations, London 1956, p. 112. The resolution subsequently adopted by the International Law Association, recommending admission of intergovernmental organizations to the International Court of Justice in contentious cases, appropriately spoke only of organizations, not of organs (International Law Association, Report of the Forty-Seventh Conference Held at Dubrovnik 1956, pp. 104–5). Cf. below, chapter 7.11. 143 Competence of the General Assembly for the Admission of a State to the UN, ICJ Reports 1950, p. 4, and, partly, Certain Expenses of the United Nations, ibid. 1962 at pp. 170–2 and 175–7. 144 Effect of Award of Compensation Made by the UN Administrative Tribunal (ICJ Reports 1954, p. 47). See also Judgments of the ILO Administrative Tribunal upon Complaints Made against UNESCO (ibid. 1956, p. 77). 145 Compare Art. V D-F to Art. VI F of the Statute of the Agency. 142

292 chapter seven modes of settlement. Organs have no legal existence outside the organization and are in all respects subject to the jurisdiction of the organization within the limits of any express constitutional limitations. The organization may also confer compulsory jurisdiction in such disputes upon an already existing internal court, unless this court has been established by the constitution and its jurisdiction has been dened exhaustively therein. It is a matter of interpretation of the constitution whether the decision to confer jurisdiction upon a new or a pre-existing court may be made by the plenary organ acting alone, or whether it is necessary to obtain the consent of the other organ concerned. In the case of the UN, the General Assembly would probably be entitled unilaterally to establish courts for the adjudication of disputes with or between organs,146 other than the Security Council and the International Court of Justice, which have been given an independent position under the Charter.

7.6

Internal courts – conclusions

Power to establish internal courts not envisaged in the constitution Establishment of courts There can be no doubt that intergovernmental organizations have inherent power to settle legal disputes concerning internal matters, not merely by decision of their administrative organs, but also by binding judgments of internal courts. It is not necessary that the constitution contains any provision authorizing the organization to establish such courts, as long as it does not provide to the contrary, e.g. by providing exclusively for other modes of settlement. The organization can establish internal tribunals by simple regulation; a convention between the member States is not necessary for this purpose.147 The inherent power to establish internal courts is clearly conrmed in practice with regard

146

147

Cf. GA resolution 957 (X), whereby the General Assembly unilaterally established a procedure for review of the judgments of the UN Administrative Tribunal by way of (non-binding) advisory opinions from the International Court of Justice. In a resolution entitled “Recours judiciaire à instituer contre les décisions d’organes internationaux” the Institut de droit international State (par. I) that “la réglementation de ce contrôle, des voies de recours qu’il implique, et des effets qu’il comporte, ne parait, dans l’état actuel des choses, realizable que par la voie de dispositions conventionelles ou autres instruments, particuliers à chaque organe ou organization” (Annuaire de l’Institut de droit international, Vol. 47 [1957 II], p. 477). Conventions are not necessary to establish internal courts with compulsory jurisdiction over the organization and its organs

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to the case which arises most frequently, viz. disputes between the organization and its ofcials as such. But the power must extend also to other internal disputes, including disputes between organs and between member States acting as such, as well as to disputes between the organization and member States as such and disputes involving private individuals who have been placed under the legislative and/or administrative jurisdiction of the organization. Organizations may confer jurisdiction upon their internal tribunals even in external disputes, with regard to actions brought against the organization, or against its ofcials in respect of their ofcial acts (or in respect of private acts with regard to which they have been granted immunity).148 Compulsory jurisdiction More doubt may arise as to whether an organization may confer upon its internal courts compulsory jurisdiction in internal disputes. It is quite clear that it may do so with respect to actions brought against the organization itself. This is amply conrmed in practice. The same must apply with regard to actions brought against particular organs which have no legal existence outside the organization. Doubt arises only with regard to actions brought against parties which in other legal systems have a legal personality distinct from that of the organization, viz. ofcials, member States and private individuals subject to its extended jurisdiction. It has been submitted above that the organization may confer compulsory jurisdiction upon its internal courts in actions brought against its ofcials as such – several organizations have done so without constitutional authorization. But there is no practice to indicate that an intergovernmental organization may compel its members, which are sovereign States, to accept the jurisdiction of its internal courts, if this does not follow, directly or by implication, from provisions in the constitution or in another treaty to which the member States are parties. Otherwise it must be assumed that the organization does not have this power, not even in disputes arising out of matters in respect of which the member States are subject to the (organizational or functional) legislative and/or administrative jurisdiction of the organization. With respect to private individuals, who are subject to the jurisdiction of the organization only when this is specically provided, it is quite clear that the organization cannot assume compulsory jurisdiction unless it has been granted the power to do so by the State or States having territorial, personal, or organic jurisdiction over the individuals concerned. This power has been granted, by implication, in respect of members of the in disputes with internal or external parties, but conventions may be necessary if one wants the judgments pronounced by such courts to be binding upon courts of another jurisdiction, cf. above, chapter 7.4.5, and par. IV (h) of the resolution of the Institut. 148 Above, chapter 7.5.1. There is no known practice to conrm the latter.

294 chapter seven UN Forces by the States placing contingents under the authority of the United Nations with the effect that the members of such contingents are in important respects assimilated to international ofcials. External effects of judgments There is little practice to demonstrate the external effects of the judgments rendered by internal courts of intergovernmental organizations. It is submitted, however, that national and international courts, as well as internal courts of other organizations, must consider such judgments as binding to the same extent and on the same conditions as they consider judgments of foreign national courts of competent jurisdiction to be binding, unless there is a basis in an applicable treaty or in the law of the State concerned for treating them differently. It is submitted, furthermore, in accordance with principles of procedural international law applied by national courts, that IGO courts are courts of competent jurisdiction in the cases described above.

Power to extend the competence of a court whose competence has been dened in the constitution – a contrario interpretation? The European Court of Justice The constitution of the European Community expressly provides for an (internal) Court of Justice which shall have compulsory jurisdiction in certain disputes between particular organs of the Community149 or with or between member States,150 and in certain actions brought against the Community or its organs by its member States, by enterprises subject to its jurisdiction or by certain other private parties.151 There is an inherent danger in such constitutional provisions that they may be interpreted a contrario, to the effect that the organization may not confer upon its internal court jurisdiction in disputes other than those which have been specied in the constitution. The result would be that in some respects the internal courts of these organizations have a more limited jurisdiction than the internal courts of organizations which

EC constitution, Arts. 230 and 232. EC constitution, Arts. 227 and 239. The constitution contains no provision for competence in disputes between private enterprises subject to the jurisdiction of the Community, except for certain preliminary issues in such disputes, see Art. 234. 151 EC constitution, Arts. 229, 230 and 232. The constitution contains no provisions for competence in actions brought by the Community, since the Commission exercises its competence vis-à-vis market operators with direct effect. 149 150

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have no constitutional provisions establishing or authorizing the establishment of such courts.152 A different matter is that the constitution (or other applicable treaties) may contain provisions which confer exclusive competence upon the internal court or other courts in regard to certain types of disputes and thereby preclude the organization from extending the jurisdiction of its own courts to such types of disputes. Article 292 of the constitution of the EC reads: Member States undertake not to submit a dispute concerning the interpretation or application of this Treaty to any method of settlement other than those provided for therein. The constitutions of the EC and EURATOM also read: Save where jurisdiction is conferred on the Court of Justice by this Treaty, disputes to which the Community is a party shall not on that ground be excluded from the jurisdiction of the courts or tribunals of the Member States.153

These provisions do not preclude all disputes arising out of the internal law of the organization from being brought before national courts. On the other hand, the terms of the provisions do not indicate that the jurisdiction of the national courts shall be exclusive, and the provisions thus do not appear in themselves to preclude a concurrent jurisdiction of national and internal courts in such disputes of internal law as are not covered by special provisions in the constitutions. Indeed, the article may be read merely as a waiver of the immunity which intergovernmental organizations, like States, enjoy under general international law.154 Nevertheless it was maintained by a leading authority that insofar as the constitution does not confer jurisdiction upon the Court of Justice of the European Community, it cannot be given jurisdiction, except in the cases listed in Articles 238 and 239 of the constitution.155 In the absence of, or outside the scope of, provisions which confer exclusive competence upon other courts or which otherwise preclude the organization from conferring jurisdiction upon its internal courts, it is submitted that,

On the other hand, national courts and executive organs of the member States are empowered (and obligated) to apply and enforce community law. 153 EC constitution, Art. 240; EURATOM constitution, Art. 155. 154 Such waiver follows also by interpretation a contrario from Art. 1 of the Protocols on the Privileges and Immunities of the Communities. 155 Wohlfart and others; Die Europäische Wirtschaftsgemeinschaft, Berlin 1960, p. 504. The observation is made in a commentary to what is now Art. 240, but it is not stated whether it is based upon an interpretation of that article (the German text of Art. 240, which the writer quotes, is somewhat different from the Dutch, French and Italian texts, all of which are equally authentic) or upon the general view expressed by the avocat général, to which exception has been taken in the text above. 152

296 chapter seven when the constitution of an intergovernmental organization contains express provisions conferring upon its internal court jurisdiction in certain respects, the organization cannot, merely because of these provisions, be considered debarred from extending the jurisdiction of the court to include at least such other disputes as fall within inherent internal jurisdiction of all intergovernmental organizations. The effect of constitutional provisions is not to confer upon the organization a judicial power which other organizations have an inherent power to confer upon their courts by simple regulation, but to confer upon the parties concerned a right, of which they cannot be deprived by simple regulation, to appeal to the court. Normally, the provisions can be interpreted a contrario only in the latter respect. On the other hand, the Community could not unilaterally impose compulsory jurisdiction upon private enterprises. This would require legislation by the States having territorial (or personal) jurisdiction over them. But an intergovernmental organization could confer compulsory jurisdiction upon its internal courts if authorized to do so by national legislation, except that a constitutional provision on the executory force of judgments would not, ipso facto, apply to judgments rendered in disputes not envisaged in the constitution. The European Nuclear Energy Tribunal Similar problems may arise in respect of courts which have been established within the framework of an intergovernmental organization by conventions other than the constitution of the organization concerned, such as the Tribunal established by the (European) Convention on the Establishment of a Security Control in the Field of Nuclear Energy, Articles 13 and 14 of which have been quoted above, chapter 7.5.1. It is possible that Article 14 must be interpreted a contrario in the sense that both the organization and the contracting parties are precluded from conferring jurisdiction upon the tribunal in circumstances other than those specied in that article. Under its terms the contracting States, or some of them, may agree to confer upon the Tribunal competence in respect of actions relating to a nuclear ship operated under the ag of the organization in circumstances where jurisdiction would lie with the courts of the ag State.156 But the organization may not be entitled (without the consent of all the contracting parties) to utilize the Tribunal as an administrative tribunal or to confer upon it competence in suits brought

156

Cf. Art. 7 of the Convention on the High Seas of 29 April 1958, document CN-6/SC/1 (9 May 1963) of the (Brussels) Diplomatic Conference on Maritime Law, Standing Committee, and Art. 93 of the Convention on the Law of the Sea 10 December 1982.

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against the organization or its ofcials in respect of private law acts not covered by (Article 13 of the Convention or by) agreements concluded pursuant to, and within the scope of, Article 14. The case for such a contrario interpretation is stronger in respect of a Tribunal established by a special convention than it would have been in respect of a tribunal established by the constitution of the organization concerned, which is a genuine internal court (organ) of the organization. And, of course, no such a contrario interpretation could be applied if the Tribunal had been established by regulations enacted by the organization without basis in any constitutional or other treaty provision, as the organization would have had the power to do.

7.7

Are internal courts governed by the law of international courts?

General Administrative tribunals and other internal courts of intergovernmental organizations are frequently referred to as international tribunals.157 This terminology has been accepted even by the International Court of Justice.158 However, administrative tribunals and other internal courts of intergovernmental organizations are very different from international courts. They are established, not by special agreement between States and/or independent intergovernmental organizations, but by one intergovernmental organization or by its constitution as an organ of that organization. Furthermore, they do not administer general international law, but the internal law of the organization concerned which, for purpose of conict of laws and for certain other purposes, is comparable to national law rather than to international law. Finally, parties before internal courts may include not only member States and the organization as a whole,

See for example, Langrod: “Le tribunal administratif des Nations Unies” in Revue du droit public et de la science politique, Vol. 67 (1951), p. 75, quoted and supported by the Director-General of UNESCO in ICJ Pleadings, Judgments of the Administrative Tribunal of the ILO (1956), p. 79. See also Chiesa in Revue internationale des sciences administratives, Vol. 20 (1954), p. 74, and Internationaler Richterkongress, Roma 1958, Vol. 2: “Die internationalen und übernationalen Gerichte, ihre Charakteristiken und grundlegenden Ziele”, Milano 1958, §§ 2–3 and 5. See, on the other hand, Art. 5 of Wengler’s draft articles on Recours judiciaire à instituer contre les décisions d’organes internationaux in Annuaire de l’Institut de droit international, Vol. 45 (1954 I), p. 268, which, however, was not adopted by the Institut de droit international, ibid., Vol. 47 (1957 II), p. 478, par. III. 158 ICJ Reports, 1956, p. 97. 157

298 chapter seven but also ofcials and particular organs of the organization, as well as private individuals (and enterprises) subject to its extended jurisdiction. Of these, only the former two may normally159 be parties before regular international courts, and then in their capacity as subjects of international law. Indeed, member States and intergovernmental organizations are subjects both of international law and of the internal law of the organization concerned (and of national law). The fact that States and intergovernmental organizations are among those who may be parties before internal courts in disputes arising out of internal law does not necessarily render these courts international, any more than national courts are considered as international courts because they may adjudicate upon national law disputes involving States and intergovernmental organizations, or any more than international courts are considered as national courts because individuals are occasionally admitted to plead before them in cases arising out of international law.160 Indeed, international courts of intergovernmental organizations are in most cases comparable to national courts, rather than to international courts. Only when internal courts adjudicate upon disputes between the organization and a member State as such or between two member States as such, can they be compared to international courts, inasmuch as part of the law they apply in these cases is international, as well as internal law. But even in this case there are certain differences between the legal position of the two types of courts,161 if they have been set up by the constitution of the organization or by the organization through regulations as organs of the organization, rather than by a separate convention as independent intergovernmental organizations. It may therefore be convenient to consider them as internal courts (largo sensu) even in such cases.

Except for international criminal tribunals. Individuals have also been granted access to certain international courts which have been set up for the adjudication of disputes of national law, such as the Mixed Commission established under Art. 31 and Annex IV, Art. 16 of the Agreement on German External Debts of 27 February 1953 (UNTS Vol. 333, pp. 50 and 214). 160 The three examples usually cited, all now a matter of the past, are the Central American Court of Justice established under a Convention of 20 December 1907 (Martens: Nouveau Recueil Général, 3e série, Vol. 3, p. 105, and Hudson: International Legislation, Vol. 2, p. 908; see especially Art. II), the Mixed Arbitral Tribunals established under the Peace Treaties concluding World War I (e.g. Treaty of Versailles, Art. 304–5, cf. for example Art. 297 (e)) and the Upper Silesian Court of Arbitration, established under the Geneva Convention of 15 May 1922 between Germany and Poland for Establishing a Conventional Regime in Upper Silesia (British and Foreign State Papers, Vol. 118, p. 365, cf. Arts. 55 seq. and 147 seq.; cf. Annual Digest, 1927–28, Cases Nos. 188 and 287). However, it is not clear that all these courts applied international rather than national law. 161 Some of the differences follow from the fact that the courts are set up as organs of the organization, rather than from the nature of the law they apply. 159

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There is, however, no clear distinction between the two types of courts.162 The distinction may be drawn in many different ways, depending upon which criterion is regarded as crucial. Thus the Tribunal of the European Convention on the Establishment of a Security Control in the Field of Nuclear Energy and the European Court of Human Rights were both established by separate conventions concluded between the majority of the members of the European Nuclear Energy Agency and the Council of Europe, respectively, to decide disputes arising out of these and of conventions outside the constitution, but they are elected and maintained by these organizations. The International Court of Justice, too, unites elements of both international and internal courts.163 It is submitted that all these courts are autonomous organs of the respective organizations, rather than distinct subjects of international law.164 However, the European Court of Human Rights and, partly, the International Court of Justice adjudicate upon disputes which arise under general or particular international law, rather than under the internal law of the organization, although the distinction between internal and international law, and internal and external disputes, may also be drawn in many different ways. When the present part is primarily conned to internal disputes, it precludes disputes with other subjects of international or national law acting as such, i.e. not acting as members or organs of the organization or otherwise as entities subject to its legislative or administrative authority. The reservation of international courts for external disputes, on the basis of either the criterion of internal or external parties or that of application of internal or external law, is brought out in the constitutions and other acts of the International Monetary Fund, the International Bank for Reconstruction and Development and the International Finance Corporation. On the one hand, the constitutions of these organizations distinguish as to whether or not the other party to the dispute forms part of the organization, by providing for binding settlement by an internal (administrative) organ of disputes involving member States, but for submission to an external arbitral tribunal of

Moreover, some of the provisions cited above, chapter 6.5, may give rise to the setting up of international as well as internal courts to adjudicate upon the same type of disputes. 163 Cf. below, under 7.7.4. 164 As for the European Court of Human Rights, see also Robertson in the International and Comparative Law Quarterly, Vol. 8 (1959), p. 399, who States: “It was therefore decided to set up the Court of Human Rights as an organ of the Council of Europe as a whole, with the participation of all Member States, whether or not they are Parties to the Convention”. The OECD Tribunal consists of “seven independent judges appointed for ve years by decision of the Council or, in default, by lot from a list comprising one judge proposed by each Government party to the present Conventions” (Art. 12 of the Security Control Convention). Under the latter alternative, the Tribunal could hardly be considered an organ of the OECD-ENEA. 162

300 chapter seven disputes involving States which are no longer members.165 On the other hand, the annex adopted by these organizations to the Convention on the Privileges and Immunities of the Specialized Agencies provides that the reference of dispute to the International Court of Justice provided for in § 32 of that convention shall apply only to differences arising out of the interpretation or application of privileges and immunities which are derived by the organization solely from that convention and which are not included in those which it can claim under its constitution or otherwise.166 A separate convention to which not all members of the organization are parties, and which, on the other hand, has been incorporated in bilateral host agreements or agreements on technical assistance concluded with non-member States, and which does not confer upon the organization legislative or administrative powers over the contracting parties, is not part of the internal law of the organization167 as this term is used in the present book. The terminology in itself is of little importance, as long as it does not lead to false analogies. However, analogies are sometimes drawn, both by writers, governments and intergovernmental organizations who do not content themselves with referring to internal courts as “international” tribunals, but who also in fact apply to such courts the legal principles which govern international courts. A similar danger is involved in the proposals which have been made for international courts’ jurisdiction in strictly internal disputes involving ofcials or particular organs of the organization.

Internal courts stricto sensu In the case of Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, it was pleaded that awards made by this tribunal, “being an institution of international law, would necessarily be subject to the established rule and practice that an award of a tribunal which was ultra vires is null and

165 166 167

Fund constitution, Art. XXIX; Bank constitution, Art. IX; International Finance Corporation constitution, Art. VIII. UNTS Vol. 33, pp. 298 (Fund) and 300 (Bank), UN doc. E/L 796, 29 May 1958 (International Finance Corporation). As for the term “or otherwise” appearing in the annex, it is submitted that disputes arising out of privileges and immunities granted by bilateral treaties or other distinct acts outside the scope of the constitution are not ipso facto subject to binding administrative decision of the organization under the terms of the constitution. These, too, must be settled by external (international) courts, and could therefore not be bracketed with disputes arising out of the constitution.

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void”.168 However, the International Court of Justice, in its advisory opinion, rejected any such analogy. It stated: This problem would not, as has been suggested, raise the question of the nullity of arbitral awards in the ordinary course of arbitration between States. The present Advisory Opinion deals with a different legal situation. It concerns judgments pronounced by a permanent judicial tribunal established by the General Assembly, functioning under a special statute and within the organized legal system of the United Nations, and dealing exclusively with internal disputes between the members of the staff and the United Nations represented by the Secretary-General. In order that the judgments pronounced by such a judicial tribunal could be subjected to review by any body other than the tribunal itself, it would be necessary, in the opinion of the Court, that the statute of that tribunal or some other legal instrument governing it should contain an express provision to that effect. The General Assembly has the power to amend the Statute of the Administrative Tribunal by virtue of Article II of that Statute and to provide for means of redress by another organ. But as no such provisions are inserted in the present Statute, there is no legal ground upon which the General Assembly could proceed to review judgments already pronounced by that Tribunal.169

In another context the Court drew an analogy from national courts instead. It stated: . . . the contention that the General Assembly is inherently incapable of creating a tribunal competent to make decisions binding on itself cannot be accepted. It cannot be justied by analogy to national laws, for it is common practice in national legislature to create courts with the capacity to render decisions legally binding on the legislature which brought them into being.170

Even the other (winning) side attempted to rely upon an analogy from international courts, in support of its (correct) proposition that decisions of the Administrative Tribunal create a legal liability for the organization as a whole (and not merely for the Secretary-General). Reference was made to the arbitral tribunals established under § 21 of the headquarters agreement between the UN and the United States and under certain other treaties concluded by the UN for the settlement of disputes between the contracting parties concerning the interpretation of the agreement concerned.171 However, these arbitral

US written and oral statement, ICJ Pleadings, UN Administrative Tribunal 1954, pp. 174 and 329–30. Also the Legal Ofce of the UN Secretariat in its oral statement referred to the rules governing international arbitration (ibid., pp. 304–5). Cf. the excellent counterarguments in the French and Netherlands oral statements (ibid., pp. 343–4 and 374–6). 169 ICJ Reports, 1954, pp. 55–56. 170 Ibid., p. 61. 171 Swedish written statement (ICJ Pleadings, UN Administrative Tribunal, 1954, p. 92) and Netherlands oral statement (ibid., pp. 362–5). Indeed, it referred to the position of the 168

302 chapter seven tribunals were clearly international tribunals, set up to adjudicate upon certain disputes of international law arising between two subjects of international law as such. It follows from general rules of international law that the decisions of these tribunals must be binding, and binding upon the organization as a whole, which alone is a subject of international law and party to international disputes. But this does not prove that decisions of internal courts, which may adjudicate upon disputes involving particular organs of the organization, must be binding upon the organization as a whole. It is in itself conceivable that an internal judgment is binding only upon the parties to the dispute, and not upon a common superior organ.172 The Court therefore, rightly, did not rely upon the false analogy to § 21 of the headquarters agreement and similar provisions in order to establish the legal liability of the organization as a whole, but arrived at this correct conclusion on other grounds. Judge Hackworth, in his dissenting opinion, expressly repudiated the validity of the analogy,173 although he had to do so in an unnecessarily complicated manner, because he did not make a terminological distinction between internal and international courts. The refusal of the Court to accept any such false analogies suggested by the current terminology did not prevent the Director-General of UNESCO from advancing similar views in the case of Judgments of the Administrative Tribunal of the ILO upon Complaints Made against the UNESCO. As a point of departure for his arguments in support of a restrictive interpretation of the terms of reference of the ILO Administrative Tribunal he submitted that such restrictive interpretation would conform with the rules of international law applicable to international courts. He went on to state: . . . both by reason of the circumstances in which it was created and of the type of law which it has to apply, there would seem to be no doubt that this Tribunal, whose duty it is to decide disputes involving international organizations, is an international judicial body and is therefore subject to the general rules governing the exercise of the judicial function in international law.174

However, none of the reasons submitted by the Director-General leads to the conclusion he derived from them. On the contrary, the Tribunal was UN in national courts as well, i.e. it drew the analogy from external courts in general. But even so there is no basis for an analogy in this sense. 172 An organ of an intergovernmental organization can plead before international courts too, but then as a representative of the organization as a whole, which is the real party to international disputes. Only if the organ pleads before an internal court of the organization (in an internal dispute), may it be acting in its own name. This is the position in the European Community (Arts. 230 ff.). 173 ICJ Reports, 1954, pp. 87–89. 174 ICJ Pleadings, Judgments of the Administrative Tribunal of the ILO (1956), pp. 76 and 78–80, ofcial translation.

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established as an organ of the organization, it applied purely internal law of the organization, and it adjudicates upon disputes between individual ofcials and the organization. In none of these respects is it comparable to an international court, but rather to a national court. The International Court of Justice, therefore, although (wrongly) accepting the terminology “international tribunal”, again refused to draw any legal consequences from this terminology. It stated: The Court has not lost sight of the fact that both before the Administrative Tribunal and in the statements submitted to the Court it has been contended, on the one hand, that the Administrative Tribunal was an international tribunal and, on the other hand, that it was a Tribunal of limited jurisdiction (“juridiction d’attribution” ) and not of general jurisdiction (“juridiction de droit commun” ). That contention has been put forward with a view to achieving a restrictive interpretation of the provisions governing the jurisdiction of the Tribunal. The Court does not deny that the Administrative Tribunal is an international tribunal. However, the question submitted to the Tribunal was not a dispute between States. It was a controversy between UNESCO and one of its ofcials. The arguments, deduced from the sovereignty of States, which might have been invoked in favour of a restrictive interpretation of provisions governing the jurisdiction of a tribunal adjudicating between States are not relevant to a situation in which a tribunal is called upon to adjudicate upon a complaint of an ofcial against an international organization.175

In accordance with these pronouncements by the International Court of Justice it is submitted, as a conclusion, that in most respects internal courts stricto sensu are not governed by such legal rules and principles as are special to international courts and do not apply similarly to national courts. The current terminology – which refers to internal courts of intergovernmental organizations as “international courts” – therefore does not reect the true legal position. Indeed, there are three distinct types of courts: International courts, national courts, and internal courts of intergovernmental organizations.176 If analogies are drawn, internal courts stricto sensu can more frequently be compared to national than to international courts.

Internal courts largo sensu Only when internal courts adjudicate upon internal disputes between entities which are at the same time subjects of international law (member States and the

175 176

ICJ Reports, 1965, p. 97. This classication is elaborated below, chapter 7.8.

304 chapter seven organization as a whole)177 may it be appropriate in many or most respects to apply by analogy rules of international law governing international courts. However, even in these cases the courts are not in every respect in the same legal position as independent international courts. A court which is established by or within the framework of an intergovernmental organization remains an organ of the organization concerned even if it adjudicates upon disputes between entities which are at the same time subjects of international law and even if the organization itself is one of the parties. This implies, in the rst place, that the organization, rather than the parties to the dispute, may exercise such rights in respect of the composition, competence and procedure of the tribunal as are not left to the court itself.178 In the second place – if there is a conict between the constitution of the organization, which is the supreme internal law of the organization, and other treaties or general rules of international law – the internal tribunal, as an organ of the organization, must give precedence to the provisions of the constitution. In both these respects, the proper analogy is to national rather than to international courts as most national courts give precedence to the constitution of their State over international law.179 The Court of Justice of the European Communities gives precedence to the constitution of the Community over the constitutions of the member States. The supremacy of the constitution is clear in the case of an internal court adjudicating upon internal disputes. In this case, not merely is the court an organ of the organization, but it applies the internal law of the organization, of which the constitution is the supreme source. Moreover, the parties to internal disputes are either member States, which are parties to the constitution, or organs (or the organization itself ) established under it, and are thus in either case bound by the constitution.

The International Court of Justice The position of the constitution in relation to general international law may appear more doubtful if a court which is an organ of an intergovernmental

See e.g. the European Community Treaty, Arts. 226–227 and the other provisions cited above, chapter 7.6. 178 In the case of courts which have been set up by separate convention, these powers of the organization may be strictly conned to those conferred upon it by that convention, cf. below, chapter 7.8.2. 179 Exceptions are e.g. the Netherlands, whose constitution contains an express provision on the subject (Art. 63), however, the exception applies only if the treaty has been expressly approved by a 2/3 majority by the Staten-Generaal. As for European Community law, see Josephine Steiner: EEC Law, London 1992, pp. 42–53. 177

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organization, adjudicates upon disputes arising under general international law or under treaties other than the constitution of the organization concerned, and/or involving parties which are not bound by the constitution. The most important examples of this are the Permanent Court of International Justice and the International Court of Justice. These are international courts from a functional point of view, especially in so far as their contentious proceedings are concerned, but internal courts from an organizational point of view (although their position vis-à-vis the League of Nations and the United Nations, respectively, is more autonomous than that of other organs). The question will arise if the International Court of Justice is called upon to determine the validity of action taken vis-à-vis non-member States under Article 2 (6) (cf. Chapter VII) of the UN Charter, which provides: “The Organization shall ensure that States which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security”. Or the Court may have to pronounce upon the effects of a treaty which has been concluded between a member and a non-member State and which conicts with the obligations of the former under the UN Charter, cf. Article 103 which provides that in such cases the Charter shall prevail. The question would also arise if the Permanent Court of International Justice were called upon to decide the validity of a treaty which had been concluded between a member of the League of Nations and a non-member, but which had not been registered with the Secretariat of the League in accordance with Article 18 of the Covenant, which provided: Every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered.

Under traditional international law none of these constitutional provisions is binding upon non-member States. And a court which is independent of the organization whose constitution is involved, might feel compelled to hold this to be so.180 But a court of the organization concerned would be in a different position. A court is bound, not merely by its own constitution, or statute, but also by the constitution of the State or organization of which it is an organ. Indeed, it is usually this constitution which constitutes the supreme law of an internal or a national court. A comparison between the position in this respect of the Permanent Court of International Justice and an independent arbitral tribunal or commission

180

In this sense Kelsen: The Law of the United Nations, p. 723.

306 chapter seven was made in a thorough obiter dictum by the French-Mexican Claims Commission in Pablo Najera (France) v. Mexico (1928).181 The Commission held that, although Article 18 of the League of Nations Covenant applied even to a treaty concluded between a member and a non-member State, it created rights and duties only as between the member State and the League. A non-member State was entitled to invoke the non-registered treaty despite its non-registration, and, on the other hand, was not entitled to invoke its invalidity because of non-registration. This would have to be held by any arbitral tribunal or mixed commission which, like the French-Mexican Claims Commission, was independent of the League.182 But if the dispute arose before an organ of the League, this organ must ex proprio motu (ex ofcio) consider the treaty invalid.183 The Commission stated that il va de soi qu’un tribunal international indépendant n’a pas, comme les organes de la Société des Nations, la mission de coopérer ex ofcio à l’accomplissement, par les membres de ladite Société, de leurs obligation vis-à-vis de celle-ci, et d’en frapper l’inobservation par des sanctions, qui ne découlent pas également des principes généraux du droit.

The Commission specied that this would not apply to the Assembly, the Council, or any commission or organization of the League, and added that one could perhaps say the same of the Permanent Court of International Justice bien que celle-ci ne soit pas, dans le même sens que le Conseil, un organe de la Société des Nations, et qu’elle soit investie du pouvoir souverain d’apprécier la situation juridique en parfaite indépendance.

This is probably the correct view.184 But this applies to a tribunal established by a separate convention185 only if it has been established as an organ of the organization and probably only if the contracting parties to that convention UN, Reports of International Arbitral Awards, Vol. 5, pp. 468–73. In a dispute between two member States or between a member State and the League, even an independent court would of course have to consider a non-registered treaty invalid, since both parties to the dispute are bound by the Covenant. 183 This is believed to be the correct interpretation of the statement of the Commission, although one of them (p. 471 in ne) might be interpreted in a sense different from the other statements. 184 In this sense also Oppenheim: International Law, Vol. 1 § 522a, who States that “It cannot be admitted that the International Court of Justice or any other organ of the United Nations established under the Charter would be at liberty to hold that action taken in pursuance of Article 2 [Art. 2 (6) of the UN Charter] is contrary to International Law.” See also Kelsen: The Law of the United Nations, p. 723. Kunz in AJIL Vol. 41 (1947), p. 126 takes a contrary view, basing his opinion upon Art. 38 of the Statute of the Court. 185 The Statute of the International Court of Justice forms an integral part of the UN Charter, see Art. 92 of the Charter. 181 182

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are all members of the organization, as they are in the case of the European Court of Human Rights and the Tribunal established under the European Nuclear Energy Agency by the Convention on the Establishment of a Security Control in the Field of Nuclear Energy.186

7.8

External courts

General Although all intergovernmental organizations have the power to establish internal courts for the judicial settlement of internal disputes, only some organizations have done so. And most of these have conned the jurisdiction of their courts to disputes between the organization and its ofcials arising out of the relationship of employment.187 This is in most cases due to the fact that the practical need for judicial settlement does not arise so frequently as to justify the establishment of standing judicial institutions within the organization for other types of disputes. When the need nevertheless arises, the organization may nd it simpler to resort to an external court than to establish a court of its own. Or one of the parties to the dispute may attempt to bring an action in an external court, without the consent of the organization. Indeed the latter has been attempted even in cases where the organization had an internal court with competence in the matter.188 In either case the question arises as to whether the external courts concerned are competent to adjudicate upon internal disputes of an intergovernmental organization. There are three types of external courts which must be considered in this connection: (1) Internal courts of other intergovernmental organizations. These include courts established as organs of another organization to adjudicate upon internal disputes of that organization189 and/or upon external disputes of national law involving the organization or its ofcials. Cf. above, chapter 7.5. The most important exception – insofar as standing courts are concerned – is the Court of Justice of the European Communities. 188 Diaz Diaz v. UN Economic Commission for Latin America, and Schuster v. UN Information Centre. 189 Courts maintained by an intergovernmental organization for regular jurisdiction in a territory under its (extended) jurisdiction resemble national courts. The law they administer is formally internal law (largo sensu) of the organization, but in substance it is usually 186 187

308 chapter seven (2) National courts.190 These include courts established as organs of a State to adjudicate upon disputes of national law. (3) International courts. These may be standing tribunals or ad hoc arbitral commissions. Typical international courts are established by treaty between two or more States and/or intergovernmental organizations or other subjects of international law to adjudicate upon genuinely international disputes, i.e., disputes of international law between subjects of international law. Such international courts are independent intergovernmental organizations – in contradistinction to internal courts, which are merely organs of a wider intergovernmental organization. Under the heading of international courts may also be considered certain mixed types, which belong to one category from an organizational point of view and to another category from a functional point of view. Thus courts for the adjudication of genuinely international disputes may be established as organs of an intergovernmental organization set up for other purposes. This is the position of the International Court of Justice,191 which is an (autonomous) organ of the UN. In its contentious proceedings it adjudicates upon genuinely international disputes (and upon internal disputes between member States).192 (4) A fourth means of external settlement of internal disputes, in addition to contentious proceedings before any of the aforementioned courts, is to seek a binding advisory opinion from the International Court of Justice

national law, at least in the case of indirect condominia and coimperia. – Another type of border-line case between an IGO court and a national court was the internationally composed Tribunal of the Saar, which was established in 1955–56 by the Council of the Western European Union, with the co-operation of the Government of the Saar, for the adjudication of complaints by Saarlanders of political persecution in connection with the referendum which led to the re-incorporation of the Saar into Germany, cf. Deruel: “Le Tribunal international de la Sarre” in Annuaire français de droit international, Vol. 2 (1956), pp. 509–16. 190 Cf. Christoph Schreuer: Die Behandlung internationaler Organakte durch staatliche Gerichte, Berlin 1977, and the subsequent revised and updated version in English: Decisions of International Institutions Before Domestic Court, London/New York 1980. 191 Above, chapter 6.1. The European Court of Human Rights may also in certain respects be considered as an autonomous organ of the Council of Europe, cf. the European Convention on Human Rights of 4 November 1950, Arts. 39 and 42. A third example of a tribunal established by an intergovernmental organization to adjudicate upon disputes of international law may be the tribunal envisaged in Art. 37 (2) of the ILO constitution for the adjudication of disputes relating to the interpretation of International Labour Conventions. 192 Conversely, courts may also be established by inter-State agreement as separate intergovernmental organizations, to adjudicate upon disputes either of national law (see the proposals referred to in Hudson: International Tribunals, Washington 1944, p. 214) or of internal law. Only the latter type is relevant to the present part. Such courts may be established ad hoc.

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(or from some other legal body). In its advisory proceedings the Court may be seized of “any legal question” – which includes the internal law of the UN and other intergovernmental organizations, as well as national law and genuine international law.

Internal courts of other organizations The competence of the internal courts of intergovernmental organizations is set forth in their statutes. These usually provide for competence only in certain internal (and sometimes even external) disputes of the particular organization concerned.193 However, there is nothing to prevent an intergovernmental organization from extending the jurisdiction of its courts to comprise internal disputes of other organizations, if these other organizations so desire. This has been done by some organizations – without authorization in their constitutions.194 Thus, the competence of the League of Nations Administrative Tribunal was extended to include disputes involving ofcials of three autonomous international institutions,195 in addition to those of the League of Nations and the ILO. The statute of the successor tribunal, the ILO Administrative Tribunal, provides in Article II (5):

Such extended jurisdiction of internal courts to settle disputes may also overlap, e.g. related to human rights or international trade. The European Court of Human Rights has developed case-law setting out the limits for the court’s competence to review the acts of States Parties arising out of their obligations as members of (another) international organization (the European Community). In Bosphorus Hava Yollari v. Ireland (Application no. 45036/98) the court stated that “State action taken in compliance with such legal obligations [compliance with EC obligations] is justied 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” (para. 155). Trade disputes between member States of Mercosur may, according to Art. 1 (2) of the Protocol of Olivos signed 18 February 2001, be subjected to internal courts, or be referred to WTO dispute settlement or other applicable settlement by choice. 194 An example of a constitutional provision was Art. 38 of the constitution of the International Danube Commission, which provided that States might appeal against the decisions of the Commission “to the special jurisdiction set up for that purpose by the League of Nations” (LNTS Vol. 26, p. 193). 195 Institute of Intellectual Co-operation, International Educational Cinematographic Institute and Nansen International Ofce for Refugees. On the nature of this jurisdiction, see Siraud: Le tribunal administratif de la Société des Nations, Paris 1942, pp. 56–63, cited by Langrod in Revue du droit public et de la science politique, Vol. 57 (1951), pp. 82–83. See also Wolf in Revue générale de droit international public, Vol. 58 (1954), p. 287. 193

310 chapter seven The Tribunal shall also be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of ofcials and of provisions of the Staff Regulations of any other international organization meeting the standards set out in the Annex196 hereto which has addressed to the Director-General a declaration recognizing, in accordance with its Constitution or internal administrative rules, the jurisdiction of the Tribunal for this purpose, as well as its Rules of Procedure, and which is approved by the Governing Body.

Such declarations recognizing the jurisdiction of the ILO Administrative Tribunal (and the inherent appellate jurisdiction of the International Court of Justice)197 have been made by most of the specialized agencies whose headquarters are located in Europe and by a great number of other global and regional intergovernmental organizations.198 They have done so without regard to whether their constitutions authorize the establishment of administrative tribunals199 and/or the conclusion of agreements with other international bodies for the maintenance of common services and arrangements for personnel.200 The International Labour Conference, too, has clearly assumed that organizations may be entitled to do this without constitutional provision, inasmuch as it provided, in Article II (5) of the Statute of the ILO Administrative Tribunal, that the organization should recognize the jurisdiction of the Tribunal “in accordance with its Constitution or internal administrative rules”. The ILO Administrative Tribunal has in fact in several instances adjudicated upon internal disputes of the other organizations, including both organizations whose constitutions do not provide for adjudication of such disputes (e.g. UNESCO) and organizations whose constitutions do not even provide for common services with other organizations (e.g. the International Atomic Energy Agency).

196

197 198 199 200

The Annex to the statute of the Administrative Tribunal States that to be entitled to recognize the jurisdiction of the Administrative Tribunal of the International Labour Organization in accordance with paragraph 5 of article II of its Statute, an international organization must either be intergovernmental in character, or fulll the following conditions: a) it shall be clearly international in character, having regard to its membership, structure and scope of activity; b) it shall not be required to apply any national law in its relations with its ofcials, and shall enjoy immunity from legal process as evidenced by a headquarters agreement concluded with the host country; and; c) it shall be endowed with functions of a permanent nature at the international level and offer, in the opinion of the Governing Body, sufcient guarantees as to its institutional capacity to carry out such functions as well as guarantees of compliance with the Tribunal’s judgments. Statute of the ILO Administrative Tribunal, Art. XII (1) with annex. For a list of 23 organizations by 1989, and further information, see C.F. Amerasinghe: Documents on International Administrative Tribunals, Oxford 1989, p. 30. Only the FAO constitution authorizes this, in its Art. XV (3). This is authorized in the constitutions of FAO (Art. XIII 2) and UNESCO (Art. VI 6 only “within the UN Organization”). The constitutions of WHO, ITU, WMO and CERN merely provide generally that the organization shall, or may, co-operate with other organizations. The constitutions of the Paris and Bern Union do not even provide that.

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The Statute of the UN Administrative Tribunal contains a corresponding provision in Article 14 (3): The competence of the Tribunal may be extended to any specialized agency brought into relationship with the United Nations in accordance with the provisions of Articles 57 and 63 of the Charter upon the terms established by a special agreement to be made with each such agency by the Secretary-General of the United Nations. Each such special agreement shall provide that the agency concerned shall be bound by the judgment of the Tribunal and be responsible for the payment of any compensation awarded by the Tribunal in respect of a staff member of that agency and shall include, inter alia, provisions concerning the agency’s participation in the administrative arrangements for the functioning of the Tribunal and concerning its sharing the expenses of the Tribunal.201

It had been envisaged that the specialized agencies would conclude such agreements conferring jurisdiction upon the UN Administrative Tribunal in disputes between the organization and its ofcials. However, only two agencies, ICAO and IMO, have done so, in addition to a number of autonomous UN organs.202 On the other hand, most specialized agencies which are members of the UN Joint Staff Pension Fund (even those located in Europe), have conferred jurisdiction upon the UN Administrative Tribunal in disputes between their ofcials and the Fund in matters involving applications alleging non-observance of the Regulations of the Fund. This was done by formal agreements concluded between the UN and each specialized agency,203 pursuant to a recommendation of the General Assembly of the UN.204 These agreements, however, comprise only disputes concerning the Regulations of the UN Joint Staff Pension Fund,205 which must be regarded as an autonomous organ of the UN. There is no question of conferring upon the UN Administrative Tribunal jurisdiction in internal disputes of the several agencies participating in the UN Joint Staff Pension Fund.206 On the contrary, the preamble of

201 202 203

204 205 206

General Assembly resolution 351 A (IV) as last amended by resolution 55/159 of 12 December 2000, cf. UN doc. AT/11/Rev 6 (2001). Ibid. supra note 198, p. 5. See for example UNTS Volumes 214, p. 388 (ILO), 219, pp. 388 (FAO), 392 (UNESCO), 396 (ICAO) and 394, p. 333 (WHO). Agreements were also signed with WMO on 17 October/22 November 1956 (WMO doc. 12. 744/56/S/UN/JSPE and resolution 2 [EC-VIII] of the Executive Committee of the WMO) and with IAEA on 18 October 1963. See in general UN doc. A/2970, with appended model agreement. The agreements are supplemental to the agreements by which the agencies joined the Fund (text of these agreements in UNTS, Vol. 139, pp. 395 et seq.). GA resolution 678 (VII). See also Art. XLI of the Regulations of the Fund, added by GA resolution 955 (X). Adopted by GA resolution 248 (III) and amended by numerous subsequent resolutions. The question of pensions for the staff falls, in principle, within the scope of the organic jurisdiction of each agency. However, these have delegated their legislative and

312 chapter seven the agreements conferring jurisdiction upon the UN Administrative Tribunal refers to an understanding, recorded at the fourth session of the UN Joint Staff Pension Board, that “full faith, credit and respect should be given to the proceedings, decisions and jurisprudence of the Administrative Tribunal, if any, of the agency concerned relating to the staff regulations of that agency, as well as to the established procedures for the interpretation of such staff regulations”.207 The latter part of the “understanding” may mean that even if the question of the interpretation of the staff regulations of a particular specialized agency arises as a preliminary question (question préjudicielle) in a dispute which otherwise concerns the Regulations of the Fund, this preliminary question must be referred to the administrative tribunal of the specialized agency concerned if the parties disagree on the correct interpretation of its staff regulations. In the case cited above, both organizations concerned had expressly provided that the internal court of one organization was to be competent in certain internal disputes of the other. In such cases the court will have compulsory jurisdiction, even if the organization sued or the other party to the dispute contests its jurisdiction, as did the Director-General of UNESCO in 1955 without success.208 In accordance with the practice reported above, it is submitted that an intergovernmental organization can delegate its inherent judicial powers to another organization, by conferring upon the courts of the latter jurisdiction in respect of its internal disputes stricto sensu, even if there is no relevant provision in its constitution. Its power to delegate its judicial powers in respect of extended jurisdiction depends upon an interpretation of the act conferring such jurisdiction upon the organization.209 The other organization can accept such jurisdiction for its courts even if there is no relevant provision in its constitution, as long as no provision precludes such extension of the competence of its courts.

administrative power in this respect to the UN General Assembly and the UN Joint Staff Pension Board. The law enacted by these bodies must then be regarded as internal law of the UN or the Joint Staff Pension Fund. 207 UN, OR GA, IX, Suppl. No. 8, p. 2 and UNTS Vol. 394, p. 334. 208 He contested, for certain given (and other political) reasons, the competence of the ILO Administrative Tribunal to adjudicate upon certain disputes between UNESCO and four of its ofcials. His objections were rejected by the Tribunal (International Law Reports, 1955, p. 777) and, on appeal, by the International Court of Justice in its advisory opinion on Judgments of the Administrative Tribunal of the ILO upon Complaints Made against the UNESCO (ICJ Reports, 1956, p. 77). 209 The Court of Justice of the European Communities, in its opinions Nos. 1–2 of 1992, held that the proposed Court of the European Economic Area could not interfere in the former’s exclusive jurisdiction in respect of the EC-members, but this was extended (substantive), not organic jurisdiction.

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No example is known of internal courts of one organization having assumed jurisdiction in internal disputes of another organization if one of the organizations had failed to make a provision to this effect. Indeed, it is submitted that no internal court of an organization could consider itself competent in organic disputes of another organization unless the court’s statutes empowered it to adjudicate such disputes and the other organization concerned – or its constitution – had accepted its competence, in general or for any particular dispute. In the absence of such delegation of judicial power, by mutual consent or by constitutional provisions, the organic jurisdiction of an intergovernmental organization must be exclusive vis-à-vis other organizations, in its judicial as well as in its legislative and administrative aspect. In this respect the same principles must apply between intergovernmental organizations as between States210 and as between a State and an intergovernmental organization.

National courts National courts are theoretically in the same position with regard to internal disputes of intergovernmental organizations as are internal courts of other intergovernmental organizations, but in practice their position is different. Disputes arising under organic jurisdiction No examples are known of an intergovernmental organization having conferred competence upon national courts in respect of its internal, organic disputes, nor are States known to have conferred upon their national courts competence in such disputes. Agreements delegating certain internal legislative and/or administrative powers of the organization to the appropriate organs of the host State – notably in respect of social insurance – may imply that the national courts of the host State will be competent in disputes relating to the delegated powers, in the same manner as the UN Administrative Tribunal has been given competence in disputes relating to certain legislative and administrative powers delegated to the UN and the UN Joint Staff Pension Fund by the specialized agencies. But these disputes will usually be of an external, rather than of an internal nature. Thus, if the organization submits to the social security system of the host State in respect of its ofcials, as some organizations have done, it will usually be implied that the national courts of the host State shall be competent in disputes arising between the ofcials and the social security agencies of the host State. These disputes are not internal

210

Cf. Hackworth: Digest of International Law, Vol. 4, pp. 732–4.

314 chapter seven disputes arising out of the internal law of the organization, but external disputes arising out of the national law of the host State and involving parties, one of which is not subject to the organic jurisdiction of the organization. The question of the competence of national courts when the organization has not conferred jurisdiction upon them, has been dealt with in several decisions by such courts in disputes concerning the relationship of employment. In most of these cases ofcials sued the organization before a national court for indemnities for termination of their employment with the organization. Except for certain cases involving the UN,211 the courts declined jurisdiction, even though the organization had its headquarters, and the ofcial had been hired and performed his duties, in the territory of the State to which the court belonged, and despite the fact that the ofcial concerned was a national of that State.212 The reasoning in some of the decisions referred to seems to indicate that the courts concerned would ex proprio motu (ex ofcio) have considered themselves incompetent ratione materiae even if the organization had accepted their jurisdiction.213 But in one case the national court assumed jurisdiction on the basis that the organization was considered by the court to have accepted its jurisdiction by not raising any objection on that ground.214 This judgment may not conform to the general principles of the procedural international law of other States, but as a matter of public international law the Court was of course entitled to assume jurisdiction, if the UN had really consented (out of unawareness of the legal situation and the contrary practice of other organizations).

National courts at an early stage assumed jurisdiction in three such cases involving the UN. In at least one of these (Schuster v. UN Information Centre) the UN had failed to invoke its exclusive jurisdiction in internal matters. Although such failure does not in itself necessarily confer jurisdiction upon national courts, it cannot be expected that these shall be aware of rights of the organization if its representatives have not drawn them to their attention, or, to put it bluntly, as the UN Secretariat itself apparently was unaware of the legal position and the consistent practice of other organizations. In the two other cases (Annual Report of the Secretary-General, 1953–54, pp. 106–7), the courts appear to have ignored completely obtaining rules of international law, inasmuch as they disregarded also treaty provisions on the immunity ratione personae of the UN. In all known similar disputes of other organizations national courts have declined jurisdiction. 212 See reference to cases cited above in chapter 7.4.1. 213 Chemidlin v. International Bureau of Weights and Measures. But see Proli v. International Institute of Agriculture. 214 Schuster v. UN Information Centre, cf. Zeitschrift für auländisches öffentliches Recht und Völkerrecht, Vol. 24 (1964), note 254. – Belgian and American courts have accepted jurisdiction in actions brought by the UN against former ofcials for reimbursement of overpayment of salary. These disputes, however, must properly be considered as external, involving questions of the internal law of the organization only as a preliminary issue – on disputes with former member States of the Bank and the Fund. 211

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If national courts decline jurisdiction in cases involving ofcials, then there is all the more reason why they should decline jurisdiction in the even more typically internal disputes between and within organs which have no distinct legal existence outside the organization. In disputes involving members of the organization – i.e. sovereign States acting as such – national courts obviously have no jurisdiction. The decisions referred to above conform to the many cases in which national courts have declined jurisdiction in disputes between foreign governments and their ofcials serving in the country of the court and possessing the nationality of that country.215 Neither the judgments relating to ofcials of foreign States, nor those relating to ofcials of intergovernmental organizations, State whether the incompetence is merely a matter of the national (procedural international) law of the State concerned, or whether it derives also from public international law, in the sense that national courts are barred under public international law from adjudicating upon organic disputes of another State or of an intergovernmental organization. It is submitted that the latter is the case. It would be entirely improper for an organ of one State in this manner to intervene in the internal functioning of the administration of another sovereign State or of an organization of sovereign States. It is thus submitted as a general rule, applicable to intergovernmental organization as well as to States, that the organic jurisdiction is exclusive even in its judicial aspect. National courts may not, under international law, assume jurisdiction in internal disputes relating to matters falling under the organic jurisdiction of an intergovernmental organization or of another State, unless the organization or the other State concerned has recognized their competence. Such recognition can not be inferred from Article 240 of the constitution of the European Community and Article 155 of the constitution of EURATOM, which provide: Save where jurisdiction is conferred on the Court of Justice by this Treaty, disputes to which the Community is a party shall not on that ground 216 be excluded from the jurisdiction of the courts or tribunals of the Member States.

Nor can it be inferred from any constitutional or other provision which waives the procedural immunity of the organization concerned, such as that contained in Article 1 of the Protocol on the Privileges and Immunities of the European Communities and in Article VII (3) of the constitution of the

215 216

See above, chapter 5.1. Emphasis added. French text: “de ce chef ”. The German text is not so clear, but must mean the same.

316 chapter seven International Bank for Reconstruction and Development. And even if the organization should have admitted the competence of national courts in certain organic elds, the national court may be debarred, as a matter of its own national law, from assuming jurisdiction in internal disputes of other sovereign entities, unless the State under which the court belongs has expressly extended its jurisdiction. Disputes arising under extended jurisdiction The position is different with regard to disputes arising under the extended internal law of the organization (i.e. law enacted by virtue of territorial or personal jurisdiction conferred upon it, in its constitution or elsewhere), even if the dispute is one between parties both of which are subject to its jurisdiction. If a dispute between two nationals or residents of a State arises under its territorial or personal law, the dispute will usually be submitted to the courts of that State. But if they bring the dispute before the courts of another State, then these are not debarred from assuming jurisdiction by the mere fact that the dispute arises out of matters which are subject to the non-organic jurisdiction of the rst State. If competent under its own law of venue, and if this law is not excessively liberal, the court can assume jurisdiction and can apply, in accordance with its own conicts law, the substantive law of the rst State. As for disputes arising out of the non-organic law of an intergovernmental organization, it is similarly submitted that the internal courts of the organization, or its administrative organs, do not have exclusive competence unless this follows from the treaty or other act which confers extended jurisdiction upon the organization and unless such treaty or other act is binding upon the State under whose national court the dispute is brought.217 Conclusion The conclusion follows that – while the competence of internal courts of IGOs (as well as that of national courts of States) is exclusive, vis-à-vis a (foreign) national court, with regard to internal disputes arising out of matters falling under the organic jurisdiction of the organization or the State concerned – the competence of these courts is not exclusive under public international

217

E.g. provisions in the constitutions of the European Communities which reserve certain decisions for the Court of Justice (EURATOM Art. 193, EC Art. 292 cf. Arts. 220, 227 and 239), The Andean Community (The Protocol of Cochabamba 28 May 1996, Arts. 17 (nullity action) and 24 (action in cases of non-compliance)) and The African Union (The Lomé Convention of 11 July 2000, Art. 26) and thus limit the competence of national courts in member States.

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law with respect to “internal” disputes arising out of matters falling under the (extended) territorial or personal jurisdiction of the organization or State concerned, unless this follows from specic provisions. With the latter reservation, national courts are therefore, in principle, not barred under international law from assuming jurisdiction, even without delegation, in respect of the second type of internal disputes of an intergovernmental organization, and may even review the validity of the acts of the organization.218 In respect of internal disputes arising out of matters falling under the organic jurisdiction of the organization, however, national courts are not entitled under international law to assume jurisdiction unless the organization has delegated its powers. However, such delegation to national courts would in most cases be inappropriate, since it would prejudice the independence of the organization and the equality of its member States. But this does not necessarily mean that an intergovernmental organization would be legally barred from conferring jurisdiction upon national courts in certain special types of internal disputes, and to render such jurisdiction compulsory in cases where it is entitled to confer compulsory jurisdiction upon its own internal courts.

7.9

International courts219

Constitutional provisions A great number of IGO constitutions provide that disputes concerning the interpretation or application of their provisions shall be submitted to the International Court of Justice220 or to an arbitral tribunal.221

The latter was also pointed out by Wengler in Annuaire de l’Institut de droit internationa, Vol. 45 (1954), p. 282, in general terms, without making an exception for acts made in the exercise of organic jurisdiction. 219 On the distinction between internal courts of intergovernmental organizations and international courts, see above, chapter 7.7. – See the many proposals to extend the jurisdiction of the International Court of Justice to disputes concerning IGOs listed by H. Golsong in Zeitschrift für ausländisches öffentlichen Rechts und Völkerrecht, XXXI (1971) at pp. 679, 681–3, 686, 689 and 694. See also “A role for the International Court of Justice, International Law Association, Berlin Conference (2004), Final report, appendix. 220 E.g. the constitutions of WHO, Art. 75; FAO, Art. XVI (1); ILO, Art. 37 (1); UNESCO, Art. XIV, 2; ICAO, Arts. 84–86; the Bern Union, the United Nations Industrial Development Organization, Art. 22. 221 E.g. the constitutions of the Inter-Allied Reparation Agency, Part II, Art. 7; UPU, Art. 32, cf. General Regulations Art. 127 (1); and ITU, Art. 50. However, the arbitrators provided for in the two former constitutions are not external to the organization. They are either its secretariat, or member governments, or their delegates to the organizations. – 218

318 chapter seven Other constitutions exceptionally provide for a right for member States or individuals under the extended jurisdiction of the organization to appeal to an external court against the decisions made by the organization.222 Several proposals have been made for similar provisions in respect of other organizations.223 The provisions referred to above usually confer compulsory jurisdiction upon the tribunal concerned.224 But it is not always clear whether they envisage the establishment of an international or of an internal tribunal. Nor is it always clear whether the provisions relate only to disputes between member States or also to disputes between these and the organization (or,

See also the constitutions of the Fund, Art. XXIX Section 2 (c), and the Bank, Art. IX (c), although it may be questioned whether the disputes with which these provisions are concerned are internal or external. Nor is it clear whether these provisions are conned to disputes concerning the interpretation of the constitution. – Both alternatives are provided for in the constitutions of UNESCO Art. XIV 2, ICAO Arts. 84–86 and FAO Art. XVII (1). 222 Art. 38 of the constitution of the International Danube Commission (LNTS Vol. 26, p. 193) provided for appeal against the decisions of the Commission to a “special jurisdiction set up for that purpose by the League of Nations”. This “jurisdiction” might have been the Permanent Court of International Justice, as subsequently envisaged in Art. 37 of the Statute of that Court, except that this Court was not competent in contentious disputes involving intergovernmental organizations as parties. Similar appeals in other international river commissions may be made to the International Court of Justice, if the dispute is one between States, according to Art. 10 (5), cf. Art. 22, of the Statute on the Regime of Navigable Waterways of International Concern, annexed to the Barcelona Convention of 20 April 1921 (LNTS Vol. 7, p. 57). Under Arts. 29–32 of the ILO constitution, members of the ILO may appeal to the International Court of Justice (under the contentious procedure) against the recommendations of the Commission of Inquiry appointed under Arts. 26–28 to consider complaints of non-observance of International Labour Conventions (cf. also the recourse provided for in Art. 37 (2). However, these conventions should rather not be considered part of the internal law proper of the ILO. Most of the examples cited in this note, and in certain others, are cited by André Gros: “Le problème du recours juridictionnel contre les décisions d’organismes internationaux” in La technique et les principes de droit public, Etudes en l’honneur de Georges Scelle, Vol. 1, Paris 1950, pp. 268–9. 223 See, inter alia, Wengler’s report on Recours judiciaire à instituer contre les décisions d’organes internationaux to the Institut de droit international (Annuaire de l’Institut de droit international, Vol. 44 (1952 I), pp. 224–360 and Vol. 45 (1954 I), pp. 265–309) and the concluding, rather different, resolution of the Institut (ibid., Vol. 47 (1957 II), p. 478; English translation in AJIL Vol. 52 (1958), p. 105). See also the reports of the national branch committees of the International Law Association Committee on the UN Charter, reproduced in Second Report on the Review of the Charter of the UN (London 1956). 224 The compulsory jurisdiction of the International Court of Justice does not become effective vis-à-vis non-member States which are not parties to the Statute of the Court, unless these make the declarations prescribed by the resolution of the Security Council of 18 October 1946. None of the constitutions cited above expressly requires them to do so, as did the abortive proposal in Union internationale pour la protection de la propriété industrielle, Conférence de Lisbonne, Documents preliminaries, Bern 1956, p. 91.

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exceptionally, even to disputes involving other parties). Similar doubts may arise as to whether the reference to the International Court of Justice is to the advisory or to the contentious procedure.225 In the latter case the provisions can apply only to disputes between member States, because of the outdated restrictive provision in Article 34 (1) of the Statute of the Court.

Competence in the absence of constitutional provisions None of the provisions referred to above covers all internal disputes of the organization. Moreover, a great number of intergovernmental organizations have no provisions at all for judicial settlement of internal disputes. In one case as in the other, the question arises as to whether internal disputes of the organization, despite the absence of relevant constitutional provisions, may be referred to standing international courts or to ad hoc arbitral tribunals, either by the parties to the dispute or by the organization. The main question in this connection is whether international courts are competent under their own constitution (statute) to assume jurisdiction in internal disputes of an intergovernmental organization. Difculties may arise here because the competence of standing international courts is limited with regard to parties (ratione personae, see under 7.9.3 (a) below) and with regard to subject matter (ratione materiae, see under (b) below). Ad hoc arbitral tribunals are in a different position, see (c). Secondly it must be ascertained in what circumstances internal disputes may, under the law of intergovernmental organizations, be brought before an international tribunal – by the parties to the dispute (7.9.4 (a) or by the organization itself (b)).

Limitations deriving from the constitution of the court (a) Standing courts: competence ratione personae 226 International tribunals are in principle concerned with disputes between subjects of international law. However, it is for the constitution (statute) of each court to determine who may be parties before that particular court.

The constitution of IMO, Art. 70, expressly refers to advisory opinions only. The constitution of ILO, Arts. 37 (1) and 29 (2), cf. Art. 31, refers to the contentious procedure (“decision”, in this sense also M. Sörensen: Grundtræk af international organisation, Copenhagen 1952, pp. 128–9). 226 Cf. S. Rosenne: The Law and Practice of the International Court of Justice, Dordrecht 1985, pp. 284–90. 225

320 chapter seven The constitutions of most standing international courts limit the competence of the court still further – to disputes between States.227 If these provisions are interpreted literally as precluding other subjects of international law, this means that the court is able to deal only with such internal disputes of intergovernmental organizations as arise between member States and/or (other) States subject to the extended jurisdiction of the organization. The court cannot accept jurisdiction in disputes between the organization itself and one or more such States. Still less can it accept jurisdiction in disputes involving particular organs of the organization, its ofcials or individuals subject to its extended jurisdiction. This was the position of the Permanent Court of International Justice and it is still the position of the International Court of Justice, Article 34 (1) of the Statute of which provides that “only States may be parties in cases before the Court”.228 This has forced member States to sue instead of the organization, but this presents problems of their competence.229 It has been suggested by some writers230 and by the President of the former Permanent Court of International Justice, that this provision does not preclude intergovernmental organizations possessing international personality from being parties to cases before the Court. And it is true that the provision was only intended to preclude private parties. However, the records show that the question of intergovernmental organizations being parties to cases before the Court was not absent from the minds of the drafters of the Statute, neither of the former Court, nor of the present, but that they refrained from taking any action on the matter.231 In these circumstances, the term “State” can hardly be read as comprising subjects of international law generally. A different matter is that this and many other provisions should (and, after the end of the cold

227

228

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Examples of individuals having been admitted as parties before independent international courts are listed above, chapter 7.5. These courts, however, are now a matter of the past, except for those dealing with disputes of national law. The Statute of the Permanent Court of International Justice, Art. 34, provided that “only States and Members of the League of Nations can be parties in cases before the Court”. In Ethiopia and Liberia v. South Africa, (ICJ Reports, 1966, p. 3). See for example Eagleton in: Recueil des Cours, Vol. 76 (1950 I), p. 418, and Weissberg: The International Status of the United Nations, London 1961, p. 200, and the writers cited by him in note 136. See also ICJ Reports, 1952, p. 133, and ICJ Pleadings, Reparation for Injuries Suffered in the Service of the UN, p. 99. Hudson: The Permanent Court of International Justice 1920–1942, New York 1943, p. 187, cf. p. 186. As for the capacity of the League of Nations to “plead before the Court” (in disputes between States), see League of Nations, Ofcial Journal No. 8, ProcèsVerbal of the Tenth Session of the Council, 20–28 October 1920, II, p. 16; cf. also, for the advisory procedure, Art. 73 of the Rules of Procedure of the Permanent Court of International Justice and Art. 66 (2) and (4) of the Statute of the International Court of Justice.

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war, can) be amended to include intergovernmental organizations and, possibly, other self-governing communities.232 It ought not to be necessary in all such cases to have to establish special courts. Provisions in IGO constitutions which refer disputes to the existing courts must be interpreted restrictively, as meaning either settlement of disputes between member States (by contentious proceedings), or settlement (of any type of dispute) by advisory opinion, or both.233 However, it is not possible to interpret the constitution of the International Labour Organization in this sense. It provides for reference to the International Court of Justice under the contentious procedure even of disputes between a member State and the organization.234 It has been contended that this conict between treaties must be settled according to which treaty is of the higher hierarchical order,235 or simply that the International Court of Justice may have to deviate from its Statute in order to avoid a conict, which the drafters of the Statute did not intend to create, with the earlier Treaty of Versailles.236 However, it is submitted that the constitution of one intergovernmental organization (the ILO) cannot supersede the constitution of another intergovernmental organization (the UN with the International Court of Justice) as the internal law of the latter. For the International Court of Justice, as for any other international body, its own constitution

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In this sense, E. Lauterpacht: Aspects of the Administration of International Justice, Cambridge 1991, pp. 60–66, who points, in particular, to the future need in respect of protection of the environment and of human rights and of other duties which exist erga omnes. S. Rosenne: The World Court, Dordrecht 1995, p. 84 and The Law and Practice of the International Court of Justice, Dordrecht 1985, at pp. 284–90 is less enthusiastic, pointing out a number of problems, which, however, do not appear to be serious obstacles to the present writer, e.g. that “the nature of the organizations concerned and the relationships created by them are too different, and too unforeseeable”. The UN General Assembly’s resolution No. 3232 of 12 November 1974, encouraging UN organs and Specialized Agencies to seek legal problems for submission to the ICJ reects the view that the Court has the capacity to undertake further tasks. The latter is probably the correct interpretation of the WHO constitution, Art. 75, and possibly even of the constitution of the former International Refugee Organization, Art. 17 (2) (despite the reference to Art. 96 of the UN Charter). Art. 29 (2), cf. Arts. 26 (4) and 31 (these disputes might more appropriately be considered external, but that does not affect the question of principle involved in the present context). Art. 37 (1) also speaks of “decision” and thus clearly refers to the contentious procedure – but it does not necessarily embrace disputes between the organization and a member State, although many writers conceive it in this way (Georges Fischer: Les rapports entre l’Organisation internationale du travail et la Cour permanente de justice internationale, Paris 1946, pp. 30–40, and Sörensen, op. cit. above note 311, p. 129). Fischer, op. cit., pp. 40–46, who on this basis arrives at the conclusion that Art. 37 (1) of the constitution of the ILO, as part of the Peace Treaties concluding World War I, must prevail over the Statute of the pre-war Permanent Court of International Justice, but not over the Statute of the post-war International Court of Justice. Sörensen, op. cit., p. 129, in respect of both Art. 29 (2) and Art. 37 (1).

322 chapter seven is the supreme law unless the constitution itself provides otherwise.237 If this constitution contains an unequivocal provision – as the Statute does – the Court cannot set this provision aside by applying a contrary provision of the constitution of another intergovernmental organization of which it is not itself an organ. This leads to the conclusion that the contentious jurisdiction of the International Court of Justice – like that of most other standing international courts – does not extend to disputes between an intergovernmental organization and its member States, whatever the constitution of the organization may say – until the Statute of the Court has been properly amended. As has been pointed out by Diez de Velasco,238 the statutory limitation to States as parties has been circumvented by one or more member States acting before the Court, making their own the cause of the organization. This may cover some cases, but it is not a satisfactory solution and it cannot cover all cases. Various proposals have been made to extend the jurisdiction of the International Court of Justice to embrace disputes involving parties other than States. These proposals have been made to a great extent with a view to bringing before the Court what the present writer describes as internal disputes of intergovernmental organizations.239 The proposals merit full support insofar as they strive to give effect to the international procedural capacity of intergovernmental organizations and other subjects of international law that are not States. Indeed, this capacity should not be denied to any intergovernmental organization by the constitution of any standing international court, neither for the purpose of external disputes, nor for the purpose of internal disputes – i.e. neither for disputes of genuine international law, nor

This supremacy has been conrmed in practice vis-à-vis general international law; see above, chapter 7.7, where the parallel problem in respect of State constitutions is also discussed. 238 Instituciones de derecho internacional publico, 11th ed., Madrid 1997, p. 784. He also points to Art. 9 of the constitution of the International Bank for Reconstruction and Development, which refers disputes, both between member States and between member States and the organization, to settlement by organs of the same organization. 239 See the different proposals made by the International Law Association Committee on the UN Charter International Law Association, Report of the Forty-seventh Conference, Dubrovnik 1956, pp. 128–132. The proposal, attributed to the present writer on p. 129, that disputes between organs be decided by advisory opinion, was merely an attempt to improve the original U.S. Branch sub-committee proposal, to resort in such cases to contentious judgments of the International Court of Justice; usually disputes between organs can be settled by internal, non-judicial procedures. The Austrian, Yugoslav and United States Branch sub-committees even proposed a modied compulsory jurisdiction for the International Court of Justice in internal disputes between the organization and a member State (Second Report on the Review of the Charter of the United Nations, London 1956, pp. 43, 77 and 112). 237

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for disputes arising under the internal law of the organization.240 However, certain of the proposals which have been made tend to extend the jurisdiction of the Court in contentious proceedings even to internal disputes stricto sensu, involving ofcials241 or particular organs of the organization.242 This would involve an extension of the tasks of the Court to a eld which is different from that for which it was created (internal law as opposed to international law). On the other hand, as has been pointed out above in chapter 7.4, any intergovernmental organization is free to establish internal tribunals for this purpose or to confer jurisdiction upon the internal tribunals of other organizations. This may be done by simple regulation (and/or by agreement with the other organization concerned) without resorting to any constitutional amendment or other treaty revision. There may, of course, be a need for a court of appeal. This too may be satised by internal courts. At present, the International Court of Justice is acting as a court of appeal through the articial procedure of (binding) advisory opinions, a procedure which does not require Charter or Statute revision.243 The constitution of the Permanent Court of Arbitration was also clearly drafted with a view to disputes between States only. However, it did not expressly provide that only States might be parties before the Court.244 On the other hand, it contained a provision, in Article 47 second paragraph, to the effect that its jurisdiction might be extended to disputes between

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This is the implication of the resolution which the International Law Association adopted already at its Dubrovnik Conference, in conclusion of its discussion of the report cited above, pp. 104–05. See e.g. Gonsiorowski: Société des Nations et problème de la paix, Paris 1927, Vol. 1, p. 288, on an ILO proposal that jurisdiction be conferred upon the Permanent Court of International Justice in disputes between the League of Nations and its ofcials. According to the second report of the International Law Association Committee on the UN Charter, two national branch committees similarly proposed that Art. 101 of the UN Charter and Art. 34 (1) of the Statute of the International Court of Justice be amended to enable ofcials to sue their organization before the Court (International Law Association, Report of the Forty-seventh Conference held at Dubrovnik 1956, pp. 130 and 132). Certain proposals to institute a right of appeal to the International Court of Justice against decisions by administrative tribunals, appear to envisage the contentious procedure, rather than the procedure of advisory opinions which is resorted to in the existing regulations of e.g. the ILO and the UN concerning such appeals. See above, on the original proposal of an American Branch subcommittee of the International Law Association to extend the jurisdiction of the International Court of Justice to disputes between two organs of an IGO concerning their respective spheres of jurisdiction. Resolution 957 (X) of the General Assembly of the United Nations. Art. 37 of the Hague Convention for the Pacic Settlement of International Disputes provides: “L’arbitrage international a pour objet le règlement de litiges entre les Etats”. However, this article does not appear in the chapter dealing with the Permanent Court of Arbitration, but in the immediately preceding chapter on “la justice arbitrale”.

324 chapter seven non-contracting puissances (powers) or between contracting and non-contracting puissances.245 By the term puissances the contracting States presumably had only States in mind, not intergovernmental organizations, since these had not by 1899 and 1907 attained a sufciently prominent position in international law to be taken into account. Nevertheless, the term puissance does not in itself preclude subjects of international law other than States. And it would hardly be reasonable today to interpret the term restrictively merely because intergovernmental organizations had not at the time of the establishment of the Court attained such importance that it was natural for the drafters to take them into account. Accordingly, it is submitted that it is possible to constitute an arbitral tribunal under the Hague Convention on Pacic Settlement of Disputes to adjudicate upon a dispute between an intergovernmental organization and a State, provided that the regulations adopted by the Administrative Council so permit.246 So far, it has been found necessary for intergovernmental organizations to make provision for arbitration or other ad hoc ways of settlement of disputes in treaties that they conclude with States or with other organizations. Article 66 of the UN Convention on the Law of Treaties between States and International Organizations or between international organizations contains complex provisions on this subject. (b) Standing courts: competence ratione materiae International courts are established to adjudicate disputes of international law. And what in the present book is referred to as internal law of inter-

“La juridiction de la Cour permanente peut être étendue, dans les conditions prescrites par les règlements, aux litiges existant entre des Puissances non contractantes ou entre des Puissances contractantes et des Puissances non contractantes, si les Parties sont convenues de recours à cette juridiction”. 246 Such regulations were to be adopted by the Council on the basis or Art. 49 cf. Art. 47 second paragraph, of the Hague Convention on the Pacic Settlement of International Disputes of 18 October 1907. The Council has adopted no such regulations so far. In February 1962 the Bureau of the Court elaborated a “Règlement d’arbitrage et de conciliation pour les conits internationaux entre deux parties dont l’une seulement est un Etat”, the text of which was published inter alia in Nederlands Tijdschrift voor Internationaal Recht, Vol. 9 (1962), pp. 339–50. However, these rules were based upon the rst paragraph of Art. 47, which reads: “Le bureau est autorisé à mettre ses locaux et son organisation à la disposition des Puissances contractantes pour le fonctionnement de toute juridiction spéciale d’arbitrage”. Already before that time, the Court had in fact placed its premises and its organization at the disposal of commissions appointed to arbitrate in disputes between States and private commercial companies. See on this François in Recueil des Cours, Vol. 87 (1955 I), pp. 541–6. However, the courts of arbitration envisaged in the rst paragraph of Art. 47 are not courts of the Permanent Court of Arbitration, but independent ad hoc tribunals, whose jurisdiction, as explained below, under (c), is not limited by the provisions contained in the constitution of the Court. 245

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governmental organizations, is widely mixed up with – or even assumed to constitute – international law. However, the internal law of each organization constitutes a legal system of its own. These legal systems differ from international law in sources, subjects, contents, hierarchical order and legal effects in national law. Important parts of the internal law of intergovernmental organizations differ from international law in all these respects, and are, on the whole, comparable to national law. Other parts differ from international law only in certain respects, and are otherwise comparable to, or even part of, international law. It is therefore necessary to ascertain whether the competence of standing international courts is really conned ratione materiae to disputes of international law. This question has so far been posed notably vis-à-vis national law, and the answer must therefore be based, in the rst place, upon an examination of practice in that respect. Although international courts are established, in principle, to adjudicate upon disputes of international law, they need not decline jurisdiction in disputes arising under another legal system if their constitutions do not expressly conne their jurisdiction to disputes of international law – especially if the parties agree to the submission of the particular dispute to the court. This may be the position of the Permanent Court of Arbitration. The term différends internationaux used in Article 41 of its constitution may have in view the parties to the dispute rather than its subject-matter, and, at any rate, is not so specic that it must be interpreted as barring two contracting powers from submitting to a court of arbitration under the convention a dispute between them arising out of national law or the internal law of an intergovernmental organization. The Statute of the Permanent Court of International Justice provided on the one hand, in Article 36, rst paragraph, that “the jurisdiction of the Court comprises all cases which the parties refer to it”. This was interpreted by the Court as meaning that “there is no dispute which States entitled to appear before the Court cannot refer to it”.247 On the other hand, Article 38, which enumerated the sources of law to be applied by the Court, did not mention such sources of national law and of internal law of intergovernmental organizations as do not at the same time constitute sources of international law. Nevertheless, the Court accepted jurisdiction in the cases of the Serbian and Brazilian Loans in France, although it considered the dispute to be one of national law.248 In so doing, the Court relied upon the provision in Article 36, rst paragraph, of its Statute and upon the fact that the parties had agreed

247 248

Rights of Minorities in Upper Silesia (Minority Schools), PCIJ, Ser. A, No. 15, p. 22. PCIJ, Ser. A, Nos. 20/21, pp. 16–20 and 101.

326 chapter seven to submit the dispute to its jurisdiction. As for Article 38, the Court merely stated that Article 38 of the Statute cannot be regarded as excluding the possibility of the Court’s dealing with disputes which do not require the application of international law, seeing that the Statute itself expressly provides for this possibility.

By the latter the Court was referring to Article 36 (2) (c) of the Statute, which provided that States may accept the compulsory jurisdiction of the Court, inter alia in legal disputes concerning “the existence of any fact which, if established, would constitute a breach of an international obligation”. Such a fact, the Court pointed out, might be a question of national law.249 And it might not be necessary for the Court to pass upon the international law aspect of the dispute, since the parties “may agree that the fact to be established would constitute a breach of an international obligation”.250 The International Court of Justice is essentially in the same position as the Permanent Court of International Justice, since its Statute251 restates word for word the relevant provisions of the Statute of its predecessor. However, one addition has been made. Article 38 previously enumerated the sources of law which the Court is to apply, but now States that the function of the Court is “to decide in accordance with international law such disputes as are submitted to it”.252 The report of Committee IV/1 of the San Francisco Conference comments upon this addition as follows: The First Committee has adopted an addition to be inserted in the introductory phrase of this article referring to the function of the Court to decide disputes submitted to it in accordance with international law. The lacuna in the old Statute with reference to this point did not prevent the Permanent Court of International Justice from regarding itself as an organ of international law; but the addition will accentuate that character of the new Court.253

This does not appear to indicate any intention on the part of the drafters of the new Statute to alter the practice instituted by the Permanent Court of International Justice in the cases of the Serbian and Brazilian Loans. The legal limitation implied in the addition may thus merely be an afrmation of the principle that the Court must give precedence to international law in

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Cf., however, the Case Concerning Certain German Interests in Polish Upper Silesia (PCIJ, Ser. A, No. 7, p. 19). Here the Court stated that it was “certainly not called upon to interpret the Polish law as such” (emphasis added). PCIJ, Ser. A, Nos. 20/21, pp. 19–20. The example does not appear altogether conclusive. Arts. 36 (1), 38 (1), and 36 (2), respectively. Emphasis added. United Nations Conference on International Organization, San Francisco 1945, Vol. 13, p. 392.

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the sense that it cannot apply any rule of national law which conicts with international law. Nevertheless, the possibility of the present Court interpreting the new addition more rigidly cannot be excluded – especially since the judgments in the Serbian and Brazilian Loans Cases have not met with unanimous approval. And the view has been advanced that, whatever view one takes of the soundness of these judgments, the Court could not make a similar decision after the addition of the words “in accordance with international law” in Article 38 of the Statute.254 However this may be, neither the Permanent Court of International Justice, nor the International Court of Justice could assume compulsory jurisdiction under Article 36 (2) of the Statute in a dispute of national law between States. The compulsory jurisdiction is based, not upon the unlimited provision in Article 36 (1), but upon the specic provision in Article 36 (2). This provision enumerates four specic cases in which States may accept the compulsory jurisdiction of the Court, and all of these fall within the province of (public) international law.255 The question of the compulsory jurisdiction of the Court in a dispute of national law arose in the Case of Certain Norwegian Loans. The Norwegian Government maintained that the dispute, which was rather similar in nature to the Serbian and Brazilian Loans cases, was one of national law, and that the Court was therefore incompetent. This applied whatever view one took of the soundness of the judgments in the Serbian and Brazilian Loans Cases, because in the Norwegian Loans Case the dispute had been brought before the Court, not by agreement between the parties under Article 36 (1), but by unilateral application by France under Article 36 (2).256 The majority of the Court did not pass upon the question of whether or not it was competent under its Statute in disputes of national law, since they held that the Court was in any case barred from assuming jurisdiction in the case before it because of a reservation in the same sense which had been attached to the French acceptance of the optional clause and which Norway was entitled to invoke as a matter of reciprocity,257 although it had done so merely as a subsidiary basis

ICJ Pleadings, Case of Certain Norwegian Loans, Vol. 1, pp. 122–3, and Vol. 2, p. 111. The seemingly contradictory statement, referred to above, of the Permanent Court of International Justice in the Serbian Loans case, in respect of Art. 36 (2) (c), referred to the situation where “two States have agreed to have recourse to the Court” or where “the States concerned may agree that the fact to be established would constitute a breach of an international obligation”. 256 International Court of Justice, Pleadings, Case of Certain Norwegian Loans, Vol. 1, pp. 121–7 and 462–6, and Vol. 2, pp. 110–6. 257 ICJ Reports, 1957, pp. 22–27. 254 255

328 chapter seven for its objection.258 However, two of the judges who voted with the majority against the competence of the Court, stated that they did so because they considered that the dispute came within the domain of national law.259 If the competence of an international court is not conned to disputes of international law, so that in certain circumstances it is able to accept jurisdiction in disputes of national law, it must clearly also be able to accept jurisdiction in disputes arising out of the internal law of an intergovernmental organization, provided that the other conditions for the exercise of jurisdiction are satised. Thus, if the interpretations indicated above in respect of national law disputes are accepted, the Permanent Court of Arbitration will not be incompetent ratione materiae in respect of disputes arising out of the internal law of an intergovernmental organization. The same may be said of the Permanent Court of International Justice and, possibly, of the International Court of Justice, if the parties agree to submit the dispute to the Court. On the other hand, if the constitution of the court restricts its jurisdiction so that it is barred from adjudication upon disputes of national law, the question arises whether it is similarly barred from adjudicating upon disputes arising under the internal law of an intergovernmental organization. This question arises particularly in respect of the compulsory jurisdiction of the International Court of Justice. It was probably not the intention of those who drafted the constitutions of most standing international courts to exclude such disputes, since the internal law of intergovernmental organizations was (and still to a great extent is – erroneously) considered as part of public international law. Moreover, in most non-organic cases there are no other courts which would be competent to adjudicate upon disputes arising out of the internal law of intergovernmental organizations and with whose jurisdiction the international court could interfere by assuming jurisdiction. Finally, as for the International Court of Justice, it should be noted that this Court is itself an organ of an intergovernmental organization. For these and other reasons, there is no complete analogy to national law in this respect, and it would not seem necessary to preclude internal disputes of intergovernmental organizations from the competence of an international court merely because it has no competence in respect of disputes of national law, even if this fact may be an important factor in the interpretation of the constitution of the international court concerned. At any rate, there can be no doubt that the competence of international courts comprises disputes arising out of law which – although it constitutes

ICJ Pleadings, Case of Certain Norwegian Loans, Vol. 1, pp. 129–31. Cf. Carsten Smith: “The Relation between Proceedings and Premises”, Nordic Journal of International Law, Vol. 32 (1962), pp. 60 and 78. 259 Judges Moreno Quintana and Badawi, ICJ Reports, loc. cit., pp. 28 and 29–33. 258

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part of the internal law of an intergovernmental organization – at the same time forms part of international law. Thus international courts must assume even compulsory jurisdiction in disputes arising out of the constitution and of related customary law or principles of law. This applies also to the International Court of Justice in respect of the four categories of disputes enumerated in the optional clause (Article 36 (2)) – since these are all covered by the sources enumerated in Article 38 of its Statute. The competence of this Court to interpret the UN Charter has been contested on several occasions even in connection with advisory opinions, but without success.260 International courts may probably also assume jurisdiction in other internal disputes between States (or between States and the organization if the court’s constitution permits) – i.e. in disputes which arise out of binding regulations enacted by the organization in pursuance of its inherent organic or membership jurisdiction261 or out of its extended jurisdiction over member and non-member States or out of internal customary law – if these create rights and obligations as between member States inter se or between these and the organization. These parts of the internal law of the organization differ from international law with regard to sources, hierarchical order and in certain other respects. But they also differ, in certain respects relating to their effects, from the internal law stricto sensu – i.e. from the law which governs relations with and between subjects of internal law which are not concurrently subjects of international law (organs, ofcials, individuals subject to the extended jurisdiction262 of the organization). In particular, it should be noted that States act as such even under the internal law of an intergovernmental organization, while under national law they act like any private party. It is true that the enumeration of sources in Article 38 (1) of the Statute of the International Court of Justice does not include all sources of the internal law of intergovernmental organizations, and particularly not regulations enacted by the organization. But the International Court of Justice, in its judgments in the Serbian and Brazilian Loans cases, did not attach decisive importance to this article. Internal law stricto sensu is in nearly all respects comparable to national, rather than to international law. Disputes arising under such internal law could not be brought before the International Court of Justice, or any regular international court, because of its incompetence ratione personae in disputes involving parties which are not subjects of international law. Questions of

It should be noted, however, that, as for advisory opinions, these may be given on “any legal question” (Art. 65). 261 See below, Part Three. 262 In the present context it is convenient to include in the term internal law stricto sensu even the law governing relations of and with individuals under the extended jurisdiction of the organization, although disputes arising out of that law are more conveniently considered internal law largo sensu, cf. above, chapter 7.1 and chapter 6. 260

330 chapter seven internal law stricto sensu could only arise as questions préjudicielles (preliminary questions). It has already been submitted that an international court must deal with questions préjudicielles even if they belong to another legal system, whether this be national or internal law. As far as the International Court of Justice is concerned, it is submitted, in conclusion, that it may assume voluntary as well as compulsory jurisdiction (under Article 36 of its Statute) in disputes between States as such, not only when they act as independent subjects of international law, but also when they act as members of an intergovernmental organization, even if the Court would have been barred under its own constitution or practice from assuming jurisdiction in disputes of national law between the same States. This applies, however, only if there is no other (internal) court or other body having exclusive jurisdiction, and of course only if the other conditions for the jurisdiction of the Court are satised. (c) Ad hoc tribunals Ad hoc tribunals are established by the parties for the purpose of settling a particular dispute which has arisen between them. Accordingly, such courts can and must adjudicate upon the dispute submitted to them, whatever its nature and whoever the parties. The arbitrators cannot decline jurisdiction because one or both parties are not States, or because the subject matter of the dispute is not one of international law – merely on the basis that the arbitrators consider themselves as constituting an “international” tribunal. The question of what types of disputes are comprised in a treaty of compulsory arbitration depends upon an interpretation of the particular treaty concerned. It may well be that this is conned to disputes arising between States under international law.263 However, international law must usually be understood in the same wide sense as indicated above, under (b).

Limitations deriving from the law of the organization (a) Power of the parties to refer internal disputes to an international court States are entitled to refer disputes between them to a standing or ad hoc international tribunal, if they agree upon such reference or are bound to

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The compulsory judicial settlement procedure laid down in the Revised General Act of 28 April 1949 (UNTS Vol. 71, p. 101) does not appear to be strictly conned to disputes of international law, despite the fact that reference is made to Art. 38 of the Statute of the International Court of Justice (see Arts. 17–18, cf. Arts. 21 and 28 of the General Act).

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accept it under the terms of an earlier general or special, bilateral or multilateral, treaty.264 This right extends to any type of dispute which the tribunal is competent to adjudicate upon. It has been exercised in respect of disputes of national law265 and of interpretation of the constitution of an intergovernmental organization.266 It is submitted that it applies also to disputes concerning other parts of the internal law of an intergovernmental organization, unless its constitution provides otherwise, e.g. by providing for other exclusive modes of settlement.267 It has already been pointed out that States do not, by the mere fact of joining an intergovernmental organization as members, submit to the compulsory jurisdiction of its internal courts in regard to disputes arising out of its internal law. Conversely, it must be assumed that they retain their freedom to submit even disputes of this type to international courts of their own choosing, unless exclusive competence has been specially conferred upon the organization or upon any other body. The same must apply to disputes between a member State and the organization as such.

E.g. the Revised General Act of 28 April 1949 (UNTS Vol. 71, p. 101) or constitutional provisions such as Art. 37 of the ILO constitution. 265 The cases of the Serbian and Brazilian Loans in France, PCIJ, Ser. A, Nos. 20/21. 266 The Permanent Court of International Justice in 1929 rendered a judgment on the Territorial Jurisdiction of the International Commission of the River Oder (PCIJ, Ser. A, No. 23). The Commission had been unable to reach agreement upon the interpretation of certain provisions of the Treaty of Versailles which dened the term of reference of the Commission and which thus formed its constitution, besides forming part of a general international convention. The seven members then agreed, by a special agreement, to submit the dispute to the Permanent Court of International Justice as a dispute between Poland on the one hand and the six other members on the other. 267 Very explicit examples on constitutional provisions to this effect are the constitutions of the abortive International Trade Organization, Art. 92; the European Community Art. 292, and EURATOM Art. 193, the latter provisions exemplied by the ECJ’s Grand Chamber judgment 30 May 2005 in Case C-459/03 Commission v Ireland, where the court declared that by instituting dispute-settlement proceedings against the United Kingdom under the United Nations Convention on the Law of the Sea concerning the Mox plant located at Sellaeld in the United Kingdom, Ireland had failed to full its obligations under Articles 10 EC and 292 EC and under Articles 192 EA and 193 EA (Rec. 2006, p. I-4635). Wengler, in his report on Recours judiciaire à instituer contre les décisions d’organes internationaux, points out two particular limitations upon the right of international courts to declare invalid decisions made by an intergovernmental organization (Annuaire d l’Institut de droit international, Vol. 44 1952, pp. 267–270). One of these derives from the constitutions of the particular organizations concerned, and the other from a general principle of law (estoppel). In its judgment on rights of Minorities in Upper Silesia (Minority Schools) the Permanent Court of International Justice stated that the principle laid down in Art. 36 (1) of its Statute (that “the jurisdiction of the Court comprises all cases which the Parties refer to it”) “only becomes inoperative in those exceptional cases in which the dispute which States might decide to refer to the Court would fall within the exclusive jurisdiction reserved to some other authority” (PCIJ, Ser. A, No. 15, p. 23). 264

332 chapter seven It has been pointed out above that parties who are not normally subjects of international law are not usually entitled to be parties before an international court. Moreover, ofcials and particular organs acting in that capacity are under the compulsory jurisdiction of the organization in respect of organic disputes. It has been demonstrated – on the basis of practice – that this organic jurisdiction is exclusive vis-à-vis national courts. It is submitted that it is also exclusive vis-à-vis other external courts, in the sense that the organization has the right to oppose the submission of such disputes to any external court, even if the parties agree to such submission and even if the organization has not itself established courts to adjudicate upon such disputes. The same is true of other disputes, if exclusive competence has been specially conferred upon the organization or any other body. However, this does not apply to disputes which involve also other (external) parties, i.e., parties which are not bound by the act conferring exclusive competence upon the organization. Irrespective of whether the dispute involves States or other parties, an intergovernmental organization is not legally bound by a judgment rendered by an international (or any other external) court if the organization has not itself been a party to the dispute.268 An organ of an intergovernmental organization, appearing as a party before an international court, must, however, usually be presumed to represent the organization as a whole. (b) Can the organization confer compulsory jurisdiction upon an external court? It has already been pointed out that an intergovernmental organization does not have compulsory jurisdiction over member States for the settlement of internal disputes, unless this follows from particular provisions. It is even clearer that the organization does not have the power to confer compulsory jurisdiction upon an international (or any other external) court insofar as member States are concerned, if the constitution does not so provide. But the organization may of course – by simple regulation, without constitutional provision – confer jurisdiction upon an international court in disputes between itself and a member State which sues it or which consents to being sued, if the constitution of that court permits the hearing of disputes involving intergovernmental organizations. With regard to organic disputes involving parties which are under the compulsory judicial power of the organization, such as ofcials and particular organs, the organization must have the right to delegate its judicial powers to 268

This was expressly provided in the abortive Charter of the International Trade Organization, Art. 93 (2).

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external tribunals.269 However, a standing international court would normally not be an appropriate forum for such disputes, and would in most cases also be incompetent under its own constitution. It is therefore more expedient to delegate such powers to the internal courts of another intergovernmental organization, as indeed many organizations have done, or to establish an ad hoc court, which would then usually be considered an internal court of the organization itself, rather than an international court. However, delegation has taken place to the International Court of Justice as a court of appeal in respect of the judgments of the administrative tribunals of the International Labour Organization and the United Nations, and in certain other cases, although this has had to be done in the form of advisory opinions, because the organizations and their ofcials still cannot appear as parties before the Court.270 In respect of disputes which involve also external parties, or which arise out of matters not under the organic jurisdiction of the organization, the latter does not have the power to confer compulsory jurisdiction upon external tribunals, unless such power follows from a special act, e.g. an act conferring extended jurisdiction upon the organization.

Conclusions In principle, standing international courts are, under their constitution, competent only in regard to disputes between subjects of international law. In many cases, notably the International Court of Justice, their competence is even conned to disputes between States. On the other hand, if a dispute arises between such parties, the court is usually not incompetent merely because the dispute arises out of the internal law of the organization rather than out of general international law. Ad hoc tribunals can and must adjudicate upon the dispute which gave rise to their establishment, whatever its nature and whoever the parties. Internal disputes between States or between the organization and a State may be submitted to a standing or ad hoc international court by agreement between the parties, or by unilateral application if this follows from a treaty on compulsory jurisdiction. The approval of the organization is not necessary if the dispute is one between States, but it is a condition that the constitution of the organization does not provide for other exclusive modes of settlement.

Due to the inherent incompetence in such disputes of standing international courts under their own constitutions, no cases can be cited to support this submission. 270 See Art. 11 of the Statute of the UN Administrative Tribunal, as amended by GA Resolution 957 (X), cf. also OR GA, X, Annexes A.i. 49. 269

334 chapter seven Internal disputes arising out of matters falling under the organization’s organic jurisdiction and involving only parties subject to that jurisdiction may be submitted to ad hoc (or other) courts by the organization, or by the parties if the organization does not object. Other disputes may be submitted to ad hoc (or other) courts by the parties without the consent of the organization, unless an exclusive power of settlement has been conferred upon the organization or upon any other body. But such ad hoc courts may well be more appropriately considered as internal courts of the organization than as international courts.

7.10

Binding “advisory” opinions of the International Court of Justice271

The provision in Article 34 (1) of the Statute of the International Court of Justice that “only States may be parties in cases before the Court” prevents it from accepting jurisdiction in disputes between the organization and its member States(s), as internal disputes very frequently are. A circumventing method has been resorted to in order to be able to have recourse to the International Court of Justice for the purpose of settling internal disputes of IGOs and external disputes to which IGOs are parties. Under this method, the organization requests an advisory opinion from the Court, and the organization, or both parties to the dispute declare in advance that it, or they, shall be bound by the opinion. Seidl-Hohenveldern272 suggests that the Court may use the “implied” powers doctrine to stop objections that the constitution of the organization does not authorize it to bring a case before the ICJ, but, rightly, that “objections may have better chances of success when there may be doubts whether the subject-matter of the dispute falls within the scope of the activities of the organizations”. In the view of the present writer, the rst question does not arise, because the power to sue and be sued in international and national courts is inherent in all IGOs as in all States and there is thus no need to ction “implied” power in each case. The second question is a matter of external effect of constitutional limitations, which also must be answered the same way for IGOs as for States.273

Cf. S. Rosenne: The Law and Practice of the International Court of Justice, 2nd ed., Dordrecht 1985, pp. 284–90. See also below, chapter 9.3 on advisory opinions on questions concerning interpretation of public international law. 272 “Access of International Organisations to the International Court of Justice” in A.S. Muller et al. (eds.): The International Court of Justice, Dordrecht 1997, at p. 194. 273 Cf. above, chapter 6.4. 271

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Truly advisory opinions The advisory opinions of the International Court of Justice have been discussed above, in chapter 7.3.3. As was pointed out, the International Court of Justice (like the Permanent Court of International Justice) has the power to give such opinions, but only upon the request of an intergovernmental organization, indeed, the power to request such opinions is conned to the United Nations and its specialized agencies by Article 96 of the UN Charter. Nevertheless, the opinion may relate to a dispute involving other parties. Thus the International Court of Justice and the Permanent Court of International Justice have rendered several advisory opinions relating to internal and external disputes involving the organization as a whole, as well as member (and non-member) States274 and particular organs275 and ofcials276 of the organization.

The advisory opinion on the International Status of South-West Africa (ICJ Reports, 1950, p. 128) related to a dispute between the United Nations and the Union of South Africa concerning the interpretation of inter alia Arts. 75 et seq. of the UN Charter. The advisory opinion of the Permanent Court of International Justice of 12 August 1922 on the Competence of the International Labour Organization in regard to International Regulation of the Conditions of Labour of Persons Employed in Agriculture (PCIJ, Ser. B, No. 2) concerned a case where the French Government challenged the constitutionality of a decision made by the Organization. The advisory opinion of the Permanent Court of International Justice of 23 July 1926 on the Competence of the International Labour Organization to regulate, incidentally, the personal work of the employer (PCIJ, Ser. B No. 13) concerned a challenge by a minority of the representatives on a deliberative organ of the Organization of the constitutionality of a majority decision. The (rst) advisory opinion of the International Court of Justice on the Conditions of Membership in the United Nations of 12 December 1947 (ICJ Reports, 1947–48, p. 9) concerned a dispute between the members of a deliberative organ of the UN. The advisory opinion of the International Court of Justice of 20 July 1962 on Certain Expenses of the United Nations (ICJ Reports, 1962, p. 149) concerned a dispute between the UN and some of its member States. The advisory opinion of the Permanent Court of International Justice of 31 July 1922 on the Designation of the Workers’ Delegate for the Netherlands at the Third Session of the International Labour Conference (PCIJ, Ser. B, No. 1) even concerned a dispute within a member State, relating to its participation in the organization and the composition of the latter’s organs. 275 The (second) advisory opinion on Competence of the General Assembly for the Admission of a State to the United Nations of 3 March 1950 (ICJ Reports, 1950, p. 4) concerned the delimitation of the powers of the General Assembly and the Security Council visà-vis one another (under Art. 4 (2) of the UN Charter). And so did, in two respects, the advisory opinion on Certain Expenses of the United Nations of 20 July 1962 (ICJ Reports, 1962, at pp. 162 seq. and 170 seq.). 276 The advisory opinion on Effect of Awards for Compensation Made by the UN Administrative Tribunal (ICJ Reports, 1954, p. 47) was in the rst place concerned with the delimitation of the competence of two particular organs of the UN (the General Assembly and the Administrative Tribunal) vis-à-vis one another. At the same time it was the nal legal act in the settlement of a dispute between the United Nations and one of its member States on the one hand and certain UN ofcials, nationals of that 274

336 chapter seven There is no requirement in the Charter (Article 96) or the Statute of the Court (Article 65) or in relevant constitutional provisions of e.g. the International Maritime Organization (Article 70) that the parties to the dispute must agree to the request for an advisory opinion, and opinions have in fact been rendered even if one of the parties did not agree to the submission of the question to the Court.277 Indeed, it is submitted that in internal disputes of an intergovernmental organization the organization must have the right to obtain the advice of the Court even if the parties object, even if this is not always true in respect of disputes of purely international law.278 The UN General Assembly in its resolution 3232 of 12 November 1974 recommended that “United Nations organs and the specialized agencies should, from time to time, review legal questions within the competence of the International Court of Justice that have arisen or will arise during their activities and should study the advisability of referring them to the Court for an advisory opinion, provided that they are duly authorized to do so. However, regular advisory opinions are not legally binding. The nal decision in matters falling within the jurisdiction of intergovernmental organizations is made by administrative decision of the organization itself. Recourse to truly advisory opinions therefore does not constitute genuine judicial settlement of the dispute which has given rise to the request for advisory opinion. In certain external disputes between intergovernmental organizations and States it has been provided that the advisory opinion shall form a basis of a

member State, on the other. The advisory opinion on Judgments of the Administrative Tribunal of the International Labour Organization upon Complaints Made against the UNESCO (ICJ Reports, 1956, p. 77) involved the nal decision of a dispute between UNESCO and four of its ofcials concerning the relationship of employment. 277 Thus the Soviet Union opposed the submission to the Court of the two membership cases (OR GA II, Plenary Meetings, pp. 1047–53, and OR GA IV, Plenary Meetings, pp. 325–6, cf. ICJ Pleadings, Conditions of Admission of a State to Membership in the United Nations, 1948, p. 28, and ICJ Pleadings, Competence of the General Assembly for the Admission of a State to the United Nations, 1950, pp 100–1). 278 In its advisory opinion on the Status of Eastern Karelia, the Permanent Court of International Justice declined to give an advisory opinion on the question put to it by the League of Nations because it found that the question was directly related to the main point of a dispute actually pending between two States, one of which objected to the request for an advisory opinion (PCIJ, Ser. B, No. 5, pp. 27–29). On the other hand, the Permanent Court of International Justice and the International Court of Justice have consented to give advisory opinions, despite the objection of the States concerned, when the questions put to the Court relate to the procedure for the settlement of a dispute and not to its merits, and when the organization requesting the opinion needed the advice of the Court for its own guidance (Turkish-Iraqi Frontier (Mosul), PCIJ, Ser. B, No. 12, pp. 8–9 and 17–18; Interpretation of the Greco-Turkish Agreement of 1 December 1926, ibid., No. 16; Interpretation of the Peace Treaties, ICJ Reports, 1950, pp. 71–72). In these cases it was not considered necessary to apply the procedure prescribed for contentious cases.

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binding decision by an ad hoc arbitral tribunal.279 Such procedure is not known to have been prescribed for internal disputes, properly speaking.

Binding “advisory” opinions. Examples In certain cases it has been provided that the advisory opinion shall be directly binding upon the organization, or upon both parties. The following examples may be cited: (a) The Statute of the ILO Administrative Tribunal, adopted by the General Conference, provides in Article XII: In any case in which the Governing Body of the International Labour Ofce or the Administrative Board of the Pensions Fund challenges a decision of the Tribunal conrming its jurisdiction, or considers that a decision of the Tribunal is vitiated by a fundamental fault in the procedure followed, the question of the validity of the decision given by the Tribunal shall be submitted by the Governing Body, for an advisory opinion, to the International Court of Justice.280

Here the right of appeal to the ICJ is vested only in the organization, not in the ofcial. The ICJ has rendered several opinions pursuant to these provisions.281 The opinion given by the Court shall be binding. The FAO Conference adopted at its rst session the following recommendation by its General Committee on the Terms of Appointment of the Director-General: 3. If any question of interpretation or dispute arises on the terms of his contract an advisory opinion of the International Court of Justice shall be obtained by the usual procedure and adopted, or, alternatively, the matter shall be submitted for determination to such arbitral tribunal as the Conference shall appoint.282

(b) Article 96 of the Charter of the International Trade Organization, which never came into being, provided: 1. The Organization may, in accordance with arrangements made pursuant to paragraph 2 of Article 96 of the Charter of the United Nations, request from

See e.g. the headquarters agreement between the United Nations and the United States, § 21, and the ILO constitution, Art. 37 (2). 280 In the Annex to the Statute a similar provision is made for other organizations which recognize the jurisdiction of the Tribunal. 281 ICJ Reports 1954, p. 47; 1956, p. 77; 1973, p. 166; 1982, p. 325; 1987, p. 18. 282 FAO, Report of the First Session of the Conference, 1945, p. 67. Emphasis supplied. See also the abortive resolution ibid., p. 55. 279

338 chapter seven the International Court of Justice advisory opinions on legal questions arising within the scope of the activities of the Organization. 2. Any decision of the Conference under this Charter shall, at the instance of any Member whose interests are prejudiced by the decision, be subject to review by the International Court of Justice by means of a request, in appropriate form, for an advisory opinion pursuant to the Statute of the Court. 5. The Organization shall consider itself bound by the opinion of the Court on any question referred by it to the Court. In so far as it does not accord with the opinion of the Court, the decision in question shall be modied.

According to a resolution adopted at the Havana Conference (1947–48) the drafters of the Charter of the International Trade Organization wanted such opinions “to have the nature of a judgment with respect to the organization”.283 (c) Reference may also be made to the provisions for settlement in the general conventions on the privileges and immunities of the United Nations and the specialized agencies (paragraphs 30 and 32, respectively) and in certain other agreements on privileges and immunities.284 (d) Binding advisory opinions have also been requested of other legal bodies. Thus the Council of the League of Nations, by a resolution adopted on 8 June 1925, prior to the establishment of its Administrative Tribunal, referred to a collège of three legal members a dispute between the League and a former ofcial who claimed compensation for unjustied dismissal. The Council declared in advance that it would accept the conclusions of the collège as its own decision in the matter. After an oral procedure “without judicial formalities” – in the course of which the parties, their Swiss lawyers and one witness were heard – the collège submitted its report to the Council with the conclusion that the ex-ofcial was to be paid a compensation in the amount of £750.285 In some of these cases the advisory opinion is to be binding upon both parties to the dispute. It is then in fact a judicial decision and requires, in principle,

283 284

285

United Nations Conference on Trade and Employment, Final Act and related documents, UN Sales No. 1948 II. D. 4, p. 73. E.g. the agreement of 26 May 1954 between the United Nations and Thailand relating to the headquarters of the Economic Commission for Asia and the Far East (ECAFE) in Thailand (UNTS Vol. 260, p. 35 and ICJ Yearbook 1956–57, p. 241) and the Agreement on the Privileges and Immunities of the International Atomic Energy Agency para. 34 (UNTS, Vol. 374, p. 166). A clearly external example not especially concerned with privileges and immunities, is Art. XVI of the Agreement for the Establishment in Cairo of a Middle Eastern Regional Radioisotope Centre for the Arab Countries of 18 October 1962. Journal Ofciel 1925, pp. 858 and 1441–7 (Monod case).

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that the procedure prescribed for such decision be followed. In particular, both parties must be given an opportunity of presenting their views to the Court or the other legal body concerned. In other cases only the organization has undertaken to be bound by the opinion. The organization will then make an administrative decision in accordance with the opinion. This will be binding upon the other party only as an administrative decision, by virtue of the organic or extended jurisdiction of the organization, as the case may be. In other words, from a formal point of view it is no more binding upon the other party than it would have been if no opinion had been obtained. However, in fact it will be much more difcult for the other party to challenge the validity of the decision of the organization. In these cases, too, it will therefore be reasonable to follow as far as possible the procedure required for judicial proceedings. But it is doubtful whether the parties may claim this as a matter of right. In fact, the provision in Article 34 of the Statute of the International Court of Justice that “only States may be parties in cases before the Court” has led the Court to obliging the complaining ofcial to present his arguments in writing to be transmitted to the Court by his counterpart (the Organization) and to excluding also the latter from appearing orally before the Court.286

Competence of the court under its statute to render binding “advisory” opinions Although the Statute of the Court does not authorize binding advisory opinions, it does not preclude them either. Indeed, the Court has, although not unanimously, accepted jurisdiction in one case of this type which has been submitted to it, viz. the advisory opinion on Judgments of the Administrative Tribunal of the International Labour Organization upon Complaints Made against the UNESCO, rendered on 23 October 1956.287 Four judges considered that the Court could not render a binding advisory opinion in the circumstances because both parties to the dispute could not appear before the Court and did not enjoy an equal status before it (the pleadings of the ofcials were submitted in writing via the organization). However, no doubt was voiced as to the competence of the Court ratione materiae. Indeed, Article 96 authorizes the organizations to request advisory opinions “on any legal question”, adding, in the case of the specialized agencies,

See E. Jiménez de Aréchaga: “The Participation of International Organizations in Advisory Proceedings before the International Court of Justice” in Il processo internazionale, Studi in onore di Gaetano Morelli, Milano 1975. 287 ICJ Reports, 1956, p. 77. 286

340 chapter seven the qualication “arising within the scope of their activities”. This clearly includes any aspect of the internal law of the organization, whether or not it at the same time forms part of international law, and whether or not there is a dispute between States. It might be submitted that, in principle, this does not apply if the “advisory” opinion is to be binding, since the Court then is faced in substance with the task of rendering a judgment in a contentious case, in which case the competence must be determined by analogy with the rules applicable to contentious proceedings. However, none of the judges questioned the competence of the Court on this basis. Indeed, even if it had been a genuine contentious case, the Court might not have had to consider itself incompetent ratione materiae when the dispute had been submitted to it by the organization itself, cf. above, chapter 7.9.3 and 4. The parties to the dispute other than the organization have no right to request advisory opinions, since this right, under Article 96 of the UN Charter, may be conferred only upon the organization, or, more particularly, only upon the United Nations and its specialized agencies.

Power of the organization under its own law to request binding “advisory” opinions In those cases listed in chapter 7.10.2 above, which concern internal disputes stricto sensu, i.e. cases arising out of matters falling under the organic jurisdiction of the organization, the decision to seek a binding advisory opinion was made by unilateral regulations and/or decision of the organizations without requiring specic consent,288 or consent at all, of the other party to the dispute. In none of these cases did the constitution of the organization authorize the organization to request such binding opinions. The constitutions did not even authorize the organization to request a truly advisory opinion on the type of disputes concerned.289 It has already been demonstrated that the organization has exclusive jurisdiction in such matters, and that this comprises not only legislative and administrative powers, but also the judicial power. Thus the organization may not only refer such disputes for binding decision to internal courts of the organization, but it may also delegate its compulsory jurisdiction to external tribunals. Whether it does so by asking for regular judgments in contentious

In the case of ILO the ofcials may be said to have accepted this unilateral power of the organization by accepting the terms of appointment. In the case of FAO, the DirectorGeneral accepted the reciprocal right as a direct part of his terms of appointment. 289 The relevant provision of the FAO constitution (Art. XVII) was more restrictively worded at that time than it is in its present form. 288

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proceedings or for binding advisory opinions is immaterial, if the procedure adopted by the court in both cases is a judicial one, affording the regular judicial guarantees to both parties to the dispute. This was precisely the point of discussion in the advisory opinion on Judgments of the Administrative Tribunal of the International Labour Organization upon Complaints Made against the UNESCO. The majority held that the procedure which the Court was able to adopt did afford the required judicial guarantees to both parties. And this must then sufce also from the point of view of the constitutional powers of the organization. The organizations listed above therefore had the right to adopt unilateral regulations referring the disputes in question to the International Court of Justice for decision by binding advisory opinion, without providing for the consent, generally or in each case, of the other party to the dispute. Indeed, it is submitted that in all those cases where the organization has organic or extended jurisdiction which includes compulsory judicial power, it may ask the International Court of Justice to render a binding advisory opinion, if this is able to do so under a procedure which offers the necessary judicial safeguards, and if the constitution of the organization or the treaty conferring extended jurisdiction upon it does not provide otherwise.290 However, in disputes which do not fall under the jurisdiction of the organization, it can ask for a binding advisory opinion only if the other party to the dispute agrees or if the opinion becomes binding only upon the organization itself.

7.11

Preliminary questions of another legal system

Disputes which are properly brought before the courts of one jurisdiction, in accordance with the applicable rules of international competence (procedural international law), may be governed in some of their aspects by the law of another jurisdiction, in accordance with the relevant rules of conict of laws. Whenever the conict rules refer to another legal system, the court before which the dispute is brought will have to decide, as a preliminary ruling (question préjudicielle) what is the law of that system on the question concerned. If this is in dispute between the parties, the questions arise (a) whether the court is entitled itself to interpret the foreign law concerned and (b) whether

290

And in such cases the court will also be in a position to review the constitutionality of the organization’s decisions if applicable, cf. “Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization”, Advisory Opinion of 8 June 1960, (ICJ Reports, 1960, p. 150).

342 chapter seven it is bound by a relevant judgment of a court of the foreign jurisdiction concerned (pronounced in a dispute between the same parties on the same question – res judicata). These questions must be considered separately with regard to preliminary questions of the: 1. internal law of an intergovernmental organization arising before a national court 2. internal law of one organization arising before a court of another organization 3. national law arising before an IGO court 4. international law arising before an IGO court, and 5. internal law of an intergovernmental organization arising before an international court.

Questions of the internal law of an organization arising before national courts Questions of IGO law may easily arise as preliminary issues before national courts. Thus, the question of who is entitled to act on behalf of the organization vis-à-vis third parties, e.g. for the purpose of concluding contracts, must be determined according to the internal administrative law of the organization, not according to the company law or the administrative law of the State whose law governs the other aspects of the dispute. Similarly, if the organization brings a claim in a national court against a former ofcial for reimbursement of overpayment of salary, the national court may have to determine, as a preliminary issue, what amount of salary the ofcial was entitled to, in order to decide whether overpayment has in fact taken place. This question too must be determined on the basis of the internal law of the organization.291 (a) Can the national court interpret the organization’s law? National courts may themselves interpret the internal law of the organization, unless prevented by a treaty provision292 or by application by analogy of

The UN and UNRWA have brought some actions of this kind, but the available reports of the judgments (Annual Report of the Secretary-General, 1952–53, p. 149; Annual Digest of International Law Cases, 1949, Case No. 114) do not specify what law was applied. 292 Cf. par. IV (h) of the resolution on “Recours judiciaire à instituer contre les décisions d’organes internationaux”, adopted by the Institut de droit international (Annuarie, Vol. 47 [1957 II] p. 479) and Wengler’s draft articles, Art. 1 (ibid. Vol. 45 [1954 I] p. 269). 291

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the Act of (foreign) State doctrine if this doctrine is applied in their national law.293 However, as already pointed out, the Act of State doctrine is not recognized as a limitation under public international law,294 although it probably constitutes such a limitation in respect of acts performed in the exercise of organic jurisdiction. The constitution of the organization concerned may preclude the national courts of member States from reviewing the validity of acts of the organization, by providing for another exclusive mode of settlement of disputes in this respect.295 The constitution of the European Community contains a relevant provision in Article 234,296 which provides: The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community and of the ECB; (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.

Cf. Oppenheim’s International Law, London 1992, § 115. See also Hewitt v. Speyer et al. (250 Fed. 367, 371 [C.C.A. 2 d, 1918], where a United States federal court took the principle to be incontrovertible in both countries concerned (United States and Ecuador) that the national courts “will not adjudicate upon the validity of the acts of a foreign nation performed in its sovereign capacity” (Hackworth: Digest of International Law, Washington 1940–44, Vol. 2, p. 18). On the limitation of this doctrine, in accordance with the public policy doctrine, insofar as extraterritorial effects are concerned, see e.g. Bánská a Hutni Spolecnost, národni podnik v. Hahn et al., decided by a Danish court in 1952 (text in Ross and Foighel: Studiebog i Folkeret, Copenhagen 1954, pp. 270–1). 294 Above, chapter 7.8. 295 Wengler, in a report to the Institut de droit international on “Recours judiciaire à instituer contre les décisions d’organes internationaux”, may not intend to go any further when he States that, unless a special procedure for judicial review of decisions by international organs has been established the validity of such decisions may be contested at any time and before any institution (instance) in accordance with the general rules of international law (Annuaire de l’Institut de droit international, Vol. 45, 1954 I, p. 266). He appears, however, to have been thinking only of disputes involving States and thus of the right of interference of international rather than national courts (ibid. pp. 266 and 283). 296 See also EURATOM Art. 150. 293

344 chapter seven The scope of this provision has been claried by the Court in a great number of decisions.297 In particular, the Court has held that if it has already rendered a preliminary ruling on a substantially identical question in an analogous case, national courts are under no obligation to submit the question anew if it arises in another case, but they may do so if they nd it desirable.298 (b) Is a national court bound by a judgment rendered by an IGO court? This question has already been considered above. As explained, the answer depends on the procedural international law of the State to which the court belongs. This law, which has been framed with a view to judgments by foreign national courts, should as far as possible be applied by analogy to judgments pronounced by the internal courts of intergovernmental organizations.299 Judgments rendered by the European Court of Justice and other supranational courts, however, must be given the effect provided for in the Treaties.

Questions of the internal law of one organization arising before courts of another organization (a) Express provisions: UN Joint Staff Pension Fund The problem of a question of the internal law of one organization arising as a preliminary issue before a court of another organization, has been raised with regard to judgments rendered by the UN Administrative Tribunal upon applications alleging non-observance of the regulations of the UN Joint Staff Pension Fund, since that tribunal is competent in disputes relating to the Pension Fund even in respect of those many specialized agencies which have another administrative tribunal for other purposes. The UN Joint Staff Pension See, inter alia, Société kledingverkoopbedrijf de Geus en Uitdenbogerd contre (1) Société de droit allemand Robert Bosch GmbH, et (2) Société Anonyme Maatschappij tot voortzetting van de zaken der rma Willem van Rijn (Cour de justice des Communautés européennes, Recueil de la jurisprudence de la Cour, Vol. 8, p. 89); N.V. Algemeene Transport- en expeditie onderneming van Gend & Loos contre Administration scale Néerlandaise (ibid., Vol. 9, p. 1); Da Costa en Schaake N.V. Jacob Meijer N.V. HoechstHolland N.V. contre Administration scale Néerlandaise (ibid., p. 59). 298 See the Da Costa case cited in the preceding note. 299 Wengler, in his draft articles on Recours judiciaire à instituer contre les décicions d’organes internationaux, proposed, in Art. 3, that “le jugement du tribunal international aura force de chose jugée envers tous les membres de l’organisation ayant qualité pour prendre part à la procédure, envers l’organisation elle-même et l’organe qui a rendu la décision attaquée” (Annuaire de l’Institut de droit international, Vol. 45, 1954 I, p. 269). It is not clear whether this proposal, which was not included in the resolution adopted by the Institut, also related to decisions of internal courts of the organization, and whether the decisions were to be binding upon national courts and not merely upon international courts. 297

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Board, at its fourth session in April 1953, recorded its understanding that full faith, credit and respect should be given to the proceedings, decisions and jurisprudence of the Administrative Tribunal, if any, of the agency concerned relating to the staff regulations of that agency as well as to the established procedures for the interpretation of such staff regulations.300 The UN Administrative Tribunal has thus to recognize as binding (res judicata) any relevant judgment of the administrative tribunal of the specialized agency concerned. The latter part of the “understanding” appears to imply, furthermore, that the UN Administrative Tribunal shall not itself decide preliminary questions of the internal law of employment of a specialized agency if the agency has established an administrative tribunal or other procedures for the binding settlement of such questions. If this is the correct interpretation, the “understanding” apparently implies that the preliminary question shall be referred to the appropriate organs of the agency concerned for binding decision, before the UN Administrative Tribunal decides the main issue. This would then apply for example if there is disagreement as to whether the contract of the ofcial with his organization is of such duration as would make him eligible, under Article II or II bis of the Regulations of the Pension Fund, for full or associate participation in the Fund. The “understanding” has been quoted in the preamble of the agreements which have been concluded between the UN and each specialized agency concerned and which confer jurisdiction upon the UN Administrative Tribunal in disputes arising out of the regulations of the Pension Fund.301 This reference probably implies that the “understanding” shall be binding upon the Tribunal in the exercise of this jurisdiction, if this does not follow already from the recording of the understanding by the UN Joint Staff Pension Board. (b) When no provision has been made The question arose in 1957 before the ILO Administrative Tribunal adjudicating in a dispute relating to a dismissed ofcial of the International Telecommunication Union. The plaintiff based her case, inter alia, upon an allegation that the attitude taken by the organization’s Medical Adviser towards her was one of hostility, traceable to an earlier dispute having arisen out of a diagnosis established by him in connection with a sickness contacted by her when she was employed by the United Nations in Libya, and that he had formulated reservations at the time of her engagement by the International Telecommunication Union, on the basis of medical records established when

300 301

UN, OR GA, IX, Suppl. No. 8, p. 2; text also in UNTS Vol. 394, pp. 335–6. See for example UNTS, Vol. 394, pp. 335–6.

346 chapter seven she was employed by the United Nations. The organization replied that the earlier dispute, submitted to the Administrative Tribunal of the United Nations, was res judicata and might not therefore be brought before the ILO Tribunal. The Tribunal stated: Considering that the facts previous to the engagement of the complainant by the defendant organization have already been the subject of a decision by the United Nations Administrative Tribunal and may therefore not be considered, in keeping with the principle of res judicata pro veritate habetur ;302 [. . .]

Prejudicial issues of the law of one organization may arise before the courts of another organization also in cases where a special relationship has been established between the two organizations, by agreement between them, by one organization becoming a member of the other,303 or by one organization acceding to conventions concluded under the auspices of the other.304 If in such cases the relevant documents contain no other indication, it is submitted that IGO courts, like national courts, are under no general obligation of international law to refrain from considering, as preliminary issues, questions of the internal law of another intergovernmental organization. IGO courts, like national courts, are under no general obligation of international law to recognize as binding judgments of internal courts of other organizations,305 unless this has been specically provided or unless the dispute concerns matters which are under the exclusive organic jurisdiction of the other organization. Nevertheless, even in other cases the court should not inquire onto the merits of a case which has already been decided by a competent court of another organization. It ought, as a matter of its own internal law, to recognize the judgment of the other court as binding.

ILO Administrative Tribunal, Judgment No. 27, In re Mauch, 13 July 1957, cf. Suzanne Bastid in Recueil des Cours, Vol. 92 (1957 II), p. 598. 303 Nordisk Tidsskrift, 1964, pp. 25–26, cf. pp. 64–66; see for example the agreement of 29 January 1963 for the Establishment in Cairo of a Middle Eastern Regional Radioisotope Centre for the Arab Countries, under which ofcials of the International Atomic Energy Agency would work at the Centre, which is a separate intergovernmental organization. 304 See for example the agreement op. cit., p. 65. 305 Suzanne Bastid, loc. cit. above note 302, States broadly: “Les décisions des tribunaux administratifs internationaux ont l’autorité de la chose jugée en ce sens que les points tranchés ne peuvent être remis en question devant une autre instance”. It is submitted that if this statement is intended to express a rule of international law, it applies only to internal, organic disputes (between the organization and its ofcials, not to judgments rendered pursuant to those provisions, which confer upon them jurisdiction in external disputes. 302

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Questions of national law arising before courts of the organization The problem of a question of national law arising as a preliminary issue before an IGO court is not likely to arise. Nevertheless, the question has been raised by certain German writers with regard to the former European Coal and Steel Community. The majority of those writers appeared to have taken the view that the Court was free to decide any preliminary questions of national law, and that it was not bound by any relevant judgment of a national court.306 Jerusalem took the contrary view, that the Court of the European Coal and Steel Community could not decide any legal questions within the competence of a member State, even if this arises as a preliminary issue in a dispute within the competence of the Court.307 It is submitted that there is no general rule of international law which would compel the European Court of Justice or other IGO courts to take the latter position. Nevertheless, as a matter of its own internal law, it would be reasonable for an IGO court to recognize the binding force of relevant judgments of national courts. This would, incidentally, be necessary in order to secure recognition of its judgments by courts of such non-member States as recognize foreign judgments as binding only on condition of reciprocity.308 The court might even do well to refer certain or all preliminary issues of national law in dispute between the parties to the national courts concerned. However, these are questions which must be solved in the light of the special nature, purposes and powers of the organization concerned. Any policy adopted by or in respect of the European Court of Justice therefore is not necessarily suitable for other organizations. Indeed, the majority view of the writers cited appears to be based upon a concept of the European Community as an entity on the lines of a federal State, in which federal courts are considered superior to the courts of the several States, while Jerusalem’s dissenting view is based upon the view that the Community is a common organization of the member States and on the same hierarchical level as these. As a matter of fact, the European Community is a combination of both, since in certain respects the organization exercises supranational powers within the member States, while in other respects it is merely an intergovernmental organizations of the consultative or operational type, acting within its own legal sphere which Ophüls in Neue Juristische Wochenschrift, Vol. 4 (1951), p. 696 in ne; Schlochauer in Archiv des Völkerrechts, Vol. 3 (1951/52) p. 396, citing also Ule in Deutsche Verwaltungsblatt, Vol. 67 (1952), p. 71. 307 Jerusalem: Das Recht der Montanunion, Berlin 1954, p. 61, cf. p. 60 in ne. 308 In member States the judgments of the Court of Justice of the European Communities are binding by virtue of Art. 244 of the EC constitution and Art. 159 of the EURATOM constitution. 306

348 chapter seven is distinct from that of the member States. However, questions of the national law of the member States are more likely to arise before the European Court of Justice in the former elds.

Questions of international law arising before internal courts Internal courts of intergovernmental organizations must – like national courts – decide any preliminary questions of international law which may arise out of an internal dispute duly submitted to them. They will, however, obviously consider themselves bound by a relevant judgment rendered by an international court in a dispute between the same parties, unless this conicts with the constitution of the organization to which the internal court belongs. Article 37 (2) of the ILO constitution expressly provides that an (internal) tribunal for the determination of disputes relating to the interpretation of an International Labour Convention shall be bound by “any applicable judgment or advisory opinion of the International Court of Justice”. However, the International Labour Conventions do not fall within the internal law proper of the organization.

Questions of internal law arising before international courts For the sake of completeness, it may also be mentioned that international courts (whose competence in internal disputes of intergovernmental organizations was discussed above, in chapter 7.9) must decide any preliminary questions arising out of a dispute duly submitted to them, even if these fall under national309 or internal law.310 But, unless the terms of reference of the Court Cf. above, chapter 7.9.4, on the seemingly divergent statements of the Permanent Court of International Justice in the cases concerning the Serbian and Brazilian Loans in France and Certain German Interests in Upper Silesia. Even in the former case, where the parties had agreed to submit to the Court a dispute of national law, the Court emphasized that it must apply the national law as it is applied in the State concerned. Thus, it stated, in the Serbian case: “Il ne serait pas conforme à la tâche pour laquelle elle [the Court] a été établie, et il ne correspondrait pas non plus aux principes gouvernant sa composition, qu’elle dût se livrer elle-même à une interprétation personnelle d’un droit national, sans tenir compte de la jurisprudence, en courant ainsi le risque de se mettre en contradiction avec l’interprétation que la plus haute jurisdiction nationale aurait sanctionnée et qui, dans ses résultats, lui paraîtrait raisonnable” (PCIJ, Ser. A, Nos. 20/21, p. 46). And in the Brazilian case it stated: “La Cour étant arrivée à la conclusion qu’il y a lieu d’appliquer le droit interne d’un pays dèterminé, il ne semble guère douteux qu’elle doit s’efforcer de l’appliquer comme on l’appliquerait dans ledit pays. Ce ne serait pas appliquer un droit interne que de l’appliquer d’une manière différente de celle dont il serait appliqué dans le pays où il est en vigueur” (ibid., p. 124). 310 Wengler, discussing the special problem of the validity of decisions by intergovernmental 309

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provide otherwise, it must accept as binding a relevant decision rendered in a dispute between the same parties by a competent national or internal court, if this does not conict with international law.311 Indeed, it cannot apply any rule of national or internal law which conicts with international law unless its terms of reference so permit.312

Binding force of judgments rendered in organic disputes As already suggested above, even courts of States which do not normally recognize the binding force of foreign judgments, probably must recognize the binding force of judgments rendered in disputes arising out of such matters as fall under the exclusive organic jurisdiction of the foreign State concerned, including disputes between the State and its ofcials arising out of the relationship of employment. Whatever attitude courts adopt in this respect vis-à-vis organic disputes of foreign States, it is submitted that they must adopt the same attitude towards judgments of courts of intergovernmental organizations in disputes arising out of such matter as fall under the exclusive organic jurisdiction of the organization, unless provision has been made to the contrary. On the assumption made above, this means that the judgments pronounced by the numerically most important IGO courts, the administrative tribunals, must be recognized as binding by the courts of all States and of all other intergovernmental organizations, in so far as these judgments concern disputes between the organization and its ofcials arising out of the relationship of employment. Inversely, IGO courts must, on similar conditions, recognize as binding (res judicata) judgments pronounced by national courts in disputes falling under the exclusive organic jurisdiction of the State concerned, or by courts of another organization in disputes falling under its organic jurisdiction. An example of the latter is the judgment of the ILO Administrative Tribunal reported above (7.11.2), although this judgment could also be seen merely as a conrmation of the general submission made above that internal courts should, as a matter of their own internal law, recognize as binding judgments rendered by courts of other organizations (and States).

organizations, points out two limitations upon the right of judicial recourse against such decisions (Annuaire de l’Institut de droit international, Vol. 44 1952 I, pp. 267–70). 311 Cf. Art. 38 of the Statute of the International Court of Justice, which provides: “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it . . .”. 312 On the position of the International Court of Justice and other courts which are organs of an intergovernmental organization, vis-à-vis the constitution of that organization, see above.

350 chapter seven Similarly it is submitted that the courts of one jurisdiction, whether this be national, internal or international, cannot, even as a preliminary issue, try the validity of an act of a foreign State or intergovernmental organization, if the act is performed in the exercise of organic jurisdiction. To this extent the Act of State Doctrine is submitted to be a valid principle of public international law

7.12

Settlement of disputes, conclusions

The need for judicial settlement of internal disputes of intergovernmental organizations has so far arisen primarily in three respects: In the rst place in disputes between the organization and its ofcials arising out of the relationship of employment. Many hundreds, or thousands, judgments have been rendered in such disputes by administrative tribunals and equivalent judicial bodies set up for this purpose by a number of organizations. In the second place the practical need has arisen within the supranational European Communities in connection with the direct legislative and administrative powers conferred upon these organizations vis-à-vis private undertakings in the member States. The Court of Justice of the European Communities has rendered a great number of judgments in cases relating to these activities, in addition to those relating to ofcials. In the third place, the practical need has arisen within the United Nations and the International Labour Organization in connection with various types of internal disputes, most of which have arisen between the organization and certain of its member States, or between member States inter se. These disputes, most of which do not relate to genuine legislative or administrative powers conferred upon the organization, have, however, not been solved by genuine judicial decisions, but by advisory opinions of the Permanent Court of International Justice or the International Court of Justice. Although not legally binding, the organization has complied with these opinions, but in several cases the other parties to the dispute have not.313 On the basis of the concrete examination in the preceding chapters of the judicial powers of the organization, it is submitted that intergovernmental organizations have a general inherent power to establish courts of their own to adjudicate upon internal disputes and even upon external disputes involving the organization or its ofcials or organs. Constitutional provisions

313

See, for example, the advisory opinions on the International Status of South-West Africa (ICJ Reports 1950, p. 128) and Certain Expenses of the United Nations (ICJ Reports, 1962, p. 149).

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are not required, nor the ction of “implied powers” invoked by nearly all theoretical writers. The organization can confer upon such courts compulsory jurisdiction vis-à-vis itself and its organs, as well as vis-à-vis its ofcials in those respects where these act in that capacity – or in a personal capacity if they, because of their status with the organization, enjoy immunity even in respect of private acts. However, the organization cannot confer upon its courts compulsory jurisdiction over member States or external parties unless it has been given this power by the States concerned. Otherwise the courts can assume jurisdiction over such external parties only if the latter bring an action before the court or accept an action brought against them. Even this jurisdiction is in fact exclusive, in so far as the organization and its ofcials enjoy immunity from suit in national courts. Intergovernmental organizations which have no territorial jurisdiction do not have the means of genuine enforcement of the judgments rendered by their courts, except that in most cases which have so far arisen in practice, such enforcement was not necessary because the judgment called for action only by the organization itself or because the judgments were enforceable by the authorities of the member States pursuant to express constitutional provisions to that effect. In the absence of such provisions, States have no obligation under international law to enforce judgments rendered by the courts of the organization, any more than they have such obligation in respect of judgements rendered by courts of foreign States. However, it is submitted that judgments rendered by courts of intergovernmental organizations in internal disputes, and probably also judgments rendered in external disputes involving the organization or its ofcials as such (or relating to acts in respect of which they enjoy immunity) must be considered by national courts as judgments of courts of competent jurisdiction. Accordingly, in the absence of special provisions on the international or national level, national courts must give the same effect to judgments of courts of intergovernmental organizations as they give to judgments rendered by courts of foreign States in respect of which no special provisions have been made by treaty or statute. This means that the courts of many States will recognize judgments rendered by courts of intergovernmental organizations as binding, even if they do not consider them enforceable without a new judgment of a court in the State where enforcement is sought, or that they will refrain from enquiring into the merits of a case decided by the court of an intergovernmental organization. Intergovernmental organizations, like States, have exclusive jurisdiction over their organs and ofcials as such, both with regard to legislative and administrative, as well as judicial powers. This means that no external court can, without the consent of the organization, assume jurisdiction in disputes between the organs, the ofcials and the organization acting as such.

352 chapter seven In disputes falling outside this organic jurisdiction, because they involve other parties (or the organization and its ofcials acting as subjects of national law), external courts are not prevented under international law from assuming jurisdiction even in respect of internal matters of the organization, if they are competent under their own law and this law is not excessively liberal. This is true of national courts, of courts of other intergovernmental organizations and of international courts. Thus, if no contrary provision has been made, national courts can assume jurisdiction in disputes arising out of the extended jurisdiction conferred upon certain organizations, such as disputes arising out of the extended jurisdiction conferred upon some organizations with regard to the navigation on rivers under the partial territorial jurisdiction of international river commissions, or relating to private enterprises under the partial jurisdiction of the European Communities, even if the dispute arises out of law enacted by the organization (its internal law largo sensu). A distinction must also be made between international courts and internal courts of the organization. These are in several respects governed by different rules. For the settlement of disputes between the organization and its ofcials, internal courts of the organization or of other organizations offer the best means. Only in respect of appeals from the decisions of these courts would it seem necessary to resort to existing international courts, if the organization, alone or together with other organizations, does not wish to establish its own appeals court or procedures. Appeals to international courts must, however, be made in the form of requests for binding or non-binding advisory opinions, as long as contentious proceedings before such courts are open only to States, and even after they may have been opened also to intergovernmental organizations. Indeed, regular international courts, dealing with disputes between subjects of international law, are not very appropriate for the settlement of disputes involving ofcials. And a general reference by the organization of such disputes to national courts would also be inappropriate. Disputes between organs of an organization can usually be settled by administrative decision of the plenary organ of the organization or of another superior organ. Only in cases where, as in the United Nations and the International Atomic Energy Agency, there is no organ having supreme powers in all respects, may the need arise for a decision by an external body. In such cases the proper procedure will be an advisory opinion by the International Court of Justice. Two organs of the same organization, i.e. of the same subject of international law, cannot be opposing parties to contentious proceedings before a regular international court. If a legally binding decision is required, it must be obtained by means of a binding advisory opinion. However, for practical purposes a regular advisory opinion will usually sufce.

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Disputes between the organization and its member States, or between member States inter se, can be settled either by courts established by the organization or by international courts. However, as long as the Statute of the International Court of Justice precludes intergovernmental organizations from being parties to contentious cases before the Court, disputes between the organization and its member States can only be submitted to that Court by way of a request from the organization for an advisory opinion. If the need is felt for a binding judicial decision, this can only be obtained by the parties agreeing in advance to regard the “advisory” opinion as binding or by them agreeing to use another court. Disputes between the organization and private parties subject to its extended (territorial, personal or comprehensive) jurisdiction can be settled either by internal courts of the organization or by national courts. The need for judicial settlement of internal disputes other than disputes involving ofcials is pressing only in respect of those organizations which have signicant legal or political powers. Only in such cases will the member States and/or the private parties subject to the extended jurisdiction of the organization feel the need for judicial protection against abuse of the organization’s powers. By virtue of their inherent powers, intergovernmental organizations can establish courts to afford judicial protection to member States, ofcials and private parties against abuse by the organization or its ofcials of their powers, even if there is no provision in the constitution of the organization authorizing it, expressly or bys implication, to establish such courts or to provide modes of settlement of such disputes, and even if no other treaty so provides. Need to include such provisions in constitutions or other treaties arises only if the States concerned wish to have a right to judicial recourse of which they cannot be deprived.

PART THREE

PUBLIC INTERNATIONAL LAW

CHAPTER EIGHT

PUBLIC INTERNATIONAL LAW; INTRODUCTION

In Part Two we have seen that all intergovernmental organizations exercise legislative, administrative and judicial jurisdiction over their organs and the members thereof as such, and that this jurisdiction is inherent in all IGOs which do not have contrary provisions (e.g. organizations of the type dépendant), although some writers still presume that the jurisdiction depends upon the constitution of each organization concerned and then, seeing that these normally do not contain relevant provisions, ction it into the constitutions as powers “implied” in each specic constitution; however, they fail for good reasons to give examples of organizations which would lack this “implied” power and in what respects1 – indeed, such examples would be hard to nd. This conict between doctrine and practice exists also with regard to the capacity to act externally as a subject of law on an equal basis. We shall here concentrate upon the question of international personality, i.e. the capacity to act as a subject of public international law – in relations with States, other IGOs and other self-governing communities.

8.1

Constitutional provisions only for legal personality of national law

Many and most of the larger IGOs have express provisions in their constitutions and/or conventions on privileges and immunities and headquarters agreements for “legal personality”, “legal capacity” or “juridical capacity”. By this is meant legal personality in national law. This is probably true also

1

See above chapter 5 with regard to internal powers. Van der Molen: Subjecten van Volkenrecht, the Hague 1949, spoke of legal personality in international law with regard to the UN (“De rechtpersoonlijkheid van de organisatie der V.N. lijdt naar internationaal recht dan ook geen twijfel”), but of limited (“beperkte”) or certain (“zekere”) legal capacities (“rechtbegoegdheden”) with regard to the specialized agencies and the international river commissions.

358 chapter eight of Article VII (2) of the constitution of the International Bank for Reconstruction and Development of 27 December 1945 which provides for “full juridical personality”. Moreover, the provisions are usually conned to “such legal capacity as may be necessary for the exercise of its functions and the fulllment of its purposes” e.g. Article 104 of the UN Charter. It is submitted that any such limitations mean nothing in practice, unless corresponding limitations are laid down in the applicable national law. It is further submitted that legal personality is inherent (and general) also in IGOs which have no provisions on the matter. IGOs do not usually have an express provision in their constitutions or otherwise for international personality or capacity.2 An example is the provision in Article 176 of the United Nations Convention on the Law of the Sea of 10 December 1982 that the (International Sea-Bed) Authority “shall have international legal personality and such legal capacity as may be necessary for the fulllment of its purposes”. Since express provisions for international personality are found only in very few of the many existing IGOs, this lacuna has been lled in by practice on the one hand and legal writers and the professors of the International Law Commission on the other, the one not necessarily synchronized with the other. Indeed, the vast majority of legal writers appear to start out from the same premise in external as in internal relations: An organization can only do what is authorized in its particular constitution (“delegated powers”). However, with a few really strict exceptions (Kelsen, Hackworth), they fully realize that this is not so in practice, especially not in external relations where organizations merely act on a voluntary basis as equal partners. But instead of turning around their point of departure, as did the International Court of Justice already in 1962, the majority of writers still appear to assume that the “powers” are “implied” in the constitution of the organization concerned and varies from one organization to the other.3 In order to avoid a conict

2

3

There are, however, a few examples of modern constitutions of regional organizations with specic provisions to this effect; see e.g. Mercosur; Art. 34 of the Treaty of Asunción as amended by the Protocol of Ouro Preto of 17 December 1994, Comunidad Andina de Naciones; Art. 48 of the Cartagena Agreement as amended by the Trujillo Protocol of 10 March 1996 – see also Art. 5 (1) of the special-technical Agreement on the Establishment of the ITER International Energy Organization for the Joint Implementation of the ITER Project, which reads: “The ITER Organization shall have international legal personality, including the capacity to conclude agreements with States and/or international organizations” (as reproduced in the Ofcial Journal of the European Union L 358, 16 December 2006, pp. 62–86 at p. 64). See e.g. M.K. Yasseen in R.J. Dupuy (ed.): Manual sur les organisations internationals, the Hague 1998, pp. 43–55, citing a number of writers, mostly from Roman law and the former communist countries, but citing also the contrary view of the present writer.

public international law; introduction 359 with practice, they then have to apply this concept of “implied powers” in such a wide and undened manner that the question of a borderline is left up in the air, as the entire discussion has to concentrate upon escaping the false point of departure.

8.2

Legal theory contra practice: delegated and “implied” contra inherent powers

The actors in national law are individuals and organizations of individuals (associations and companies). Similarly, the actors in public international law are States and organizations of States. There is usually no general provision in the constitutions of IGOs for their capacity to act as subjects of international law (only for legal personality under national law) although many constitutions contain some more accidental and limited provisions which authorize or presume that the organization performs certain specic international acts (e.g. Article 43 of the UN Charter). Legal writings4 have been cursed by the surprisingly general assumption that an IGO can only do what is provided in the constitution, by the powers expressed or “implied” therein. The doctrine of “implied powers”, as described above in chapter 2, offers little guidance.5 It has been stated that international organizations, in contradistinction to States, “do not come into existence on the basis of general international law when certain facts are present, but through an international convention which contains their constitution” and they “do not possess the full international personality of the State, but only such rights and duties as follow from their constitution”.6 The latter proposition

4

5 6

Notably in Roman law and the former communist countries, but even among Anglo-Saxon writers who, like Scandinavians, are well familiar with legal persons of common law under their national legal systems. As noted by Schermers and Blokker, the most fascinating aspect of the doctrine of implied powers is its exibility; International Institutional Law, 4th ed., Leiden 2003, at p. 183. Bindschedler: “Die Anerkennung im Völkerrecht”, Archiv des Völkerrechts, IX (1961–62), pp. 387–8. In the same sense, for example, Schwarzenberger: International Law, I, 3rd ed., London 1957, pp. 137–8; Seidl-Hohenveldern in Österreichische Zeitschrift für öffentliches Recht, XI (1961), pp. 497–500, and the numerous authors cited by him, note 8. McMahon, writing in BYIL XXXVII (1961), p. 340, considered the International Court of Justice’s doctrine of 1949 and 1954 on ‘necessary intendment’ – described by the present writer, ibid., pp. 455–7, as too restrictive – as “judicial legislation”; he seems to prefer Hackworth’s (minority) doctrine of delegated powers (ibid., pp. 447–8). However, this strict view may derive from a failure to distinguish between acts which do and acts which do not impose obligations upon member States or third parties, cf. ibid., pp. 341–2. This may also be true of certain other writers on the law of the European Communites. Thus some of the restrictive views advanced by Pescatore in his study on “Les relations extérieures des Communautés Européennes” in Recueil des Cours, 1961 II, pp. 1–241, at pp. 96 et

360 chapter eight was expressly endorsed by the International Law Commission and could even nd some support in a restrictive interpretation of certain statements of the International Court of Justice in the reasoning of its early advisory opinion on Reparation for Injuries.7

7

seq., relate to acts which are presumed to commit the member States. But he takes a strict view also in respect of acts which clearly do not commit them or impose obligations upon them, for example when he maintains, p. 197, that the only way in which the European Communities can establish permanent (‘diplomatic’) missions abroad without amending their constitutions is by utilizing the general power and the special procedure envisaged in the general provisions in then Art. 235 (now Art. 308) of the European [Economic] Community constitution and Art. 203 of the EURATOM constitution. The most restrictive view is taken by Kelsen: The Law of the United Nations, p. 330, who maintained that a community whose constitution does not expressly provide for international personality “has only those special capacities as conferred upon it by particular provisions”, and that “the United Nations has only the legal power to enter into those international agreements which it is authorized by special provisions of the Charter to conclude” (cf. the contrary practice referred to below in chapter 8.3. Most other writers now admit that express provisions are not necessary, but they still attempt to base the exercise of international powers upon the constitution, by way of extensive interpretations. Hahn, in Harward Law Review LXXI (1958), pp. 1045–6, correctly points out that constitutional provisions on international personality are not necessary and substitutes the criterion that the substantive provisions of the constitution call for a display of international functions. The views most detached from the constitution appear to be taken by Reuter: La Communauté européenne du charbon et de l’acier, Paris 1953, pp. 116–8 (but see pp. 119–22) and International Institutions (1955) pp. 228–32 (but see Reuter: Institutions internationales, Paris 1956, pp. 309–10) and by Guggenheim: Lehrbuch des Völkerrrechts, I, Basel 1948, p. 221. Guggenheim correctly stated that “der Unterschied zwischen Staat unter völkerrechtlicher Staatenverbindung ist daher kein grundsätzlicher, sondern nur ein gradueller”. He therefore recognizes the international personality of “Staatenverbindungen” (a wider term than intergovernmental organizations), but States, on the other hand, that “ihre Zuständigkeit gilt ausschließlich für das ihr ausdrücklich im Vertrag überlassene Gebiet”. The Court stated, inter alia, that its conclusion that the UN is an international person is not the same thing as saying “that its legal personality and rights and duties are the same as those of a State” (ICJ Reports, 1949, p. 179). It went on to say that “whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organizations must depend upon its purposes and functions as specied or implied in its constituent documents and developed in practice” (p. 180). However, except in so far as the purposes are concerned, the Court did not by these or other statements tie itself down to the constitution, inasmuch as it attached major importance to what was ‘essential’ for the carrying out of the purposes. Indeed, the Court may have had in mind the factual limitations upon the possibilities to act which follow from the fact that the Organization is not a State with territory and nationals (see BYIL, 1961, pp. 452–3 and 457). Moreover, the statements quoted do not constitute conclusions of the Court, as does its holding that the UN may present international claims to non-member States, nor do they form a basis of the Court’s conclusions. They thus constitute mere dicta. Finally, it is natural for a Court, especially when stating an apparently revolutionary principle in a new eld of law, to act ex abundante cautela, by not going beyond what is necessary to arrive at the conclusion called for in the question to the Court. Indeed, the Court was less cautious in a previous relevant advisory opinion, cf. the advisory opinion on the Jurisdiction of the European Commission of the Danube, PCIJ, Ser. B No. 14, 1927.

public international law; introduction 361 With few exceptions, none of the writers concerned is known to have demonstrated how they would be able to deduce from the constitutions or from the intentions of their drafters concrete suggestions as to which organizations would lack legal capacity to perform which acts. And those who exceptionally have done so have arrived at restrictive results which are manifestly contradicted by practice. Thus one authority,8 while admitting the international personality of the League of Nations and the UN, denied that of the Organization of American States, the League of Arab States and the Council of Europe apparently basing himself partly upon a distinction as to whether the organization has the power to make decisions binding upon its member States and partly upon a distinction as to whether its constitution contains provisions on international personality or on international acts, rights and duties of the organization as such. However, e.g. the Organization of American States and the Council of Europe have, for example, concluded agreements with their host States,9 with10 or without authorization in the respective constitutions. Another outstanding authority11 maintains that the International Institute of Agriculture was merely a subject of private law, not of international law. This disregards inter alia the judgment in Proli v. International Institute of Agriculture, the Italian law on privileges and immunities of the Institute of 20 June 1930, and the agreement concluded by the Institute with the League of Nations on 25 October 1925.12 A concrete study13 indicates that it would be an impossible task to deduce from the differences in the various constitutions and travaux préparatoires coherent suggestions as to which organizations would lack the legal capacity to perform which acts14 and that any suggestions which might be arrived at on this basis without resorting to ctions, would not conform with past or present practice and would imply unacceptable barriers to future practice.

8 Balladore Pallieri: Diritto internazionale publico, 7th ed., Milano 1956, paras. 52–56 (pp.

169–88). 9 On 22 July 1952 and 2 September 1949, respectively. 10 Art. 40 (b) of the Statute of the Council of Europe. 11 Verdross: Völkerrecht, 4th ed., Vienna 1959, p. 141, citing Fusinato, Riv. 8 (1914). This

reected, in fact, the view of the Italian host government prior to 1930. 12 The two latter documents, and other relevant practice, may be found in The Legal and

Moral Position and the Diplomatic Prerogatives of the International Institute of Agriculture, published in French and English by the Institute in Rome in 1943. 13 See BYIL, 1961, pp. 448–53. See also the examples listed by Zemanek: Das Vertragsrecht der internationalen Organisationen, Vienna 1957, p. 26, and by Seidl-Hohenveldern in Archiv des Völkerrechts, IV (1953–54), pp. 35–37. 14 The rst International Law Commission Rapporteur on the Law of Treaties, Brierly, admitted that it was (necessary and) difcult to determine which international organization could be regarded as having the capacity to make treaties (Yearbook of the International Law Commission, 1950, I, p. 80).

362 chapter eight The general point of departure in legal theory appears to have been that only certain IGOs have international personality in certain respects. The general opinion not merely denied that all IGOs have international personality, but also that those organizations which have such personality possess all international capacities. However, legal writers rarely, if ever, make concrete suggestions as to which capacities are lacking. In comments to the advisory opinion in Reparation for injuries it was particularly stressed that not all international organizations could exercise functional protection of their ofcials.15 It would be a most peculiar situation if the States of which ofcials happen to be nationals were left to protect them in their capacity as ofcials of an IGO with distinct international personality. In practice, all IGOs invoke or waive (as the case may be) privileges and immunities on behalf of their ofcials, and they, or the host State, could hardly accept a transfer of these functions to the State of which the ofcials are nationals. This is especially evident if the privileges and immunities are based upon a headquarters or host agreement to which only the organization, not its several member States, are parties. But it in fact applies also if the privileges and immunities are claimed on the basis of a constitutional provision or even of a general convention on privileges and immunities concluded between the member States. A different matter is that, even in the case of the UN, the lines may get crossed if a practical case calls for both personal (diplomatic) and functional protection; this problem was discussed in the advisory opinion on Reparation for injuries16 and has arisen in practice for the UN.17 The examples referred to above are not isolated cases. It is a general fact that IGOs in practice perform not only sovereign acts ( jurisdiction as described in Part Two), but also international acts, even when these have not been authorized in their constitutions. Indeed, this is the rule and not the exception. Examples will be given in the following.

8.3

Do the international capacities depend upon the constitution and the intentions of its framers? Scope of the international personality

The International Court of Justice, in its advisory opinion on Certain Expenses of the United Nations, assumed that IGOs as well as States may be bound by

15 16 17

See e.g. in OR GA, IV, Sixth Committee, Summary Records, pp. 273–74. ICJ Reports, 1949, pp. 185–6. See the general discussion and the practical cases reported in BYIL, 1961, pp. 424–6.

public international law; introduction 363 ultra vires acts, although it did so in a context which gave the impression that the Court might be disposed to deny the external effect only of procedural provisions in the constitution, not of those dening the purposes of the organization.18 However, the Court was not called upon to pronounce itself upon the latter question, since the expenses obviously had been incurred within the scope of the purposes specied in the Charter. Indeed, the principle that third parties cannot derive rights and duties from a treaty to which they are not parties places IGO constitutions, in respect of non-member States, in principle on the same level as constitutions of States insofar as the question of external validity is concerned. There is thus no prima facie reason to attribute greater external validity to constitutional restrictions in the case of IGOs than in the case of States. At least some of the major reasons which have prompted many writers to consider treaties binding upon States even if they have been concluded in violation of their constitutional provisions apply with equal or even greater force to treaties concluded with non-member States by IGOs in violation of their constitutional provisions. It may be even more difcult to deduce from the constitution of an IGO unequivocal rules dening the organs competent to approve treaties and substantive limitations upon their powers,19 since most such constitutions contain only incidental provisions on the conclusion of treaties, or none at all. And this increases the opportunities to abuse any right to rely upon the constitution of the organization to effect a unilateral denunciation of the treaty.20 There is one important difference between IGOs and States inasmuch as the constitutions of the former dene and thereby limit the purposes of the Organization.21 As already pointed out, this gives member States a right, if

18 ICJ Reports, 1962, p. 168. The Court declared in its opinion that the expenditures

authorized in certain General Assembly resolutions enumerated in the request for opinion, relating to the United Nations operations in the Congo and in the Middle East undertaken in pursuance of Security Council and General Assembly resolutions were “expenses of the Organization” within the meaning of Article 17 (2) of the Charter of the United Nations. 19 As for the United Nations, this is pointed out by Kasme, La capacité de l’Organisation des Nations Unies de conclure des traits, Paris 1960, pp. 67 and 99. 20 Cf. Blix, Treaty-Making Power, London and Uppsala 1960, p. 36. The equal legal position of States and IGOs has been conrmed by the fact that Art. 46 of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations, provides in substance the same rule for IGOs as does Art. 46 of the 1969 Vienna convention for States. 21 This is probably what has incited a suggestion that the fact that a treaty by which the United Nations would undertake to promote an illegal purpose would be void, could be cited as an example of external effect of constitutional restrictions (or as special restrictions upon the capacity of intergovernmental organizations). However, the external invalidity of such a treaty would follow, not from the elaborate provisions in the Charter on the purposes of the United Nations, but from a general principle of law that agreements

364 chapter eight they wish to use it, to insist that the organization does not assume functions connected with other purposes, although they rarely do so. However, it would not seem reasonable to give non-member States any similar right. Nor would it appear reasonable to give the organization a right to consider itself not bound in relation to non-members by its own act on the grounds that it pursued a purpose which had not been stated in its constitution. Any attempts at a radical departure from the purposes of the organization would of course be prevented by the member States themselves if they were opposed. But if they wanted the change, it would not seem to be of crucial importance in relation to non-member States whether the members chose to effect the change with or without formal constitutional amendment, and whether or not they complied with any provisions prescribing specic procedures for amendments in the constitution of the organization or for the conclusion and amendment of treaties in their national constitutions, or whether the organization made its decision unanimously or by a majority vote. Thus it is submitted that for example the non-member State receiving technical assistance from the organization in the example cited above could not consider itself as not bound by an agreement which it might have concluded with the organization in that connection, even if it should desire to do so. Nor would it seem reasonable to give the organization a right to consider itself as not bound by an international obligation undertaken by it vis-à-vis non-member States in connection with such technical assistance, whether the transgression of the constitutional purposes of the organization had occurred inadvertently or knowingly. This, of course, on the assumption that one does not otherwise attribute external effect to substantive limitations contained in the constitution of States or IGOs, e.g. under Article 46 of the Vienna Convention. As for practice, reference may be made to a number of IGOs that have engaged in technical assistance to developing countries, although this was not thought of at the time when their constitutions were drawn up, and although therefore in some cases it is difcult to nd any passage in the stated purposes of the organization which could serve as a legal basis for these activities. Neither the organization, nor the other contracting party (not even if a member State) is known to have challenged the validity of a treaty, or to have declared themselves not bound by it, because it did not fall within the scope of the stated purposes of the organization. And the proper interpretation of such practice

concluded for illegal purposes are not binding. This principle is equally applicable to States and intergovernmental organizations, and applies irrespective of whether their constitutions happen to contain provisions prohibiting such acts. Cf. Article 53 of the Vienna Convention on the Law of Treaties (between States) of 1969.

public international law; introduction 365 may well be that substantive limitations contained in constitutions of IGOs, like those contained in State constitutions, do not have external effect, or do not have external effect to any greater extent than corresponding limitations contained in the constitutions of juridical persons of common law, in other words that the proper analogy is to either of these rather than to incorporated companies whose constitutional limitations have been entered into a public register which has been given legal effect by statute. This would mean that the validity of decisions to engage in activities beyond the scope of the stated constitutional purposes can be challenged internally by a minority of member States (if there is one), but that the acts performed pursuant to such decisions are not void in relation to third parties. In other words, neither the organization nor the other contracting party would be entitled unilaterally to declare themselves not bound by the treaty, but those member States which have not agreed to it would have no obligation vis-à-vis the organization to contribute to enabling it to full its external obligations in that respect. If this is the proper view, then even the constitutional limitations of the purposes of the organization do not constitute limitations upon its international capacity and personality, but merely restrictions of an internal nature. However, this is a separate question, which goes beyond the main question – whether the international capacities of an organization must be positively deduced from the provisions of the constitution or from the implied intentions of the drafters or from the practice of the organization concerned, i.e., of whether they are delegated from the member States or implied in the constitution or acquired in practice – or whether they are simply inherent in any intergovernmental organization as such. It is only in respect of this question that practice is clear and comprehensive and, indeed, constitutes customary international law (for inherent international capacity). It is clear that a stronger case can be made for the external irrelevance of the fact that the act goes beyond the constitutional purposes of the organization if the act was decided by its competent deliberative organs, and especially by a unanimous decision of its plenary organ, than if it was decided merely by the Secretariat, and especially if the latter alone was not competent under the constitution, i.e. if the act violates both substantive and procedural constitutional restrictions. However, even in the latter case it does not go without saying that the adequate reaction under international law is to consider the act void and the organization as lacking capacity to perform the act, if the representative of the organization had apparent authority to perform it. It may sufce to deny any internal obligation of the member States towards the organization to enable it to full its external obligation. It was this internal obligation which was the real subject of the Court’s advisory opinion on Certain Expenses of the United Nations.

366 chapter eight The above is, however, true only of acts which commit the organization as such. As already pointed out, an IGO cannot commit its member States without special authorization from these, in the constitution of the organization or elsewhere. And this limitation upon the power of the organization has, like the corresponding limitation of the power of States, “external effect”, because it is a limitation which derives, not from the constitution, but from general international law. No State can claim directly against another State on the basis of an act of a third State or an IGO if the second State has not authorized the third State or the organization of act on its behalf.22 This fact explains why writers on the European Community23 State that the capacity of these organizations to conclude treaties is conned to those elds where they have jurisdiction over (and within) the member States,24 or only to those elds where they have been authorized in the constitution to conclude treaties.25 It is sometimes overlooked that the European Community – in addition to its express extended jurisdiction over and in member States – also, like other IGOs, has an inherent jurisdiction over its organs and ofcials, and that it, moreover, has substantive functions which imply no binding powers over the member States, but in relation to which it can nevertheless undertake commitments towards third parties, for example to consult, to supply information and to perform other functions within its powers. Indeed, the Community has a legal sphere of its own which goes far beyond that where it can exercise binding jurisdiction over its member States and the organs, territory and nationals of these. It may well serve the purposes of the European Community, like those of other IGOs, to conclude treaties relating also to such functions; indeed they have done so on a number of occasions. However, any attempt in such

22 Wengler, Actes ofciels du Congrès international d’études sur la CECA, III, pp. 330–31, and

Pescatore, Recueil des Cours, 1961 II, pp. 95–98, discuss whether transfer of jurisdiction over a subject matter to the organization in itself is sufcient to authorize the latter to enter into an external commitment relating to the same subject matter. The answer is submitted to be yes, but that the organization cannot establish a direct obligation of the member States vis-à-vis the third State without special authority therefore from the member State. 23 See in particular Article 300 of the constitution of the European Community and Article 101 of the constitution of Euratom, cf. Pescatore, Les relations exterieures des Communautés Européennes, in Recueils des Cours 1961, pp. 1–241, at p. 136, on the interpretation of the latter. 24 Wengler, loc. cit., and Pescatore loc. cit. (with citations of other writers) in respect of the European Coal and Steel Community and Euratom, respectively. 25 Pescatore, loc. cit., in respect of the European [Economic] Community. In the view of the present writer, such authorization is not necessary for the Community to bind itself, and, on the other hand, may not sufce for it to bind its member States externally. As for the latter, Article 300 (7) of the Treaty establishing the European Community provides expressly that “agreements concluded under the conditions set out in this Article shall be binding on the institutions of the community and on Member States”, the latter meaning in relation to the organization only, cf. below, chapters 8.4 and 10.3.

public international law; introduction 367 treaties to commit the organization to action which does not fall within its jurisdiction, but within that of its member States, would of course be futile, as it would be for two States to conclude a treaty on matters which fall under the jurisdiction of a third State. For this reason neither the organization, nor the other contracting party, would wish to conclude such an agreement unless it either is clear that the organization has the power to bind its member States at least internally in all respects covered by the treaty, or unless the member States, too, become parties to the agreement. The latter course has been taken in several cases described as “mixed agreements”. One may of course, if one prefers, express this legally as a lack of capacity on the part of the organization to conclude such treaties and consequently consider any such treaty as not binding upon the organization, rather than as a lack of right, which does not invalidate the treaty. But there is hardly any reason to do so unless one does the same thing if a State concludes a treaty relating to a territory or other subject-matter which is not under its jurisdiction, but under that of another State.26 In this respect, too, IGOs do not appear to be in a position which differs in principle from that of States. Moreover, even if one does consider the organization (or State) as lacking capacity, this is not an incapacity which follows from the constitution; the organization (or State) would have the capacity to conclude the treaty if the territory or other subject-matter were brought under their jurisdiction no matter how, even if this is not even reected in the constitution. An example of the latter was the proposed Free Territory of Trieste discussed above, chapter 6.2. Whatever view one takes of the external effect of constitutional limitations of IGOs, the constitutional limitations of the purposes of the organization are – as already pointed out – not usually relevant to the question of the competence of the organization to perform any types of international acts, but concern only the question of for what purposes these may be performed.27 This is true also of most other substantive constitutional limitations upon the rights of the organization (and of States) and, obviously, of constitutional provisions dening competent organs and applicable procedures. Even if these provisions are given external effect, this will not imply a denial of the general inherent capacity of the organization to conclude treaties or to perform any other type of international acts. 26 Wengler, loc. cit., too, took equality with States in this respect as a point of departure for

his study of the former European Coal and Steel Community. 27 See P. Bekker: The Legal Position of Intergovernmental Organizations, A Functional

Necessity Analysis of Their Legal Status and Immunities, Dordrecht 1994, at p. 83, who opposes this statement. It is not clear whether he means that the limitation of purposes may imply a general preclusion of capacity to perform certain types of acts, such as to conclude treaties or be a party to arbitration.

368 chapter eight Practice Seidl-Hohenveldern cites only one case in support of his denial of objective international personality, namely the Italian and German representations to Switzerland in 1939 which led to the closing down of the broadcasting station of the League of Nations in that country.28 However, it can hardly be admitted that Italy and Germany, which had both been members of the League, suddenly became entitled to deny its international personality after they ceased to be members.29 The action of these States therefore cannot be viewed as an exercise of any valid right of non-recognition of the international personality of the League. It can only be viewed as an exercise of the right which any State might have to require its neighbours to prevent their territory from being used for hostile action by another, whether State or IGO, or the right of any party to an armed conict to require neutral States to prevent the non-neutral use of their territory by anybody. The fact that the Italian and German claims were in excess of these rights is a different matter.30 None of the other writers who deny the objective international personality of IGOs cites any cases where a non-member State has refused to accept the international personality of an organization or has considered the member States or the host State as the parties responsible for its acts. Indeed, there appears to be no indication that this has happened in the course of those relations which have in fact taken place between IGOs and non-member States, such as the relief actions of organs of the League of Nations in the Soviet Union after World War I and the relief, technical assistance, peace and security operations of organs of the United Nations and other organizations in a number of non-member States after World War II, which in some cases were carried out without the conclusion of any agreement between the organization and the assisted State.31 It is, however, difcult to nd any clear cases, 28 Österreichische Zeitschrift für öffentliches Recht, XI (1961) p. 505, cf. the text of the

relevant agreement between the League and Switzerland of 21 May 1930 in Hudson: International Legislation, V, p. 494. 29 Gidel maintained in 1911 that ‘articial’ international persons lose their character of international persons in relation to a State which ceases to recognize them. “La reconnaissance, appliquée aux personnes articielles, n’est, en effet, qu’une concession gracieuse et essentiellement revocable” (Revue générale de droit international public, XVIII (1911), pp. 6171–6200, cf. pp. 595–8). In the view of the present writer, this cannot be admitted in respect of IGOs or other sovereign communities, but it may apply to non-governmental organizations and individuals. 30 Seidl-Hohenveldern, too, reserves himself against any admission that the Italian and German complaints were justied. Zemanek in Verdross: Völkerrecht, 5th ed., 1964, p. 392, points out that the Swiss Government for political reasons persuaded the League to close down the stations. 31 The tendency among non-members of the League of Nations appears to have been to grant diplomatic privileges and immunities (but not necessarily tax exemption) to

public international law; introduction 369 because the question of international personality as such does not appear to have arisen clearly except when the non-member State has concluded treaties with the organization or accredited permanent representatives to it or performed other acts which generally are considered to constitute acts of recognition.32 The question is perhaps most likely to arise, and thus to acquire practical importance, in connection with the presentation of claims by or to the organization and the exercise by it of functional protection of its ofcials. In this connection one might cite the fact that the United Nations gave effect to the advisory opinion on Reparation for Injuries, the validity and scope of which forms the subject of the present discussion, by presenting international claims also to non-member States. By its resolution 365 (IV) the General Assembly authorized the Secretary-General to bring an international claim against the Government of a State, Member or non-member of the United Nations, alleged to be responsible, with a view to obtaining the reparation due in respect of the damage caused to the United Nations and in respect of the damage caused to the victim or to persons entitled through him and, if necessary, to submit to arbitration, under appropriate procedures, such claims as cannot be settled by negotiation.

League ofcials residing in their territories, but to grant only lesser privileges to ofcials on temporary mission and especially to ofcials in transit. Thus, while the Soviet Union declared itself willing to grant a League of Nations Commission of Investigation “the same liberty for studying the situation as is enjoyed by the representatives of other Powers within the boundaries of a Sovereign State”, the United States granted to ofcials in transit through the United States customs courtesies, free entry privileges and measures for their protection, cf. Martin Hill, Immunities and Privileges of International Ofcials, Washington 1947, pp. 70–75. See also Hackworth: Digest of International Law (Washington 1940–44) IV, pp. 419–23, and Chapman v. Commissioner of Internal Revenue, 9 TC No. 87 (October 1947) denying an ofcial of the League of Nations tax exemption in the United States. 32 See for example the agreements concluded by the United Nations with Switzerland and with other States which only subsequently became members of the UN: Indonesia, Jordan, Korea and Japan, listed in early editions of UN Legislative Series, Legislative Text and Treaty Provisions Concerning the Legal Status, Privileges and Immunities of International Organizations (St/LEG/SER.B/10) under Nos. 4, 10, 12 and 16–18, and the agreements on relief, technical assistance, postage stamps, premises and other matters with Finland, San Marino, Switzerland, Albania, Austria, Bulgaria. Hungary, Indonesia, Israel, Italy, Korea and Romania listed in early editions of United Nations Treaty Series, Cumulative Index, Vol. I, under United Nations, United Nations Appeal for Children and United Nations International Children’s Emergency Fund. The Interim Agreement with Switzerland of 11 June/1 July 1946 provided expressly in Article 1 that “the Swiss Federal Council recognizes the international personality and legal capacity of the United Nations” (UNTS, Vol. 1, p. 165). Similar provisions were contained in the headquarters agreements concluded with Switzerland by the League of Nations in 1926 (League of Nations, Ofcial Journal, 1927, p. 1422; Hudson: International Legislative, I, p. 224) and by the former International Refugee organization on 15 September 1948 (IRO/LEG/GOV/4, 29 January 1949), Article 2, and in the latter organization’s agreement with Denmark (IRO/LEG/GOV/1) Article II.

370 chapter eight Pursuant to this resolution, the Secretary General presented to Israel claims for reparation for the monetary damage borne by the organization as a consequence of the deaths of Count Bernadotte and Colonel Serot, as well as for the monetary damage caused to Colonel Serot’s father. These claims were paid by Israel.33 However, although the assassinations took place while Israel was a non-member, the claims were presented and paid only after it had become a member on 1 May 1949. A claim was presented also against Jordan in respect of the death of Mr. Bakke, but this claim was rejected (before Jordan became a member on 14 December 1955). However, this rejection was based upon a denial that the shot which killed Mr. Bakke had been red by a member of the Arab Legion, and not with reference to Jordan’s non-membership or any denial of the objective international personality of the United Nations.34 Article 24 of the Staff Regulations of the European Communities provides that “The Communities shall assist any ofcial, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties.” This, obviously, is not conned to relations with member States. It goes without saying that IGOs normally maintain fewer relations with non-member States than with members. However, the question of relations is different from that of international personality, and even States do not always maintain intensive relations with all other States. Even if examples could be found of non-member States not merely refraining from entering into relations with an IGO, but even refusing to recognize its international personality,35 it

33 Report of the Secretary General of 5 September 1950, OR GA, V, Annexes II, A. i.

50; Annual Report of the Secretary General, 1952–53, p. 145, cf. ibid. 1950–51, p. 189, 1951–52, p. 161. and A/2180, 12 September 1952. 34 Annual Report of the Secretary General, 1950–51, p. 189, and 19151–52, p. 160, cf. ibid., 1952–53, pp. 144–5, 1953–54, p. 109¸OR GA, V, Annexes, II, A. i. 50, ORGA, VII, Sixth Committee, 357th meeting, pp. 293–9, and A/2180, 12 September 1952. 35 The refusal of certain western States to ‘recognize’ the (new) Danube Commission established by the Belgrade convention of 18 August 1948 (UNTS, Vol. 33, p. 181) was probably a refusal to recognize the legality of the abrogation of the former regime and the substitution of a new one without the consent and participation of all parties to the former regime, rather than a refusal to recognize that the new Commission was an IGO and an international person in the sense described above. The question of legal personality was raised in Arab Monetary Fund v. Hashim in English courts where the House of Lords ruled in favour of the international organization’s right to appear as a plaintiff in English courts in a case against its former ofcial. This ruling was apparently based on the organization’s incorporation in a foreign national legal system and was not rendered as a consequence of AMF’s legal personality under public international law, see A. Reinisch, International Organizations Before National Courts, Cambridge 2000, pp. 65–68 and 252– 53 and I. Brownlie, Principles of Public International Law, 6th ed., Oxford 2003, p. 662.

public international law; introduction 371 would not be difcult to nd parallels in relations between States, since these, too, refuse to recognize each other in certain cases. And yet the majority of writers, rightly, take the (declarative) view that all communities which satisfy the objective criteria of a State are international persons, even in relation to States which have not recognized them. There is no reason to draw more stringent conclusions from any refusal to recognize certain IGOs than from the fact that States refuse to recognize certain States, unless the reasons given are different. With the latter reservation it is submitted that there is no more support in practice for denying the objective international personality of IGOs than for denying that of States.

8.4

Are the member States subjects of the international rights and duties?

The provisions of the constitution, and the intention of its drafters as reected in these or as otherwise externally evident, may also have negative external effect in another respect. It may follow from the “constitution” that what was created was a joint organ designed to act legally on behalf of the several participating States. In such case its acts would create rights and duties for the participating States, and the result might be that it would not constitute an intergovernmental organization in the sense this term is employed in the present book.36 However, this rarely occurs.37 In the rst place, it is very rare that any authorization to commit the participating States extends to all acts of the “joint organ”. Even “supranational” organizations, like the European Community, perform a number of acts which create rights and duties only for the organization and not for its

The term agency relationship has also been applied; see D. Sarooshi, International Organizations and their exercise of Sovereign Powers, Oxford 2005, pp. 33–53. It could also be said to constitute a partial confederation in the sense dened by Alf Ross, A textbook of International Law, London 1947, note 92, § 15 A. 37 The United Nations Command in Korea did not legally commit the United Nations, nor did it constitute a distinct intergovernmental organization. It committed the United States and, to some extent, the other States which took part in the military action in Korea, see Seyersted: UN Forces, Leyden 1966, pp. 117–125. As for coalition forces operating under an international mandate, their actions commit the contributing State having overall command and control, see the admissibility decision of the European Court of Human Rights, application no. 23276/04, Saddam Hussein against Albania et al. of 14 March 2006, by which the court rejected a claim that the respondent States exercised jurisdiction on the sole basis that they were alleged to form part of a coalition with the US, when the impugned actions were carried out by the US, security in the zone in which those actions took place was assigned to the US and the overall command of the coalition was vested in the US. 36

372 chapter eight several member States,38 and insofar remain intergovernmental organizations with distinct international personality. Moreover, even in those respects where the acts of the organization do create rights and duties for the several member States, they may create rights and duties also for the organization.39 Finally, even if the agreement establishing the “joint organ” should authorize it in all respects to commit the participating States only, it is nevertheless possible that this organ performs acts in circumstances where the intention of the parties to the particular acts concerned clearly is not to commit the several member States, but only the organ. In the second place, it should be noted that delegation of authority to commit the several participating States cannot lightly be assumed, especially if the organ is global or is to make its decisions by a majority vote. Indeed, if the instrument or act creating the organ does not indicate that it is authorized to act on behalf of the member States, the presumption must normally be that its acts commit only the organization.40 This presumption must probably take precedence over the (from a legal point of view) somewhat misconceived provision in Article 24 (1) of the Charter of the United Nations, that the members agree that in carrying out its duties under its primary responsibility for the maintenance of international peace and security “the Security Council acts on their behalf ”,41 a provision which caused some confusion during the Council’s discussion of the proposed Free Territory of Trieste. It is submitted that it would take a clearer provision to effect a delegation to an international organ of the power to assume international obligations on behalf of the States which established it.42 If the organization has not thus been authorized to commit

38 Confusion on this point may in some cases explain why legal writers stick to the doctrine

of delegated powers, cf. Seyersted, op. cit. p. 159. See, for example, EURATOM constitution Article 102, and GATT protocol of 16 July 1962 (UNTS, Vol. 440, pp. 2–23). 40 Cf. Seyersted, op. cit. pp. 90–91. A different matter is that the member States may have an internal obligation, i.e. an obligation vis-à-vis each other and vis-à-vis the organization, to contribute their share to enabling the organization to full its obligations, cf. the advisory opinion of the International Court of Justice on Certain Expenses of the United Nations (ICJ Reports, 1962, pp. 151 et seq. and, on the limits, pp. 167–8, cf. p 170) and Verdross: Völkerrecht, 5th ed., Vienna 1964, p. 396. That the presumption stated in the text also applies in respect of rights (powers) conferred upon the organization by inter-State treaty was stated by the Permanent Court of International Justice in its advisory opinion on the Greco-Turkish Agreement (Series B, No. 16, p. 25) and in certain other opinions and cases reported by Schwarzenberger: International Law, London 1949, pp. 386–7. 41 This misleading phrase was used also by Hudson when he dened “international organization” as “a body established by a number of States having permanent organs with capacity to act within the eld of its competence on behalf of those States” (Yearbook of the International Law Commission, 1950 I, p. 84). 42 In this sense also Kelsen: The law of the United Nations, London 1950, who stated that the wording of Article 24 (1) is not correct. 39

public international law; introduction 373 its member States, its acts must commit the organization as such; there is no third alternative, if one does not wish to declare the acts of the organization non-existent or invalid. This means that the organization constitutes a distinct subject of international law. Or, to put it differently: It is authority to act on behalf of the members that requires a specic legal basis, not capacity to act on its own behalf as an IGO. Even if the member States have authorized the organization to make decisions which shall be binding upon them, as done in Chapter VII of the United Nations Charter, it does not necessarily follow that they have authorized the organization to commit them externally, by granting non-member States and other organizations direct rights against them. As another example of this may be quoted Article 5 of the constitution of the Organization for Economic Co-operation and Development, which reads: In order to achieve its aims, the Organisation may: (a) take decisions which, except as otherwise provided, shall be binding on all the Members; (b) make recommendations to Members; and (c) enter into agreements with Members, non-member States and international organisations.

Rule 19 (a) of the Rules of Procedure spells this out as follows: The Decisions of the Organisation, taken in accordance with Articles 5, 6 and 7 of the Convention may be: (i ) Decisions binding on the Members which the latter shall implement after they have complied with the requirements of their appropriate constitutional procedures; or (ii ) Decisions approving Agreements with its Members, non-member States, and international organisations; or . . .

In adopting the Rules of Procedure the Council “agreed”, inter alia, the following interpretation of Rule 19 (a) (now 18 (a)): In connection with sub-paragraph (ii ) of this paragraph, it should be noted that if the execution of an Agreement concluded by the Organization requires measures of implementation on the part of Members, the approval of the Agreement implies the undertaking of Members to carry out such measures.

It is submitted that the decisions made and the agreements concluded under Article 5 do not ipso facto give third parties any direct rights against member States. Any external commitments which may follow from agreements or unilateral acts made on the basis of decisions in accordance with paragraph (a) commit directly only the organization as such. But the members have an obligation vis-à-vis the organization to implement its decisions and agreements. In the case of decisions, this follows from Article 5 (a) of the constitution, cf. also Rule 19 (a) (i ) of the Rules of Procedure. In the case of agreements,

374 chapter eight this obligation follows from the agreed interpretation of Rule 19 (a) (ii ), and also from the constitution itself if the unanimous approval of the agreement by the Council is considered as a decision pursuant to Article 5 (a). A different matter is that it may follow from the terms of a particular agreement or unilateral act that the organization (also or exclusively) acts on behalf of the several member States and directly commits these vis-à-vis third parties. This, of course, the members can agree to in the form of a binding decision under Article 5 (a) which approves the agreement or which forms the basis of a subsequent unilateral act by the organization. However, these will be exceptional cases. Normally, the member States have not conferred upon the organization the power to commit them directly vis-à-vis third parties, and the decisions and agreements of the organization will then commit only the organization – directly vis-à-vis third parties. This is true e.g. in respect of loans. The member States may have undertaken an internal obligation to put the organization into funds to meet its obligations. However, this cannot be invoked by external creditors without basis in an act addressed to them. A special responsibility for the member States was introduced – for peculiar political reasons during the cold war – for damage caused by space objects, by UN General Assembly resolution and Article XXII (3) of the Convention of 29 March 1972 on International Liability for Damage Caused by Space Objects: “If an intergovernmental organization is liable for damage by virtue of the provisions of this Convention, that organization and those of its members which are States Parties to this Convention shall be jointly and severally liable; provided, however, that: (a) Any claim for such damage shall be rst presented to the organization; . . .”. At that time there existed only two small Western European organizations (ELDO and ESRO) launching satellites. The Soviet Union at that time was concerned not to recognize the European Communities as subjects of international law and then took a similar position vis-à-vis these other Western European organizations. It therefore insisted that the member States should be responsible. The Western European States refused this; however, when subsequently the Soviet Union and the U.S. agreed that both the organization and its members should be responsible, they had to accept this. The provision, of course, can only be invoked against States which have acceded to the convention. Subsequently, however, (indeed already in 1971) also the Eastern European States formed their own space organization, INTERSPUTNIK. And Article 10 of its constitution provided to the contrary that the organization was liable within the limits of its assets and that the member States had no liability for the obligations of the organization. On the basis of a similar Soviet proposal, a modied version of that principle of liability was

public international law; introduction 375 subsequently included in Article 22 of the constitution of 3 September 1976 of the International Maritime Satellite Organization (INMARSAT), now Article 11 of the International Mobile Satellite Organization: Parties are not, in their capacity as such, liable for the acts and obligations of the Organization or the Company, except in relation to non-Parties or natural or juridical persons they might represent in so far as such liability may follow from treaties in force between the Party and the non-Party concerned. However, the foregoing does not preclude a Party which has been required to pay compensation under such a treaty to a non-Party or to a natural or juridical person it might represent from invoking any rights it may have under that treaty against any other Party.

It is, of course, this principle which applies when nothing else has been provided.43 In so far as the member States really have authorized the organization, in the constitution or otherwise, to commit them, they may also become bearers of the related rights created by the acts of the organization. Its acts may also create rights for the member States outside those elds where these have authorized the organization to commit them, in those rare cases where it is apparent from the act that this was intended ( pacta in favorem tertii ). But normally only the organization itself can invoke the rights arising from its acts.44 The more special question of the responsibility of member States for the organization’s nancial obligations is discussed separately below, in chapter 10.

8.5

Are only States original or necessary subjects of international law? The position of other sovereign communities

As pointed out above in chapter 2, an international organ must full certain criteria to be qualied as an intergovernmental organization for the purpose of being in a legal position to assume rights and responsibilities under public international law. Most modern writers have abandoned the doctrine of delegated powers (that IGOs can only perform such acts as have been authorized in their constitutions) in the strict form in which it was maintained after World War II, by Kelsen, Hackworth and others.45 Instead they advocate various doctrines of implied powers. However, the point of departure is basically the

43 See below chapter 10 on the work of the ILC on responsibility of international organiza44 45

tions. See the examples discussed in Seyersted, op. cit., pp. 100–102. See Seyersted op. cit., p. 143.

376 chapter eight same, viz. that an IGO, in contradistinction to a State, can only perform such acts as have been authorized in its constitution, explicitly or by implication. In order to avoid denying the capacity of IGOs to perform acts which everybody sees that they in fact perform or need to perform, the writers then resort to various devices of extensive interpretation. Thus constitutional provisions are interpreted as covering aspects which are not covered by their words and with which they never were intended to deal,46 or it is argued that the constitution has been supplemented by the subsequent practice of the organization concerned or by agreements concluded by (some or all of ) its members before such practice or agreement has developed into customary law in respect of the organization concerned. The broader formula of the Court in its advisory opinion on Reparation for Injuries on “implied” powers is sometimes applied only as a last resort,47 or only to the United Nations.48 Even the International Law Commission did not appear to base its draft article on treaty-making capacity upon the formula of the Court, but merely quoted it at the end of its commentary. It appears that the restrictions contained in the doctrines which have been proposed – other than that contained in the advisory opinion on Certain Expenses of the United Nations – are either (if applied literally) too restrictive, in the sense that they conict with uncontested practice – or they imply (as applied in practice) no legal restrictions beyond those indicated, and thus constitute ctions. It is striking that, despite the liberal statements of the Court, most writers impose restrictions in general terms, but very few explain what organizations would thereby be legally debarred from performing what acts. And those writers, who have exceptionally done so, have brought themselves into contradiction with practice. In these circumstances it may be asked whether there are reasons, other than those discussed above in chapters 2 and 8.3, for limiting the international personality in respect of organizations and of types of capacities for each organization. The general reluctance of legal writers to admit that the capacity for sovereign and international acts, rights and duties is inherent in IGOs and that they basically have general and objective international personality, may be seen as a reminiscence of the ancient doctrine that only sovereign States

See for example the interpretation criticized by Pescatore, Recueil des Cours, 1961 II, pp. 195–6, and which in fact constitutes an attempt at a conclusion from the less to the more. 47 Also the pleadings before the International Court of Justice on Certain Expenses of the United Nations attempted to a great extent to rely upon specic provisions of the Charter. 48 This appears to be the effect of Cahier’s view. 46

public international law; introduction 377 are subjects of international law. While it is now generally admitted that at least certain IGOs and certain other types of communities which in fact perform international acts may also be subjects of international law in certain respects, these are still viewed as somewhat anomalous. It is probably against this background that it appears to be taken for granted that the international personality of IGOs must be restricted, despite the fact that it is difcult to point to any cases in practice where an IGO has refrained for legal reasons from performing an international act which it was in a practical position to perform. And this may well be the basic reason why most writers in principle require a basis in the constitution or in practice for each international capacity in respect of each organization, while in the case of States they adopt the more logical view that the customary law developed by and in respect of States generally applies to all States, without proof that each one of them has in its constitution or in its practice followed up the general practice in respect of each international capacity. Indeed, most writers distinguish sharply between States, as original and general subjects of international law, and other entities which may have been recognized by States as subjects of international law within certain limits and which have such powers as have been “conferred” upon them.49 IGOs are then placed in the second category.50 It is, however, interesting to note the denition given by Mosler, who is one of those who make a distinction in this sense, namely between “necessary” and “derived” subjects of international law. Mosler, like others, groups only States as “necessary” subjects of international law, while he groups IGOs together with non-sovereign States and confederations, as “derived” subjects of international law.51 As has been demonstrated above, the great difference which exists between

49 Cf. Judge Badawi in his dissenting opinion in “Reparation for Injuries” Suffered in the

Service of the UN: “There is in fact no common law for international persons” (ICJ Reports 1949, p. 205). The majority was more prudent: “The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights” (ibid. p. 178). 50 The extension of this distinction to the question of objective international personality is clearly set forth by Hahn in Harvard Law Review LXXI (1958), pp. 149–50. 51 His denition of “necessary” subjects of international law would seem to include IGOs and other “sovereign” communities and represents a synthesis of those of the criteria listed in chapter 2 above, and which are common to States and IGOs. The denition reads: “Gewalten . . . die die oberste Herrschaft in ihrer Sphäre, d.h. auf ihrem Gebiet und gegenüber ihren Gewaltunterworfenen, in Anspruch nehmen, nach außen als Einheit auftreten und die Zugehörigkeit zu einen höheren Organisation von ihrem Willen abhängig machen.” This denition also covers IGOs, if “Gebiet ” is understood as “area” in a non-territorial sense and if “Gewaltunterworfenen” is understood as comprising (also) organs and ofcials, as the normal meaning of these terms would warrant, cf. “Die völkerrechtliche Wirkung bundesstaatlicher Verfassungen” in Festschrift Richard Thoma, Tübingen 1950, p. 135.

378 chapter eight States and IGOs is one of fact rather than of law. The different extent to which they perform international acts and exercise international rights and duties depends upon their factual opportunities and not upon any basic difference in their legal capacities. A closer examination of the practice of other “sovereign”, or self-governing, communities indicates that this basic legal similarity (and the factual difference) extends also to these, whether they are territorial units, like insurgents, or non-territorial units, like the Holy See.52 As for the latter, it is frequently maintained that it only has the capacity to conclude treaties and to send and receive diplomatic envoys.53 However, practice has already shown that it performs also such other international acts as it is in a practical position to perform, and that it is subject to corresponding international rights and duties. Thus it exercises exclusive (“sovereign”) jurisdiction over its organs, enjoys privileges and immunities (in addition to those of its diplomatic representatives), recognizes new States and governments,54 takes part in intergovernmental conferences as a full participant, and is a member of intergovernmental organizations, as the Holy See rather than as the Vatican City. It must also be entitled, for example, to present and receive international claims and to have these settled by international arbitration.55 Practice in respect of sovereign communities other than States and IGOs thus supports a general proposition that all sovereign – or, better, self-governing – communities are general subjects of international law in the sense that they have a general inherent capacity,56 and that partly sovereign communities are such subjects as far as their self-government goes. A proposition in this direction has been made long ago by Alf Ross, who rightly replaced the traditional denition of international law as “the law valid for States in their

52

53 54 55

56

On the Holy See, see above chapter 4.2 and Oppenheim: International law, 9th ed. 1992, p. 325. For a wider survey of different independent and belligerent entities, see J.A. Barberis: Los sujetos del derecho internacional actual, Madrid 1984, pp. 97–159. The International Committee of the Red Cross is a non-governmental organization, but a very special one, which acts as a subject of international law in several respects, cf. above, chapter 2. Individuals are not subjects of international law, but have been granted direct rights and duties under international conventions, mostly, however, as part of the internal law of an IGO (an exception is the obligations upon all parties, including individuals taking part in an armed conict, according to international humanitarian law, which entails individual criminal responsibility for grave breaches (war crimes), and similarly for the international crime of genocide and crimes against humanity, cf. the Rome Statute of the International Criminal Court). See for example Verdross: Völkerrecht, 5th ed., Vienna 1964, p. 3. Kunz in American Journal of International Law, XXXXVI (1952), p. 312. A different matter is that the freedom of action of the Holy See is limited by Article 24 of the Lateran Treaty in a manner similar to that of neutralized States (cf. Alf Ross: Lærebog i folkeret, 6th ed., Copenhagen 1984, § 18 A) and that this inter alia deprives it of the right to wage war, which in any event, it is not in a practical position to do. Reference is also made to Lissitzyn: “Territorial Entities other than Independent States in the Law of Treaties” in Recueil de Cours, 1968 III, pp. 1–92.

public international law; introduction 379 relations with each other” by “the law valid for (binding upon) self-governing communities”, without, however, stating explicitly that all these are general and objective subjects of international law (as far as their self-government goes).57 The main legal distinction is then, not between States and other sovereign (or self-governing) communities, but between self-governing and non-selfgoverning legal persons. It is only the latter, which include non-governmental organizations and individuals, which are “derived” subjects of international law if and insofar as the “necessary” subjects of international law (i.e. the sovereign communities) exceptionally confer international powers upon them, and whose international powers are not valid vis-à-vis States which have not conferred upon them or recognized these powers. Self-governing communities, on the other hand, are subjects of international law ipso facto (or ipso jure). It will be noted that Ross in his denition of international law substitutes the term “self-governing” for the term “sovereign”, which he criticizes as circular and as too composite. He rightly points out that the crucial criterion of international personality is capacity for duties, rather than capacity for rights or capacity for action,58 and that the crucial criterion for sovereignty is self-government, rather than capacity for action or freedom of action,59 although complete disregard of the two latter aspects leads to partial inclusion in the concept of subjects of international law of certain communities which are not usually so regarded (member States of a federal State, which have partial self-government).60 However, these complications hardly arise in respect of IGOs, because these usually unite all the criteria, except that organizations of the type dépendant may lack capacity for action, and except that the constitutional limitation of the purposes of IGOs may be viewed as an internal limitation upon their freedom of action.61 IGOs therefore fall under the extended denition of international law irrespective of whether this is based upon the concept of “sovereign” or that of “self-governing”, except that in the latter case the particular denition of self-governing given by Ross (“a legal community is called self-governing when and in so far as it is the highest legal power in relation to its individual members”)62 is not adequate in relation to IGOs, the normal “subjects” of which are not private individuals,

57

58 59 60

61 62

A. Ross, op. cit., § 1, IV, cf. §§ 1–3 and 15–1. English translation of the second edition entitled “A Textbook of International Law”, London 1947, German translation entitled “Lehrbuch des Völkerrechts”, Stuttgart 1951. Ross op. cit., §§ 15–17 A and 18 C; see also Verdross, op. cit. Ross, op. cit., § 3 V–VI A. Ibid. §§ l IV and 14 I A. The International Law Commission, in commentary (3) to Article 3 of its 1962 draft articles on the Law of Treaties, excludes treaties between the member States of a federal State from the scope of the articles. Or it may be viewed as a limitation upon their capacity (for rights and duties) if the limitations have external effect. Ross, op. cit., § l III. The word “individual” should be deleted to open up also for IGOs.

380 chapter eight but organs, ofcials and partially, States. Ross recognized two types of selfgoverning territorial communities, States and insurgents. In order to include also the non-territorial self-governing communities (IGOs and the Holy See) Ross’ denition of “self-governing” must be amended to read: “. . . in relation to its organs and ofcials” – because the organic jurisdiction is the only criterion which is necessary for and common to all types of self-governing communities and general subjects of international law.

8.6

Validity vis-à-vis non-members

The Court’s opinion in the Reparations case and the criticism thereof Insofar as the United Nations is concerned, the question of its objective international personality was clearly answered by the International Court of Justice in its advisory opinion on Reparation for Injuries Suffered in the Service of the United Nations. In its conclusion, the Court held unanimously that the organization has the capacity to bring an international claim even against a non-member State. In this connection the Court stated in its reasoning that “the organization is an international person” and that fty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims.63

This statement of the Court has been criticized, notably by Schwarzenberger and Bindschedler,64 who have maintained that recognition (or acquiescence)

63 ICJ Reports, 1949, pp. 185 and 187, cf. pp. 218–19. Also the two statements quoted from

the reasoning appear to be unanimous, except possibly for Judge Hackworth, see ibid., p. 196. Cf. the comments by C.F. Amerasinghe: “International Legal Personality Revisited” in Austrian Journal of Public International Law, XXXXVII (1995), pp. 123–45. 64 Schwarzenberger: International Law, I, 3rd ed., London 1957, pp. 128–30, cf. pp. 137–8, and Bindschedler: “Die Anerkennung im Volkerrecht” in Archiv des Volkerrechts, IX (1961–62), pp. 387–8. Both writers refer only to the Court’s statement quoted in the text, without indicating whether they also contest the resulting conclusion that the organization can bring claims against non-members. However, this would appear to be an inescapable consequence of their view. Indeed, Seidl-Hohenveldern: “Die Völkerrechtliche Haftung für Handlungen internationaler Organisationen im Verhältnis zu Nichtmitgliedstaaten” in Österreichische Zeitschrift für öffentliches Recht, XI (1961), pp. 497–506 and “Der Rückgrift auf die Mitgliedstaaten in Internationalen Organisationen” in R. Bernhardt et al. (ed): Völkerrecht als Rechtsordnung, Berlin 1983, pp. 881–90 – who does not discuss the validity of the Court’s statement and conclusion insofar as the United Nations

public international law; introduction 381 is necessary on the part of non-member States, since these are not parties to the constitution of the organization. Many other writers from Roman law countries have taken a similar view in respect of other IGOs.65 This view is based upon the assumption (1) that an IGO has international personality only if and to the extent that this follows from its constitution and the intention of its drafters, and (2) that the constitution of an IGO, like any other treaty, is not binding upon States which have not acceded to it.66 These two assumptions, and the conclusion drawn from them, have been most concisely formulated by Bindschedler in his exposé of recognition in international law. After having correctly pointed out that recognition of States and governments is declaratory in nature, and that the constitutive view, that a State has international personality only in relation to States that have recognized it, is incompatible with practice and with the ‘sense’ of a general international law. He states that: The position of international organizations is different. These do not come into being on the basis of general international law when certain facts are united, but through a convention between States which contains their constitution. Nor are they possessed of the full international personality of the State, but only of such rights and duties as follow from their constitution. While the legal personality is valid ipso facto in relation to the member States as contracting parties, this is not true in relation to third States, because the constitution confers neither rights, nor

is concerned, since he considers this organization as a special case, but who otherwise shares Schwarzenberger and Bindschedler’s view as described in the text below that the international personality of IGOs follows from their constitutions and that these are not binding upon non-members – draws the logical consequence that non-members can present any claims to the several member States rather than to the organization. – Other writers who appear to have denied the objective international personality of the United Nations include Kasme: La capacité de l’ Organisation des Nations Unies de conclure des traités, Paris 1960, p. 34 and P. Reuter: Les organisations internationales, Paris 1955, p. 180 and International Institutions, Paris 1961. 65 See Seidl-Hohenveldern, loc. cit. (he was less restrictive in his earlier study on “Rechtsbeziehungen zwischen Internationalen Organisationen und den einzelnen Staaten” in Archiv des Völkerrechts, IV (1953–54), p. 33); Hahn: “Euratom: The Conception of an International Personality” in Harvard Law Review LXXI (1958) pp. 1048–51; Pescatore, ibid., pp. 425–6 in Recueil des Cours, 1961, II, at p. 40, who, however, assumes, ibid., pp. 41–43, that there is an obligation to recognize the European Communities. Most of these writers also take the view that the member States are responsible vis-à-vis nonmembers States for the acts of the organization. Mosler; “Réexions sur la personnalité juridique en droit international public” (chapters VIII–IX) in Mélanges offerts à Henri Rolin, Paris 1964, also requires recognition, but admits that the recognition does not create a new juridical personality. He does not State who is responsible for the acts of the organization when no recognition has been given, but he does suggest that acts which go beyond the competence of the organization are invalid (chapter VII in ne). 66 Scharzenberger, op. cit., pp. 499–500; Hahn, loc. cit., pp. 1045–9; Wengler, loc. cit., p. 318. However, the three latter writers also invoke other arguments, most of which are specically related to supranational organizations. Kasme, loc. cit., bases his conclusion upon what appears to be a constitutive view of recognition even in respect of States.

382 chapter eight duties upon these. Here, therefore, recognition by the third State is necessary in order that the organization may act as a bearer of rights and duties in relation to that State. Contrary to the view of the International Court of Justice in its advisory opinion of 11 April 1949 on Reparation for Injuries Suffered in the Service of the UN, recognition of international organizations by non-member States has constitutive effect.67

Is the United Nations Charter binding upon non-members? 68 The second assumption, that the constitution cannot impose duties upon non-members, is certainly correct insofar as most organizations are concerned. However, it is controversial whether it applies to the Charter of the United Nations. This contains two provisions which concern non-member States and which have been interpreted as imposing obligations upon such States, namely articles 2 (6)69 and 103.70 This has led many writers to consider the Charter as something more than a regular convention, namely as an international constitution or “a basic law of the international community”.

Anders verhält es sich bei Internationalen Organisationen. Diese entstehen nicht auf Grund des allgemeinen Völkerrechts, sofern gewisse Tatbestandselemente vorliegen, sondern durch einen Staatsvertrag, der ihre Verfassung enthält. Es kommt ihnen auch nicht die volle Völkerrechtssubjektivität des Staates zu, sondern nur diejenigen Rechte und Pichten, die sich aus dem Statut ergeben. Während so die Rechtspersönlichkeit ohne weiteres gegenüber den Mitgliedstaaten als Vertragsparteien gilt, trifft dies gegenüber Drittstaaten nicht zu, da das Statut sie weder berechtigt noch verpichtet. Deshalb ist hier die Anerkennung seitens des Drittstaates notwendig, damit die Organisation ihm gegenüber als Träger von Rechten und Pichten auftreten kann. Im Gegensatz zu der Auffassung des Internationalen Gerichtshofes in seinem Rechtsgutachten vom 11. April 1949 über den Ersatz von im Dienste der Vereinten Nationen erlittenen Schäden hat die Anerkennung Internationaler Organisationen durch Nicht-Mitgliedstaaten konstitutive Bedeutung. 68 As the United Nations today enjoys universal membership, this question has limited practical signicance. 69 In this sense Kelsen. The Law of the United Nations, pp. 106–10, cf. pp. 116 and 724–37, especially p. 735; Soder; Die Vereinten Nationen und die Nichtmitgleider, Bonn 1956, pp. 254.79; cf. also Verdross, op. cit. p. 533, and Oppenheim: International Law, I, § 522 a. Contra, Jessup: A Modern Law of Nations, New York 1949, p. 135; Suontausta: La soveraineté des Etats, Helsinki 1955, pp. 98–99; and Schwarzenberger: A Manual of International Law 6th ed., Milton 1970, pp. 130–131. See also the writers cited by Soder, op. cit, pp. 231–341 and by Seidl-Hohenveldern in Österreichische Zeitschrift für öffentliches Recht, XI (1961), p. 501. 70 Article 103 provides: “In the event of a conict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. Although it does not specically say so, the article was intended to apply also to treaties concluded with non-member States (United Nations Conference on International Organization, San Francisco 1945, XIII, p. 708). Cf. Goodrich and Hambro: Charter of the United Nations 3rd ed., New York 1969, pp. 614–17 and Soder, Schwarzenberger and Kelsen, all loc. cit. 67

public international law; introduction 383 The most important of the articles concerned, and the only one which is expressly and exclusively concerned with obligations of non-member States,71 is Article 2 (6), which provides that “the Organization shall ensure that States which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security”. However, it is not necessary to interpret this as imposing any new obligation upon non-members in order to enable the organization to take action against an aggressor non-member State. As has been pointed out in another context,72 the organization partakes of the inherent right under general international law of collective self-defense and could exercise this right against non-members even if there had been no Article 2 (6).73 Indeed, whether or not the legal effects of the Charter are considered to exceed those of a regular treaty, Article 2 (6) must be viewed as a conrmation of this inherent right of the organization. It is only if the United Nations will oblige non-members to take part in sanctions (or in the unlikely case that Article 2 (6) would be used as a basis for enforcement measures against a non-aggressor non-member State) that a United Nations action would overstep the normal rights under general international law. As for practice, it should be noted that the Security Council has made “decisions” and issued “orders” to non-member States without making a distinction between the aggressor and victim non-member States;74 however, these decisions and orders were not enforced. As for court practice, the French-Mexican Claims Commission in a dictum denied the validity vis-à-vis non-members of Article 18 of the Covenant of the League of Nations which provided that no treaty entered into by a member State (with a member or non-member State) was binding until it had been registered with the Secretariat of the League.75 The question of the binding effects of provisions of the constitution of a world-wide political organization upon non-member States thus does not appear to have been conclusively settled in practice.

71 72 73

74

75

Other provisions of the Charter addressing rights of non-member States are found in Arts. 4, 11 (2), 32, 35 (2), 50 and 93 (2). Seyersted, op. cit., pp. 173–4. Schwarzenberger, loc. cit., considers it more than doubtful whether the United Nations can rightly aspire to ensure against the will of non-member States that these should act in accordance with the principles of the Charter so far as may be necessary for the maintenance of international peace and security. He may thus reject not only the binding nature of Article 2 (6), but also the organization’s inherent right of collective self-defense. Resolutions of 15 July, 20 August and 19 October 1948, adopted after the outbreak of the war in Palestine and addressed inter alia to Israel and Jordan, which were at that time not yet members of the United Nations, as pointed out by Bowett: The Law of International Institutions, 4th ed., London 1982, p. 26. Pablo Nàjera (France) v. Mexico, Reports of International Arbitral Awards, V, pp. 4711–3.

384 chapter eight Leaving aside this special question of the United Nations, we shall now examine the problem in relation to IGOs generally.

Relevance of provisions of the constitution It is not necessary to go further into the second assumption of the writers referred to – which, although it has been controversial in respect of the United Nations, is in any case correct in respect of other IGOs – since this assumption is irrelevant to the question of the objective international personality of the organization if the rst assumption is not valid. And on this basic issue practice is ample and uniform. It has been demonstrated above that under customary international law the international capacities of an IGO are not contingent upon the existence of any relevant provisions in its constitution or upon any relevant intention of its drafters. The provisions of the constitution have only negative effect, in the sense that they may limit the international capacities of the organization.76 However, this is true of States too. And such limitations in the constitutions of IGOs should not have external effect, vis-à-vis non-member States, in cases where corresponding limitations in the constitutions of States do not have external effect. In this respect there is only scattered practice, which does not as yet constitute customary law. However, this will no doubt develop, supported by the fact that Articles 46 of the Vienna Conventions of 1969 and 1986 on the Law of Treaties contain identical provisions on this subject for States and for IGOs. The two repetitive provisions in the 1986 convention could indeed have been amalgamated into one, if it had not been for the introduction of the curious term “rules of the organization” for IGOs in lieu of the normal term “internal law”, which the conventions use only for that of States. The only really doubtful question in this connection arises from the fact that the constitutions of most IGOs, in contradistinction to those of States, dene, and thereby limit, the purposes of the organization. No practice is known which could support the general assumption that IGOs even in relation to third parties lack the legal capacity to perform acts which fall outside the scope of the purposes specied in their constitutions. No case is known where the validity of such acts, and of the rights and duties arising out of them in relation to third parties, has been challenged by these third parties or by the

76 Indeed, organizations which have no constitution, or whose constitution contains no deni-

tion of the purposes, have the legal capacity, even in relation to their member States, to perform acts for any purposes that their competent organs may wish to pursue.

public international law; introduction 385 organization. However this may be, it should be noted that the constitutional limitations of the purposes of the organization (and other constitutional limitations of a substantive or procedural nature) are not usually relevant to the question of the competence of the organization to perform any specic types of international acts, but concern only the question of for what purposes (or pursuant to what internal procedures) it may perform such acts. Another difference between IGOs and States arises from the fact that the constitution of an IGO may confer upon the several member States rights and duties arising out of the acts of the organization (as e.g. in supranational organizations). However, insofar as the organization, too, acquires such rights and duties – and this is the general rule even in the European Community – its own international personality is not thereby limited. And if all rights and duties devolve exclusively upon the ‘member States’, then one is not faced with an IGO, but with a joint organ acting on behalf of these States. With these two possible reservations, it has been submitted that even the negative limitations contained in the constitutions of IGOs are basically similar to those of States in respect of their external effects. And it is established by clear and consistent practice – of big and small, political and technical, “important” and “unimportant” IGOs – which now constitutes customary international law, that, even internally, positive constitutional provisions are not necessary to establish the international capacities of the organization. In these circumstances the fact that the constitution is not binding upon nonmember States would appear to be irrelevant to the question of the objective international personality of the organization. It is not known to have been claimed that States lack objective international personality because their constitutions are not binding upon other States. Even that minority of writers who take a constitutive view of recognition of States do not appear to invoke that argument. And there seems to be no more basis for maintaining that IGOs lack objective international personality because their constitutions are not binding upon non-member States. Thus the main theoretical argument which has been advanced against the objective international personality of IGOs must be rejected as lacking foundation in practice.

Relevance of the existence of a convention It might still be argued against the validity of the international personality of the organization vis-à-vis States which are not contracting parties to the convention establishing it, that even if the international personality does not depend upon this convention, the existence of the organization does, and that if there is no organization there can be no international person, cf.

386 chapter eight Bindschedler’s statement that IGOs, in contradistinction to States, “do not come into being on the basis of general international law, when certain criteria exist, but through a convention which contains their constitution”. It is true that States may come into existence in two ways, either through an understanding between the inhabitants of a territory, or through imposition by a group which assumes power over such inhabitants, and that an agreement between all the “members” is not necessary. However, neither of these acts is in themselves any more binding upon other States than a convention is upon non-contracting States. Still, the majority of writers consider States to be subjects of international law ipso facto, without recognition. This because it is not the acts by which a State is created, but the objective facts which result from them which constitute the relevant criteria for the existence of a State and which, under the declarative view, have validity vis-à-vis other subjects of international law. Similarly, as has been submitted above – although most IGOs happen to have been established by one method, viz. an international convention, or to have been subsequently conrmed by such a convention – the crucial fact – in the case of IGOs as in that of States, the Holy See and other subjects of international law – is not how they have been established, but that they exist. Once an organization or a State has been established, no matter how, it is ipso facto a general subject of international law. All that is required is that it possesses the objective characteristics of a State or organization which have been listed above. Recognition is no more required for IGOs than for States.

Declarative and constitutive view of recognition and their consequences in respect of intergovernmental organizations Although the special reasons which have been advanced against the objective international personality of IGOs cannot be admitted as valid or decisive, and although strong reasons speak in favour of such personality, a nal conclusion cannot be formulated without taking account of the general law of recognition. If one – like the present writer and in accordance with practice at least in respect of the two most important other types of sovereign communities; States77 and insurgents78 – considers that recognition in respect of sovereign

77 78

See Bindschedler, loc. cit., p. 386, and Ross, op. cit. § 19 III. See Chen: The International Law of Recognition, London 1951, pp. 337 et seq.

public international law; introduction 387 communities other than IGOs is only declarative79 (i.e. that it is not required in order to establish the international personality, but that it merely creates an estoppel), then there is no basis for denying the objective international personality of IGOs.80 On the other hand, if one, as the majority of writers81 appears to do, takes a declarative view of recognition in respect of States, but, despite contrary practice, takes a constitutive view in respect of other self-governing communities (which has been cited in respect of insurgents and the Holy See), it would, in the light of the preceding conclusion that the legal nature and basis of the international personality of IGOs are essentially similar to that of States, seem natural to bracket IGOs with States. This would, however, depend upon the reasoning with regard to the other self-governing communities. If, for example, one admits the objective international personality of States and other permanent territorial units,82 as well as of the Holy See,83 but requires

79 This appears to be the basic tendency of Ross, op. cit., although he expressly says so only

in respect of States (§ 19 I) and merely indicates it in respect of insurgents (§ 19 V). 80 Zemanek: Das Vertragsrecht der internationalen Organisationen, Vienna 1957, pp. 26–7,

also considers that the recognition of an IGO by a non-member State has only declarative effect in about (“etwa”) the same manner as the recognition of a State. Thus, despite the fact that he, like Schwarzenberger, Bindschedler and other writers from Roman law countries expressed the view that the international personality and its extent is determined by the convention embodying the constitution of the organization and that conventions have no effect vis-à-vis non-member States, he considers the international personality thus created as an objective one. He considers it “more than doubtful” whether establishment by “the vast majority of the members of the international community”, as stated by the International Court of Justice, is required; indeed he (rightly) considers this criterion legally irrelevant. Most other writers, including Bindschedler, Schwarzenbergen, Seidl-Hohenveldern and, apparently, also Pescatore and Wengler, accord constitutive effect to recognition of IGOs, see above, notes 64–65. Of these, Bindschedler takes a declarative view of recognition of States (loc. cit., p. 386), but a constitutive view of recognition of insurgents (loc. cit., p. 388). Schwarzenberger appears to take a constitutive view even in respect of States (op. cit., pp. 128 and 134). Kasme, speaking of the United States only, takes the same, apparently constitutive, view of that of organizations as of States. 81 And the American Republics, both in a convention of 1933 and in the Declaration of the Rights and Duties of American States 17 July 1946, see Jessup: A Modern Law of Nations, New York 1949, p. 43. 82 Condominia, coimperia, internationalized territories, mandates, trusteeship territories etc. usually form distinct subjects of international law, but international responsibility for them vests either in one or more States (mandates and trusteeship territories) or in an IGO (internationalized territories) for all purposes or as far as their powers go. A condominium or coimperium may be governed directly by the States concerned under their own international responsibility or through distinct organs which constitute an internationally responsible IGO. 83 The Holy See (from 1870 to 1929) is the only known non-territorial general subject of international law, other than IGOs. On the extent of its international personality, see above, chapter 4.2. There has been disagreement as to whether the international position of the Holy See, whatever it may be, follows from customary law or is dependent upon

388 chapter eight recognition in respect of insurgents and new governments in exile because of their temporary and precarious nature, then it would be most consistent to admit the objective international personality of permanent IGOs.84 The same applies if one requires recognition of new governments in exile because of the difculty of establishing satisfactory objective criteria in view of the strong links to the host State or to an allied government under whose command the new government’s forces have been placed,85 or if one requires recognition of insurgents on the grounds that internal struggles normally are within the exclusive competence of the State concerned and of no concern to international law and that international status for insurgents is only an exception to this rule.86 IGOs, as dened above and acting as such, are not subject to the

recognition. Those early writers who denied the full international personality of the Holy See prior to 1929, because of the fact that Italy was in a position to revoke unilaterally the Law of Guarantees of 13 May 1891 (French translation in Martens: Nouveau Recueil Général, XVIII, p. 41) were obviously regarding that law as constitutive, assuming that the Holy See, after it lost its territorial State in 1870, had international personality only when this was expressly conferred upon it. But other earlier writers who acknowledged only a quasi-international status for the Holy See, held such status to follow from custom, and to be merely conrmed, not created, by the Law of Guarantees (von Liszt: Das Völkerrecht, Berlin 1925, § 7 VI; Oppenheim: International Law; I, § 105). This appears to be the majority view among writers (thus Kunz in American Journal of International Law, XXXXVI (1925) pp. 310 and 311, but not Sibert: Traité de droit international public, I, 267, cf. 266). It is, moreover, now expressly recognized by Italy in Article 2 of the Lateran Treaty (the Political Treaty) of 11 February 1929 that “the sovereignty of the Holy See in the international eld is inherent in its nature, in conformity with its tradition and the requirements of its world mission” (Italian text in Martens, op. cit., 3e série, XXI, p. 18, italics added. Correct English translation in British and Foreign State Papers, CXXX (1929 I) p. 791 and in American Journal of International Law, XXIII (1929) Suppl., p. 187). The Holy See is now treated as an international person, not merely by those Catholic States in Europe among which international law originally grew up and among which the Holy See was, from the outset, treated as even more an equal, but also by most other States. Soviet teaching and practice apparently did not consider the Holy See a subject of international law (Baginyan and Lazarev in Sovetskoye Gosurdarstvo i Pravo (Soviet State and Law 1951), although D.B. Levin already in 1947 defended its international personality (ibid., 1947, No. 5). However this may be, the Soviet Union took part, without protest, in international conferences and organizations in which the Holy See participated on an equal footing with States. 84 The statement by the International Law Commission that “the phrase ‘other subjects of international law’ is primarily intended to cover international organizations, to remove any doubt about the Holy See and to leave room for more special cases such as an insurgent community to which a measure of recognition has been accorded”, as contained in Commentary (2) to Article 3 (1) of the 1962 draft articles on the Law of Treaties, might be interpreted in this sense, cf. Report of the ILC of its 14th session, OR GA XVII, Suppl. No. 9, p. 7. 85 For this reason it is difcult to determine whether the government in exile is ‘sovereign’, and it is, neither practically, nor logically, impossible to consider the host State or the State under whose command its forces are ghting as responsible. 86 Cf. Chen, op. cit., pp. 303–6, who himself does not appear to agree with this view. – It should also be pointed out that the United Nations – like States – is a pre-existing sover-

public international law; introduction 389 jurisdiction of any other subject of international law,87 and their relations with such subjects must be on the plane of international law. On the other hand, if one considers that recognition has constitutive effect even in respect of States, then it is hardly possible to take a different view in respect of IGOs, unless one feels that the international personality of the United Nations has a stronger objective character than that of States, for the reason given by the Court or for other reasons pertaining especially to that organization.88 If one for this or other reasons refuses to recognize the objective international personality of IGOs, i.e. their international responsibility vis-à-vis non-members for their own acts, there is probably no alternative but to draw the conclusion drawn by Seidl-Hohenveldern, that the international responsibility for the acts of the organization, in relation to those non-members which have not recognized its international personality (and vis-à-vis these only), vests in the several member States. It is, however, difcult – at least for a jurist from a non-Roman law country – to see how this could work – or how a delegation of authority to the organs of the organization to commit individual member States in relation to non-recognizing non-member States could be tacitly implied in the constitution of IGOs of the usual type, i.e. those which are not supranational. Especially if the organization has a large membership, it would be hard to construe any such implied delegation. If this had been the intention, the constitutions would no doubt have read differently, and the ratication discussions with the governments and parliaments of the several member States would also have been very different. Nor is it easy for non-Roman lawyers to see how a non-member State, which has had relations with the organization without thereby recognizing it, could expect to be able to claim reparation from any or each of its member States, or from the host State, for any violation of general or particular international law which the organization might commit in cases where it has violated only its own obligations and not those of the States concerned. Even a non-member must, it would be thought, be aware of the fact that it is dealing with an intergovernmental organization acting in its own name, and not with a joint organ authorized to commit its several member States. The non-member, on

eign community, which becomes involved in military operations merely as one aspect of its activities. Insurgents, on the other hand, arise out of a civil war and exist merely for the purpose of carrying out the civil war. 87 Except for delegation of limited powers, e.g. organizations of the type dépendant. 88 Cf. Seidl-Hohenveldern, loc. cit. above, at p. 501, and van Goethem and Suy, Beknopt handboek van het volkenrecht, Antwerpen/Amsterdam 1964, p. 36. However, other writers, rightly, reject the reason given by the Court.

390 chapter eight its side, would therefore also probably be rather surprised if it were faced with claims from the several members of the organization. Those who deny the objective international personality of IGOs frequently try to avoid these and other impracticable or undesirable consequences by stretching the concept of implied recognition beyond what has hitherto been assumed in respect of States. In some cases this may be natural, viz. when it is proposed to consider membership of the organization, or merely application for membership,89 as implied recognition.90 However, an extension to these few cases does not sufce to escape the inconveniences which follow from the denial of objective international personality. Many writers therefore nd themselves forced to go further, by substituting for ‘recognition’, in relation to IGOs, new and wider concepts, such as ‘acquiescence’,91 ‘acknowledgement’ or ‘implied consent’.92 However, even these terms will be too restrictive, or imply ctions, or both.93 If such ctions are liberally applied, one might nd that there is little practical difference between those who deny and those who admit the objective international personality of IGOs.94 However, it is doubtful whether anybody would be prepared to press the ction as far as to pretend that an aggressor non-member had by implication recognized (or ‘acquiesced’ with, ‘acknowledged’, or ‘consented’ to) the international personality, or the belligerent rights, of the United Nations merely because it continues its aggression despite United Nations military intervention. Such ctions are not known to have been resorted to in order to get around the constitutive view of recognition in respect of States. And it is submitted that, in the case of IGOs, too, it would be better to call the thing by its right name, viz. objective international personality, as the Court did in its advisory opinion on Reparation for Injuries, although it is felt that the reasons which have been outlined above for this conclusion are better founded in the law of IGOs and in general international law than the reason given by the Court at that early stage.

89 Thus Kasme: La capacité de l’Organisation des Nations Unies de conclure des Traités,

90

91 92 93 94

Paris 1960, p. 35, points out that even if an application for membership of the United Nations does not bind the applicant, it suppose “chez eux l’intention de reconnaitre à l’ONU la qualité internationale”. Even this can be true only if the organization really has international personality and follows necessarily only if the personality follows from the constitution. Membership does not necessarily presuppose such personality, in the manner that the conclusion of a treaty does, because it is also possible to become a member of an ‘organization’ which does not satisfy the criteria listed above. Schwarzenberger: International Law, I, 3rd ed., London 1957, p. 128. Hahn; “Euratom; The Conception of an International Personality” in Harward Law Review, LXXI (1958), p. 1049. See ibid., for an example of the latter. Hahn, loc. cit., does not go that far.

public international law; introduction 391 8.7

Conclusions

It follows from the preceding discussion that no constitutional provisions are necessary to establish the capacity of an IGO to perform such “sovereign” and international acts as States have an inherent capacity to perform. This is established customary law. Constitutional provisions have only negative signicance, inasmuch as they may preclude the exercise of such capacities in certain respects. However, this is true of States too (although it in fact occurs less frequently). And there does not appear to be any basis in practice for assuming that even such specic constitutional limitations of IGOs have effect in respect of third parties if similar constitutional limitations of States have only internal effect. Although this question may not yet be settled by customary law, it will probably be, with the entry into force of the parallel provisions in Articles 46 and 47 of the two Vienna Conventions on the law of treaties.95 In any event, the constitutional limitations rarely imply a denial of the capacity of the organization to perform any type of international acts and to acquire the resulting international rights and obligations, whether these be identical to or different from those of States. On the other hand, international organs may be authorized, in their constitutions or elsewhere, to act on behalf of the participating States, rather than as distinct entities; but then, if they do not also act on their own behalf, they are not intergovernmental organizations.96 With these reservations, the latter of which must be taken into account in any denition of intergovernmental organizations, it is submitted that there is in principle no more basis for maintaining that all those powers which IGOs in fact exercise, or which they have the capacity to exercise if and when the practical case arises, follow from the provisions of the constitution or from the intention of the contracting parties, than there is to maintain than the power The Vienna Convention on the Law of Treaties, United Nations, Treaty Series, vol. 1155, p. 331, done at Vienna on 23 May 1969, entered into force on 27 January 1980. The Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, Done at Vienna on 21 March 1986, (not yet in force). United Nations Treaty Series, vol. 1155, p. 331. 96 A special case may arise if an organization would be authorized in certain respects to act as a joint organ on behalf of its member States in such a manner that only these derive rights and duties from its acts. In such case the eld of competence of the IGO acting as such would be limited in essentially, but not wholly, the same manner as discussed above in respect of other constitutional limitations. Even if these limitations are considered valid externally – in the sense that, beyond them, the several member States and not the organization would become bound and acquire rights – this would not constitute a sufcient reason for denying the validity vis-à-vis non-member States of the international personality of the organization as far as it goes. 95

392 chapter eight of States to exercise territorial, personal and organic jurisdiction, to conclude treaties, to make recognitions, renunciations or other unilateral acts, to send and receive diplomatic representatives, to present and receive international claims, to settle disputes by international procedures and to perform any other international acts that follows from their constitutions, which never provide for all of these powers, or from the intention of the framers of those constitutions. This would be a ction, since, in one case as in the other, these powers are exercised once an independent or sovereign organization or State has been established as an objective fact, however silent the constitution may be or whatever may have been present in the minds of the drafters when they drew up the constitution.97 Thus it is not the provisions of the constitution or the intention of its framers which establish the international personality of a State or an IGO, but the objective fact of its existence. This is why the present writer must reject, not only the doctrine of delegated powers in its rigid form, but also that of powers implied in the constitution of the organization concerned, in favour of a doctrine of powers which are inherent in all IGOs as they are in all States.

Description of intergovernmental organizations On the basis of the discussion above and in chapter 2, IGOs are organs which are: (a) established by two or more self-governing communities,98 (b) not all subject to the authority of any other organized community, except that of the participating communities acting jointly through their representatives on the organs; and (c) not authorized by all their acts to assume obligations (merely) on behalf of the several participating communities (if so, they are joint organs).

Inherent general international personality The international capacities and personality of such organizations are not, as usually maintained in legal theory, conned to what is laid down, or implied,

A different matter is that the constitution usually offers the most convenient (but not a necessary) means for determining whether one is faced with an intergovernmental organization. 98 Normally States, but see above on IGOs and the Holy See as members of other IGOs. 97

public international law; introduction 393 in their respective constitutions (the doctrines of delegated and implied powers). On the contrary, even if their constitutions contain no relevant provisions and even if there is no evidence of any relevant intention of their drafters or of any previous practice by or in respect of the organization concerned, the organizations which satisfy the criteria listed above have an inherent legal capacity to perform any type of sovereign or international acts which they in a practical position to perform and which they are not precluded from performing by special rules.99

Limitations Special rules which limit the inherent general powers of IGOs may be laid down either in general international law or in the constitution of the organization concerned. As for general international law, the most important limitation follows from the principle of the sovereignty of States.100 This prevents IGOs, as well as States or IGOs, from imposing obligations upon (other) States, or upon parties who are under the jurisdiction of such States and not under that of the organization (as are its organs and the members of these in that capacity), unless the States concerned have authorized the organization (or the other State) to do so. However, even such authorization requires no provision in the constitution of the organization – it can be given through a provision in the constitution or by other means (treaty or unilateral act). As for the constitution, this may, through a restriction of the purposes or through other substantive or procedural limitations, preclude the performance of acts for certain purposes or in certain manners, but it rarely precludes the performance of any particular type of sovereign or international act as such. Moreover, it does not go without saying that such constitutional limitations affect the capacity of the organization vis-à-vis third parties in those respects where the external capacity of States is not affected by corresponding restrictions contained in their constitutions. The International Court of Justice has already recognized this possibility in respect of procedural limitations.

This principle was recognized and applied by the International Court of Justice in its advisory opinion of 20 July 1962 on Certain Expenses of the United Nations, when it, for the rst time (and after the judges had received an article written for the case by the present writer), dropped the ction of “implied powers” by turning the point of departure around: “the presumption is that the Organization has the power” (italics added), although this was in the context of internal jurisdiction – i.e. sovereign rather than international acts. 100 Cf. Annual Digest of International Law Cases, 1949, p. 336. 99

394 chapter eight The acts referred to above create rights and duties for the organization if and to the extent that the member States have not, in the constitution or otherwise, authorized it to commit them instead. If they have not authorized the organization to commit them, the acts of the organization do not create obligations (and related rights) for the member States, except that in rare cases it may be apparent that it was intended to confer a right also upon these ( pacta in favorem tertii ). IGOs are thus, from a legal point of view, general subjects of international law, ipso facto on the basis of general and customary international law, in basically the same manner as States. The main difference is one of fact, namely that most organizations are not in a practical position to exercise their inherent international capacities to the same extent as States, because they have no territory and no population, but not because they lack the capacity to exercise jurisdiction over, and represent, territory and persons. It is thus not the convention containing the constitution of the organization (if such a convention exists at all) or the intention of the contracting parties thereto which establishes the international personality of IGOs and determines its extent, but general international law, once the necessary criteria are established as facts. The constitution of each particular organization has at most negative effect, insofar as its provisions may limit the international personality which the organization otherwise has under general international law, by authorizing it to commit its “member” States alone, by limiting its purposes or by other provisions, insofar as these have external effect. If international personality is dened (as it should be if the denition is to serve a practical purpose) as legal capacity to perform international acts and to be the subject of international rights and duties, it is not necessary (in respect of IGOs, as well as in respect of States) to look for a basis in the constitution or in practice for each capacity in respect of each organization (or State). The basis is general international law, as developed by and applicable to IGOs generally, on the basis of the basically similar international law developed by and applicable to States (and other self-governing communities). The validity of the submission that IGOs are legally and ipso facto general subjects of international law cannot be denied on the basis of an analogy from the rules of national law in respect of the juridical personality of nongovernmental organizations, because there is no more reason to refer in this respect to those (Roman law) systems of national law which recognize the juridical personality of non-governmental organizations only if and to the extent that such personality follows from positive provisions of national law and/or incorporation, than to refer to those systems of (Anglo-Saxon and Scandinavian) national law which have adopted the opposite system that non-governmental organizations are juridical persons in so far as this is not

public international law; introduction 395 precluded by statutory or factual limitations. Indeed, since international law lacks a legislative power, the proper analogy must be the latter systems. Relations between IGOs which full the criteria listed above and other self-governing communities (i.e. communities which are not subject to the jurisdiction of any one other organized community) acting as such are (by denition) not subject to the internal (national) law of any one of them. Such relations, to the extent that they exist in fact, must necessarily be governed by international law. Any attempt to impose theoretical restrictions, i.e. restrictions which do not follow from the partial submission of the communities concerned to the jurisdiction of another organized community, upon the international personality of such communities, are in contradiction of this basic fact. This is why the consistent attempts which have been made in this sense in legal theory have failed to produce effects in practice (i.e. in concrete cases), and why most of the writers concerned have been forced to resort to extended interpretations and other constructions and ctions to eliminate in concrete cases the effects of the restrictive doctrines from which they depart in theory. This false point of departure may derive, in part, from a confusion (i ) of factual with legal limitations, (ii ) of acts which impose obligations upon States with acts which do not, or (iii ) of the scope of external legal capacities with that of the internal, constitutional obligation of member States to contribute to nancing the activities of the organization; it may also (iv) represent a remnant of the now abandoned doctrine that only States are subject of international law and/or (v) a false parallel to the position of legal persons in the national law of, notably, Roman law countries. It is submitted that the distinction commonly made between States, as the “natural” or “necessary” subjects of international law, and other communities, as “derived” subjects of international law which have international personality only if and to the extent there is a special legal basis therefore, is unfounded, not only as far as IGOs are concerned. What has been said above probably applies to all sovereign, or self-governing, communities, i.e. also to insurgents and to the Holy See. Indeed, the proposition is made that these are all subjects of international law in all respects where they are in a practical position to act as such, in other words that there is no basic legal difference between States and other self-governing communities. International law is thus not merely the law governing the relations between sovereign States, but the law governing relations between self-governing communities acting as such, and should be so dened. It is only non-sovereign entities – including non-governmental organizations and individuals – which are “derived” subjects of international law, in the sense that they can be subject of international law if and to the extent that the sovereign communities, as the automatic subjects of international law, exceptionally confer upon them limited international functions,

396 chapter eight and only in relation to those sovereign communities which have recognized these functions expressly or by implication. The rights and duties of different types of sovereign communities under international law may vary because of their different nature. However, when the difference in nature do not require different legal rules, the rules which have been developed in relations between States may usually be applied by analogy to other sovereign communities, to the extent that their activities call for the application of such rules. The general conclusions set forth above entail certain practical consequences in respect of the interpretation and drafting of constitutions of IGOs.

Interpretation of constitutions In order to establish the competence of an IGO to perform “sovereign” or international acts or to be subject of international rights and duties, it is not necessary to include – or to attempt to nd – a provision in the constitution of the organization which expressly authorizes this or which by some method of extensive interpretation could be considered to imply such authorization. Nor is it necessary to attempt to deduce such authorization from the intention of the framers of the constitution, or to point to any practice by which the particular organization has already assumed or established the power to perform the act concerned. This because such authorization is unnecessary, in the case of IGOs as in the case of States, as long as the acts concerned do not contradict (violate) any constitutional provision or do not impose obligations upon member States or external parties; indeed, even in respect of acts which impose such obligations the authority does not have to be found in the constitution. The methods of interpretation referred to above, which are generally applied as a point of departure in legal theory, are not applied in practice, and cannot be justied on the basis of analogy from other sovereign communities. If applied seriously, these methods of interpretation would lead to a denial of capacities which IGOs in fact exercise, and to a resulting illegality of acts, the validity of which not even theoretical writers appear to be prepared to deny in concrete cases. If not applied seriously, the methods of interpretation referred to merely imply a ctitious and unnecessary complicated way of arriving at conclusions which one is determined to reach in any case and which are correct. In fact, it is only necessary to verify that the constitution does not preclude performance of the act concerned. This implies ascertaining, from an internal point of view, that the act is designed to promote an authorized purpose of

public international law; introduction 397 the organization (if the constitution denes, and thereby limits, the purposes), that the act is not otherwise precluded by any provision of the constitution, that it has been performed by an organ which is competent under the constitution and that any procedure laid down in the constitution has been complied with. From an external point of view, i.e. in relation to non-member States, even these conditions may not, in principle, constitute necessary conditions for the validity of the act, if corresponding restrictions in the constitutions of States are not considered to have external effect. Only if the organization wishes to impose new obligations upon States or individuals, otherwise than in their capacity as members of its organs, is positive authorization required, as it is if a State wishes to impose obligations upon other States or their nationals. Such authority must be obtained from the States concerned. It can, in the case of member States or their nationals, be found in the constitution, but it must be sought there only if it cannot be found elsewhere. For similar reasons, unjustied a contrario interpretations must be avoided of provisions which authorize the organization to perform sovereign or international acts within certain elds. Such a contrario interpretation will only be warranted if and in so far as the provision can be interpreted as imposing obligations upon the member States.101 It may also be warranted if the provision exceptionally lays down specic limitations (other than an incidental mention, or context, of a special part of the organization’s activities) or conditions for the performance of the acts concerned. But in most cases neither one nor the other of these alternatives applies. And then a contrario interpretation would lead to unreasonable or even impossible results, and are not applied in practice.102 In some cases the provision is concerned with the distribution of functions within the organization and can then be interpreted a contrario in respect of the organ concerned, but not with regard to the competence of the organization as a whole. In some other cases the provision is merely concerned with prescribing specic procedures or conditions. In other cases the provisions are merely superuous afrmations of inherent capacities which, if they were interpreted a contrario, would impose upon the organization concerned restrictions which (1) do not apply to other organizations, (2) were not intended by the drafters and (3) are not observed in practice.

See, for example, on Article 42 of the Charter of the United Nations: Seyersted, op. cit. pp. 161–2. 102 On the internal plane the fact that the Statute of the International Atomic Energy Agency expressly authorizes its Board of Governors to establish committees (Article VI I) has, of course, not prevented the General Conference from doing likewise, despite the absence of any constitutional provision to that effect. 101

398 chapter eight Drafting of constitutions It follows from what has been said that it is useless to attempt to include in constitutions of intergovernmental organizations express provisions for the purpose of authorizing the organization to perform specic “sovereign” or international acts.103 An enumeration of such capacities would turn the constitution into a “monster”, and, still, the enumeration would never be exhaustive.104 IGOs have an inherent legal capacity to perform all “sovereign” and international acts designed to promote their purposes and which have not been precluded by other provisions of the constitution. It is only necessary to deal in the constitution with specic acts, or types of acts, if these should fall outside the scope of the stated purposes of the organization, if they would impose upon the member States obligations which have not been laid down elsewhere in the constitution or in other legal instruments, if it is desired to provide that the acts shall be performed by a specic organ or under a specic procedure,105 or if one wants to limit the power. In other cases the inclusion of provisions designed to empower the organization to perform specic types of “sovereign” or international acts is not only useless, but may also be misleading, inasmuch as it may invite false a contrario conclusions that the organization does not have the capacity to perform other acts, or that it cannot perform the acts which have been specied in cases (contexts) other than those provided for. This applies not merely to international capacities, like the conclusion of treaties, the convocation of international conferences, the jus legationis and the presentation of international claims, but also to internal organizational powers, like the power of the organization to enact nancial regulations and personnel regulations, the power of each organ to enact its own rules of procedure and to establish subsidiary organs, etc. These are all powers which follow from the exclusive jurisdiction which each IGO, like each State (and to some extent even non-governmental organizations), ipso facto has over its organs and ofcials as such, and which therefore go without saying in the case of intergovernmental organizations no less than in the 103

104

105

Contra: Kelsen: The Law of the United Nations, London 1950, pp. 832–3, and Kasme: La Capacité de l’Organisation des Nations Unies de conclure des Traités, Paris 1960, p. 160, who both feel that the treaty-making capacity of the United Nations should have been specied in the Charter. Cf. the United States Act quoted above, chapter 2, note 61. See also the partly overlapping, and yet far from complete, enumeration in Article 2 (2) of the constitution of the International Refugee Organization of 15 December 1946. See for example Article XIII of the constitution of the former European Organisation for Space Research (ESRO) of 14 June 1962, text in Archiv des Völkerrechts, XI (1963), p. 20, which by a subsequent constitution of 30 May 1975 was amalgamated with the European Launcher Development Organization (ELDO) into the European Space Agency (ESA).

public international law; introduction 399 case of States, as long as no contrary or limiting provision has been made. Thus, it is useless when the United Nations Charter expressly provides for the power of the General Assembly and the Security Council to establish subsidiary organs (Articles 22 and 29). For the Economic and Social Council there is only a provision for establishment of “commissions” (Article 68) and for other organs there is no provision. This can only give rise to unfruitful discussions as to whether the Trusteeship Council and auxiliary organs have the same power,106 and as to whether the Economic and Social Council can establish organs other than “commissions”, and even to a denial of such powers.107 Both have, of course, established subsidiary organs without hesitation. On the other hand, the Committee of Ministers of the Council of Europe was right when it decided that “certain proposals made by the Consultative Assembly for the revision of the Statute of the Council of Europe” could be put into effect immediately because they were “not inconsistent with the present Statute”.108 This was a sufcient basis in respect of those parts of the resolution which imposed obligations only upon the organs of the organization. However, para. 2 (ii ) of the resolution, under which each member State “undertakes”, within a certain period of submission to it of a convention adopted by the Committee of Ministers, to bring the question of ratication before the competent national authority, could not nd a legal basis in any inherent power of the organization. But a legal basis may be found in the fact that all member States voted for the resolution and thereby entered into a commitment to this effect.109 Better than to enumerate international capacities would it be to provide in the constitution that the organization has international personality, as has been done more or less generally in a few cases.110 However, even this is

See for example Trusteeship Council resolutions 293 (VII) and 425 (X). See, for example, Kelsen’s discussion of these problems in: The Law of the United Nations, London 1950, pp. 143–4. It is true, however, that a consistent application of the false doctrine that an IGO (in contradistinction to a State) can do only what is authorized in its constitution (explicitly or by implication), might force such a discussion in any case, if not in respect of this power which even pertains to non-governmental organizations, then in respect of many other internal and external powers which the various organs of all types of IGOs in practice exercise without hesitation, and rightly so. 108 Resolution (51) 30 F of 3 May 1951. Text in A.H. Robertson: The Council of Europe, London 1956, p. 233. 109 In a similar resolution of August 1951, quoted ibid., p. 236, the Committee kept within limits which did not require a new commitment by the member States at that time. 110 Cf. supra note 2. See also the Convention on the International Mobile Satellite Organization (IMSO), Art. 12: “The Organization shall have legal personality. For the purpose of its proper functioning, it shall, in particular, have the capacity to contract, to acquire, lease, hold and dispose of movable and immovable property, to be a party to legal proceedings and to conclude agreements with States or international organizations”. 106 107

400 chapter eight unnecessary,111 and might provide a basis for unjustied a contrario conclusions in respect of other organizations. Indeed, it would be wrong to maintain that those extremely few IGOs which happen to have constitutional provisions on international personality are international persons any more or to any greater extent that others. On the contrary, their international personality might be perceived as more limited, if the relevant constitutional provisions are limited, just as specic capacities may be more limited if they have been expressly stated in a limited manner than if they have not been stated at all. It may be concluded that, although IGOs in fact are very different from States and have much less extensive jurisdiction and resources than these, they are from en external legal point of view not as different from States as has been generally assumed. In order to determine their external legal capacities, rights and duties, one must look more to general international law – as developed by States, IGOs (generally) and other sovereign communities – and less to the constitution and practice of the particular organization concerned, than is usually done. This is true both of the existence and the scope of their international personality, as well as of its validity in relation to non-members.

111

Contra: Kelsen, op. cit., pp. 329–30.

CHAPTER NINE

INTERNATIONAL ACTS

9.1

Conclusion of treaties1

Legal writers generally assume that IGOs – in contradiction to States – can only enter into treaties to the extent that this is authorized in their respective constitutions. However, normally these merely provide for legal personality (under national law). Only a few IGOs are known to have a general constitutional provision that it may conclude treaties – e.g. the now dissolved International Refugee Organization in Article 2 (2) (e) of its constitution.2 We also have provisions in some constitutions of States which expressly authorize these to conclude treaties also with IGOs.3 On the other hand, many IGO constitutions contain provisions on specic types of treaties to be concluded by the organization with States or with other IGOs.4 Thus the UN Charter provides in Article 43 for agreements between the Security Council and Members or groups of Members on provision of military forces – these agreements “shall be subject to ratication by the

1

2 3

4

Cf. Karl Zemanek: Das Vertragsrecht der internationalen Organisationen, Vienna 1957; Schermers and Blokker, International Institutional Law, 4th ed., Leiden 2003, §§ 1742–1800; and the restrictive views of I.I. Lukashuk: “Parties to Treaties – the Right of Participation” in Recueil des cours de l’Académie de droit international de la Haye, 1972, I, at pp. 267–77; de la Guardia: El derecho de los tratados y las convenciones de Viena, pp. 163–77, and a number of articles collected in K. Zemanek (ed.): Agreements of International Organizations and the Vienna Convention on the Law of Treaties, Vienna 1971. Particularly on the European Communities, see H. Krück: “Völkerrechtliche Verträge” in Recht der Europäischen Gemeinschafen: Abschlusskompetenzen, Bindungswirkung, Kollisionen, Berlin 1977. Cf. also IMSO Art. 12, loc. cit. supra chapter 8, note 110, cf. note 2. Argentine in 1994 included a provision in para. 22 of Art. 75 of its revised national constitution that the Congress shall approve or decline treaties, including with international organizations, which shall take precedence over national legislation: “Aprobar o desechar tratados concluidos con las demàs naciones y con las organizaciones internacionales y los concordatos con la Santa Sede. Los tratados y concordatos tienen jerarquia superior a las leyes”. Cf. Parry in BYIL, XXVI (1949) for a closer examination of these provisions.

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signatory States in accordance with their respective constitutional processes”. However, no such agreements have been concluded, but agreements have been concluded between the Secretary-General and member States providing contingents to UN peace-keeping forces, which are not provided for in the Charter. Agreements have been concluded pursuant to Article 63 with the specialized agencies bringing them into relationship with the UN – and pursuant to the less clear provision in Article 105 (3) that the General Assembly may propose conventions to the Members of the UN for the purpose of determining the details of the application of the provisions on privileges and immunities (paragraphs 1–2 of the Article). Articles 77–83 on trusteeship agreements do not provide for the UN to be a party to them – but it must nevertheless be considered to be a party. However, it would be an impossible task to deduce from the differences in the various constitutions and travaux préparatoires coherent suggestions as to which organizations would lack legal capacity to perform which acts.5 Any suggestions which might be arrived at on this basis without resorting to ctions would not conform to past or present practice and would imply unacceptable barriers to future practice. IGOs have concluded treaties with one or more States or other IGOs for about 200 years. This has been done, not merely by large political organizations like the League of Nations and the UN, but also by the smallest and oldest IGOs. The rst were concluded by the international river commissions. The oldest treaty still in force is probably the headquarters agreement of the International Bureau of Weights and Measures (BIPM) with France of 1875. Today the number of treaties concluded by IGOs has reached several thousands.6 The vast majority of the treaties concluded by IGOs were not authorized in the constitutional conventions or other relevant basic documents. Thus only a minimal fraction of the treaties concluded by the UN fell under relevant provisions in the Charter (Articles 43, 63, 83 and 105). However, these limited provisions have not stopped the UN from concluding a far greater number of treaties, on other matters, both with States and with other IGOs. While no agreements on military contingents have been concluded by the Security Council in the manner provided in Article 43, a number of similar agreements have been concluded by the Secretary-General

5

6

The rst International Law Commission Rapporteur on the law of Treaties, Brierly, admitted that it was (necessary and) difcult to determine which international organizations could be regarded as having the capacity to make treaties, cf. supra chapter 8, note 14. Already in 1971 Zemanek estimated 2,000 treaties with IGOs as parties.

international acts 403 in respect of the UN peace-keeping forces.7 In addition to the relationship and other agreements8 concluded with specialized agencies, the UN has concluded agreements with other IGOs.9 Agreements have been concluded also with nonmember States.10 The International Court of Justice has considered the UN as a party to the Convention on the Privileges and Immunities of the United Nations (ICJ Reports 1949, p. 179) despite the fact that it had not acceded in the same manner as its member States; however this was also recognized in Section 35 of that convention. However, the overwhelming number of agreements concluded by the UN relate to entirely different elds, notably to technical and other assistance rendered by the organization or its autonomous organs to member and non-member States.11 Indeed, only a minimal fraction of the treaties concluded by the UN fall within the categories mentioned in the Charter. The same is true of most IGOs. Thus, the majority of the treaties concluded by the International Atomic Energy Agency (listed in its Legal Service No. 3) do not fall within the categories specied in its statute (project agreements in Article XI-F, agreements on privileges and immunities in Article XV and agreements with the UN in Article XVI). In addition, organizations whose constitutions do not authorize the conclusion of any kind of treaties, have, none the less, concluded treaties.12 In addition, organizations whose constitutions do not authorize the conclusion of any kind of treaties have, none the less, concluded treaties with States e.g. headquarters agreements, and with other IGOs, e.g. on cooperation. This

7 Seyersted: United Nations Forces in the Law of Peace and War, Leyden 1966, pp. 99–102,

cf. pp. 46–77 and 337–43. 8 For example agreements extending the competence of the United Nations Administrative

9 10 11

12

Tribunal (see e.g. above, chapter 7, and UNTS, Vol. 219, p. 388) and the agreement with WHO regarding a medical programme for Palestine refugees (ibid., Vol. 103, p. 129). See, for example, the many transfer and other agreements with the League of Nations and UNRRA listed in UNTS, Cumulative Index, No. 1, pp. 476 and 478. Interim arrangements with Switzerland on privileges and immunities of 11 June/1 July 1946, UNTS Vol. 1, p. 163, amendments in Vol. 509, p. 309, and Vol. 1446. The United Nations Children’s Fund (UNICEF), an autonomous organ of the UN set up by General Assembly Resolution 57 (I), alone concluded more that 100 agreements and additional protocols in this category already during its rst ten years of operations. For other examples of bilateral and multilateral treaties in this and other categories, see the UNTS Cumulative Index, e.g. under the headings: United Nations, United Nations Appeal for Children, United Nations [International] Children’s [Emergency] Fund, United Nations Relief and Works Agency for Palestine Refugees (UNRWA), United Nations Emergency Force, and under the name of other IGOs. Thus ICAO, whose constitution merely provides for agreements with other organizations (Arts. 64–65), concluded – already during the rst ten years of its existence – about fteen bilateral treaties with States on technical assistance, air navigation and privileges and immunities, as well as about fty multilateral (standard) agreements to which several organizations were parties on one side and individual States on the other. See UN Treaty Series Cumulative Index, under the heading International Civil Aviation Organization.

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has been done, not merely by large political organizations like the League of Nations, but also by the smallest and oldest technical organization.13 It cannot be seriously argued that most of these treaties are merely contracts of national law, or that the parties to them are the several member States rather than the organizations as such. Yet it is not known to have been claimed in a concrete case that any of these treaties are invalid because the organizations did not have the power under any provision of its constitution to conclude them,14 provided that no constitutional provision precluded it from so doing. This despite the fact that the invalidity of such treaties might have been pressed under the widely defended view that a treaty concluded in violation of constitutional restrictions is not binding.15 Whereas this view has not been accepted in respect of States, it has been maintained that it must in any case apply to treaties concluded by IGOs.16 Writers generally assume that IGOs – in contradistinction to States – can only enter into treaties to the extent that this is authorized in their respective constitutions. However, the vast majority of treaties concluded by IGOs are not so authorized. In many cases it would also be stretching the ction too far to maintain that the capacity was implied in the provisions of the constitution

Thus the Hague Conference on Private International Law has concluded a headquarters agreement with the Netherlands, despite the absence of any mention of treaty-making capacity or of privileges and immunities in its Statute of October 1951. Similarly, the International Bureau of Weights and Measures, whose constitution of 20 May 1875 is equally silent in this respect, has in 1949 concluded a co-operation agreement with UNESCO, as well as a ‘convention’ with France, dated 4 October 1875, concerning the placing of the Pavillon de Breteuil at the disposal of the Bureau. If the latter convention is recognized as a treaty in international law, as is the agreement between the UN and Switzerland concerning the Ariana site (UNTS, Vol. I, p. 153), it may well be the oldest existing treaty concluded by an IGO, earlier treaties concluded by international river commissions being no longer in force. For other examples see under the various organizations in the alphabetical part of the UNTS Cumulative Index. 14 Closest to such denial is probably Kelsen: The law of the United Nations, pp. 330–5 and 832–3. He States that “the Charter does not contain a provision authorizing the United Nations to enter into other international agreements than those expressly mentioned in the Charter”, and that “among the many technical insufciencies of the Charter one of the worst is the lack of a general authorization of the Organization to enter into international agreements”. (In the view of the present writer, no such general provision is necessary.) And he adds that “the United Nations has legally only the power to enter into those international agreements which it is authorized by special provisions of the Charter to conclude”. – Nor did the former communist countries during the cold war appear to have pressed their resistance to the wide powers of IGOs to the point of denying the validity of treaties in any concrete case. 15 Oppenheim: International Law, I, §§ 497 and 516. 16 Jessup: A Modern Law of Nations, New York 1949, p. 130 and Parry, in BYIL, XXVI (1949), pp. 114–17. The present writer does not believe in this difference between States and IGOs. 13

international acts 405 by “necessary intendment”,17 especially when the treaties were concluded in connection with functions which were not specied in the constitution and which its drafters never thought of, as for example the agreement of 28 March 1951 between the UN and the United States establishing the United Nations Postal Service (UNTS, Vol. 149, p. 414). Indeed, no case is known where an IGO has refrained from concluding a treaty because it or the other party considered that it lacked legal capacity to do so, or where any court or other authority (or even a theoretical writer) in a concrete case has denied the validity of the treaty. The practice described above establishes clear customary law to the effect that all intergovernmental organizations have inherent general treaty-making capacity to enter into treaties with States and other IGOs. Treaties concluded by IGOs with external parties may create rights for member States in the same manner as a treaty between States may create rights for third parties. On the other hand, treaties concluded by IGOs cannot create obligations for the member States unless these have authorized the organization to do so. The latter is practical in the case of organizations exercising extended jurisdiction to the extent member States have conferred treaty-making capacity with direct effect on the organization, e.g. Article 300 of the constitution of the European Community. IGOs also become parties to multilateral conventions between States, normally without basis in constitutional provisions.18 In some cases where the organization exercises jurisdiction or activities parallel to those of States, the organization may accede and/or become party in the same manner and with the same status as the participating States if the nal clauses of the treaty so permit, e.g. when the organization exercises jurisdiction over territories or over refugees, stateless or other specic categories of persons, cf. above chapter 6.2 and 6.3. However, in many cases the conventions limit access to States. But the conventions may open for accession by IGOs by different procedures. This is normally the case in those situations where the organization also has a substantive role different from that of the States.

17 Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports, 1949,

p. 184, cf. ibid., 1954, pp. 56–57. 18 See G. Gaja, A new Vienna Convention on Treaties between States and International

Organizations or between International Organizations: A critical commentary, BYIL 1987 at pp. 253–69. See also Seyersted, op. cit., pp. 337 ff.

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9.2

Other acts

The other types of international acts performed by IGOs are in a position parallel to that described above for treaties. All IGOs in practice perform those acts which they consider useful – without enquiring into a legal basis in their respective constitutions. Legal writers pretend that the organizations act on the basis of powers provided for or “implied” in the constitution of each organization concerned – however, without offering examples of acts that would lack such basis or endeavouring to declare such acts invalid. We shall briey survey practice and customary law in respect of some of these various types of acts.

Jurisdiction It has been demonstrated in Part Two that (a) all IGOs, also in the absence of relevant constitutional provisions, exercise inherent legislative, administrative and judicial jurisdiction over their organs – and over the members thereof (representatives and ofcials) as such – without basis in treaties with, or unilateral acts from, the member States and (b) some organizations exercise extended jurisdiction over territory, persons, States and even in States (directly over territory and persons – supranational jurisdiction) on the legal basis laid down in a treaty or unilateral act but not necessarily in the constitutional convention of the organization. These are internal acts, but they are recognized and treated also by external parties (including States and other self-governing communities) as valid and operative acts, for which the organization bears also external responsibility, as will be shown in chapter 10 below.

Passive and active jus legationis19 States frequently accredit permanent delegations or missions to IGOs of which they are members, and even to organizations of which they are not members. In many cases they merely accredit members of their diplomatic missions to the host State to act concurrently as permanent representatives to the organization. However in several cases they establish separate missions to the organization.

19 See L. Dembinski: The Modern Law of Diplomacy, External Missions of States and

International Organizations, Dordrecht 1988; Schermers and Blokker, op. cit., §§ 1801–42, give a complete description of the different types of representation to and by IGOs.

international acts 407 The latter is true in particular of the UN,20 of the many IGOs and autonomous organs with headquarters in Geneva, and of several regional organizations. The General Assembly of the UN already in its resolution 257 (III) acknowledged that “since the creation of the United Nations, the practice has developed of establishing, at the seat of the Organization, permanent missions of member States” and recommended procedures for such missions similar to those of diplomatic missions to States. The delegates who adopted the resolution made no attempts to hook the establishment of missions on to the UN Charter as an “implied” power. In some cases IGOs maintain delegations to States, notably to States with which they maintain close relations, e.g. assist with development assistance. Such delegations are frequently granted diplomatic privileges and immunities, but can in any case claim immunity under customary law for their ofcial acts. Detailed rules are laid down in the Vienna Conventions on the Representation of States in their Relations with International Organizations of a Universal Character of 14 March 1975, cf. below. Thus the UN Specialized Agencies maintain missions in New York to the UN and these are accorded privileges and immunities by the host State – they are even entitled to claim this under customary law. Delegations to and from IGOs are not normally authorized in the constitutional conventions of the organization (or in State constitutions), but the capacity to establish them is rm customary law.

Convocation of and participation in international conferences IGOs convene international conferences of plenipotentiary representatives of States even if their constitutions do not contain any relevant authorizing provision. Regardless of the fact that the UN Charter, in Article 62 (4) only authorizes the Economic and Social Council to convene international conferences, the General Assembly has on numerous occasions done the same. IGOs thus act in a different way than NGOs, which do not convene conferences of States. The diplomatic conferences for the revision of the Geneva Conventions are convened by the Swiss Government rather than the International Committee of the Red Cross (ICRC), despite the fact that the ICRC prepares the conferences and acts as Secretariat to them. On the other hand, the Standing

20 In the year 2007 the UN had 192 members maintaining permanent missions. The Holy

See is currently the only non-member State with a permanent mission to the UN headquarters in New York.

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Commission, which is the main organ of the Movement, convenes International Conferences of the Red Cross and Red Crescent, comprising State parties, national Red Cross and Red crescent societies, the Federation (of the national societies) and the ICRC. IGOs are also frequently invited to participate in international conferences of States, normally as observers without the right to vote, to move proposals and to be elected members of committees and ofcers of the conference, i.e. on a footing similar to that of non-governmental organizations. It is submitted that if IGOs have not yet been invited to participate in international conferences on the same footing as States, it is because the practical need has not arisen, and not because their constitutions do not confer this capacity on them or because they otherwise lack the inherent legal capacity to participate with full rights in international conferences of States.21

Privileges and immunities There is usually no provision in the written constitutional convention of the IGOs – or in the constitutions of States – to empower organizations to establish delegations to each other. Their capacity to do so is inherent – as a matter of customary law. And so are the basic privileges and immunities which they enjoy, although in some cases these are spelled out in conventions. A complicating factor is the fact that the delegations to IGOs have to be accorded privileges and immunities, not by the organization, but by the host State.22 This normally accords diplomatic privileges and immunities to delegations.23 This subject was taken up by the International Law Commission in 1963 and resulted in the adoption by a UN international conference of a long (92 Articles) “Convention on the Representation of States in Their Relations with International Organizations of a Universal Character” of 14 March 1975.24 As the cold war was then still on, regional organizations were not included For a practical example of EC participation in an international conference on commodity agreements, see Schermers and Blokker, op. cit., § 1841. 22 See Bowett, The Law of International Institutions, 5th ed. London 2001, pp. 498–512. 23 For texts referring to permanent representatives and dening their privileges and immunities, see Art. V of the headquarters agreement between the UN and the United States of 26 June 1947 (UNTS, Vol. 11, p. 11), the similar agreements between the Organization of American States and the United States of 22 July 1952 (UNTS, Vol. 181, p. 147), and similar or more far-reaching provisions in other headquarters agreements. 24 Text in AJIL, Vol. 69 (1975) pp. 730–59. See notably Art. 5 of the Convention that member States may establish missions “if the rules of the Organization so permit”. However, under customary international law they can do so if the rules do not prohibit it. 21

international acts 409 at the time. But the convention applies to “any international organization of a universal character”. However, even global organizations do not appear to be allowed to become regular parties to the convention. As for the substance, the typical host States were not always able to accept the wish of the majority for the same wide diplomatic privileges and immunities as apply to embassies of States, and they are unlikely to accede to the convention.25 Even if and when the convention enters into force, it cannot be taken for granted that the more generous provisions will develop into customary law. However the basic immunities – notably the immunity of the organization from suit in national courts and the immunity of ofcials in respect of their ofcial acts – are customary international law valid for all IGOs and their delegations, whether the organizations are global or regional and whether or not the organizations are parties to the convention – and they apply in relation to all States whether or not they are members of the organization.

Membership of other organizations While it is practical e.g. for regional organizations, exercising extended competence over member States in particular subject-matters, to become members of global organizations with coordinating functions over such policy areas, membership of an IGO in other IGOs alongside its original member States often raises questions of functional delimitation of powers of the organization and its member States, and of voting rights.26 This is illustrated by the UN Convention the Law of the Sea of 10 December 1982. Articles 305–7 and Annex IX lay down complicated provisions which envisage participation by intergovernmental organizations. The complications are partly due to the position held during the cold war whereby it was sought to avoid applying the same procedures and terms for IGOs as for States, but no less are they due to genuine problems involved in admitting two representatives for the same territories without giving these jointly a stronger position than representatives of traditional (unitary) member States. The Annex qualies the organization27

Cf. J.G. Fennessy in AJIL, Vol. 70, (1976) pp. 62–72 and Schermers and Blokker, op. cit., § 1811, pp. 1155–6. 26 See for example EC membership in WTO referred to above, chapter 1, and of the FAO in 1991 upon an amendment to its constitution allowing other than States to become members, see also on EU internal competences, ECJ judgment in case C-25/94 19 March 1996, Commission v. Council (Rec. 1996, p. I–1469) and comments in AJIL Vol. 91, No. 2 (April 1997), pp. 349–355. 27 “For the purposes of article 305 and of this Annex, ‘international organization’ means an intergovernmental organization constituted by States to which its member States have 25

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and States clearly that the organization “shall be a Party to this Convention” (Article 4) and be responsible for violations (Article 6 (1)) to the extent that is has competence over the matter. However, the organization may only accede to the convention if a majority of its member States have already acceded (Article 3). On the other hand, it may not denounce the convention as long as only one of its member States remains a party (Article 8 (c) (i)). These provisions cover only an organization to which its member States have “transferred” competence over matters governed by the convention (Article 1 of the Annex). They are not designed to cover IGOs which themselves assume direct jurisdiction over the high seas (e.g. sheries), in outer space or over the sea-bed, such as the International Sea-Bed Authority under Part XI of the Law of the Sea Convention. Here there are not the same complicating real factors as in the case of supranational organizations which have taken over part of the jurisdiction of their member States.

9.3

Advisory opinions of the International Court of Justice

According to Article 96 of the UN Charter the General Assembly and the Security Council may request the International Court of Justice to give an advisory opinion on “any legal question”, which must be understood as comprising not only questions on the internal law of the organization, but also of public international law. Other UN organs and the specialized agencies may also request such advisory opinions on any legal question insofar as they arise “within the scope of their activities”.28 Three conditions must be satised in order to establish the jurisdiction of the Court when a request for an advisory opinion is submitted to it by a specialized agency: the agency requesting the opinion must be duly authorized under the Charter to request opinions from the Court, the opinion requested must be on a legal question, and this question must be one arising within the scope of the activities of the requesting agency.29

transferred competence over matters governed by this Convention, including the competence to enter into treaties in respect of those matters” – Article 1. 28 Cf. also Art. 66 of the Vienna Convention on the Law of Treaties between States and International Organizations or between States and International Organizations or between International Organizations, which establishes ICJ advisory opinions as a mode of settlement of disputes in conicts relating to the interpretation of treaties falling under the Convention. According to Art. 66 (e) of the Convention, an advisory opinion rendered shall be accepted as decisive by all the parties to the dispute concerned. 29 Cf. Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1982, pp. 333–334.

international acts 411 As stated above, the right to ask for an advisory opinion is not unlimited in questions of public international law.30 Such limitation of scope may be illustrated by the request to the ICJ, on a decision by the WHO, to give an advisory opinion on the following question: “In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conict be a breach of its obligations under international law including the WHO Constitution?” After having examined the WHO rules and decisions relevant to the question submitted, the court found that: “In the view of the Court, none of these functions has a sufcient connection with the question before it for that question to be capable of being considered as arising ‘within the scope of [the] activities’ of the WHO.” On this basis the court declined to render an opinion on the matter.31 However, upon a request by the UN General Assembly the ICJ soon afterwards, by majority decision, rendered an opinion on the legality of the threat or use of nuclear weapons.32 Even in cases submitted by the General Assembly the Court must consider whether it has jurisdiction to give an opinion and that there is a sufcient relationship between the question on which the advisory opinion is requested and the activities of the General Assembly. In the case concerning Legal Consequences of the Construction of a Wall 33 the Court found, after examining the situation, that the General Assembly’s request did not exceed its competence in Article 12 of the Charter, which provides that, while the Security Council is exercising its functions in respect of any dispute or situation, the Assembly must not make any recommendation meanwhile, but that according to resolution 377A (V), if the Security Council fails to exercise its primary responsibility for the maintenance of international peace and security, the General Assembly may consider the matter immediately and make recommendations to member States. The Court found that such a situation prevailed at the time of the request, and declared that it was competent to render an advisory opinion on the substance of the matter. It has been pointed out above34 that already in the advisory opinion on Reparation for Injuries and in certain subsequent opinions, the majority of the Court – while retaining the point of departure of the doctrines of delegated

30 Cf. above, chapter 7.10.1 and the reference to the Karelia case before the PCIJ on a

question directly related to an actual dispute between States. Cf. “Legality of the Use by a State of Nuclear Weapons in Armed Conict”, Advisory Opinion, ICJ Reports 1996, p. 66. 32 Cf. “Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion”, ICJ Reports 1996, p. 226. 33 Cf. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136. 34 Cf. chapter 8.2. 31

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and implied powers: that the capacities of an IGO must be positively deduced from the constitution of the particular organization concerned – allowed for a radical broadening of the interpretation of the constitution by deeming it to imply conferment by “necessary implication” of those powers which are “essential” to the performance of the duties of the organization or which arise “by necessary intendment out of the Charter”. As has been demonstrated, even this formula, which has been criticized as “judicial legislation”,35 would be too restrictive, if the terms “essential” and “necessary intendment” had been interpreted literally. However, the Court never applied any such literal interpretation. Moreover, it did not repeat the restrictive terms “essential” and “necessary intendment”36 when, in its subsequent advisory opinion on Certain Expenses of the United Nations of 20 July 1962, it faced the question of the constitutionality of the United Nations Forces in the Middle East and the Congo, which were not established on the basis of any of those provisions in the Charter which authorize the creation of United Nations Forces. Instead, the Court – after one of the judges had distributed to the other judges an article, written for the case by the present writer,37 criticizing the doctrine of “implied” powers and submitting instead the doctrine of “inherent” powers – turned the point of departure around, stating that when the organization takes action which warrants the assertion that it was appropriate for the fullment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization.38 This statement was not a mere “dictum” (if this term is at all applicable to advisory opinions), but a basis for the Court’s opinion that the organization had the power to establish the forces, since the Court did not cite articles, except in connection with the limitation of the purposes of the organization, the division of powers between the General Assembly, the Security Council and the Secretary General or expressed or implied intentions of the drafters, or subsequent practice (and except in relation to the interpretation of the budgetary aspects of Article 17). This brief statement by the Court turned the matter completely around as compared to its earlier opinions: It is not the powers that require an express or “implied” basis in the constitution of the organization concerned (delegated or

McMahon in BYIL, XXXVII (1961), p. 340. But it did on one occasion (p. 168) use the term “powers conferred”. “Can the United Nations Establish Military Forces and Perform Other Acts without Specic Basis in the Charter?” Österreichische Zeitschrift für öffentliches Recht und Völkerrecht, XII (1962), pp. 188–229. Off-prints were distributed to the judges by one of them. The conclusion of the article and the four limitations were also cited in the oral pleadings, (ICJ Pleadings, Certain Expenses of the United Nations). 38 ICJ Reports 1962, p. 168, cf. p. 170. 35 36 37

international acts 413 implied powers), but any limitations upon the power, which thus is inherent. It is not a condition for the legal capacity of the organization to perform organic or international acts, or any particular act or type thereof, that such capacity can be deduced from the constitution or the (presumed) intention of its drafters, or that the acts are “necessary” or “essential” for the performance of the functions of the organization. The Court did not indicate what reservations it implied in the term “presumption”. It is submitted that this term must refer to those cases where performance of the act might be precluded by some provision of the constitution, other than those delimiting the purposes, or by a rule of general international law, i.e. to the three other limitations listed above: Substantive constitutional provisions which preclude performance of certain acts, procedural constitutional provisions which prescribe competent organs or specic procedures, and the principle of general international law that it is incompatible with the sovereignty of States to impose obligations upon them unless they have authorized such impositions.39 In addition, the question discussed above arises whether the two former limitations and that deriving from the stated purposes, which follow from the constitution, have external effect in cases where corresponding restrictions in constitutions of States have no external effect, or whether even acts transgressing these limitations have validity in relation to third parties. Indeed, as already submitted, the adequate point of departure is the contrary of what is assumed under the doctrines of delegated and implied powers: The legal capacity of IGOs to perform “sovereign” and international acts is, like that of States, not conned to what can be positively deduced from their constitutions, but comprises all acts which are not precluded by their constitutions and which do not impose new obligations upon parties who are not subject to their jurisdiction. If the constitution does not dene the matters with which the organization can deal, as is the case of the Nordic Council, then it can deal with any matter. And if the constitution does not preclude certain types of acts or exhaustively enumerate the acts which the organization may perform, as very few constitutions do, then it can perform any type of acts. And so it can if there is no constitution. This principle of inherent capacities reects more adequately the position as it is in practice. And this appears to be the logical point of departure in the case of all sovereign communities; indeed, any relations they may have with States or other subjects of international law as such must be governed by international law, and nobody can prevent them from entering into such relations.

39

The four limitations listed above were repeated by the present writer in the oral proceeding before the Court; see ICJ Pleadings, Certain Expenses of the United Nations, p. 424.

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Moreover, as already stated, even the restrictions contained in the constitution may not be operative externally in cases where corresponding constitutional limitations of States have no external effect. As was pointed out, the Court has, in its advisory opinion on Certain Expenses, admitted this possibility in respect of procedural limitations, but not in respect of limitations upon the purposes of the organization, which have no direct parallel in constitutions of States, although they are comparable to the occasional provisions containing specic substantive limitations. In its earlier advisory opinion on Reparation for Injuries the Court similarly spoke in a dictum of the rights and duties of an organization being dependent upon its purposes and functions without conning this to relations with member States.40

40

ICJ Reports, 1949, p. 180.

CHAPTER TEN

RESPONSIBILITY OF INTERGOVERNMENTAL ORGANIZATIONS

10.1

Introduction

The ability of intergovernmental organizations (IGOs) to possess international rights and obligations is a necessary corollary to the international personality of IGOs discussed in chapters 2.2 and 8 above. The legal position of IGOs as subjects of public international law inevitably raises questions of their international responsibility, i.e. to what extent IGOs are answerable for their internationally wrongful acts under public international law. Some earlier writers on the subject of international organizations focused on problems related to the legal position of IGOs vis-à-vis non-member States and reached the general conclusion that international responsibility of the organization in relation to non-members, in lieu of its member States, would require some form of recognition or consent by the third party right holder or “creditor”. Today it is widely accepted that all legal subjects of international law are in possession of international rights and obligations and that there is a clear link between their legal personality and international responsibility for illegal or wrongful acts.1

10.2

The International Law Commission’s work

In its work on State responsibility the International Law Commission (ILC) expressly limited the scope of its draft articles with respect to responsibility of international organizations and responsibility of States for the conduct of

1

“The fact that international organisations may be held accountable for the consequences of their illegal or wrongful acts is widely accepted. Liability is thus generally presented as the logical corollary of the powers and rights conferred upon international organisations”, Sands and Klein, Bowett’s Law of International Institutions, Oxford 2001, p. 513. Diez de Velasco speaks of the right to participate in relations of international responsibility, Las organizaciones internacionales, 14th ed., Madrid 2006, pp. 79–83.

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an international organization.2 In 2002, on the recommendation of the UN General Assembly in its resolution 56/82 and after the conclusion of a complete set of draft articles on State responsibility, the ILC included the topic of the responsibility of international organizations in its program of work. Giorgio Gaja was appointed Special Rapporteur and a working group was established with a view to studying the basic concepts of scope and purpose of such responsibility and to recommend a set of draft articles to the ILC.

What constitutes an international organization for the purpose of international responsibility? In his rst report, on the scope of work on responsibility of international organizations, the Special Rapporteur took a functional approach to the denition of intergovernmental organizations for the purpose of the ILC’s work on international responsibility. The report notes that only legal subjects of international law can become bound by obligations incumbent on them under rules of public international law. Conversely, an entity has to be regarded as a subject of international law even if only a single obligation is imposed on it under international law. Thus, should an obligation exist for an international organization under international law, the question of that organization’s responsibility may arise.”3 This line of reasoning will tend to become circular in nature; however, the report further notes that the acquisition of legal personality depends on the “actual establishment” of an organization having “sufcient independence” from its members. “The characterization of an IGO as a subject of international law thus appears as a question of fact.”4 During its 55th session in 2003, the ILC decided to continue the work on this functional approach and thereafter adopted the following wording in draft Article 2: For the purposes of the present draft articles, the term “international organization” refers to an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.5

2 3

4 5

Doc. A/RES/56/83 annex, Article 57. The report States that norms of international law cannot impose on an entity “primary” obligations or “secondary” obligations under international law – as e.g. international responsibility – in case of a breach of one of the “primary” obligations, unless that entity has legal personality under international law, cf. doc A/CN.4/532, 26 March 2003, para. 15. Ibid. para. 19. This comes very close to what is described in chapter 2 above as objective international legal personality of sovereign communities. Cf. doc A/58/10.

responsibility of intergovernmental organizations 417 The ILC’s comments on the draft article focus primarily on how IGOs are established and how they acquire a separate legal personality for the purpose of international responsibility. On the rst issue, the ILC notes that the reference to a treaty mainly reects prevailing practice, but that in order for the work to cover organizations established by States on the international plane without a treaty, article 2 refers to any “other instrument governed by international law”. This wording is intended to include instruments, such as resolutions adopted by the General Assembly of the United Nations or by a conference of States. The ILC mentions as examples of international organizations that have been so established the Pan American Institute of Geography and History (PAIGH), the Organization of the Petroleum Exporting Countries (OPEC), and OSCE.6 On the second issue, the ILC is faced with the differing views of legal writers on the one hand and practice on the other. The ILC simply notes that according to one view, the sheer existence for an organization of an obligation under international law implies that the organization possesses legal personality. According to another view, further elements are required. The ILC does not elaborate on what further elements would be required, but notes that the ICJ in its opinion on the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt,7 does not appear to set stringent requirements for this purpose, and that the jurisprudence of the ICJ generally appears to take a liberal view of the acquisition by international organizations of legal personality under international law.8 If we apply here the ILC’s compromise approach to the description of legal personality of IGOs set out in chapter 2.2 above, it must be assumed that, in principle, international responsibility is attributed to any IGO meeting the objective criteria to the extent that it is in breach of any of its obligations under public international law.

6

7

8

Id., pp. 39–40, para. 4. Schermers and Blokker nevertheless maintain that the OSCE is excluded from the scope of the draft articles on responsibility of international organizations because of the separate requirement of legal personality, cf. International Institutional Law, 4th ed., Leiden 2003, § 29, on p. 22. The ICJ stated in its dicta on legal personality that: “International organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties”, cf. ICJ Reports 1980, para. 37, pp. 89–90. Ibid. note 5 above, para. 8, pp. 41–2.

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Scope of the international responsibility of IGOs9 The wider terms of accountability and governance of international organizations, e.g. as applied by the International Law Association,10 regulate ve different types of legal relationships which may entail some form of responsibility for IGOs. These are relationships with (1) its member States, (2) its staff, (3) with non-member States and other intergovernmental organizations, (4) with non-State private entities and NGOs under contract and (5) other third parties such as private individuals, interests groups and representatives of civil society, including NGOs. Similar to the draft articles on State responsibility, the Special Rapporteur’s rst report seeks to distinguish between international responsibility, which is covered by the scope of the draft articles, and civil liability, which is thought to fall outside the scope of the ILC’s work.11 The effect of this distinction is that for the purpose of ILC’s deliberations on the topic, both contractual and non-contractual liability and disputes relating to staff employment conditions are not to be considered as part of the international responsibility of IGOs but rather as within the purview of the internal law of the organization. The report cites as an example of civil liability the litigation concerning the International Tin Council (ITC). Until its dissolution ITC was headquartered in the UK and possessed an international legal personality separate from its member States. The ITC’s decision to suspend market operations due to the exhaustion of its nancial resources gave rise to numerous court cases against the ITC, its member States and against the European Community as a signatory to the then Sixth Agreement of the ITC.12 The outcome of these court

9 It is not the ambition to discuss here in any detail neither the ILC’s still ongoing work, nor

the content of the numerous draft articles on the subject, but merely to identify the signicance of these deliberations for the topic of international legal personality of IGOs. 10 The ILA established a Committee on Accountability of International Organizations in 1996 and the topic was dealt with in subsequent reports; Taipei 1998, London 2000, New Delhi 2002 and Berlin 2004 (nal report). In its rst report the ILA noted that “accountability is multi-faceted, with various degrees of consequences ranging from oversight, monitoring, and evaluation processes to censorship or other forms of sanctions to he attribution of legal liability for injuries, resulting in binding remedial action” (p. 5). In this sense accountability is part of the internal law of the organization (Part Two of this book) and comprises relations also with external parties (Part Four). 11 Ibid. supra note 3 para. 29. 12 An overview of these proceedings is outlined in the annex to the opinion given by the Advocate General to the European Court of Justice, cf. Reports (1990), p. I-1824. While the cases against the ITC concerned the organization’s contractual liability, the procedures against the member States rested on the supposed existence of a legal basis in international law permitting member States of IGOs to be held liable for the conduct of the organization. In the case against the EC it was alleged that the EC’s participation in the ITC Sixth Agreement was in breach of internal EC Law, including the (at the time) EEC

responsibility of intergovernmental organizations 419 proceedings seems to conrm that so far, no rule of international law has emerged that would hold member States liable for the contractual obligations of an IGO, unless member States have otherwise assumed such liability. It should also be noted that relations with member States as such are a matter of the organization’s internal law, except for the separate question of potential State responsibility for the conduct of an IGO arising out of that State’s conduct as member of the organization, as well as the question of the IGO’s responsibility for the acts of a member State. The ILC draft article 1 (2) States that: “The present draft articles also apply to the international responsibility of a State for the international wrongful act of an international organization”. On this basis, the Special Rapporteur, in his fourth report on the subject, deals with the question of responsibility of members of an international organization when that organization is responsible.13 In this connection the report draws from the arguments provided in the cases concerning the ITC.14 It may be observed, however, that the legal force of the arguments put forward concerning member State responsibility for the organization’s non-compliance with its contractual liability are more convincing than similar situations where the organization is held responsible for an internationally wrongful act. Even if it is admitted that these legal arguments may shed light on the existence in international law of a norm on member State responsibility, the IGO’s exercise of governmental functions is different from an IGO’s dispositions of a contractual nature.15 However, the ILC did note in the report of its 56th session that the practice concerning civil liability is relevant for the purpose of attribution of conduct under international law when it states or applies a criterion that is not intended as relevant only to the specic question under consideration.16

13 14 15

16

Treaty. However, none of the proceedings against ITC signatories was successful. The case before the European Court of Justice was discontinued. See doc. A/CN.4/564/Add.2, 20 April 2006. Ibid. para. 79–81. The latter question is one of possible implied member State guarantee vis-à-vis the organization’s creditors and of protecting reasonable expectations of those creditors, see e.g. Herdegen, “The insolvency of international organizations and the legal position of creditors: some observations in the light of the International Tin Council crisis”, Netherlands International Law Review, vol. 35 (1988), pp. 135 ff., Amerasinghe, “Liability to third parties of member States of international organizations: practice, principle and judicial precedent”, International and Comparative Law Quarterly, vol. 40 (1991), pp. 259 ff. and Klein, “La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens”, Brussels 1998, pp. 509–510. Cf. doc. A/59/10, p. 103, para. 7.

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10.3 Are States relieved of their responsibility if they delegate their relevant powers to the organization? The question of member State responsibility has been formulated as a question if States can evade – or circumvent – their own obligations to third parties by constituting an intergovernmental organization to act in their common interest. The ILC’s draft articles 25–30 deal with the question of the responsibility of a member State for the conduct of an international organization, but other draft articles on the attribution of conduct are also relevant, e.g. draft Article 13 on a State’s exercise of direction and control over the conduct of an IGO. Draft Article 28 deals precisely with the situation where an IGO commits an act that would have been internationally wrongful if committed by a member State of that organization. The draft Article reads: 1. A State member of an international organization incurs international responsibility if its circumvents one of its international obligations by providing the organization with competence in relation to that obligation, and the organization commits an act that, if committed by that State, would have constituted a breach of that obligation. 2. Paragraph 1 applies whether or not the act in question is internally wrongful for the international organization.17

In its commentaries to the draft Article the ILC underlines that no intention of circumvention or abuse of rights is required for the member State to incur responsibility, but the unwitting result of providing an IGO with competence is not covered by the provision. The examples provided concern jurisprudence where the peremptory character of human rights norms played an important 17 Cf. docs. A/CN.4/L.695/Add.1, 3 August 2006, p. 8 and A/61/10 pp. 283–87. Member

State responsibility is also addressed in draft Article 43 as a requirement to compensate, through the intergovernmental organization, for the wrongful acts committed by the organization. This presumed norm of common law of IGOs is here indicated also as an emerging norm of public international law, but not to the extent that it makes a member State obligation towards the organization relevant in relation to third parties as a subsidiary responsibility if the organization is not in a position to provide compensation. The ILC comments State that: The majority of the Commission was in favour of including the present article, which had not been proposed in the Special Rapporteur’s report. This article is essentially of an expository character. It intends to remind members of a responsible international organization that they are required to take, in accordance with the rules of the organization, all appropriate measures in order to provide the organization with the means for effectively fullling its obligation to make reparation. The majority of the Commission maintained that no duty arose for members of an international organization under general international law to take all appropriate measures in order to provide the responsible organization with the means for fullling its obligation to make reparation. However, some members were of the contrary opinion, while some other members expressed the view that such an obligation should be stated as a rule of progressive development, cf. doc. A/62/10, pp. 216–7.

responsibility of intergovernmental organizations 421 role in the court’s reasoning. A principle of member State responsibility in cases where an IGO exercises extended competence over functions that States may not have, could also in theory raise problems, e.g. if a global organization assumed jurisdiction over a global common referred to in chapter 6.2 above, and such occupation would be considered wrongful if exercised by a member State. To some writers the question of member State responsibility has been closely interlinked with a perceived limited legal personality of IGOs. Some authors hold member States to be responsible because they do not accept that the organization has its own legal personality or they consider that the legal personality of the organization can have legal effects only with regard to non-member States that recognize it.18 Several writers, including Seidl-Hohenveldern,19 have taken the view that IGOs have no international personality in relation to non-member States which have not recognized them, and submit, as a logical consequence, that the international responsibility vis-à-vis these States (but not vis-à-vis member States) vests in the several member States or in those member States which the non-member State concerned holds responsible for the act.20 However, in contradistinction to many other writers, Seidl-Hohenveldern reserved the position of the United Nations, for which objective international personality has been claimed on special grounds, such as its duty to maintain international peace, its global aims and membership etc.21 Seidl-Hohenveldern shared the two assumptions upon which other writers (from continental European Roman law countries) base their denial of the objective international personality of IGOs,22 and he argued his denial also on the basis of the general principle of law that a creditor is not obliged to accept a new debtor in lieu of the old one. Similar considerations also led other writers to consider the member States responsible for the acts of the 18 Supra note 5, para. 88 and the references cited therein at p. 10, note 160. 19 “Die völkerrechtliche Haftung für Handlungen internationaler Organisationen im Verhält-

nis zu Nichtmitgliedstaaten”, Österreichische Zeitschrift für öffentliches Recht, XI (1961) pp. 497–506, and “Rückgriff auf Mitgliedstaaten in internationalen Organisationen” in R. Bernhardt et al. (ed.): Völkerrecht als Rechtsordnung, Berlin 1983, pp. 881–90; see also the various views of other Roman law writers cited ibid. p. 889. 20 “Ich glaube daher, dass ein Nichtmitgliedstaat die gesonderte Völkerrechtspersönlichkeit und Verantwortlichkeit einer Internationalen Organisation nicht anerkennen muss. Er kann sich daher mit seien Ansprüchen an den oder die Mitgliedstaaten halten, die er für die von der Organisation vorgenommene Handlung für verantwortlich hält. Er könnte hierbei sowohl kollektiv gegen sämtliche Mitgliedstaaten vorgehen als auch denjenigen Staat herausgreifen, auf dessen Boden oder durch dessen mit der Vollziehung der Akte der Organisation beauftragte Organe (z.B. Art. 89 EWG-Vertrag) die von ihm als völkerrechtswidrig bezeichnete Handlung gesetzt wurde”. (Özör, IX, pp. 502–3.) 21 Ibid., p. 501. 22 Id., p. 500.

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organization.23 The basic validity of this principle that no new debtor may be imposed must, unlike the alleged principle that the international personality of IGOs depends on their constitution, be admitted. However, its relevance to the question of objective international personality is limited, because international relations are not primarily a matter of payments, deliveries or services made by a “debtor” to a “creditor”. This principle, to the extent applicable, may be relevant in relation to IGOs exercising extended powers as described above in chapter 6 and which on this basis represent its member States in external, international, relations, e.g. for purposes of resource management, trade agreements, control on emissions to the environment etc., and may conceivably be put to the test by third parties in relation to new IGOs, new competences being vested in existing IGOs and enlargement of the organization’s membership.24 However, it will be demonstrated in the following that even if the principle is applied in international law, it does not require responsibility of the member States for all acts of the organization and that it still less requires denial of the international personality of the latter vis-à-vis non-member States which have not recognized the organization. Member States of an IGO are generally authorized, within certain limits, to derogate from or modify provisions of a multilateral agreement in their relations inter se.25 A bilateral agreement to this effect can obviously not affect the rights of the other parties to that multilateral treaty. Further, to the extent that the extended powers of an IGO are not exercised in conformity with member States’ prior treaty obligations, the internal law of the organization cannot generally be assumed to affect the rights of third parties. Article 307 of the Treaty establishing the European Community conrms the exception that prior rights and obligations shall not be affected

Paul de Visscher, Wengler and, somewhat differently, Pescatore in Actes ofcials du Congrès international d’études sur la Communauté européenne du charbon et de l’acier, Milano 1958, II p. 44, and III pp. 25–28, 62–64 and 351; Pescatore in Recuil des Cours, 1961 II, p. 40 – he adds, however, that there is a duty to recognize. – Wengler, loc. cit., III, p. 28, draws the logical consequence that the member States inversely are entitled to protect the organization against violations of international law on the part of third States. 24 As Sarooshi points out, “when States transfer powers to an organization they must try and ensure that the organization’s exercise of powers cannot lead to the imposition of obligations on the State that are inconsistent with a prior treaty obligation owed to another State (or indeed to another organization) that is not a party to the treaty that transfers powers”, D. Sarooshi, International Organizations and their exercise of sovereign powers, Oxford 2005, p. 103. 25 Cf. Art. 41 of the Vienna Convention on the Law of Treaties. See also the Treaty establishing the European Union, Arts. 40 and 43–45, on the competence to establish an enhanced cooperation even between member States. 23

responsibility of intergovernmental organizations 423 by EC law, but also commits member States to take all appropriate steps to eliminate the incompatibilities established.26 Even if the original conferral of extended powers to the IGO is by itself coherent with the member State’s prior obligations, a member State will normally not be in a position to control the exercise of such powers by the IGO. An example of such extended powers to conclude treaties is provided by the EC Treaty, which contains provisions on treaty-making powers and other external action in Article 133 and on association agreements in Article 310.27 Article 300 (7) of the EC Treaty provides that: Agreements concluded under the conditions set out in this Article shall be binding on the institutions of the Community and on Member States.

This rule, being part of the internal law of the organization, does not imply that member States become bound vis-à-vis third parties, unless the member States have accepted an additional obligation towards those third parties.28 In contrast, the Treaty establishing the European Union contains provisions on treaty-making competence in Articles 24 and 38, on an intergovernmental basis. Thus, in parallel with agreements of mixed community and member State competence, treaties concluded under the EU Treaty are subject to national approval by the member States according to their constitutional requirements.29 Where the subject-matter covered by an international agreement is not fully within the exclusive competence of the Community, the problem may be solved in practice by making both the Community and the several member States parties to such treaties (so-called mixed agreements).30

26 In cases concerning the EC Equal Treatment Directive, the ECJ accepted that member

27

28 29

30

States being parties to ILO Convention No. 89, restricting women’s access to industrial night-work in breach of the directive, could continue to apply deviating national standards. However, the member States in question were subsequently required to denounce the Convention, see Craig and De Búrca, EU Law, 3rd ed., Oxford 2003, p. 894 and the court cases cited. However, the European Court of Justice has developed a theory of implied external powers which is more or less parallel with the EC’s internal competence; see Craig and De Búrca, op. cit., p. 128. Cf. France v. Commission, judgment 9 August 1994 in Case C-327/91, European Court of Justice Reports 1994, p. I-3674, para. 25. Cf. e.g. the Agreement 28 June 2006 between the European Union and Iceland and Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway (as reproduced in the Ofcial Journal of the European Union L 292, 21 October 2006, pp. 2 ff.), which may be seen as an instrument of 56 bilateral agreements between the EU in its capacity of IGO, the 27 EU member States and Iceland and Norway respectively, since the material obligations set out in the agreement are different for the various parties as a reection of their national priorities. The European Court of Justice, requested to pronounce its opinion on the conclusion of the World Trade Organization, held that the Community and its member States were

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In the rst place, it is doubtful whether the said principle of “no new debtor” in national law necessarily applies also in international law, when the object of an obligation is transferred from the “debtor” to another subject of international law.31 Succession in international law is somewhat different. Thus it cannot be insisted that a State remains responsible for the fulllment of obligations, under general international law or under any treaty, in respect of a territory which it transfers to another State or to an IGO. It is also doubtful whether a State will remain responsible for the fulllment of its previous obligations, for example a customs treaty, if it joins one or more other States in a loose federal State, a relationship of suzerainty or some other form of union or supranational organization which assumes complete and exclusive internal and external powers relating to the subject matter of the obligations, and which also assumes responsibility for the fulllment of these obligations.32 When the International Committee of the Red Cross, in its circular letter of 10 November 1961 to the contracting parties to the 1949 Geneva Conventions, held each contracting State providing a contingent to the United Nations responsible for the application of these Conventions, it was for the express reason that the United Nations was not (and still is not) a party to these Conventions and their subsequent additional protocols. The UN Secretary-General has promulgated a Bulletin on Observance by United Nations Forces of International Humanitarian Law (IHL) in 1999.33 As a binding legal instrument in the internal law of the organization, the effect of these

jointly competent to conclude GATS and TRIPS, Cf. European Court of Justice Reports 1994, p. I-5267. However, the Court found that the Community had sole competence, pursuant to Article 133 of the EC Treaty, to conclude the Multilateral Agreements on Trade in Goods. Steinberger nevertheless maintains that the EC and its member States are bound by the whole agreement despite the fact that their internal competences are functionally divided, and that they bear joint and several responsibility for any breaches, “The WTO Treaty as a Mixed Agreement: Problems with the EC’s and the EC Member States’ Membership of the WTO”, European Journal of International Law, Vol. 17 no. 4 2006, pp. 837 ff. 31 Cf. the interesting examples listed, but only partly answered, by Wengler, loc. cit., III, p. 26. 32 These problems were addressed in connection with the German reunication process in 1990, where the Federal Republic of Germany assumed responsibility for obligations incumbent on the eastern part of the State. The process could not be considered as a merger of two sovereign German States but rather as an accession of the GDR (being a part of Germany) to the FRG as the political organisation of Germany as a whole. As a rule, nancial obligations of the predecessor State arising in conformity with international law towards another State, international organisation or any other subject of international law pass to the successor State, cf. K. Hailbronner, Legal Aspects of the Unication of the Two German States, 2 EJIL (1991) pp. 18–44. 33 United Nations, Secretary-General’s Bulletin, ST/SGB/1999/13, 6 August 1999.

responsibility of intergovernmental organizations 425 core principles is on the operation as such as an organ of the UN and on its ofcials. Troop contributing States and national contingents are in principle unaffected as they remain bound by IHL in their capacity of States parties to the Geneva Conventions and the additional protocols.34 The position is more doubtful when a State has transferred to an IGO only part of its powers relating to the subject matter of the obligation.35 One example is member States’ voluntary troop contributions to international peace support operations under UN mandate and authorization. Acting under international unied control and command, the troop contributing State retains both disciplinary and criminal jurisdiction over its troops.36 The European Court of Human Rights (ECHR) rendered an important decision on 2 May 2007 concerning the admissibility of claims against troop contributing States for alleged human rights violations committed in Kosovo by the international Kosovo Force (KFOR) under NATO command and control.37 While it is obvious that conduct of military forces of States or IGOs is not attributable to the United Nations in situations where the Security Council authorizes States or IGOs to take necessary measures outside a chain of command linking those forces to the United Nations, the question concerning the security presence in Kosovo turned out to be one of degree of UN control over the international presence. In its decision, the court relied on the principles of “attribution” and “effective control” as set out in the ILC draft articles on responsibility of international organizations. The court held that the alleged acts and omissions of KFOR personnel fell under the mandate of KFOR and UNMIK respectively, as authorized by the Security Council in Resolution 1244 (1999), and that KFOR troops under effective NATO command and control therefore operated under UN delegated command. Thus, the Security Council retained “ultimate authority and control” so that direct operational command is not a requirement of Chapter VII collective security Zacklin, United Management of Legal Issues, in Howard and Oswald (eds), The Rule of Law of Peace Operations, Conference paper Melbourne 2002, pp. 122–4 (www.apcml. org/RuleofLawbooknal.pdf visited September 2007.) 35 Even in the case of the United Nations Forces in the Middle East (UNEF) and the Congo, the States providing contingents retained certain powers, in particular with regard to discipline and criminal matters, see Seyersted; UN Forces, p. 56, something which is now reected in the model Status of Forces Agreement (UN doc. A/45/594), a fact which has complicated the question of responsibility. 36 This raises fundamental questions of responsibility in international peace support operations where troop contributing States confer certain powers of unied command and control over the operation to an IGO (e.g. UN, NATO, and AU); see further M. Zwanenburg, Accountability of Peace Support Operations, Leiden 2005. 37 Decision of the Grand Chamber of the European Court of Human Rights, applications nos. 71412/01 Behrami and Behrami v. France and 78166/01 Saramati v. France, Germany and Norway. 34

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missions. It was admitted that troop contributing States retained some authority over own troops during the operation for reasons inter alia of safety, discipline and accountability, but even if NATO’s operational control was not intended to be exclusive, it was nevertheless “effective”. The Court thus observed that “KFOR was exercising lawfully delegated Chapter VII powers of the UNSC so that the impugned action was, in principle, “attributable” to the UN” within the meaning of the ILC draft articles (italics added),38 and found that it was not competent ratione personae to review the merits of the complaint. The court did not entertain questions of the international legal status of NATO or KFOR. However, the ILC’s comments on draft Article 13 on responsibility of IGOs refer to KFOR as one of two international organizations allegedly exercising direction and control in the commission of a wrongful act, citing the French Government’s preliminary objections in Legality of Use of Force (Yugoslavia v. France) before the International Court of Justice, when the French Government held that: “NATO is responsible for the ‘direction’ of KFOR and the United Nations for ‘control’ of it.”39 On the question of attribution of conduct to KFOR the court only concluded that the delegation model demonstrates that direct operational command from the UN Security Council is not a requirement of Chapter VII collective security missions (para. 136). In conclusion the court stated that “the impugned acts and omissions of KFOR and UNMIK cannot be attributed to the [troop contributing] respondent States”. As a general principle, delegation of powers to an IGO in relation to a peace support operation authorized by the United Nations cannot be considered as circumvention of legal commitments under international law by the troop contributing States. At the time of the UN assuming extended powers of the province of Kosovo and delegating powers to the security presence under NATO unied command and control, The Federal Republic of Yugoslavia, the territorial sovereign, was not a member of the United Nations40 and also not a member of NATO. Potential questions of non-recognition of the UN, NATO or KFOR were not relevant to the above proceedings before the ECHR. Another example of partly transferred powers to an IGO is the headquarters district of an IGO, where the host State has ceded only certain parts of its Decision para. 141. Cf. doc. A/60/10, pp. 97–8. See also Serbia & Montenegro v France, ICJ Reports (2004), p. 575. 40 See ICJ decisions in cases of Legality of Use of Force where the Court concluded that FRY (and with effect from 4 February 2003, “Serbia and Montenegro”) was not a member of the United Nations, and not in that capacity a State party to the Statute of the International Court of Justice, at the time of ling its Application to institute proceedings before the Court on 29 April 1999. 38 39

responsibility of intergovernmental organizations 427 territorial jurisdiction to the organization.41 Similarly, the European Communities have in some areas assumed only limited powers in respect of the subject-matter of their competence, leaving the residuary powers and concurrent jurisdiction over foreign relations,42 in the hands of national authorities. In fact, the members of the Community have in most cases retained their obligations under their previous agreements as their own obligations, even in cases where they in fact are fullled by the organization. Only to a limited extent have the obligations been transferred to the organization and then in principle only with the consent of the other contracting party.43 As a consequence of new member States joining an IGO constituting a customs union or free trade area under WTO rules, the question of compensation may arise in the event that the new trading regime, in light of the most favoured nation principle, is less advantageous to a third party than the former one.44 The obligation to compensate for loss in trade is upon the IGO (representing the customs union) and not on the ( joining) member States in their capacity of being the original debtor. In this respect the member States of the WTO have agreed in advance to accept customs unions and free trade areas as “new debtors”. In the eld of environmental protection, both the European Community and its member States are parties to the Kyoto

41 Under the headquarters agreements between the United Nations and the United States

of 26 June 1947, Article III (UNTS, Vol. II, p. 11) and between the International Atomic Energy Agency (IAEA) and Austria of 11 December 1957, §§ 7–8 (UNTS, Vol. 339, p. 152, United Nations Legislative Series, ST/LEG/SER.B/11, Vol. II, p. 330) only very limited powers over the headquarters district were transferred to the organization. On the resulting problems of the responsibility of the organization and that of the host State, see Eagleton in Recueil des Cours, 1950, I, pp. 396–8. See § 46 of the IAEA headquarters agreement and Zemanek in Verdross: Völkerrecht, Vienna 1964, p. 392, note. 42 This has been pointed out, in respect of EURATOM, by Hahn, Harvard Law Review, LXXI (1958), p. 1054. 43 Thus the members of the Community remain separate members of the organization for Economic Co-operation and Development (OECD), of the contracting parties to the General Agreement on Tariffs and Trade (GATT) and of GATT 1994 (which is identical to, but “legally distinct” from GATT 1947) which is now an Annex to the constitution of the new World Trade Organization, and whose members are both the members of the European Community and the Community itself. They retain their obligations under these organizations to the extent that the latter have not relieved them, although the Community as such has also assumed certain obligations under the organizations. 44 In such circumstances GATT Article XXIV and para. 5 of the Understanding on the Interpretation of Article XXIV of the General Agreement on Tariffs and Trade 1994 provide that “negotiations will be entered into in good faith with a view to achieving mutually satisfactory compensatory adjustment. In such negotiations, as required by paragraph 6 of Article XXIV, due account shall be taken of reductions of duties on the same tariff line made by other constituents of the customs union upon its formation. Should such reductions not be sufcient to provide the necessary compensatory adjustment, the customs union would offer compensation, which may take the form of reductions of duties on other tariff lines.”

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Protocol, which sets out that the parties individually or jointly shall ensure that their aggregate emissions of the greenhouse gases listed do not exceed their assigned amounts.45 In the eld of human rights, the jurisprudence of the European Court of Human Rights holds member States responsible under the European Convention for the Protection of Human Rights and Fundamental Freedoms for their own acts even if such acts have a legal basis in community law.46 The Community thus does not appear to give rise to any imposition of a new debtor to existing agreements. The legal and practical difculty which Seidl-Hohenveldern has invoked against the validity of the international personality of IGOs vis-à-vis non-member States is thus not very likely to arise in respect of agreements concluded by members of these organizations. However, it may arise in respect of obligations arising under general international law. It is submitted that the principle that no new debtor may be substituted without the consent of the creditor is not generally applicable to violations of general international law committed by a State or IGO in or from the territory of another State where it has been allowed to operate. Whatever may be the relevance of that principle in this context, it should be noted that the latter State is not generally internationally responsible for all acts performed in its territory, but only for such acts as its organs instruct, direct or control.47 In particular, it is not possible to support the suggestion that a

Articles 3 and 4 of the Kyoto Protocol to the United Nations Framework Convention on Climate Change, signed 11 December 1997. 46 See e.g. the case before the European Commission of Human Rights, M & Co. v. Germany, application no. 13258/77 and subsequent decisions of the European Court of Human Rights. Although the EU is not a party to the European Convention of Human Rights, member States have sought to ensure that the organization’s powers are exercised in conformity with the Convention by adopting article 6 (2) of the EU Treaty, which reads: “The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.” The Treaty of Lisbon of 13 December 2007 provides the EU with the competence to seek to become a party to the European Convention on Human Rights. 47 See ILC draft articles on responsibility of States for internationally wrongful acts, annex of doc. A/RES/56/83 of 28 January 2002, article 8. Cf. also Verdross: Völkerrecht, Vienna 1964, pp. 391–3. On the other hand, the headquarters agreement between the International Atomic Energy Agency and Austria of 11 December 1957 provides in § 46: “The Republic of Austria shall not incur by reasons of the location of the headquarters seat of the IAEA within its territory any international responsibility for acts or omissions of the IAEA or of its ofcials acting or abstaining from acting within the scope of their functions, other than the international responsibility which the Republic of Austria would incur as a Member of the IAEA”. As pointed out by Seidl-Hohenveldern: “Die völkerrechtliche Haftung für Handlungen internationaler Organisationen im Verhälltnis zu Nichtmitgliedstaaten” in Österreichische Zeitschrift für öffentliches Recht, XI (1961) p. 504, this provision has no 45

responsibility of intergovernmental organizations 429 non-member State which has not recognized the organization may hold the host State responsible, on the basis of the principle that no new debtor may be imposed, if the organization does not pay a pension which it may owe to one of its ofcials who is a national of that non-member State.48 At least if the host State has not delegated any of its own powers – but has merely granted the customary privileges and immunities, or has merely, as in the example given, respected the inherent and exclusive organic jurisdiction of a foreign State over its diplomatic missions or of the organization over its organs in the territory of the host State – there would not normally be any basis for considering the foreign State or the IGO as having been substituted as a “debtor” in the obligations of the host State in respect of its territory, in a manner which other States could refuse to accept. A different situation occurs where a State expressly has conferred on an IGO powers to act on its behalf as an agent, a relationship which would require a mutual consent.49

10.4

Is the organization relieved of its responsibility if the States which delegate powers to it remain responsible?

In the second place, even if the State concerned remains responsible for the fulllment of its previous obligations – because none or only part of the powers relating to the subject matter of these obligations has been transferred, or because the other State or the organization to which it has delegated its powers has not also assumed the relevant obligations, or because even such assumption does not liberate the former State from its responsibility – this does not mean that the other State or the organization is not responsible for all its acts50 if these violate general international law or any special obligations undertaken by it. One could not deduce from the principle that a creditor is not obliged to accept a substitute debtor that this responsibility of the organization for its own acts should not apply in relation to all States, including a non-member State in relation to which a member State might have assumed special obligations. Thus the principle that a debtor may not substitute another debtor without the

effect vis-à-vis third parties. See also the agreement between the former European Space Research Organization (now the European Space Agency) and Sweden quoted below. On the other hand, the International Fusion Energy Organization (ITER) Art. 15 (5) provides that “Membership in the ITER Organization shall not result in liability for Members for acts, omissions or obligations of the ITER Organization”. 48 Seidl-Hohenveldern, loc. cit., p. 504. 49 Cf. Sarooshi supra note 24, pp. 33 ff. See also the example loc. cit., p. 26 of the Paris Peace Accord concerning Cambodia. 50 Wengler, loc. cit., p. 28, in contradistinction to Seidl-Hohenveldern, keeps open the possibility.

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consent of the creditor (to the extent it is applicable in international law) does not deprive the new “debtor”, in casu the organization, of its international personality and responsibility, even vis-à-vis the “creditor”. It merely adds – to the organization’s responsibility under general international law and under any special obligations assumed by it – the responsibility of the member State for the fulllment of its general and special obligations under international law, or for having, through its delegation of powers to the organization, made such fulllment impossible. Similarly, any responsibility which might be assumed to devolve upon a host State as such for having granted special facilities could not rule out the responsibility of the organization for any of its acts. Any conict between the obligations of a member or host State towards a third party and its obligations towards the organization must be resolved in accordance with the substantive rules of general international law concerning conicting obligations,51 and the member or host State must pay reparation to the party which is thus deprived of satisfaction in natura.

10.5

The responsibility of the organization in fields where no powers have been delegated to it

In the third place it should be noted that delegation of supranational powers from the member States to the organization as discussed above is an exceptional case. As for organizations of the usual type, like the United Nations, member States will only delegate part of their own (internal) authority to the organization in special cases, such as when a member State agrees to place a disputed territory, a headquarters district or a troop contingent under the partial or full jurisdiction of the organization. And the delegation of such special powers to an organization could not suddenly deprive the latter of the international personality which it had before the delegation. A general delegation from all member States by constitutional provision occurs only in the case of supranational organizations,52 notably in the case 51 52

Or, in the case of the United Nations, Article 103 of the Charter. This term is used in the present book precisely in this sense, of an intergovernmental organization to which all member States by virtue of the convention constituting the organization have ceded part of their own territorial, personal and organic jurisdiction in such a manner that the organization may exercise this jurisdiction directly over their territory, nationals and organs, cf. Seyersted, UN Forces, pp. 96 –7. An organization is not considered “supranational” merely because it has the power to make decisions which are binding upon the member Governments and which are complemented only by these vis-à-vis their organs, inhabitants and nationals; see, for example, Article 5 (a) of the constitution of the Organization for Economic Co-operation and Development and Rule 18 (a) (i) of its Rules of Procedure.

responsibility of intergovernmental organizations 431 of the European Community. Indeed, those writers whom Seidl-Hohenveldern cites as taking the view that the member States are responsible vis-à-vis non-member States for the acts of the organization are concerned precisely with the European Community.53 Whatever conclusions a study of this organization would lead to, it would be entirely inappropriate to extend these also to organizations where no such delegation (or a complete delegation of exclusive powers) has taken place. And even in the case of supranational organizations, any such conclusions in respect of those powers which these organizations have taken over from the member States could not be extended to the many other aspects of their activities where they exercise new powers of their own in the same sense as organizations of the usual type. This applies notably to the organizational activities,54 such as privileges and immunities, headquarters agreements, cooperation agreements with other organizations, permanent representatives etc., as well as to the organizations’ jurisdiction over its organs and ofcials as such, including the relationship of employment. It is not possible, on the basis of the principle that a creditor is not obliged to accept a new debtor in lieu of the old one, to hold the member State responsible for acts of the organization which involve no delegation of powers from these States. As a general rule, responsibility of member States under the rules of the organization does not imply that those States incur responsibility towards a third State unless their responsibility is made relevant with regard to that State under international law.55 Thus, Article 300 (7) of the EC Treaty that agreements concluded shall be binding on the institutions of the Community and on Member States does not intend to create obligations for member States towards non-member States.56

53 Paul de Visscher, Wengler, Pescatore, loc. cit. although none of these writers has stated

that their views are conned to the Communities. Seidl-Hohenveldern, on the other hand, emphasizes that he is concerned with both supranational and other organizations (loc. cit., pp. 497–8). This is also the approach of Hahn in Harvard Law Review, LXXI (1958), pp.1049–51, cf. pp. 1054–5. 54 Even the organizational activities may occasionally involve delegated powers, if member States or the host State have delegated to the organization positive powers of jurisdiction beyond the scope of its inherent organic jurisdiction. Thus positive jurisdiction over a headquarters district may be granted as part of a headquarters agreement, whether or not the organization is supranational. 55 As also recognized in the special rapporteur’s fourth report on responsibility of international organizations, doc. A/CN.4/564/Add.2, 20 April 2006, para. 86. 56 Supra note 28. However, based on the internal law of the organization, national organs, including the courts of EC member States, are responsible on the national level for implementing community law, including in the form of certain external agreements which introduce a certain asymmetry of obligations or create special relations of integration with the Community, and which may therefore have internal direct effect as a superior source

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Nor can the host State be held responsible on the basis of this principle, except that in special cases it might be held responsible for having omitted to take the necessary and possible precautions against abuse of its territory.57 Thus the member States of an IGO which operates ships under its ag, or aircraft or space vehicles not registered in any State, are not as such responsible for compliance with the principles set forth in the resolution in respect of such ships, aircraft or vehicles, unless they have specically assumed such responsibility. As for the examples of member States’ subsidiary liability discussed above, in chapter 6.2, the provision in paragraph 5 of the United Nations General Assembly’s resolution 1962 (XVIII) that responsibility for space vehicles shall be borne by the launching organization and its member States can therefore only be implemented if these States in each case accept such responsibility by treaty or otherwise.58

10.6

Are the States which have delegated their powers to the organization relieved of their responsibility vis-à-vis States which recognize its international personality?

In the fourth place, it should be noted that if any or all member States remain responsible for the fulllment of their obligations under general international law and/or their own treaties even if they have transferred the relevant powers to the organization, then this responsibility must subsist vis-à-vis any other State, or any organization, which has not agreed to such transfer in a manner which involves acceptance of the liberation of the member State concerned from responsibility for the fulllment of the said obligations. It must thus subsist also vis-à-vis non-member States which have recognized the international personality of the organization, and even vis-à-vis member States if the transfer of the

of law directly applicable in the member States. This was e.g. illustrated by the Ospelt case (C-452/01) where the ECJ found that Austrian authorities were obliged to apply the relevant provisions of the association agreement on the European Economic Area, thus conferring community rights directly on certain third country nationals, cf. European Court of Justice Reports, 2003, p. I-9743. 57 Contra: Seidl-Hohenveldern, loc. cit., p. 504. 58 Even the States from whose territory space vehicles are launched may decline responsibility if these are launched by the organization. Thus the agreement of 29 July 1964 between Sweden and the (former) European Space Research Organization provided: Sweden shall not incur by reason of the activities of the Organization on its territory any international legal responsibility for acts or omissions of the Organization or of its agents acting or abstaining from acting within the limits of their functions. If Sweden, however, should incur such responsibility, Sweden shall have the right of recourse to the Organization. (Article 6, see also Articles 12–14.)

responsibility of intergovernmental organizations 433 power has been effected, not through the constitution of the organization, but through a separate, unilateral or bilateral, act to which they are not parties and have not agreed. Even in these cases, and even if the organizations is considered to have objective international personality, valid ipso facto vis-à-vis any member or non-member State, the “creditor” must be entitled to withhold his consent. Similarly, any responsibility which is assumed to devolve upon the host State for having allowed the organization to operate in or from its territory, would apply even in relation to States which have recognized the organization, and even if the latter has objective international personality. It is thus not justied to hold the member (or host) States responsible, on the basis of the principle that no new debtor may be imposed upon the creditor, only in relation to such non-member States as have not recognized the international personality of the organization.59 Objective international personality, recognition and membership are not relevant in this context. The principle that no new debtor may be imposed upon the creditor is therefore not relevant to the question of objective international personality. A different matter is that membership or other act of recognition may also imply consent to the transfer of the powers concerned and to the liberation of the member States from its responsibility. However, this depends upon the circumstances in each case, except that membership will always imply consent to such transfer of powers as follows from the constitution.

10.7

The situation when the States which delegate their relevant powers to the organization are thereby relieved of their obligations

It remains to consider the situation which arises in those cases where the principle that no new debtor may be imposed upon the creditor, does not apply in international law, and where the member or host States concerned neither on this nor on any other basis are responsible for any violations of general international law, and where there is no other basis on which the member or host States concerned may be made responsible for any violations of general international law, or of their special international obligations, which may result from the act of the organization. It might be argued that, while it may be reasonable in these special cases that the debtor is relieved of his obligation if the relevant powers have been assumed by another State, such liberation might not be equally justied if the powers have been assumed by an IGO, since such organizations

59

In this case also, as far as non-member States are concerned, de Visscher, loc. cit., p. 44. Contra; Seidl-Hohenveldern, loc. cit., p. 505 (with the qualication “im allgemeinen”).

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usually do not have the same means, including territory and population, to enable them to fulll their obligations and to enable the “creditors” to take reprisals against them in case of non-fulllment.60 It may also be argued that the State which has granted the powers to the organization, if it is a member of the organization, can exercise some inuence upon its acts. However, one would overshoot the mark if one, in order to cover such special cases, were to deprive the organization of its international personality in relation to non-member States, and thereby force all relations between IGOs and non-member States into the articial pattern of relations with the several member States, with all the inconveniences this would involve. Moreover, it would force non-member States to refuse recognition in abstracto, even if they merely wanted to prevent the liberation of the “debtor” from specic obligations. Protection of the “creditor” could be obtained much more simply and effectively by applying the principle that no new “debtor” may be imposed upon the “creditor” to transfer of powers and obligations to IGOs even in cases where one would not apply it to transfers to other States. The argument for such a position would be that, in the absence of practice relating to IGOs, international law as applicable to States is applicable by analogy to IGOs only insofar as the relevant conditions are similar. However, even this may not prove justied, considering that international law imposes substitution of the “debtor” responsible for acts over which he has no control, and that these reasons may be compelling even if the new “debtor” is an IGO.

10.8

Summary

The preceding discussion of the somewhat complicated problems raised by the principle which Seidl-Hohenveldern invokes in support of his and other writers’ denial of the objective international personality of IGOs, may best be summarized on the basis of a distinction between the following cases: (a) The majority of IGOs have no jurisdiction over their member States in functional matters, and they certainly have no jurisdiction over the organs, territory or nationals of the member States. The organizations only have jurisdiction within their own legal sphere, i.e., the power to make decisions binding upon their organs and ofcials as such, and upon their member States in certain organizational matters. In these circumstances the functions and obligations of the organization on the one side and those of its members or host State on the other side are clearly distinct, and the acts of the organiza-

60

This was pointed out by Wengler, loc. cit., III, p. 27.

responsibility of intergovernmental organizations 435 tion will not be of a nature so as to constitute violations of the obligations of the member or host State, but only of those of the organization itself under general international law or under any special commitment into which it might have entered. In these cases there is no question of imposing a new “debtor” upon a “creditor” of the member or host States or of depriving him of any rights or claims, and there is no need to deny the objective international personality and thus the exhaustive international responsibility of the organization on this basis. (b) In some cases, however, notably in the case of supranational organizations, the organization may, due to a delegation of powers from its member States or for other reasons, be in a position to violate, by its acts, (also) obligations of one or more member or host States under general international law or under special commitments which these might have entered into, and in such cases there are two possibilities: (i) The principle invoked by Seidl-Hohenveldern may apply, and the member or host States concerned are not relieved of their obligations. They may then be responsible also for such violations of these obligations as result from the acts of the organization, if they, by delegating their powers to the organization or by allowing it to operate in or from their territory, have enabled it to cause the violation or have cut themselves off from preventing it or from taking other necessary measures to secure fulllment of their obligations. If the “creditor” thus retains his rights or claims against the original “debtor”, responsibility applies only vis-à-vis those States against which the “creditor” would have had a right if no organization had existed. It cannot, as has been suggested in respect of supranational organizations,61 be expanded to apply in respect of all member States of the organization. Thus responsibility does not amount to granting the “creditor” a right of refusing to recognize the organization as an international person, i.e., to a denial of its objective international personality.62 This is an entirely different matter. Objective international personality or recognition does not in itself constitute consent to the liberation of the “debtor”. The “creditor” has the right to hold the original “debtor” responsible even if he has recognized the organization or if the latter has objective international personality, just as

Paul de Visscher, loc. cit., II, p. 44 States “Dès l’instant ou la cause du dommage invoqué par l’Etat tiers réside dans l’exercise, par un organe de la Communauté, d’une compétence propre à celle-ci, la responsabilité collective de tous les Etats membres de la Communauté pourra être mise en cause”. In the same sense Seidl-Hohenveldern, loc. cit., p. 503; Pescatore, ibid., p. 351; and, less denitely, Wengler, loc. cit., III, p. 28. 62 Accordingly it is submitted that Seidl-Hohenveldern, loc. cit., p. 502, overshoots the mark when drawing this consequence from the principle that no substitute debtor may be imposed. 61

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much as the “creditor” may hold a “debtor” State responsible if the latter has transferred similar powers to another State recognized by him. And there is no need to give the “creditor” the right of refusing to recognize the international personality of the organization in addition to his right to hold the “debtor” responsible, under the principle that the latter cannot unilaterally substitute a new “debtor” or under any other applicable principle of international law. If objective international personality is considered justied on other grounds, it must and will produce its full effects in respect of any obligations of the organization under general international law, or under any special commitment assumed by it, vis-à-vis any other party as well as vis-à-vis the “creditors” of member States. Any rights of such “creditors” vis-à-vis a member State, under general international law or under special commitments entered into by that State are another and additional matter. (ii) The problem really arises only in those cases where the principle of national law that no new “debtor” may be imposed upon a “creditor” does not apply in international law, i.e., when the member or host States under general international law are relieved of their obligations or can otherwise refuse responsibility for violations of their obligations under international law resulting from the acts of the organization. In such cases it might be possible to force the responsibility back upon them by refusing to admit the international personality of the organization. However, in these cases there are strong substantive reasons for not holding the original “debtor” responsible. Nevertheless, if it is felt that these reasons are not strong enough if powers have been transferred to an IGO rather than to a State, the obvious answer is to apply the rule that no new “debtor” may be imposed upon the “creditor”, i.e. the solution referred to under (i) in these cases too. This, as has been demonstrated, is not the same thing as to deny the objective international personality of the organization. The desire to protect the “creditor” against a liberation of his “debtor” in these limited cases is no reason for denying the organization the capacity to assume international rights and duties in other respects, vis-à-vis other non-member States and even vis-à-vis the same “creditor”, or even to assume rights and obligations in the same respect, in addition to those of the member or host States. It thus appears, in conclusion, that the principle that no new “debtor” may be imposed upon the “creditor” in lieu of the old one does not require a denial of the objective international personality of IGOs if such personality is held to exist on other grounds. In none of the cases discussed is such denial necessary to protect the interest of the “creditor”.

responsibility of intergovernmental organizations 437 10.9

Remedies

Finally, it should be noted that the discussion above is to a large extent a question of available remedies to hold the IGO responsible for its wrongful acts. The principle of access to a remedy, as applicable to IGOs, is therefore a corollary of the principle of responsibility.63 Where an IGO provides for no effective remedy, there is a pressure to overcome such deciency by holding members States responsible.64 As pointed out in chapter 7.5 above, IGOs have the inherent capacity to designate mechanisms for the settlement of disputes, including by arbitration clauses, and to establish their own internal courts or other judicial bodies which would have jurisdiction to deal with such cases. The right to a remedy has been identied by the International Law Association as an emerging norm of customary international law.65

Cf. Suzuki and Nanwani, Responsibility of International Organizations: the accountability mechanisms of Multilateral Development Banks, Michigan Journal of International Law, vol. 27:177 (2005), p. 224. 64 This was precisely the question in the ITC-case referred to in chapter 10.2 above and also in the “Westland-case” concerning the Arab Organization for Industrialization, see International Chamber of Commerce, Court of Arbitration, 5 March 1984, Westland Helicopters Ltd. and Arab Industrialization Organization, United Arab Emirates, Kingdom of Saudi-Arabia, State of Quatar, Arab republic of Egypt and Arab British Helicopters Company, 80 ILR 610 (1989). 65 Accountability of International Organisations, Final Report, Berlin 2004, p. 33. 63

PART FOUR

CONFLICT OF LAWS: RELATIONS WITH PRIVATE PARTIES

CHAPTER ELEVEN

INTERNAL RELATIONS

11.1

Exclusive application of the internal law of the organization: the organic connecting factor

As explained in Part Two, chapter 5.5,1 the relationship between the organization and its ofcials as such is governed, neither by the national law of the host State, as maintained by some early writers, nor by international law, as maintained by the majority of writers, but by the internal law of the organization (briey referred to as internal law or IGO law). Except for a little temporary faltering in the early days of the United Nations,2 it has been a consistent practice of both earlier and modern IGOs, of host States, of national courts and of the administrative tribunals of IGOs not to apply the law of the host State, unless the organization has specically submitted to it in a limited eld (for example social security or local workers not considered by the organization as its ofcials). With this reservation, no mandatory law of the host State supersedes the internal law of the organization; nor is its non-mandatory law applied to ll lacunae in the law of the organization. This is now customary law. It corresponds to practice with regard to the law applicable to the relationship of employment of ofcials of States serving abroad. States and IGOs differ, in this as in other respects, from international non-governmental organizations (INGOs and other NGOs), whose conditions of employment, and internal affairs as a whole, are subject to the mandatory law of the host State and supplemented by its non-mandatory law (territorial connecting factor). Thus, to the organic jurisdiction in internal IGO law, discussed above in Part Two and in public international law discussed above in Part Three, corresponds

1 2

See also an earlier article; “Jurisdiction over Organs and Ofcials of States, the Holy See and Intergovernmental Organizations”, ICLQ , XIV (1965), pp. 33–82 and. pp. 493–527. A situation which was ended by e.g. United Nations doc. A/CN.4/118/Add. 1, 5 May 1967, I, para 5.

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the organic connecting factor in conict of laws. It has, however, like the organic jurisdiction discussed in Part Two, been largely ignored by legal writers, although they get into the problem in connection with lex fori, which is an organic, not a territorial connecting factor. In particular Werner Goldsmith, in his “Derecho internacional privado”,3 got close to the organic connecting factor when he, in his chapter on personal connecting factors, included a part on the “country that the person serves (lex fori )”. He correctly pointed out, rst, that the term lex fori is too narrow, because the principle applies not only to judicial, but also to administrative functions (“tramitacion administrativa” ), and second, that lex fori in the wide sense does not refer to the law of the country where the organ acts, but to the law of the country which the authority serves ( “la ley del pais al que la autoridad consegra sus servicios” ). This is an adequate description of what is better called the organic connecting factor, as it is neither territorial, nor personal, and as it may be preferable to reserve the term lex fori for the judicial functions. The relationship of employment with IGOs is partly contractual, partly statutory.4 It is a contract of public law, similar to the contracts of ofcials of States, and can be governed, neither by the administrative law of any given State, nor by any law relating to private employment. The law consistently applied to the relationship of employment between an IGO and its ofcials is, in addition to the individual terms of appointment or the contract of employment: (a) The constitution of the organization, as interpreted in the light of general principles of international and national law. (b) The staff regulations, staff rules and other regulations enacted by the organization, with5 or without6 basis in constitutional provisions. (c) Customary law developed on the basis of administrative and judicial precedents within the organization. (d) General principles of law, drawn mostly from the internal law of other IGOs and the public national law of the member States. Many or most writers now admit that this is the only applicable law. But they frequently consider it part of public international law, which it certainly is not, 3 4

5 6

3rd ed., Buenos Aires 1977, p. 171. See the cases and other practice reported above, some of which was wrongly translated and interpreted by Detter: Law Making by International Organizations, Stockholm 1965, pp. 177–179, cf. p. 42. See for example Art. 283 of the Treaty establishing the European Community and Art. 22 ( j) of the Cartagena Agreement of the Andean Community of Nations. For example the League of Nations and UNRRA.

internal relations 443 unless international law is to be dissolved into hundreds of distinct systems of law on the level of national law. This submission of the relationship of employment to the internal law of the organization is only one aspect of the jurisdiction of the organization over its organs as such – what the present writer has referred to as organic jurisdiction. This organic jurisdiction comprises legislative, as well as administrative and judicial powers over all organs and ofcials (as such) of the organization,7 and it covers all their ofcial relations with the organization inter se. Even if the organization should not exercise these powers in all respects, the host State or any other external law or authority cannot ll the gap, unless so authorized by the organization. Thus there does not arise any conict of laws questions in respect of the relationship between the organization and its ofcials as such. This is governed exclusively by the internal law of the organization and falls outside the scope of the following discussion.

11.2

Delimitation of the organic jurisdiction over officials

The delimitation of the organic jurisdiction – and of the eld of exclusive application of the internal law of the organization – has been discussed above in Part Two.8 As was pointed out, the exclusive organic jurisdiction covers all relations with the ofcial as such, including the performance of her ofcial duties, functional protection, liability to the organization9 and the organization’s liability to her, working conditions, salary, allowances, social security and other employment benets, holidays, working hours and other working conditions, etc. On the other hand, the exclusive organic jurisdiction does not cover relations with the ofcials acting in a private capacity, for example if an ofcial lends or leases equipment from the organization for private use. Relations with applicants for positions in the organization are governed exclusively by the law of the organization. Thus a Belgian court, holding itself incompetent in such disputes, has stated that Belgian law is not applicable “aux dispositions qui régissent le recruitement des fonctionnaires” of the former European Coal and Steel Community.10 Conversely, the Court of Justice of the European

7 8 9 10

Goldschmidt’s lex fori should be reserved for judicial procedures. Chapters 5.4 and 5.5. See the discussion below, in connection with Art. 288 of the EC Treaty. Vanhove c. CECA, Tribunal de première instance de Bruxelles (10e ch.), 15 April 1966.

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Communities has held itself competent in such disputes and has from the outset decided them exclusively on the basis of Community law.11 Contractors do not fall under the organic jurisdiction of the organization. Relations with them may, like those with ofcials acting in a private capacity, be governed by national law, general principles of law or by the internal law of the organization, in accordance with the practice and principles discussed below.12 It should be noted, however, that agents other than ofcials13 are frequently submitted to some of the law of the organization, as specied for example in the conditions of employment of other servants of the European Communities.14 On the other hand, the special service agreements of the International Atomic Energy Agency provide only for application of the Agency’s Travel Rules. Otherwise the agent shall have “the legal status of an independent contractor” and “shall not be considered in any respect as being a staff member of the Agency”. Still, he owes loyalty, discretion, international independence and obedience like ofcials. Frequently he works in the Secretariat in the same manner as a regular ofcial. It is obvious that such contract cannot be governed by the law of the host State or of any other State. It must be governed by general principles of law, or, rather, by the internal law of the organization minus those staff regulations which have been rendered inapplicable. The same may even be true of UNRWA’s employment contracts with manual workers.15 These do not refer to national law, but they provide that in the event of injury, illness or death attributable to the performance of their ofcial duties, the employee shall be entitled to receive by way of compensation a lump-sum payment equivalent in amount

11

12

13

14 15

Vandervyvere v. Parlement Européen, 31 March 1965, Recueil de la Jurisprudence de la Cour, XI, pp. 214–217. See also ibid., XII, p. 814, and VI, pp. 937 and 1081. As noted by Craig and De Burca, EU Law, Oxford 2003, p. 90, the judicial branch of the EU has developed rapidly as a consequence of increasing case-loads. In 1998 a Court of First Instance was created to hear, inter alia, staff cases. Thereafter, in 2004, an EU Civil Service Tribunal was established based on the provisions of the Treaty of Nice authorizing judicial panels, cf. Art. 225 (a) of the EC Treaty. According to Annex 1, Article 1 of decision 2004/752/EC, Euratom, the Civil Service Tribunal shall exercise in rst instance jurisdiction in disputes between the Communities and their servants, including disputes between the bodies or agencies in respect of which jurisdiction is conferred on the Court of Justice. See, more specically, Jenks: The Proper Law of International Organisations, London 1962, pp. 161–165. A contractor’s claim that he has acquired formal status as employee of the IGO could be determined by the organization based on its internal law, see e.g. the decision of the German Federal Labour Court (7 AZR 600/92). On local personnel, see Elwan and Ost: “Kollisionsrechtliche Probleme bei Arbeitsstreitigkeiten zwischen einer internationalen Organisation und ihren Ortskräften, dargestellt am Beispiel der Arabischen Liga” in Praxis des Internationalen Privat- und Verfahrensrechts, Vol. 15, Bielefeld 1995, pp. 1–8. Consolidated Staff Regulation of 1 January 2005 based on Council Regulation (EEC, Euratom, ECSC) No. 259/68 with subsequent amendments. Cf. UNRWA’s practice in respect of external torts and contracts.

internal relations 445 to the value of the compensation provided in the circumstances of the case under the local workmen’s compensation or labour law. Non-governmental organizations, which have been granted consultative status with the organization, do not constitute its organs and do not fall under its organic jurisdiction in the strict sense. Yet, as will be explained, the relationship is governed by the internal law of the organization. The precise delimitation of the exclusive organic jurisdiction is important in order to determine the limits of the incompetence of foreign legislative, administrative and judicial authorities and in order to determine the limits which international law imposes upon the conict of laws of each State. However, it is not so important for the concrete determination of applicable law, because courts will, as a matter of their own conict of laws, apply the internal law of the organization also in other relations which have their strongest connecting factors with that law, cf. below, chapters 15 and 16.

11.3

Relations

JURE IMPERII

The above types of legislative and other jurisdiction involve relations between the organization and persons under its jurisdiction. This is a relationship jure imperii, between the governor and those governed.16 It arises out of the special governmental powers which have been conferred upon the organization in its constitution or otherwise (above, chapter 6) and which it exercises in the eld of legislation by enacting regulations. The relevant relations are then governed by these instruments, i.e., by the internal law of the organization, within the limits of international law. And any lacunae must be lled by the customary law developed within the organization and by general principles of national law. The constitution and the legislation of another legal community – State or IGO – cannot be applied here, except to the extent that we move outside the eld of exercise by the organization of its sovereign powers. The same is true of the customary law developed within other governmental systems, except that the customary law of other IGOs, and of States, frequently may be applied by analogy, as general principles of law. In Branno v. Ministry of War the Italian Court of Cassation adequately held that Italian law was applicable and Italian courts competent with regard to a

16

The terms acta jure imperii (actes d’autorité) and acta jure gestionis (actes de gestion) have been developed in court practice primarily for purposes of the immunity of States from the judicial competence of other States, rather than for purposes of exemption from their legislative power, and these do not necessarily coincide. In the present context, acta jure imperii denotes exercise of governmental authority, while acta jure gestionis denotes acting in the same manner as a private party. See also the use of the various relevant terms in Branno v. Ministry of War, International Law Reports, 1955, p. 757.

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commercial contract between NATO Headquarters for Southern Europe and an individual providing canteen facilities for its staff, because the organization “was not performing an act of sovereignty connected with its public law activity”. However, the Court added, obiter dictum but properly: The North Atlantic Treaty Organization is, therefore, a subject of international law, and it is autonomous with respect to each and all of the member countries. Therefore none of the members – one of which is Italy – may interfere with the activities of the North Atlantic Treaty Organization; the member States cannot exercise judicial functions with regard to any public law activity of the North Atlantic Treaty Organization connected with its organization or with regard to acts performed on basis of its sovereignty. The Italian courts will not exercise jurisdiction with respect to cases arising out of public law activities of a subject of international law possessing both jus imperii and a legal system of its own.17

The Court spoke of autonomy, particularly in respect of the judicial power. However, the principle extends no less to the question of applicable law. The exercise of sovereign powers is governed only by the law of the sovereign community concerned and by international law. The editor of the above translation has added the word [sic] after “sovereignty”. However, in the view of the present writer, the crucial criterion of sovereignty (and international personality) is precisely the autonomy described by the Court. The relations discussed in the present chapter, arising out of extended jurisdiction – unlike those arising under inherent jurisdiction – differ from one organization to another. Both types of relations are jure imperii and internal within the organization and fall outside the eld of conict of laws in the narrow sense (private international law).18 Better it may be said that conict of laws in these cases refers to the law of the organization (or State) which exercises the jurisdiction in question, on the basis of organic, territorial, personal or supranational (State) connecting factors. However, here the national rules of conict of laws are bound by public international law to refer to the law of

International Law Reports, 1955, pp. 756–757. The Protocol of 28 August 1952 on the Status of International Military Headquarters Set up Pursuant to the North Atlantic Treaty provided in Art. 11 (1) that a Supreme Headquarters may be sued or that the receiving State may act on its behalf. The Protocol was not ratied by Italy until six months after the judgment, but does not affect the principle of incompetence ratione materiae recognized in the text. 18 In English law, the question of national courts’ jurisdiction to determine the matter is part of conict of laws, whereas in other legal systems, this question belongs to procedural law, cf. Dicey, Morris and Collins, The Conict of Laws, 14th ed., London 2006, Vol. 1, pp. 4 and 92 ff. and Cheshire and North’s Private International Law, 13th ed., London, Edinburgh, Dublin 1999, pp. 35–36 and 179 ff. 17

internal relations 447 the organization (or State) concerned, at least in matters falling under the organic jurisdiction, but probably also in other jure imperii matters. Certain national courts will, as a point of departure, decline jurisdiction in actions to enforce foreign public law. In the case of foreign States, the Institut de droit international has resolved that the exercise of governmental powers should in principle be inadmissible, unless they were justied by reason of the subject matter of the claim, the needs of international co-operation or the interests of the States concerned.19 This view should be adopted also in respect of the internal law of intergovernmental organizations. In the case Guatemala v SINCAFC the French Cour de Cassation adopted the view of the Institut and in a dictum added that the outcome of the proceedings could have been different if there had been a claim to enforce a public law obligation under an international agreement.20

11.4

Other internal relations

There are also relations between an intergovernmental organization and individuals which do not involve the exercise of governmental authority, but which nevertheless may be considered “internal” largo sensu. Acting in the performance of specic functions conferred upon it in its constitution, or assumed by it, the organization may have special relationships with individuals acting either as “nationals” or inhabitants of a territory under its jurisdiction or, more frequently, as nationals or inhabitants of its member States, i.e., pursuant to a special relationship existing between their State and the organization. Organizations whose constitutional tasks include assistance to individuals offer many examples of this. On the other hand, the international registration of trademarks and design with the World Intellectual Property Organization is not really a relevant example. It is true that WIPO only acts in respect of applicants who voluntarily choose to register with the organization, and that these may then be said to have voluntarily accepted the provisions of the organization’s internal law as conditions for beneting from its services. However, by its registration the organization not only creates rights and con-

19 See Ann. 1977, pp. 2–18 and 328–31. Cf. also P.B. Carter, Rejection of Foreign Law: Some Private International Law Inhibitions, BYIL, LV 1984, pp. 111–31, and the 63rd report of the International Law Association Conference (1988), pp. 719–757. 20 Guatemala v SINCAFC, Civ. 1ère, 2 May 1990, in 1991 Clunet 137; “l’illicéité de l’exportation était fondée seulement au regard de la réglementation guatémaltèque du commerce extérieur et non sur la violation d’accords internationaux exprimant une exigence de solidarité entre la France et le Guatemala . . .”.

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comitant duties for the applicant. It also creates duties for the other inhabitants of the member States. And these have neither applied, nor consented. So this is genuine exercise of sovereign powers (delegated to the organization by the member States) – only, they relate to relations between individuals, rather than to relations between the organization and individuals. On the other hand, the copyright of WIPO in respect of its own publications is governed by national law, because here the organization acts in the same manner as a private party. Another example of relations which are neither governmental, nor of a private law nature, is the special relationship between IGOs and non-governmental organizations, discussed below.21 In many of these cases, too, the relationship may be governed by the internal law of the organization. However, this is not a rule of public international law. It depends, in principle, upon the conict of laws of the lex fori. This is true even if the organization happens to have legislative and other jurisdiction over the individual concerned in other respects – or even in the same eld – if the particular relationship concerned does not involve the exercise of that authority. The crucial criterion is not who the other party is, but whether or not the organization in this particular context is acting in a governmental capacity. If it does not, then we are within the eld of conict of laws in the strict, traditional sense (private international law), and the relationship may be governed by national law. A different matter is that the regular rules of conict of laws, as applicable to relations between private individuals, may need some readjustments for such cases. In this respect, each case must be considered on its merits, including the relevant texts of the organization and the practice of the organization and its member States. And the outcome may vary considerably from one organization to another, depending, not only upon the nature of the relationship concerned, but also upon the nature and set-up of the organization involved. It is not possible, within the scope of the present book on the “common law of intergovernmental organizations”, to examine these special and diversied cases, except in so far as they may exemplify common problems. Otherwise, reference must be made to the rich literature on particular organizations, such as the United Nations and the European Community, even if this has not in the past gone much into these conicts problems.

21 Cf. also contracts between States and private parties which may not relate to the exercise

of governmental authority, but which, on the other hand, are not of a purely private law nature. The French contrat administratif appears to be a wider concept. The obvious analogy for similar relations of IGOs would be the internal law of the organization, including its unilateral legislative power. However, such relations of IGOs are more of an international character, and we must therefore consider also other alternatives: General principles of law (or international law) or even national law.

CHAPTER TWELVE

EXTERNAL RELATIONS WITH PRIVATE PARTIES, INTRODUCTION1

12.1

Types of relations

IGOs, like States, have commercial and other relations with private parties, where the organization acts in the same manner as a private party ( jure gestionis). Thus IGOs buy, sell and lease movable and immovable property, acquire copyright and patents, obtain and grant loans, engage rms and individual contractors to perform works and services, conclude contracts for insurance and public utility services, receive donations and inheritance, claim or pay reparation for injury and damage, litigate in national courts and courts of arbitration, etc. Some organizations conclude certain types of contracts in great numbers. Thus EURATOM research has a great number of purchase and construction contracts in the course of its performance. However, the greatest number of contracts (also of standard type) may have been concluded by relief organizations like UNRWA and UNICEF (autonomous organs of the UN, acting in their own names). It makes in principle no legal difference whether such relations are with natural or juridical persons, with nationals of member or non-member States, or with persons who are or are not under the organization’s jurisdiction in other respects.

12.2

Application of national law

While internal relations, including relations with ofcials, are governed by the internal law of the organization, as discussed in Part Two above, external

1

Cf. the legal opinion prepared for the Institut de droit international by the Ofce of Legal Affairs of the UN Secretariat also published in United Nations Juridical Yearbook, 1976, pp. 159–176.

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relations jure gestionis are governed by national law, unless circumstances point towards the application of the internal law of the organization or international law or general principles of law (as in the cases of relations with NGOs and the Loan Agreements of the International Bank).2 The presumption has traditionally been in favour of a particular national law – which national law depending upon the conict of laws of the lex fori, with appropriate adjustments in view of the special nature of IGOs.

12.3

Theory on national versus international law3

Mann F. A. Mann, in an article on “The Proper Law of Contracts Concluded by International Persons”4 (including States and IGOs), started out from the traditional view that contracts between an international person and a private party “are, as a rule, governed by the system of municipal law chosen by the parties”. However, he pointed out that in many cases it would be advantageous to submit the contract instead to international law, and he cites several cases where this has been done by implication. He rejected the alternative methods of applying gen-

2

3

4

See however G. van Hecke, “Contracts Between International Organizations and Private Law Persons” in Bernhardt and Bindschedler (eds.) Encyclopedia of Public International Law (2nd ed. 1992) Vol. 1, 812–14; “It has sometimes been suggested by authors that a distinction should be made between ordinary contracts, to be subjected to a domestic system of law, and contracts closely connected with the performance of the organization’s specic tasks, to be subjected to international law or the general principles of law. The practice of organizations possessing a nancial task does not correspond to this theoretical view” (p. 813). Besides the writers reported in the text, reference may be made, as for contracts, to G. van Hecke: “Contracts between International Organizations and Private Law Persons” in Encyclopedia of Public and International Law, Vol. 7, Amsterdam 1984, pp. 52–54, (with reference to R. Monaco; “Osservazioni sui contratti conclusi da enti enternazionali” in Studi in onore di Francesco Santoro Passarelli, Napoli 1972) and to the reports by N. Valticos in Annuaire de l’Institut de droit international, Vol. 57, I, (1977); and, as for loans; J. Salmon: Le rôle des organisations internationales en matière de prêts et d’emprunts, Paris 1958, and G. Delaume: “The Proper Law of Loans Concluded by International Persons”, AJIL, Vol. 56 (1962), pp. 63–87. Cf. also infra, note 20 and 21. In addition to the writers on IGOs, reference may be made to the writers on the similar problems of States and private parties, including Mann: “The Law Governing State Contracts”, BYIL, XXI (1944), pp. 11 ff.; Jessup: Transnational Law, New Haven 1956; McNair: “The General Principles of Law Recognized by Civilized Nations”, BYIL, XXXIII (1957), pp. 1–19; Verdross, loc. cit., note 4 below; and Wolfgang Friedmann: The Changing Structure of International Law (1964), pp. 173 et seq. BYIL, XXXV (1959), pp. 34–57.

external relations with private parties, introduction 451 eral principles of law or Verdross’ lex contractus doctrine (which in fact also relies upon general principles of law, even if Verdross calls the contracts quasi-völkerrechtlich)5 on the grounds that each contract must be governed by an established system of law with its own jus cogens. All his examples relate to States, but his terminology as well as a specic statement makes it clear that the principles he propounded were intended to be equally valid for IGOs.

Jenks Jenks’ book on “The Proper Law of International Organisations”6 is a thorough and concrete (i.e. eld by eld) study of the law applicable to relations of IGOs with private parties. He deals primarily with IGOs, but envisages partly also other types of present or future “bodies corporate”. He – neither concedes nor wholly rejects the assumption that if the legal transactions of sovereign States are subject to the ordinary rules of private international law applied by the courts of any State in which action is brought the legal transactions of international organizations must, as matters now stand, be in the same position.

Still, Jenks appears to start out from “municipal” law (which the present writer prefers to term “national” in order to avoid confusion with municipalities). In most cases he suggests application of a system of “municipal” law, basing his choice on general principles of conict of laws, with due allowance for the special situation of IGOs. But he emphasizes the dynamic approach away from “municipal” law. He apparently assumes that even the relationship between IGOs and their ofcials one generation earlier were governed by municipal law,7 but points out that now it is subject to “international administrative law” and that even relations with other agents are moving away from municipal law. The law applicable to relations with third parties continues for the most part to be governed by the conict of laws, but far-reaching developments are conceivable and may in certain

5

6 7

“Die Sicherung von ausländischen Privatrechten aus Abkommen zur wirtschaftlicher Entwicklung mit Schiedsklauseln”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, XVIII (1958), pp. 635 ff. Jenks, The Proper Law of International Organisations, London 1962. The present writer is not aware of any pre-war cases to support this. Thus, already the rst judgment of the League of Nations Administrative Tribunal in 1929 expressly applied “the internal law” of the organization. And the Italian judgment of 1931 in Proli v. International Institute of Agriculture (reported above) clearly rejected national law in favour of the internal law of the organization.

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chapter twelve cases be desirable. The rst step may be a wider recognition that the normal rules of the conict of laws call for some modication in the light of the special needs and problems of international organizations. At a later stage some of the legal relations and transactions of international organisations with third parties may become subject to international administrative law.8

When the problems fall without the rationale of the established rules of private international law, we must be careful not to give those rules an unwarranted scope and signicance by applying them to situations which could not have been conceived of when the existing rules were evolved.9

In course of time the international elements may become “comparable in importance to the national elements”. But there “can be no simple or dogmatic answer [. . .] the problem will often be one of determining where the balance of convenience lies”. (It is recalled in this connection that Jenks’ study, unlike that of Mann, is comprehensive and not conned to contracts, where the intention of the parties reigns.) Jenks then goes on to say; International organisations can neither be governed in respect of all their transactions by, nor can they remain entirely remote from, local law, custom and tradition and the practice of the market place. Ultimately the answer must be found in the development of a recognised body of internationally accepted rules determining the content of the law applicable to certain of their transactions and the principles for the choice of law which determine the law applicable to transactions not governed by an international rule or practice. We are not dealing with the clearly settled principles of an established legal system but with experimental developments which have not yet passed beyond their infancy.10

Jenks refers both to international law and to general principles of law, as well as to “international administrative law”, “domestic law” of IGOs (which he considers to be part of international administrative law) and the “personal law” of an organization (also consisting of international rules, but different from international administrative law) – unfortunately without dening the relationship between these many concepts.11 He also refers to transnational law, unication of law and the common law of mankind.12

Jenks, loc. cit., pp. xxxvii–xxxviii. Ibid., p xli. Ibid., pp. 250–255. According to their functions, the three latter concepts all appear to fall under what the present writer refers to as the internal law of the organization. See, however, Jenks, loc. cit., pp. xxi, xxxviii–xxxix and 9–10. 12 Ibid., pp. 258–263, cf. pp. xxxviii, 10, 43 and 192. 8 9 10 11

external relations with private parties, introduction 453 Batiffol A different approach was taken by Batiffol in his Paris lectures 1961–62 on “Problèmes des contrats privés internationaux”.13 Unlike Mann, he distinguished between States and IGOs. As for States, Batiffol appears to share the common (or at least the traditional) view, that their contracts with private parties are presumed to be governed by national law.14 He even appears basically to retain this presumption in respect of contracts between two States acting jure gestionis.15 As for IGOs, on the other hand, he considers that they can agree to submit their contracts to a given national law. He distinguishes between three categories: (1) Ordinary or auxiliary contracts, for example contracts for delivery of ofce equipment or for work. For these the organization can agree to submit to a national law.16 (2) Contracts of employment with ofcials “non plus subalterne”. These are governed by public international law, also referred to as international administrative law or internal law. (3) Contracts relating to the exercise of the functions of the organization, including contracts which are of great economic importance, for example “fournisseurs qui vont livrer des marchandises d’une importance considérable, des architectes, des entrepreneurs qui vont édier de bâtiments, et ceci en vue de l’activité propre de l’organisme”. These are, in principle, governed by “public international law” (although the organization may submit to national law, like in category (1)). He draws an analogy both to the contracts of employment between the organization and its higher ofcials and to domestic administrative contracts (in French law) between a State and, e.g., private suppliers. Batiffol may thus be applying by analogy to IGOs the presumption that a State submits only to its own law,17 apparently giving that principle a broader application to IGOs. These analogies and some of the terms he employs raise the question as to whether Batiffol really has in mind the internal law of the organization, or whether his analogy is merely based upon the fact that he, like many others writers, does not distinguish between that

13 Université de Paris, Institut des hautes études internationales, 2 fascicules publiés par 14 15 16 17

l’Association des études internationales, pp. 91–95, cf. pp. 96–106. Ibid., pp. 80–85. Id., pp. 85–99. Id., pp. 91–92, but see pp. 104–105. Id., pp. 82–84.

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chapter twelve law and international law. On the other hand, Batiffol assumes that the law resulting from his proposal is the same as that which Mann arrives at (on a different basis, with which Batiffol disagrees), and Mann is clearly talking of a public international law, citing only examples relating to States.

Batiffol disagrees with Mann’s method of arriving at public international law by the parties having voluntarily submitted to it in accordance with private international law. Batiffol maintains that the application of public international law cannot be deduced from a rule of private international law, the latter being concerned with the choice of the law of one of the States with which the legal relationship concerned has a genuine link. If the traditional concept of private international law is still that narrow, it is respectfully submitted that it is time that it be broadened (and if necessary renamed “conict of laws” or given some other broader name – Scandinavians use “interlegal law”) to include reference to any legal system to which the parties may refer or which may be applicable on the basis of objective connecting factors to a relationship involving one or more private parties – including, not only internal law of IGOs and general principles of law, but also public international law. This is so provided that national courts will act within the framework of their own conict of laws (in the broad sense) even when they decide for or against the application of such law. If so, the only elds that in the view of the present writer may be kept out of the concepts of private international law and conict of laws are those where there is no choice of law because a subject of international law is acting jure imperii. However, even these relations play their part in conict of laws, although at least the organic law is applied by foreign courts only on questions préjudicielles, because foreign courts are incompetent ratione materiae in organic disputes of other sovereign communities. However, Batiffol’s restrictive terminology may reect a substantive view, viz. that it cannot be evaluated on the basis of the conict of laws of the lex fori whether a relationship is governed by national or some other law. This because Batiffol, unlike some other writers, does not recognize any presumption for national law in respect of relations involving IGOs – he admits national law only when the organization has referred or submitted to it – and otherwise presumes public international law (possibly meaning the internal law of the organization as applied in the present book). In this sense he is the writer that has moved furthest away from the traditional view. However, Batiffol readily admits submission to national law in cases where this appears natural, for the whole contract or on specic points where a precise (arbitrary) rule is needed. Accordingly, there may be little

external relations with private parties, introduction 455 difference in practical results between Batiffol and some of the writers who maintain the traditional presumption in favour of national law.

Terminological and substantive divergences: private and public international law Bowett, in his textbook for students, lists the great variety of relations in which the question arises and some solutions applied in practice to each type or situation.18 Schermers and Blokker, in their large modern study of “International Institutional Law”,19 properly indicate the various alternatives (national law, internal law of the organization, general principles of law, the law of the host State), also without suggesting any general rule or presumption. A number of authors compare contractual relationships of intergovernmental organizations with that of public contracts in French law (contrats administratifs).20 It has been pointed out that the internal law of the organization applicable to contracts includes general principles of international law, and, consequently, that the organization may unilaterally modify the terms of the contract governed by its internal law, while at the same time being bound by virtue of those general principles, such as the equality of bidders. It has further been pointed out that references to national law in the internal law of the organization or in contracts concluded by it do not have the effect of submitting the contractual relationship to that particular national law, but to provide rules of interpretation, which, as a consequence of their incorporation in the contract, become part of the organization’s internal law.21 It may well be that there is no longer a general presumption in favour of national law. However this may be, it is clear that the emphasis has shifted from the question of “what national law” to “whether national law” and “if not, what law?” On the two latter questions there is today confusion, because of divergences both in the doctrine (between writers) and in practice (between the various organizations). This is no doubt an aspect, not only of the general

18 The Law of International Institutions, 4th ed., London 1982, pp. 366–71. 19 International Institutional Law, 4th ed., Leiden 2003, §§ 1601–16. 20 Cf. P. Glavinis, Les litiges relatifs aux contrats passés entre Organisations Internationales et

personnes privées, Travaux et recherches Pantheon-Assas, Paris II, Paris 1990, with further references, pp. 216–7: “En présence d’une jurisprudence importante des tribunaux français considérant que les travaux exécutés pour le compte d’une Organisation Internationale ont le caractère de travaux publics au sens du droit français”. 21 Cf. Colin and Sinkondo, Les relations contractuelles des Organisations Internationales avec les personnes privées, Revue de Droit International et de Droit Compare, Vol. 69 1992, pp. 18 and 24–8.

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uncertainty in conict of laws, but also of the rapid development to which Jenks has referred. Rather than attempt to arrive at a conclusion in principle on this uid question, we shall now clarify a few preliminary issues and investigate practice, and then test how far it is possible to get without a general presumption.

12.4

The autonomy of the parties

Before examining, in the next chapter, contractual clauses on applicable law, it is necessary to have a look at their legal basis, the principle of the autonomy of the parties, which is of great importance in respect of IGOs.

Binding international law? The right of the parties to choose the law applicable to their contract (the so-called “autonomy of the parties”) is a general principle of conict of laws. It has even been referred to as “international customary law”.22 However, not all States – and in particular not Argentina, Uruguay and other parties to the Montevideo treaties on private international law23 – admit the autonomy of the parties.24 And their statutes on the subject have been in force for more than 100 years.

Application to IGOs Even if States are not bound by international law to admit the autonomy of two private parties, it does not necessarily follow that their courts would, or

See the writers cited by von Welck: Die privatrechtlichen Verträge der Europäischen Gemeinschaften mit Angehörigen dritter Staaten, Göttingen 1967, p. 31, speaking apparently of choice between different systems of national law. Scandinavian and European law on the subject has been reviewed by Hambro: Jurisdiksjonsvalg og lovvalg, Oslo 1957. 23 Texts in Derecho internacional privado, Tratados de Montevideo 1889–1939–1940, published by Professor Vieira, 2nd ed., Montevideo 1966. The Treaty on Private International Law of 1940 was ratied by Argentina, Paraguay and Uruguay. The corresponding treaty of 1889 still remains in force in relations to Bolivia, Colombia and Peru. 24 The Uruguayan Codigo civil, Art. 2403, provides this expressly: “Las reglas de competencia legislativa y judicial determinadas en este Título, no pueden ser modicadas por la voluntad de las partes. Ésta sólo podrá actuar dentro del margen que le conera la ley competente.” The Argentine Codigo civil, par. 1205, prescribes the lex loci contractus, while paras. 1209–1210 prescribe the lex loci solutionis and take precedence whenever the contract denes the place of its fullment. These mandatory provisions are considered to preclude the autonomy of the parties. See also Arts. 13, 16 and 1197. 22

external relations with private parties, introduction 457 could, refuse to do so in respect of contracts, one of the parties to which is an IGO or a foreign State. The limitations established for private parties may not apply to sovereign communities.25 At any rate, the organization can avoid the imposition of a rigid national conicts law by refusing to waive its immunity from suit in the national courts of the countries concerned, although foreign States normally cannot do so with regard to acta jure gestionis. However, it is not universally accepted that the autonomy of the parties depends upon the lex fori,26 or that conicts law may refer to some other law,27 and the organization might therefore have to insist upon its immunity from suit even in the courts of other countries in order to protect its choice of law.

Extension to legal systems other than national law The autonomy of the parties is a rule of traditional conict of laws, i.e., it relates to choice between different national laws. However, at least in the case of IGOs (and foreign States) it must imply also the right to choose a law other that national law, including not only the internal law of the organization, but also general principles of law or international law.28 Despite Batiffol’s narrow denition of droit international privé, the conict of laws of the lex fori must in principle be applicable to such a choice too.29 However, a national court may consider that a dispute of that type falls outside its jurisdiction.30 At any rate, when we are concerned with IGOs and with the question of applying to these a law other than national law, it is obvious that any restriction established in the applicable conict of laws with regard to private parties cannot apply in the same manner. As far as IGOs are concerned, the practical result may therefore be the same as Batiffol’s.

25 26

27

28

29

30

See Jenks, op. cit., p. 148, and Mann, op. cit., p. 46. Thus von Welck, op. cit., pp. 33–42, submits that it must be evaluated under the law of each party, with the effect that the intentions of the parties is not decisive if one of these laws does not admit this. Gaarder: Internasjonal privatrett, Oslo 1990, p. 112 supports the lex fori. Both writers are concerned with choice between different systems of national law. Argentine courts would permit the autonomy of the parties if this is permitted by the lex causæ, i.e., in most cases where the contract designates its locus solutionis (or was signed) abroad. Mann, p. 46. Batiffol, as reported above, refuses to apply international law by virtue of private international law. von Welck, op. cit., p. 32, doubts altogether the right to refer to general principles of law. Hambro, op. cit., pp. 245–247, speaking of two private parties in national courts, does not admit this right , citing, inter alia, the Serbian Loans case. Mann, loc. cit., pp. 45–46 and Jenks, pp. 18, 148–149 and 151, seem to assume this, although Jenks feels de lege ferenda that the law followed by the organization ought to be applied instead. The position is different if international personality exceptionally has been conferred upon the private party (Schwarzenberger). Cf. Jenks, op. cit., p. 229.

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12.5 General principles of conflict of laws as a subsidiary or binding source of each system of conflict of laws In the following we shall discuss the question of which law governs the external relations of IGOs jure gestionis in a general manner only. This is true in a double sense. In the rst place we shall not attempt to discuss each or any particular system of conict of laws. Conict of laws is not international law. Each State develops its own conict of laws – by legislation, practice, etc. And it is this national conict of laws that must be applied by its courts. Conict of laws is a lex fori. However, the amount of legislation and practice on conict of laws in each State is limited. In the absence of a clear solution on their own positive law, courts will naturally, in this as in other matters of international concern, look to the practice of foreign and international courts and authorities for guidance and attempt to apply any general principles which may be induced from such practice. Like national courts, internal courts of IGOs too must, in principle, apply their own conict of laws, i.e., the conict of laws of their organization. However, with a few exceptions in the case of the European Community and UNIDROIT, IGOs are not known to have developed any precise conict rules by legislation or custom. They therefore must be expected to apply largely general principles of law or general principles of conict of laws as their lex fori. The same is often true of arbitral tribunals, to the extent that their terms of reference do not provide for applicable law. It is only these general principles of conict of laws which will be dealt with below. We shall not examine the law of particular States or make a comparative study of such laws. We will only try to evolve certain general principles for the solution of the special conict problems of IGOs – which may be applied to ll the lacunae in the conicts law of particular States or to make up the conicts law to be applied by other fora than national courts. In some cases the general principles may even be mandatory – notably if they have been laid down in treaty or if disregard for them would constitute a denial of justice or of the sovereign rights of another sovereign community. Such principles will then concurrently be part of public international law. An example is the exclusive legislative power of (States and) IGOs over their own organs, which is submitted to be a principle of customary international law and binding upon States when drawing up their own rules on conict of laws. The same may be true of the exercise of other sovereign powers; however, such questions have not so far arisen frequently in other jurisdictions, and it may therefore not be possible to point to any customary international law in

external relations with private parties, introduction 459 this respect.31 Most general principles of conict of laws, however, are merely subsidiary sources of each system of conict of laws, i.e., they are drawn upon when the positive law of the sovereign community concerned is silent, but do not bind legislators.

12.6

Plan of discussion

The following discussion will be general also in the sense that we shall not attempt to lay down the detailed rules even of these general principles of conict of laws. Quite apart from the fact that the most important parts of conict of laws do not lend themselves to the establishment of precise rules by which individual cases can be decided, it would then be necessary to analyze successively each eld of law. And this has been done by Jenks, so we can refer to him. We shall in the following concentrate upon certain general problems – which arise in many or all legal elds – and upon a few important special cases which illustrate such general problems. Before that we shall, in chapter 13, examine the positive provisions (in treaties, regulations and agreements) governing the external relations jure gestionis of IGOs and see if any general conclusion can be drawn from them. Then we shall, in chapter 14, look at practice in cases where there is no such provision and discuss important examples of relationship where the circumstances point towards the internal law of IGOs, international law or general principles of law, rather than towards national law. In chapter 15 we shall attempt to clarify the confused and controversial relationship between these three alternatives to national law. In chapter 16 we shall then turn to the conict of laws in the traditional, narrow, sense, and examine in a general way the main general question which is special to IGOs, viz. what to do if the applicable rules of conict of laws refer to the law of the organization. In chapter 17 we shall take up the question of what law each type of court applies and whether any conclusions as to choice of law can be drawn from a reference to a particular type of court. Finally, we shall, in chapter 18, attempt to summarize and draw up certain tentative presumptions in respect of the basic and controversial choice between national law and general principles of law (or international law).

31 It is not decisive in this respect that the Act of State doctrine is not recognized as a rule

of public international law outside the eld of organic jurisdiction, cf. chapter 7.4.5 above, because that doctrine is concerned with the problem of ( judicial) jurisdiction, not with that of applicable law.

CHAPTER THIRTEEN

PROVISIONS ON APPLICABLE LAW

13.1

National legislation

States usually have no special legislation on conict of laws with regard to IGOs. This appears to be so even in the typical host countries, such as Switzerland, Belgium, the Netherlands, France and the United States. Those statutes on IGOs which do exist, are mostly concerned with privileges and immunities (or with organizations of the type dépendant)1 and the juridical personality in municipal law of IGOs, but do not lay down any substantive law or rules of conict of laws governing their external relations with private parties and of course not governing their internal relations. This leaves the way open for the application of the regular conict of laws rules of the State concerned. The headquarters agreement between the United Nations and the United States, which has become a model headquarters agreement, States, in general terms, that “except as otherwise provided in this agreement or in the General Convention, the federal, State and local law of the United States shall apply within the headquarters district”.2 This does not mean that local law is imposed on the organization contrary to its full an independent exercise of is operations, including its recognized competence to apply its internal law and to contract within the headquarters district. In fact, the United Nations has never recognized the headquarters agreement as having the effect of generally

1

2

See notably the Swiss Statut des Bureaux internationaux placé sous la surveillance des autorités de la Confédération Suisse of 31 January 1947 and Statut des Bureaux internationaux réunis pour la protection de la propriété industrielle, littéraire et artistique (BIRPI) of 16 August 1960. However, this Statute has lapsed, after the organizations of the type dépendant in Switzerland have themselves taken over handling their organization and secretariat without any personnel provided by or nancial supervision from the Swiss authorities. Cf. Agreement Regarding the Headquarters of the United Nations, 26 June 1947, 11 UNTS 11, Article III, section 7 (b).

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determining the choice of law applicable to the organization’s internal or external relations.3 Similarly, the United States Bretton Woods Agreements Act of 31 July 1945 provides in section 10 that any action brought within the United States by or against the International Monetary Fund or the International Bank “shall be deemed to arise under the laws of the United States”.4 However, this is apparently merely a form of words which under American legal terminology confers jurisdiction upon United States federal courts, and no more. The question of applicable law is therefore left to be decided in accordance with the regular conict of laws rules of these courts. The corresponding Act of Philippines of 20 November 19455 – which follows very closely the terms of the United States Act and obviously was modeled upon it – must probably be interpreted in the same sense, despite the fact that the Philippines is not a federal State. Indeed, the loan agreements of the International Bank are in most respects not governed by national law at all.

13.2

General international conventions

International conventions relating to conict of laws – like national statutes – rarely contain special provisions for IGOs.

3

4

5

Cf. UN Legal Opinion set out in UN Secretariat’s ofce of legal affairs: Law Applicable to Contracts Concluded by the United Nations with Private Parties – Procedures for Settling Disputes Arising out of such Contracts – Relevant Rules and Practices; United Nations Juridical Yearbook, 1976, p. 159. Cf. also “The Practice of the United Nations, the Specialized Agencies and the International Atomic Energy Agency Concerning Their Status, Privileges and Immunities – Supplementary Study Prepared by the Secretariat”, Doc. A/CN.4/L.383 and Add. 1–3 (1985), p. 153. Public Law 171–79th Congress; 59 Stat. 512, reproduced in Zeydel and Chamberlain, Enabling Instruments of Members of the UN, p. 40. However, all Multilateral Development Banks follow the same practice referred above as the UN and the specialized agencies; cf. Suzuki and Nanwani, Responsibility of International Organizations: The Accountability Mechanisms of Multilateral Development Banks, Michigan Journal of International Law, 2005, pp. 177–225 at p. 192. Commonwealth Act No. 699 § 10 still in force as of 1997, reading: For the purpose of any action which may be brought within the Philippines by or against the Fund or the Bank in accordance with the Articles of Agreement of the Fund or the Articles of Agreement of the Bank, the Fund or Bank, as the case may be, shall be deemed to be a resident of the province or city which its branch ofce in the Philippines is located, and any such action to which either the Fund or the Bank shall be a party shall be deemed to arise under the laws of the Philippines, and the Court of First Instance shall have original jurisdiction of any such action. See also section 15 of the agreement between the Asian Development Bank and the Philippines regarding the headquarters of the ADB of 22 December 1966.

provisions on applicable law 463 Copyright An exception is the Universal Copyright Convention of 6 September 1952 with Protocol no. 2 concerning the application of that convention to the works of certain organizations.6 The protocol merely provides that the protection provided for in Article II of the Convention “shall apply to works published for the rst time by the United Nations, by the Specialized Agencies in relationship therewith, or by the Organization of American States”. Article II of the Convention provides: 1. Published works of nationals of any Contracting State and works rst published in that State shall enjoy in each other Contracting State the same protection as that other State accords to works of its nationals rst published in its own territory. 2. Unpublished works of nationals of each Contracting State shall enjoy in each other Contracting State the same protection as that other State accords to unpublished works of its own nationals.7

The conicts provision thus is that the copyright of IGOs, like that of private parties and States, is governed by the law of the State where protection is claimed,8 which, of course, incorporates the provisions of the Universal Copyright Convention, the Bern Convention and any other relevant treaty to which that State is a party. The Protocol thus establishes the same conicts rule for IGOs as for other private and public parties. This would seem to go without saying, and must, indeed, apply also to IGOs other that those specied and in States which are not parties to the Universal Copyright Convention. Indeed, when the Intellectual Property Conference of Stockholm in 1967 rejected a proposal to add a similar protocol to the Bern Convention, it was stated precisely that this would be unnecessary.9

6 7 8

9

Cf. also Art. 6 ter (1) (b) of the Paris Convention for the Protection of Industrial Property. UNTS, Vol. 216, pp. 190 and 136. Jenks, The Proper Law of International Organizations, London 1962, p. 191 appears to attach importance to this only in respect of duration and of “remedy and measure of damages for infringements of a copyright”, see p. 193 (but see p. 198). On the other hand, Jenks points out that the personal law of the organization applies to questions of assignment of copyright (pp. 192–193). This personal law, it is submitted, is the internal law of the organization. “Les œuvres des organisations en question étaient de toute façon protégées si elles ont été publiées pour la première fois dans un pays de l’Union ou bien si leurs auteurs sont ressortissants d’un pays de l’Union”, Rapport sur les travaux de la Commission principale No. 1 [ by M. Bergström], Le Droit d’Auteur, LXXX (1967) No. 9, p. 215. In this sense also the German comments on the draft protocol, Intellectual Property Conference of Stockholm, 1967, doc. S/13, p. 46, see also the Portuguese comment, ibid., p. 91. The

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This is correct, although Jenks earlier expressed doubts.10 However, it would appear to submit the copyright of IGOs to the national law of the country where the work was rst published, in those respects where the law of origin is relevant.11 Whether or not this aspect was considered, it may be suspected that the real reason for the rejection was the usual controversy over the question of what organizations should be included. The Secretariat and the host country had proposed the United Nations and its specialized agencies.12 Italy and Luxembourg very properly proposed all IGOs.13 The Benelux countries nally proposed to include IGOs “don’t le siège se trouve dans un pays de l’Union ou bien dont les membres sont en majorité pays de l’Union”. But, of course, any enumeration creates problems, because it might invite a contrario conclusions in respect of the IGOs not enumerated. And this would not be justied, because they all have general international and juridical personality, and hence copyright, irrespective of whether their constitutions or conventions on privileges and immunities say so.14 However, many writers assume that only certain IGOs have international and juridical personality, depending upon the provisions of the constitution and the convention on privileges and immunities of each one, although they are unable to dene which organizations have such personality and which have not. On the other hand, States have refused to recognize regional organizations of other regions to which they object politically, despite the fact that recognition of international and juridical personality does not entail any duty to enter into or maintain relations.15 In these circumstances it has so far been hard to get an international conference to adopt the only logical solution: A provision which embraces all IGOs.16 And then it is better

10

11 12 13 14 15

16

Paris Convention, Art. 6 ter (1) (b), covers IGOs “dont un ou plusiers pays de l’Union sont membres”. Op. cit., pp. 190–191. He stated that prior to the Universal Copyright Convention it was uncertain how far IGOs “could be regarded as fullling various nationality and place of publication requirements or could in practice appropriately fulll certain deposit, registration and manufacture requirements” and that this continues to be true in respect of the organizations not enumerated in the Convention. This may be more appropriate in respect of the U.S. Copyright Act and the successive Inter-American Copyright Conventions than in respect of the Bern Convention, which provides for protection without formalities. Cf. Jenks, op. cit. pp. 192–193. Intellectual Property Conference of Stockholm, 1967, doc. S/1, p. 99. Ibid., doc. S/13, p. 66 (see also pp. 12, 29, 46 and 91) and S/17, p. 13. Above, chapter 2. Cf. El-Erian’s summary of the conicting views and his proposed alternative formulae in his second report to the International Law Commission on Relations between States and Intergovernmental Organizations, Yearbook of the International Law Commission, 1967, II, pp. 136–7 and 152–3. The rst United Nations Conference on the Law of the Sea did this when it on the proposal of the present writer adopted Art. 7 of the Convention on the High Seas of 29 April

provisions on applicable law 465 to do as did the Stockholm Conference: Not include any special provision on IGOs. For the same reason it may be difcult for future conventions on conict of laws to solve any special problems of IGOs. Indeed, this is one of the reasons why the common law of IGOs may continue to be developed by practice rather than by treaty, until the well-established general practice and the end of the cold war has been generally recognized in the International Law Commission and other competent fora. However, the example given above demonstrates not only this negative fact, but also the positive fact that it is not always necessary to provide specially for IGOs, because they frequently can be governed by the same conict rules as apply to States and private parties.17

Liability for nuclear damage This is also true of the conventions on liability for nuclear damage which, inter alia, provide which national law shall be applicable to the liability of the operator of a nuclear installation or a nuclear ship.18 Reference may be made to a memorandum by the Secretariat of the International Atomic Energy Agency of 8 April 1964 entitled “Nuclear Installations Operated by International Organizations”, written with particular reference to the Vienna Convention on Civil Liability for Nuclear Damage of May 1963. The memorandum States, inter alia:

1958, reading: “The provisions of the preceding articles do not prejudice the question of ships employed on the ofcial service of an intergovernmental organization ying the ag of the organization”. However, this was made possible by the fact that the provision merely reserved the substantive question. (This it had to do because the International Law Commission had been unable to solve the question of applicable law). See also the Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as modied by supplementary convention of 31 January 1963 and amended by Additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982. International Convention on the liability of operators of nuclear ships of 25 May 1962 is not yet (as of August 2007) in force. The 1962 Brussels Diplomatic Conference on Maritime Law tried to solve a substantive problem for IGOs generally, but failed (Meyers, The Nationality of Ships, the Hague 1967, pp. 338–341). The subsequent Standing Committee of the Conference, however, succeeded in 1964 in nding a formula (International Atomic Energy Agency doc. CN6/SC 13 (1965), p. 70). 17 Cf. below, chapter 16. 18 See the four conventions reproduced in Civil Liability for Nuclear Damage, International Atomic Energy Agency Legal Series No. 4, Vienna 1965.

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chapter thirteen 3. It is quite clear that intergovernmental organizations, like any other public or private body, can act under the Convention as operators of nuclear installations, if they have been designated or recognized as such by an Installation State. This is conrmed by an express mention of international organizations in the denition of “person” in Article I (1) (a) of the Convention . . . 4. The relationship between the Organization and its ofcials as such is governed by the internal law of the Organization and not by the law of the Host State. Thus, unless otherwise agreed between the Organization and the Host State, the extent of the compensation due to the ofcials is determined by the relevant provisions of the Staff Regulations of the Organization. . . . 5. Liability in respect of third parties, on the other hand, with which the Convention is concerned, is under the Convention governed partly by the law of the competent court and partly by the law of the Installation State.19

The memorandum also discusses whether there is a need to amend the nal clauses of the Convention to permit accession by IGOs.

The organization as a party to the conventions With regard to the question of accession by IGOs, Jenks points out that under current practice conventions on unication of laws or on conict of laws will normally contain a provision permitting an international body corporate to become formally a party to it, but here would seem to be an advantage in including such a provision in appropriate conventions in future, particularly in any cases in which it may be desirable that international bodies corporate should be both entitled to claim rights under and bound by obligations under the convention.20

The question of the capacity of IGOs to accede to multilateral conventions between States and their eligibility to do so in the absence of an express mention of IGOs in the accession clause have been discussed by the present writer in another context.21

13.3

IGO constitutions

The difculty referred to above does not arise in the internal law of IGOs, since this is distinct for each organization. Still, even here we do not nd many provisions on conict of laws. This is particularly true of the constitutions,

19 20 21

Full text in United Nations Juridical Yearbook, 1964, p. 190. Jenks, op. cit., p. 16. Seyersted, United Nations Forces, Leyden 1966, pp. 333–361.

provisions on applicable law 467 except that there are some relevant provisions in the constitution of the European Community, and there was a provision in Article 7 bis in the constitution (statut organique) of the International Institute for the Unication of Private Law (UNIDROIT). The latter now merely provides that any dispute concerning obligations arising from contracts between the Institute and third parties shall be submitted to the UNIDROIT administrative tribunal, if its jurisdiction is recognized by the parties in writing in the contract. Earlier, Article 7 bis also provided that the tribunal should apply “the provisions of the statute and of the Regulations as well as the general principles of law. It may also decide ex aequo et bono when such power has been given to it by an agreement between the parties.” The reason for the deletion may have been that the provision was too narrow. Article 288 of the Treaty establishing the European Community provides: The contractual liability of the Community shall be governed by the law applicable to the contract in question. In the case on non-contractual liability, the Community shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties. The preceding paragraph shall apply under the same conditions to damage caused by the ECB or by its servants in the performance of their duties. The personal liability of its servants towards the Community shall be governed by the provisions laid down in their Staff Regulations or in the Conditions of Employment applicable to them.

Article 188 of the EURATOM Treaty provides the same, except that it omits the third paragraph. This is an expression of the general principle of customary law in Part Two above that relations between the organization and its ofcials as such are governed by the internal law of the organization, supplemented by general principles of public administrative law. The rst paragraph of the EC and EURATOM provisions, on the Community’s liability under contracts, likewise expresses a general principle, which applies to all IGOs.22 This provision in fact refers to the conict of laws (in the wider sense) of the lex fori23 and to the intention of the parties as admitted by that law. Cases will normally arise before a national court. But if the case arises before the European Court of Justice, this must draw its conicts law

22 On contracts especially with nationals of non-member States, see a doctoral disserta-

tion by Stephan Freiherr von Welck: Die privatrechtlichen Verträge der Europäischen Gemeinschaften mit Angehörigen dritter Staaten, Göttingen 1967. 23 In this sense also Wohlfahrt and others: Die Europäische Wirtschaftsgemeinschaft, Berlin 1960, pp. 564–565.

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from general principles of conict of laws, to the extent that the Community law contains no conict rules.24 The second paragraph of EC Article 288 – on non-contractual liability – is more specic and restrictive. It leaves out e.g. the lex loci delicti – in favour of the principle of the law of the defendant, which in the case of the Community is dened as – or replaced by – a reference to the general principles common to the law of the member States, which, to the extent that Community law has been adopted to harmonize national provisions, will in effect be a reference to community standards. However, thus far the Court merely seems to have looked at principles of public administrative law.25 And the laws of member States on State liability differ considerably.26 Article 288 must be applied by the European Court of Justice – and probably also by the national courts of the member States. But courts of non-member States are free to apply their own national conict rules, including references to the lex loci delicti. Even in respect of the European Court of Justice (and those of its member States) it has been submitted in a thorough study of practice that the principles “common to the laws of the Member States” are in fact very “disparate” and play a minimal role: La responsabilité extracontractuelle de la Communauté économique européenne n’est practiquement pas déterminée par les “principles généraux communs aux droits des Etats membres”, mais, au contraire, principalement par les règles du traité, les principes que s’en déduisent et les nécessiteés propres aux Communautés européennes. La conguration de la responsabilité extracontractuelle communautaire résulte bien plus de ces derniers que desdits “principes communs”, lesquels apparaissent alors comme une source très subsidiarie du droit communautaire, rarement utilisée en ce domaine.27

Otherwise it is submitted that the principles set out in the internal law of the organization must apply. Thus, claims arising out of faults committed in the exercise by the organization of its sovereign powers can be governed by no other law than its own. This internal law of the organization should also be applied to other claims arising out of faults committed in the internal functioning of the organization, including its typical functions in relation to nationals of member States as such. However, should any claim be brought in respect of an external act, for example for injury suffered from the driving of a motor vehicle of the

24 On arbitral tribunals, see below, chapter 17. 25 See J. Steiner: Textbook on European Community Law, London 1992, chapter 30. 26 Smit & Herzog: The Law of the European Community, New York 1996, § 215.05 [3–4], 27

citing the relevant judgments. Francette Fines: Etude de la responsbilité extracontractuelle de la Communauté Economique Européenne, Paris 1990, p. 423.

provisions on applicable law 469 community, the question is open, cf. above. The Court may decide to apply the lex loci delicti or some other national law in accordance with general principles of conict of laws, despite the fact that French law applies administrative law rather than private law. Or it may apply general principles of law. The last paragraph of the provision on applicable law (EC Article 288) expresses a general principle of customary law. In all IGOs the liability of the ofcials as such vis-à-vis the organization is governed exclusively by its internal law, whether or not it has enacted relevant regulations. Neither the private, nor the administrative law of any State can be applied here, except by analogy, as general principles of law, as the European Court and administrative tribunals of other organizations have done. The second paragraph introduces a precise rule where none existed before. In those cases where the Court under the latter article would apply the internal law of the Community, there probably would be no real difference, because the general principles of the law of the member States referred to in Article 288 are part of the internal law of the organization. It is true that neither the constitution of the organization, nor its binding regulations form part of “general principles of law” (or of general international law). However, both become part of the law of the member States. The common principles of the law of the member States therefore will not deviate from the written law of the organization. Still, EC Article 288 deviates from general principles of conict of laws in respect of external liability in those cases where this is governed by national law – if “the general principles common to the laws of the Member States” is taken to refer to the substantive law of the member States, rather than to their conict of laws. Such question of external liability will arise if the term “in the performance of their duties” is interpreted to include all ofcial acts, to the exclusion only of personal acts (or acts outside the scope of the functions of the organization).28 Without offering a clear delimitation, they maintain that EC Article 288 refers to the corresponding law of all member States. However, these differ considerably, and it is thus not clear, for example, whether and to what extent reparation for injuries caused by motor-vehicles is covered by the provision.29 The jurisprudence of the Court gives no guidance.

28 Early German commentators interpreted these words quoted restrictively – possibly depart-

ing from the German text which says: “in Ausübung ihrer Amtstätigkeit” (the Dutch and Italian texts, however, conform to the French text: “uitoefening van hun functies” and “exercisio delle funzioni”). 29 Groeben und Boeckh, Kommentar zum EWG-Vertrage, Baden 1969, II, pp. 357–364; and Wohlfart, op. cit., pp. 565–567. Lagrange, loc. cit., pp. 32–35, after a general comparison of (the now) EC Art. 288 and the earlier text of CECA Art. 40, concluded that the differences are only secondary ones.

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The only judgments rendered so far on the basis of EC Article 288, second paragraph, concerned the exercise of sovereign powers by the organization and then – of course – applied the regulations and the customary law of the organization, as well as general principles of law.30 Article 288, of course, applies only to the EC and EURATOM, not to other IGOs. It is binding upon the Community, its ofcials, member States and upon individuals under the jurisdiction of the latter, as well as upon the European Court of Justice. It is not binding upon non-member States, their courts and individuals under their jurisdiction. Courts of non-member States (in which the organization might waive its inherent immunity) would therefore apply Article 288, second paragraph, only when their conict of laws refers to the law of the organization. Courts of member States are of course bound by Article 288. However, these are hardly competent in disputes falling under Article 288, second paragraph.31 A rather different matter is the fact, pointed out by Friederich Schön,32 that the constitution of some IGOs designed for economic operation refer to the law of the host country as a subsidiary source when the statutes (constitution) of the organization are silent. Schön cites two typical examples, EUROFIMA and the Fonds Agraire of Basel-Mülhausen Airport, plus a not very typical example, the French-German Research Institute Saint-Louis (ISL). The latter is not a business organization and its constitution may merely have been an unconscious copying of the former. Such provisions are, however, more concerned with supplementing the internal law of the organization than with problems of conict of laws.

30 Firma E. Kampfmeyer and Others v. CEE, Recueil de la Jurisprudence de la Cour, XIII

(1967), p. 317. The Court qualied the act as “Amtsfehler”, translated as “faute de service”. See also ibid., XI, affaires jointes 29, 31, 36 à 47, 50 et 51/63. 31 EC constitution, Arts. 235 and 240 (in the present numerical order). Wohlfahrt, op. cit., p. 565, appears to interpret these articles in the same sense. Contra: Edward Wall, The Court of Justice of the European Communities, London 1966, pp. 140 ff. 32 “Die Anwendung von Landesrecht auf völkerrechtliche Zweckverbände” in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, XXV (1965) at pp. 623 ff.

provisions on applicable law 471 13.4 Conventions on privileges and immunities. Power of the organization to enact conflicts law

Express conict provisions The Agreement between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces of 19 June 1951 (the military status agreement) provides in Article VIII 5: Claims (other than contractual claims and those to which paragraph 6 or 7 of this Article apply) arising out of acts or omissions of members of a force or civilian component done in the performance of ofcial duty, or out of any other act, omission or occurrence for which a force or civilian component is legally responsible, and causing damage in the territory of the receiving State to third parties, other than any of the Contracting Parties, shall be dealt with by the receiving State in accordance with the following provision: (a) Claims shall be led, considered and settled or adjudicated in accordance with the laws and regulations of the receiving State with respect to claims arising from the activities of its own armed forces.

This concerns claims against the member States (or their ofcials). But the protocol of 28 August 1952 on the Status of International Military Headquarters Set up Pursuant to the North Atlantic Treaty provides that the military status agreement shall apply to Allied Headquarters (Article 2) and that the claims to which Article VIII 5 of the military agreement applies shall include claims “arising out of acts or omissions of any employees of an Allied Headquarters, or out of any other act, omission or occurrence for which an Allied Headquarters is legally responsible” (Article 6 (3)).33 This reference to the lex loci delicti conforms to general principles of conict of laws. Another express provision is the host agreement between France and SHAPE, quoted below, under 13.5. It provides that the law applicable to administrative contracts concluded by the host State shall be applied to contracts of SHAPE relating to real estate (Article 7) and also to other contracts if NATO has not enacted relevant regulations (Article 6).

33 The “civilian status agreement” (Agreement on the Status of the North Atlantic Treaty

Organization, National Representatives and International Staff) of 20 September 1951 contains no provision on applicable law, other than the usual disputes clause discussed below.

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A third provision is Article 7 of the host agreement between the European Space Research Organization (ESRO) and Sweden of 29 July 1964.34 It provided that “the activities of the organization in Sweden shall be governed by Swedish law”. The provision implied that civil relationships, including contracts with Swedish rms and subjects was to be governed by Swedish law. The reference to Swedish law can of course not be taken too literally. It must be interpreted at least to some extent in the light of the general principles of conict of laws (or the conict of laws of the lex fori ) which refer in certain cases to the law of other States or to the internal law of the organization. But the provision must at least be taken to preclude the organization from claiming that contracts and other civil relationships are governed by international law or general principles of law, rather than national law. A fourth, but different type of provision also referring to the law of the host State cf. above 13.1, is found in the UN Headquarters Agreement with the United States of 26 June 1947, in the approval of which the present writer took an active part. It provides in Section 7 (b) that: except as otherwise provided in this agreement or in the General Convention, the federal, State and local law of the United States shall apply within the headquarters district.

. . . but adds, in Section 8, that The United Nations shall have the power to make regulations, operative within the headquarters district, for the purpose of establishing therein conditions in all respects necessary for the full execution of its functions. No federal, State or local law or regulation of the United States which is inconsistent with a regulation of the United Nations authorized by this section shall, to the extent of such inconsistency, be applicable within the headquarters district.

An entirely different provision is found in the Third Protocol to the General Agreement on Privileges and Immunities of the Council of Europe. It provides in Article I that “the Council of Europe Resettlement Fund shall possess juridical personality” and that its . . . operations, acts and contracts . . . shall be governed by this Protocol, by the Articles of Agreement of the Fund and by regulations issued in pursuance of the said Articles of Agreement. In addition, a national law may be applied in a particular case, provided that the Fund expressly agrees thereto and that such law does not derogate from this Protocol or from the said Articles of Agreement.

34 Replaced by an agreement of 20 December 1971, which transferred the remaining opera-

tions from ESRO to Sweden.

provisions on applicable law 473 Provisions on juridical personality and settlement of disputes Otherwise, conventions on the privileges and immunities of IGOs, headquarters agreements, host agreements and other similar agreements between IGOs35 and one or more of their member States usually do not go into the question of what law shall be applicable to contracts concluded by the organization and to its other relations of a private law nature. They do not provide for immunity from substantive national law. Nor do they provide that external relations of IGOs with private parties shall be governed by national law. They merely provide (1) that the organization shall have juridical personality and (2) that it shall make provision for appropriate modes of settlement of disputes arising out of contracts or other disputes to which the organization is a party. An arbitral award appears to assume that since the juridical personality of IGOs is based upon international law, their external relations with private parties, too, must be on that plane, unless the organization expressly or by implication submits to national law. It is submitted that none of these propositions is warranted. In fact such relations may be governed by national law, general principles of law or, sometimes, the internal law of the organization. But no conclusion in this respect can be drawn from provisions on juridical personality in constitutions, conventions on privileges and immunities or even in headquarters agreements. These merely conrm that the organization can act as a person of national law. The provision on appropriate modes of settlement of disputes implies that the organization may establish its own courts to decide such disputes if the other party wishes to sue or otherwise accept its jurisdiction. However, the organization has an inherent power to do so in any case.36 On the other hand, the provision does not commit national courts to decline jurisdiction to any greater extent than follows from general international law and the organization’s immunity from suit under applicable treaty provisions and general international law. Irrespective of whether its constitution or agreements on privileges and immunities contain the above provisions, the organization may also enact law, including conict of laws, to be applied to its contractual and other external relations of a private law nature. This law will be binding upon its

35 IGOs are parties, not only to bilateral headquarters agreements and host agreements, but

also to the general conventions on privileges and immunities formally concluded between member States, see Seyersted; op. cit., p. 339. 36 Cf. Seyersted; Settlement of Internal Disputes of Intergovernmental Organizations by Internal and External Courts, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, XXIV (1964), pp. 45–46.

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own courts, and it will be applied by national courts whenever their conict of laws refers to the law of the organization. This, too, is an inherent power of the organization, which does not depend on any positive provision. And an express provision on appropriate modes of settlement of disputes probably does not extend the inherent power of the organization in this respect. Thus it is submitted that the provision does not commit the member States to accept the law of the organization as binding upon their own courts to any greater extent than follows from general international law and their own conict of laws. Even provisions in agreements on privileges and immunities that local law shall apply on the premises of the organization do not add to what applies in any case. By their failure to provide for immunity from substantive municipal law, the agreements on privileges and immunities leave the way open for application of the rules of conict of laws of the lex fori, without providing what these rules shall be with regard to the organization, except in the cases discussed above, (conicts provisions).

13.5

IGO regulations and general conditions

Examples Several IGOs have enacted general rules and regulations which lay down substantive conditions governing certain types of their contracts or similar relations with private parties. In some cases these regulations merely constitute a guide for the drafting of contracts, i.e., more or less binding instructions to the ofcials negotiating the contracts. But in most cases the regulations are intended to become parts of the contracts.37 Thus relief organizations, like UNRWA and UNICEF, have formulated general conditions for their purchase of supplies. The UNRWA General Conditions of Contract for Procurement of Goods were revised in 2002. Work is currently carried out with the purpose of establishing one set of general conditions for all UN organizations. All bids are made subject to these conditions, which determine a number of legal questions relating to the contracts, including the effect of miscalculations and other errors in bids, the

37 The Standard Contract established by FAO doc. AM/64/95 contains two sections. Section

I being a guide for the drafting of the special provisions and Section II containing the General Provisions.

provisions on applicable law 475 effect of default on the part of the contractor, settlements of disputes, etc. The Council of Europe and, later, the European Communities have enacted regulations governing works to be performed and goods and services to be supplied to them in connection with the construction of their headquarters and other installations or to cover their other administrative and operational needs. The European Community, multilateral banks and other IGOs have also enacted loan regulations and other regulations governing the conditions upon which they provide loans, grants and other assistance. Thus, the International Bank for Reconstruction and Development has enacted two sets of Loan Regulations which set forth “terms and conditions” generally applicable to loans made by the Bank to its member States and to non-governmental borrowers, respectively. By the terms of the loan agreements the parties expressly accept the provisions of the Loan Regulations. The loans and grants which the European Development Fund provides to the Associated African, Caribbean and Pacic States, overseas countries and territories, and persons in those States are governed by a complex hierarchy of conventions and regulations.38

Legal status: need for acceptance by other contracting party Such regulations are extremely useful. In the rst place they eliminate, as far as they go, the conict of laws question of which law is applicable to contracts concluded by the organization. In the second place, the special nature and status (including privileges and immunities) of IGOs in certain respects necessitate rules different from those applicable to contracts between private parties. However, the regulations have usually been enacted with a view to incorporation, by express reference or tacit consent, in the terms of each specic contract. In many cases the “regulations” have no legal status other than as parts of individual contracts, and are thus not “regulations” in the proper (legislative) sense of the word. A different matter is that regulations may be parts of the internal law of the organization, in the sense that they constitute instructions, binding upon subordinate organs and ofcials which negotiate individual contracts. They may even be binding upon member States and individuals who are subject to the (extended) jurisdiction of the organization in respect of the subject-matter.39 However, even this does not bind the

38 Revised Cotonou Agreement setting out the 10th EDF programme for the period 2008– 39

2013. For the European Community see e.g. Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities with later amendments.

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other contracting parties, who are associated States or individuals under their jurisdiction. Indeed, regulations are not ipso facto binding upon the other contracting party (or upon the organization in relation to a third party) unless they have been enacted pursuant to jurisdiction conferred upon the organization, and unless the other contracting party is subject to that jurisdiction in that capacity, which he is usually not.40 Otherwise, in order to become binding in relation to the other contracting party, the regulations must by accepted by the external party – either expressly, for example by a clause in a contract – or by implication, for example in connection with the making of bids to, or with the acceptance of assistance from, the organization.41 The legal status of the regulations is – in addition to their internal effects, primarily as instructions to the organs and ofcials of the organization – in fact one of standard clauses to be included by reference as parts of individual, negotiated contracts. Nevertheless, the regulations in fact lay down the most important parts of the substantive law to govern the relationship between the parties.

Clauses on applicable law and relation to mandatory national law Still, the regulations may need interpretation and supplementation to ll lacunae. What law should then be applied? In one case this question was settled by a treaty between the organization and the host State referring to the national law of the latter. The agreement between France and the Supreme Commander of the Allied Forces in Europe (SHAPE, an organ of NATO for purposes of international law, but a separate juridical person for purposes of national law) of 5 November 1953 provided in Article 6: Les marchés sont passés selon les règles xées par le Conseil de l’O.T.A.N. ou, en l’absence de telles règles, conformément à la réglementation française applicable aux contrats de même nature passés pour le compte de l’Etat.

It thus referred to the French law governing contrats administratifs.42

Ofcials are in respect of their employment contracts, but these and other examples of inherent organic jurisdiction are not considered here. 41 Cf. the EURATOM provisions quoted below. 42 Full text in Revue critique de droit international privé, CLV (1956), p. 732. 40

provisions on applicable law 477 In other cases one must look to the regulations of the individual contracts. The regulations usually contain provisions on the settlement of disputes – mostly by standing or ad hoc internal courts of the organization or by arbitration. But they usually contain no clause on what law to apply when the regulations and the contracts are silent. Important exceptions are some of the regulations of the European Communities governing contracts with persons and enterprises in these Communities and in third States, which, while conferring exclusive jurisdiction in disputes upon the European Court of Justice, provide for the application of national law. Thus regulations governing research contracts usually provide for the application of the lex loci solutionis. The EURATOM general conditions for contracts for the provision of goods and services to that organization (for general household purposes as well as for its nuclear installations) provides for the application of the law of the host State of the organization (i.e. Belgium): Auf den Vertrag ndet das Recht Anwendung, das zum Zeitpunkt des Vertragsschlusses an dem Ort gilt, an dem die Kommission ihren Sitz hat.43

A subsequent version reads: Sauf stipulation contraire, le droit du pays du siège de la Commission est applicable au marché.44

This applies even if the purchase is made outside Belgium. It thus makes for uniformity in the application of the regulations. The corresponding EURATOM conditions concerning construction works, however, do not establish such uniformity. They provide for application of the (territorial) law in force where the property is situated, if no other law has been agreed.45 The text – in contradistinction to the French text of the conditions

43 Verdingungsordnung, Art. 36, cf. Art. 34, EUR/C/345/8/60–d. 44 Cahier des conditions générales applicables aux marchés de fournitures (EUR/C/345/

9/60–f ), Art. 32. A contrary provision, though restricted to liability, is found in Art. 9 of the Council Decision establishing the European Joint Undertaking for the International Fusion Energy Organization (ITER) – 2007/198/Euratom of 27 March 2007 – which provides that contractual liability shall be governed by the law applicable to the contract in question and that non-contractual liability shall be governed by the general principles common to the Member States, and adding that the ECJ shall have jurisdiction, cf. Ofcial Journal L 90, 30 March 2007, pp. 61–2. 45 Art. 22: ”Le droit applicable au contrat conclu entre la Communauté et le contractant est, sauf disposition contraire, le droit en vigueur au lieu où se trouve le terrain sur lequel doivent être effectués les travaux” (EUR/C/3306/3/61 n). The number of EURATOM provision and construction contracts has been extremely large.

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for the provision of goods and services – refers to the place46 rather than to the State where the property is situated. Legally, this makes no difference, since Community law – within the eld of the Community’s jurisdiction – supersedes national law even as the national territorial law. Nevertheless, in these circumstances the reference to “lieu” is more appropriate. It might be the only appropriate reference, should any EURATOM installation in future become extra-territorial, in the sense that the organization would be given extra-territoriality, involving special territorial legislative powers for its premises. The conict clauses of these EURATOM conditions must be interpreted as referring to the mandatory as well as the facultative law of the State concerned. EURATOM has no power to enact regulations which supersede the law of the member States in these respects, and no immunity from substantive law in external relations. The mandatory provisions of the applicable national law must therefore supersede the provisions of the general conditions, as they supersede the provisions of the contract,47 except to the extent that the national law refers, as a matter of conict of laws, to the internal law of the organization. Indeed, this must be the normal rule if the relations are governed by national law – whether or not on the basis of an express reference to such law – unless there is a provision excluding supersession by mandatory law. An arbitration clause may be an example of the latter. Another may be UNRWA’s insurance contracts. A different matter is that clauses precluding supersession by national law frequently imply that the contract shall not even be interpreted and supplemented by national law, but by international law or general principles of law.

Applicable law when no clause If the regulations contain no provision on applicable law, the relationship will in principle be governed by the law to which the conict of laws of the lex fori refers, including normally the mandatory as well as the facultative provisions of that law. Bowett rightly points out that “the submission to a particular jurisdiction will tend to be taken as evidence of submission to the law of that jurisdiction.”48 It may also be that regulations are intended to sufce in them-

46 French text: “lieu”, Dutch text: “grondgebiet”. 47 Unless it could be demonstrated that the mandatory rules concerned are not applicable 48

to IGOs. D.W. Bowett, The Law of International Institutions, 4th ed., London 1982, p. 369.

provisions on applicable law 479 selves, as supplemented by general principles of law. In some cases it may even be assumed that the entire law of the organization is applicable, including its constitution and its other regulations in force at the time of conclusion of the contract (or even enacted subsequently). This may be more easily assumed in relations arising directly out of the typical operational activities of the organization than in purely commercial transactions for household purposes.

13.6

Contract clauses referring to applicable law

The simplest solution of the conict of laws issue – in those important elds where the conict of laws of the lex fori accepts the intention of the parties as decisive – would be if these would specify in their contract the law that was to govern it. However, information which the secretariats of 18 IGOs49 were good enough to provide to the present writer at an early stage (1967) indicated that, while IGOs usually include in their contracts a clause on the settlement of disputes, they in most cases include no clause on applicable law. This was true of the United Nations and the specialized agencies, with limited exceptions in the case of the ITU, ILO, Bank, League of Nations, UN and UNRWA. The latter is probably the organization – or more precisely, organ of an IGO (UN) – which concludes the greatest number of contracts and which has the largest number of disputes. Many regional organizations, on the other hand, do insert clauses on applicable law in a number of their contracts. This is done by the European Community in many cases not covered by the regulations discussed above, chapter 13.5,50 and in some cases also by the Organization of American States (OAS), the Council of Europe and – in exceptional cases when the other party insists – by the Organization of Economic Co-operation and Development (OECD).

49 See also the practice of the United Nations and the specialized agencies summarized in

UN document A/CN.4/L.118/Add. 1, Chapter I, 1 (b), paras. 5–8, cf. paras. 36–48, and Add. 2, Chapter I, 1 (b), paras. 4–8, cf. paras. 20–22. See also the examples of express clauses given by Delaume in AJIL Vol. 56 (1962), pp. 66–76 and by Bowett, op. cit., p. 368. 50 The EURATOM Cahier des clauses et conditons générales applicables aux marchés de transports provided in Art. 29: “Le droit applicable au marché est déterminé par le cahier des clauses et conditions particulières”.

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General principles of law In some cases these clauses refer to general principles of law.51 The General Terms and Conditions Applicable to FAO Procurement contracts and all FAO purchase orders contain the following clause: 9. APPLICABLE LAW: Subject to any specic provisions herein, this contract and any dispute arising from this Contract shall be governed by general principles of law, to the exclusion of any single national system of law.

A concrete example, of a more public character, is the agreements on the Ariana Site, which Switzerland concluded, rst with the League of Nations, and then with the United Nations. These agreements dene the rights and duties of the parties with regard to their respective properties in and around the site of the Palais des Nations in Genève. They provide that they “shall be interpreted in accordance with the general principles of law”.52 There is no indication in the published travaux préparatoires of either agreement as to the reason for, or the meaning of, this clause. These are, of course, agreements with another subject of international law. But the same clause was included in the Convention Concerning the Establishment and Operation of a Wireless Station in the Neighbourhood of Geneva between the League of Nations and the Radio Suisse of 2 may 1930.53 Similarly the ILO and UNRWA refer to general principles of law in some of their contracts with private parties. And so do some arbitration agreements in disputes arising out of contracts which are silent on the issue of applicable law. Thus UNRWA’s arbitration agreements concerning settlement of disputes arising from maritime or commercial contracts which are silent on a particular point or on the application of a particular law frequently provide that the arbitrator shall decide the dispute in accordance with the principles, rules and customs generally recognized by legal systems in commercial or maritime matters.54 A contract of 26 April 1967 between the International Labour Organisation and the Property Foundation for International Organizations (a private law foundation established by the Swiss Confederation and the Republic and Canton of Geneva) concerning the construction of a new building for the ILO contained an arbitration clause which provided, in English transla51 See also the non-contractual provisions in this sense in the constitutions of the EC,

EURATOM and UNIDROIT. 52 Société des Nations, Journal ofciel, Supplément spécial, No. 79, p. 123, Art. 13; UNTS, 53 54

Vol. 1, p. 153, Art. 12. Hudson, International Legislation, V, p. 501, cited by Jenks, p. 153. E.g., the arbitration between the Levant Markets Habre & Co. and UNWRA, 1955.

provisions on applicable law 481 tion: “The present contract shall be constructed according to the general principles of law, supplemented where necessary by the relevant Swiss law”. This provision was a compromise between the wish of the organization to apply general principles of law and the wish of the Swiss authorities to apply Swiss law. The arbitral tribunal provided for in the same article may nd it convenient to implement the provision on the lines adopted in the arbitral award reported below. UNRWA’s re insurance contracts refer to general principles of insurance law as a subsidiary source, viz. if the country where the risk occurs has no law governing the subject-matter. This will probably be the normal subsidiary source of the national law that is applicable in the rst place, even if not expressly stated. The main purpose of clauses referring to general principles of law is to avoid the application of any particular national law, and in particular the law of the other contracting party. General principles of law will also have to be applied when the contract provides that national law shall not be applicable, for example when UNRWA contracts provide that local law shall not apply in respect of notaries notices, services of summons, mis en demeure, etc. The same is true when the contract provides that its provisions shall exclusively govern the relationship between the parties, as do some of UNRWA’s contracts for services and supplies. However, general principles of law are also applied in practice without any such express provisions.

Ex aequa et bono Some clauses in contracts or rules give the (arbitral) court a wider freedom by authorizing it to decide ex aequa et bono.55 An example is found in the Rules laid down by the Secretary General of the Council of Europe (Rule No. 481 of 27 February 1976) on “arbitration procedures for any disputes between the Council and private persons regarding supplies furnished, services rendered or immovable property purchased on behalf of the Council”. These provide in Article 1 that any dispute relating to the execution or application of a contract where the Council is entitled to immunity in national courts shall be submitted to arbitration. Article 4 of the Rules then provides: “If the parties do not agree upon the law applicable the Board or, where appropriate, the arbitrator

55

See F.A. Mann: Notes and Comments on Cases in International Law, Commercial Law, and Arbitration, Oxford 1992, pp. 16–18.

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shall decide ex aequa et bono having regard to the general principles of law and to commercial usage”. Another example is the loan contracts of the Inter-American Development Bank. Thus, its Loan Contract with Jamaica of 9 March 1972 provides that any controversy that is not resolved by agreements shall be settled by an Arbitration Tribunal which “shall proceed ex aequa et bono, basing itself on the terms of the contract” (Article Four (b) of Annex A). In some other cases the agreements contain provisions which preclude the supersession of their terms by any rule of (mandatory) national law, without stating what law shall be applied for interpretation and supplementation, in the same manner as the Loan Regulations of the International Bank. An example may be the agreement between the United Nations and the Carnegie Foundation Concerning the Use of the Peace Palace in the Hague. However, most contract clauses on applicable law refer to a system of national law.56

Law of the host State A great number of contracts refer to the law of the host State,57 either as the lex rei sitae, the lex loci solutionis or the lex domicilii of one or both parties. Thus contracts made by the International Telecommunication Union with local authorities, companies and individuals for the purchase or rental of real property in Geneva normally prescribed that disputes shall be settled by arbitrators who shall determine their own procedure, but shall interpret the deed in accordance with Swiss law (the lex rei sitae) and, to the extent necessary, according to the general principles of law. Contracts for the provision of goods and service do not State the applicable substantive law, but provide for arbitration of disputes, declaring in many cases that the arbitral procedure will be that provided for by the Geneva code.

Law of other named State Many of the contracts made by the European Communities refer to the law of the host State (Belgium or Luxemburg) – as do the EURATOM conditions for

56 In one case of purchase of a special type of car for technical assistance, the ILO accepted

the standard contract of the supplier expressly making a particular system of national law applicable, because the supplier was not ready to accept the usual ILO purchase order. 57 Cf. above on the law of the host State as a subsidiary source in a more general way.

provisions on applicable law 483 provision of goods and services. The Organization of American States sometimes provides for the application of “the laws of the District of Colombia or United States federal law, where applicable” to “any questions regarding the validity of this Agreement and the interpretation of any provisions thereof ”. UNRWA’s contracts of insurance for third party liability provide that the Lebanese Law shall apply in the interpretation and application of the provisions of the policy of insurance, or for anything not specically provided for therein. This clause – in contradistinction to that of the OAS – may mean that the terms of the contract shall take precedence over even mandatory national law. Even certain agreements with the host State provide for the application of the law of that State. Thus Article 3 of the Loan Agreement between the International Labour Organisation and Switzerland of 4 March 1957 provided that “the Swiss Code of obligations shall be applicable to the loan agreement”.58 The law of the host State is also frequently applied in the absence of express provisions. Other contracts refer, for convenience, to the law of a particular State that possesses a well-developed and reputed law in the eld. Thus the charter-parties concluded by the former International Refugee Organization provided that they were to be interpreted according to English law.59 The International Finance Corporation’s early contracts for loans to private parties, which involve extremely complicated nancial transactions, stipulated New York Law.60 And so did the early loan agreements of the International Bank – but only with regard to their interpretation. The European Investment Bank stipulated that Swiss law was to be applicable to loans it granted in countries associated with the European Community (Greece, Turkey, associated African, Caribbean and Pacic States), but adding that Swiss courts should have jurisdiction.61 Such reference to a well-developed or well-known law in the eld is frequently used also by private corporations in their contracts.

ILO Ofcial Bulletin, XXXX (1957), p. 352. This provision may apply only to the substantive, not to the formal aspects of the agreement. 59 Information supplied in 1951 by L. Stephen, General Counsel of the IRO. 60 Nurrick: “Choice-of-law Clauses and International Contracts”, Proceedings of the American Society of International Law 1960 at p. 61, and Delaume; Legal Aspects of International Lending and Economic Development Financing, New York 1967, pp. 80–81, explaining also why these clauses were subsequently dropped. 61 Delaume, op. cit., p. 81, note 28. On loans granted in member States, see below. The reason for this choice is well explained by Käser: “Darlehen der Europäischen Investionsbank – Darlehen der Weltbank”, in Europarecht, II (1967), pp. 307–308. 58

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Lex loci solutionis, etc. The European Community sometimes refers to the law of the country where the contract is to be performed (lex loci solutionis). This is true of most research contracts, although in many of these cases the relevant provision is contained in general conditions, rather than in each contract.62 It has already been pointed out that UNRWA’s re insurance contracts provide that the law of the country where the risk occurs shall be applied, but that if there is no law governing the subject-matter, the provisions of the policy and general principles of insurance law shall apply. (The lex loci delicti is applied in practice in torts, see below in 13.7 and above in 13.4 in initio.)

Loans: law of place of issue, etc. Loans obtained by IGOs frequently have referred to the law of the country where the loan is issued. More recently, the Social Development Fund of the Council of Europe refers to the law of its host country (France) or, alternatively to the law of the currency or the law of the borrower. The practice of the International Bank for Reconstruction and Development was summarized in the United Nations compilation of the practice of the United Nations and the specialized agencies concerning their status, privileges and immunities as follows: The practice of the IBRD as a borrower depends on the custom in the particular market in which the funds are raised, or bonds are issued, and the character of the lender. While IBRD bonds issued in Canada, the United Kingdom and the United States contain no stipulation of applicable law (although it may be assumed that the law of the relevant marked applies), bonds issued in Europe, other than in the United Kingdom, are expressly governed by the law of the particular market.63 As regards the character of the lender, it may be noted that, while loans made by

62 Most of the research contracts of EURATOM, under Art. 16 of the relevant regulations,

refer to the country where the research is performed, except that if the research is performed jointly by several persons or enterprises, the lex domicilii of the organization is applied, i.e. Belgian law, in order to avoid disagreements, see Carpentier and Mathijsen; “Les contrats de recherche de l’Euratom” in Revue trimestrielle de droit européen, I, (1965), p. 366. The former ECSC provision read (para. 13): “En règle générale, le droit applicable aux rapports juridiques entre le bénéciaire et la Haute Autorité est, aux termes de la convention, celui du pays dans lequel est effectueée la recherche.” This part of the regulation did not appear to have the legal status of provisions to be made directly binding upon the other contracting party by incorporation in the contract. Some of the EC research contracts also refer to the lex loci solutionis. 63 See for example the loans in Germany cited by Delaume, op. cit., p. 86, note 48.

provisions on applicable law 485 Switzerland to the IBRD are governed by international law, loans made to the IBRD by institutions such as the Deutsche Bundesbank, although governed by municipal law, contain no express stipulation of applicable law.64

Standard forms of contract implying local law In a compilation of the practice of the United Nations and the specialized agencies concerning their status, privileges and immunities, the United Nations Secretariat have stated: Reference to a given system of national law may also be made implicitly. Thus the lease contracts entered into by the specialized agencies in different countries have usually been cast in the standard form employed locally, which have presupposed the applicability of national law. A somewhat similar situation has prevailed where an organization has entered into a contrat d’adhésion drawn up by the party providing the service, such as the provision of transport facilities or of insurance coverage.65

13.7

Clauses in arbitration agreements66

Most arbitration agreements leave the choice of law to the arbitrator. However, there are exceptions. Thus an arbitration agreement concerning the non-contractual liability of the United Nations for the loss of a private aircraft in the Congo in 1961 specied that the arbitrator should apply Congolese law (lex loci delicti), except for the conduct of the case and the procedure indicated in the agreement.67 It has already been pointed out that UNRWA’s arbitration agreements concerning maritime and commercial disputes frequently refer to general principles of maritime or commercial law.

A/CN.4/L.118/Add.2, chapter I, para. 8. Ibid., para. 4. For cases concerning third party liability insurance for UN motor vehicles it is recognized that the insurance carrier have the right to defend (under local law) any suits which might be brought against the UN, see Doc. A/CN.4/L.383 and Add. 1–3 (1985), p. 159. 66 On arbitration clauses and other jurisdictional clauses, see below, chapter 15. 67 In another case a regional IGO is said to have decided to accept for purposes of a proposed arbitration the lex loci solutionis, for practical rather than for doctrinal reasons, because the forum envisaged for the suit offered very low attorney’s fees. 64 65

486 13.8

chapter thirteen Rules adopted by the INSTITUT DE DROIT INTERNATIONAL

The Institut de droit international, composed of elected members and associés from the global community, plays an important part in the development of public and private international law, by adopting resolutions formulating existing law on the basis of proposals elaborated by special rapporteurs and commissions composed of members having special knowledge on the subject. The proposals are discussed and adopted at biannual plenary conferences of the international law experts from the whole world who have been elected members or associés of the Institut. The Institute’s 1977 session in Oslo on “Contracts Concluded by International Organizations with Private Persons” concluded inter alia that “it is desirable that the parties expressly specify the source, national or international, from which the proper law of the contract is to be derived” (Article 2) and that “if not expressly indicated in the contract, the proper law shall, where necessary and unless otherwise agreed by the parties at a later stage, be determined by the body entrusted with the settlement of the dispute, which shall try to ascertain the parties’ tacit intention or, failing this, apply objective criteria” (Article 5). It was further concluded that “In so far as it constitutes the proper law of the contract, the law of the organization shall be considered as including the constitutive instrument, any other rules governing the organization and the practice established by the latter, these sources being supplemented by the general principles of law” (Article 6).

13.9

Conclusions

States have the (inherent) power to lay down by legislation what rules on conict of laws their courts shall apply. But they are not known to have done so with special regard to IGOs, which in turn have the inherent power to lay down by regulation what conict of laws their internal courts shall apply. But they are also not known to have done so, except for a few constitutional provisions. There are only a few scattered relevant provisions in international conventions, in IGO constitutions and in agreements on privileges and immunities. The general conditions for contracts adopted by the organization, the contracts themselves and arbitration agreements concluded by IGOs more frequently contain clauses on applicable law. But even these do not cover the majority of cases. The above survey of such provisions and clauses demonstrates that there is not too much uniform practice – each organization frequently has its own way of doing things.

provisions on applicable law 487 Still, it is possible to draw the general conclusion that in most cases the provisions and clauses conform to general principles of conict of laws. This indicates that at lest in many cases the application of the regular rules of conict of laws to IGOs is a feasible and natural solution, as far as choice between national laws are concerned. Indeed, it may be said that IGOs largely follow general principles of conict of laws in their (external) relations with private parties not subject to their organic or extended jurisdiction. However, as the latter reservation indicates, the parallel is the conict of laws (in the wider sense) as applicable in relations between States and private parties, rather than that applicable between private parties inter se as early writers assumed in respect of personal law. This explanation is particularly important when it comes to the question of the choice between national law and international law or general principles of law, because national law is more liable to be by-passed in this manner when one of the parties (or both) is a subject of international law. Practice in respect of loans is that IGOs, like States, usually elect national law, the only clear exception being the International Bank.68 There are, however, some provisions in the law and practice of each organization which deviate from the regular pattern of conict of laws. Some provisions substitute the law of the host State69 or some standard law, or general principles of law,70 for the national law that might have been applicable under otherwise applicable conict rules. Other provisions merely say that national law shall not supersede the terms of the contract, without specifying under what law the contract shall be interpreted and supplemented. These provisions appear to be motivated partly by a desire for uniformity in the interpretation and application of similar contracts concluded by the same organization with parties in different States, and in the latter cases also by a desire to avoid the possibility that particular States through their legislation may interfere with the activities of the organization. Neither of these considerations is unknown to private companies engaged in international business. But they attain greater weight in the case of IGOs. On the other hand, there are some provisions which do not strive for uniformity, viz. some of those provisions which make the law of the other party applicable. To the extent that these may not have been dictated purely by considerations of a regular conict of laws nature (lex loci solutionis, law of the market, etc.), the organization has justly felt that, while

68 Delaume, “The Proper Law of Loans Concluded by International Persons”, AJIL, LVI

(1962), pp. 63–87, especially pp. 86–87. 69 For example the EURATOM conditions for the provision of goods and services. 70 Above, under 13.3 (EC Art. 288) and 13.6. Cf. also the International Bank’s loans from

Switzerland reported under 13.6 in ne.

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it has no applicable law of its own, and while it on the other hand would not be proper to give the law of the country where the organization happens to have its seat a predominant position by applying that law both to parties in that country and to parties in other member States, the organization should strive for equality by applying each party’s own law. In many cases the choice between these various alternatives appears to be more accidental. Indeed, the practice of the various organizations differs even with regard to the same type of contracts, and it is not always easy to discern common principles or reasons behind these divergences. It appears as if the personality of the legal adviser may in these cases be as important as the special situation of each organization.

CHAPTER FOURTEEN

PRACTICE WHEN THERE IS NO CONFLICTS PROVISION. EXAMPLES OF APPLICATION OF LAW OTHER THAN NATIONAL LAW

14.1

Introduction

In the majority of cases involving relations of IGOs with private parties there is no provision on applicable law.1 In such cases each relationship concerned must be evaluated – within the framework of the conict of laws of the lex fori – in the light of all the circumstances which – via the real or presumed intention (interests) of the parties (subjectively), or directly (objectively) – may permit a conclusion as to the applicable law. Due regard must of course be paid to the intergovernmental nature and the sovereign status of the organization. In this respect, guidance may be sought in practice in corresponding relations between States and private parties.2 In the present chapter we shall concentrate upon the question whether the relationship is governed by national law or some other law, such as the internal law of the organization, international law or general principles of law. We have already discussed the attitude of three writers on this basic choice. After a brief survey of practice in general we shall now consider three important practical examples which may throw some light upon this question.

1 2

In this sense also G. Delaume, Law and Practice of Transnational Contracts, New York 1988, p. 6, citing certain exceptions pp. 6–7 and 13–14. Cf. K.H. Böckstiegel, “The Legal Rules Applicable in Internal Commercial Arbitration involving States or State-controlled Enterprises” in International Chamber of Commerce, 60 Years of ICC Arbitration: A look at the Future, Paris 1987, at pp. 154–176, with comments by others at pp. 177–209.

490 14.2

chapter fourteen General practice

There is little information available about practice in those cases where there are no applicable conicts provisions. What little there is, conrms the conclusions submitted.

Court practice There are few decisions by national courts – because many IGOs are reluctant to waive their immunity – and no known decisions by internal courts of IGOs. There are many arbitral awards, but these are not usually made available for publication. One important arbitral award will be discussed in detail below, in chapter 14.5. Otherwise, the known relevant arbitral awards do not refer to any particular law.

IGO practice The practice of the UN and the specialized agencies in contractual relationship with private parties indicate that without any general reference to particular national law, the organization relies on general principles of law in the interpretation of contracts.3 The information obtained from other IGOs on their own practice in the absence of specic conict provisions is too scattered to allow for rm conclusions in the several elds of external legal relations, except that several organizations4 have stated that they recognize the lex situs (lex rei sitae) as governing lease contracts and other transactions relating to immoveable property. The law of the host country has been accepted by the UPU for commercial and similar contracts and by the OAS for labour contracts and other private law contracts. The International Bank appears to have accepted the law of the market as applicable to loans it obtains from private parties. With respect to torts, one organization (NATO) has stated that the lex loci delicti is always applied in the case of motor car accidents,5 while UNRWA6 has applied that law only in the assessment of compensation for injury from tortuous acts. Otherwise UNRWA has applied general principles of law in torts and in the

3 4 5 6

See Doc. A/CN.4/L.383 and Add. 1–3 (1985), pp. 152 ff. NATO, OAS, ILO. In the practical cases – military vehicles – this is expressly provided by treaty. UNRWA is not an independent IGO, but an autonomous organ of the United Nations.

practice when there is no conflicts provision 491 interpretation (and legality) of contracts. The former International Refugee Organization, which concluded a great number of contracts, tried to settle disputes concerning these by negotiation on the basis of general principles of law and what was considered right and fair, rather than looking for a particular system of law.7

IGO policy In the same vein, when the International Atomic Energy Agency decided not to include a clause on applicable law in the research contract granted by it, it did so for the following reasons, which are believed to be representative of thinking within the United Nations and several other organizations: (1) To permit the law of the contractor to apply would have made each of our contracts subject to a different law, in many cases unfamiliar to us and perhaps requiring textual changes in the contractual instrument. (2) To refer always to Austrian law seemed arbitrary and not consistent with our status as an international organization. (3) Reference to “international law” or to “general principles” would surely have caused difculties with at least some or our contractors, particularly since we would have been hard pressed to inform them what the substantive provisions of such law were with regard to any specic issues that might arise. Since any disputes would be referred to an international forum (ad hoc arbitration) and since we decided to take care that the nal step in concluding each contract would be taken at headquarters (afxing the Agency’s signature after the contractor had done so), we hoped that if any dispute should arise no particular national law would be held applicable.8

14.3

Relations with non-governmental organizations

Consultative status and co-operation agreements Many IGOs establish special relationships with non-governmental organizations (NGOs, mostly international NGOs) working within the same eld by

7 8

Information supplied in 1951 by L. Stephens, General Counsel of the IRO. Paul Szasz, formerly of the Legal Division of the IAEA (subsequently of that of the Bank and the UN legal department in New York), to the writer. (This was decided before the present writer was appointed Director of the Agency’s Legal Division.)

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granting them consultative status or by entering into special co-operation agreements with them.9 These INGOs are neither organs, nor members of the IGO and are thus not subject to its organic or membership jurisdiction in the strict sense.10 The relations are therefore in principle of an external nature. On the other hand, INGOs are not normally subject to international law, and relations with them are therefore not ipso facto of a public international law nature. If we assume that there are only three categories of law, we may therefore say that the relations in principle are of a national law nature. However, such relations between IGOs and NGOs have no direct parallel in the relations of States and of private parties. They therefore do not fall clearly within any one of the regular principles of conict of laws – i.e., there is no established principle of conict of laws to determine which law is to govern such relations. Not even by analogy would it appear natural to apply any of the specic principles referred to above, such as the lex loci contractus, the lex loci solutionis,11 or the lex domicilii of one of the parties. With regard to the latter it may be noted that most international NGOs, like IGOs, are only loosely connected with the national law of the country where they happen to have their seat. Non-commercial relations between IGOs and NGOs appear on the whole to lack any strong connection with any particular system of national law, and it would not even be natural to subject them to any system. The legal system with which they have the strongest connection is the internal law of the organization. It is therefore submitted that this law, as supplemented by general principles of law, is the proper law of non-commercial relations between IGOs and NGOs. From a theoretical point of view this would be in accordance with a principle of conict of laws which has been applied by courts and which has been expressed by the Permanent Court of International Justice in the sense that a sovereign State cannot be presumed to submit to any system of national law other than its own with regard to the substance of its obligation.12 This was never a generally accepted principle of conict of laws,13 as was demonstrated

Cf. above chapter 1.2. On these concepts, see above, or more briey, Seyersted: United Nations Forces, Leyden 1966, pp. 144–145 (organic jurisdiction) and 158 (membership jurisdiction). 11 Except where the organization is to perform a specic task in a specic place. 12 Serbian Loans Case, PCIJ. Ser. A, No. 20, p. 42. 13 Cf. Schnitzer: Handbuch des internationalen Privatrechts, 4th ed., Basel 1957–58, p. 52; Schwarzenberger and Braun: A Manual of International Law, 6th ed., Milton 1976, p. 52; and Batiffol: Problèmes des contrats privés internationaux, Paris 1961–62, pp. 82–84. 9 10

practice when there is no conflicts provision 493 by the gold clause decisions in various European countries in the 1930s.14 But in the cases under consideration here, it may be reasonable to assume that the NGO, as the weaker party, has submitted to the law of the organization as the sovereign and stronger party, rather than vice versa. This is also so because, at least in most cases, it is the IGO which is granting the greater benets, even if rights and duties are reciprocal. If similar relations had existed between a State and INGOs, the applicable law would no doubt have been the law of that State. It is then in complete harmony with general principles of conict of laws if in this case we apply the internal law of the organization. Mann has taken the contrary view that the existence of a presumption in favour of the law of the contracting international person, i.e., State . . . must be denied, for it could be of no use in those numerous cases in which the contract is made with international persons who are not States and who, therefore, do not possess their own legal system.15

Even if one (wrongly) were to maintain such a strict uniformity of the law applicable to States and IGOs,16 it cannot be denied that the organization possesses its own legal system. Indeed, apart from the above considerations of principle and of presumed intentions, the application of the internal law of the IGO concerned also appears to be the most practical solution. The national law of the State where the NGO has its seat, or of any other State, is not likely to contain any rules which may be relevant to this special kind of relationship. And any relevant national rules might be unsuitable on the IGO level. Any system of national law is likely to be able to offer only its general principles of contract law. And not even all of these may be adaptable to relations of this nature. The internal law of the IGO, on the other hand, will usually contain certain

In these cases, European governments were considered to be subject to United States law with regard to loans they had contracted in that country, see Delaume: Legal Aspects of International Lending and Economic Development Financing (1967), pp. 100–102. As for Scandinavia, see for example the judgments by the Norwegian Supreme Court reported in “Norsk Retstidende”, 1937, p. 888 (but see 1962, p. 369), and by the Swedish Supreme Court in “Nytt Juridiskt Arkiv”, 1937, p. 1. 15 BYIL, XXXV (1959), p. 42. 16 In the view of the present writer the analogy between States and IGOs is no more than a presumption – where conditions are similar. 14

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regulations governing such relations,17 which are binding upon the NGO.18 And these may be adequately supplemented by further regulations and by general principles of law not derived from the law of contracts of a particular country. Another practical consideration is that any solution other than the application of the internal law of the IGO and general principles of law would bring a confusing lack of uniformity into the consultative status relationship of the IGO concerned. This is thus an example of conict of laws referring to the internal law of an IGO in essentially the same manner as it refers to national law.19

Other relations However, agreements and other relationships between IGOs and NGOs are not subject to the internal law of the IGO if the parties have intended otherwise. The parties may even intend the agreement not to be subject to any particular system of law on the hierarchical level of national law, but to public international law or to general principles of law pure and simple. They may wish to do this in order to prevent the agreement from being modied by unilateral legislative action of either party: The IGO or the State in which the NGO has its seat. Certain agreements between NGOs and States may in this manner be brought under the rules of public international law.20 The same may be done in respect of agreements between NGOs and IGOs. The agreement of 6 April 1961 between the International Atomic Energy Agency, the Principality of Monaco and the Institut Océanographique concerning Research on the Effects

17 On consultative status with UN, see ECOSOC resolution 1996 No. 31. On consulta-

tive status with the Council of Europe see the rules adopted by the Ministers’ Deputies in October 1960 Concl. (60) 90 entitled “Relations between the CE and INGOs”. As regards consultative and contractual relations with UNESCO, see the “Texte des directives concernant les relations avec les organisations internationales non gouvernementales”, approved by the General Conference at its Fifth Session (Actes de la Conférence Générale de l’UNESCO, Cinquième session, résolutions, pp. 126–133). The previous regulations of UNESCO may be found ibid., troisième session, résolutions, p. 79. 18 Provisions concerning contractual relations may not be binding unless they have been incorporated in the contract by reference. But at least in the case of non-contractual consultative status, amendments of the regulations apply ipso facto even to NGOs which have acquired such status prior to the amendment (see e.g., para. 13 of the Council of Europe rules cited in the preceding note), unless they renounce such status. 19 Zemanek, Das Vertragsrecht der internationalen Organisationen, Vienna 1957, pp. 123–128, arrives at essentially the same conclusion as the present writer. Schneider: Treaty-Making Power of International Organizations, Geneva 1959, pp. 139–140 applies public international law. 20 See the example of the ICRC cited above, chapter 2, and Seyersted, The Indian Journal of International Law, Vol. IV 1964, p. 50.

practice when there is no conflicts provision 495 of Radioactivity into the Sea21 may be an example of both. But in the case of consultative status the presumption is against this – because the favours are primarily conferred upon the NGOs, and the IGO clearly wants to determine their contents at any given time. The Agreement between the United Nations and the Carnegie Foundation Concerning the Use of the Premises of the Peace Palace at the Hague22 is entirely different from those envisaged above. It concerns mainly matters of a commercial nature (lease of property) and would in itself probably have been governed, not by the internal law of the United Nations, but by the lex rei sitae, i.e., by Dutch law. Possibly in order to avoid this, the following provision was inserted in the agreement, as Article XIV: It is expressly understood that the question of the establishment of the International Court of Justice at the Peace Palace exclusively concerns the United Nations and the Carnegie Foundation, and is consequently outside the jurisdiction of any other organization; the Foundation declares its readiness to accept all the responsibilities arising out of this principle.

This provision was hardly aimed merely at the other organizations using the Peace Palace. It probably was intended to preclude also the intervention of Dutch authorities in the relationship between the parties. It then clearly prevents the supersession of any clause of the agreement by mandatory Dutch law, and it may preclude entirely the application of the lex rei sitae, even in supplementation and interpretation of the agreement. On the other hand, it does not follow from the text whether the agreement is to be governed instead by internal United Nations law, by public international law or merely by general principles of law. The question is of little practical importance for interpretation and supplementation, because in substance the result would in all cases be essentially the same. Neither the internal law of the United Nations nor public international law contains rules on the lease of property. They would therefore both have to be supplemented by general principles of national law. But if the agreement were held to be governed by United Nations law, that law could even supersede the terms of the agreement. This was probably not intended, cf. the term “. . . a matter exclusively between the United Nations and the Carnegie Foundations”. It is true that the United Nations is the sovereign party. However, it is the Foundation which is doing the favour because the annual rent of 68,400 orins appears to have been calculated only to cover the costs of the operating services to be provided by the Foundation under the agreement23 and thus to

21 UNTS, Vol. 396, p. 255. 22 Approved by GA resolution 84 (I) and amended by GA resolution 586 (VI). Text annexed 23

to the former resolution and in ICJ Yearbook, 1946–1947, p. 94. UNGA resolution 586 (VI).

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fall below what the United Nations would have had to pay on a commercial basis. In these circumstances it is submitted that the agreement – like the loan agreements of the International Bank – is governed by general principles of law (or by international law).

14.4

International bank loan agreements24

The International Bank for Reconstruction and Development grants loans to its member States and to public and private companies in these. Such loans are made in accordance with loan agreements concluded between the Bank and the borrowing State, or, in the case of loans to a private company, by a loan agreement with the latter and a guarantee agreement with the member State concerned.25 Most of the terms of the loan and guarantee agreements are laid down in the Bank’s General Conditions which have been enacted by the Bank and are amended from time to time. They are incorporated by reference in each Loan Agreement. It has not yet been established in court whether these loan agreements are contracts of national law or treaties of public international law. One would assume that a distinction must be made in this respect between loans to governments and loans to private parties. However, with a few exceptions, the General Conditions are the same for both in all respects relevant to this question.26

Internal law of the Bank? It is clear that the loan agreements are not subject to the internal law of the Bank, in the sense that their terms may be superseded by that law, including its constitution and regulations which it enacts.

The loan agreements of the Bank are discussed by H.T. Adam: “Les accords de prêt de la Banque Internationale pour la Reconstruction et le Développement” in Revue générale de droit international public, LV (1951), pp. 41–72, by Salmon in Annuaire français de droit international, II (1956), pp. 635–642; and by Broches, “International Legal Aspect of the Operations of the World Bank”, Recuil des Cours, 1959 III (the latter discusses only agreements with States). 25 On the relationship between the latter agreements, see Broches, loc. cit., p. 352. 26 See especially Annex, denition no. 54. There is a difference to the effect that arbitral awards may not be enforced against a borrowing or guaranteeing State by legal action in the courts of a jurisdiction under whose law the State can claim immunity from suit, cf. Section 8.01 (k). Arbitral awards may be enforced against the Bank without distinction as to whether the borrower is a State or a private party. 24

practice when there is no conflicts provision 497 As for the constitution, it is expressly provided in Section 8.01 of the General Conditions for Loans that no party can claim that any provision of the General Conditions or the Legal Agreements “is invalid or unenforceable because of any provision of the Articles of Agreement of the Bank”. Even if the substantive provisions of the constitution limit not only the right, but also the legal capacity of the organization to contract,27 this could not be invoked by a party who has accepted Section 8.01.28 As for the General Conditions for Loans, they provide in Section 1.02 that “if any provision of any Legal Agreement is inconsistent with a provision of these General Conditions, the provision of the Legal Agreement shall govern”. This means that new regulations on general conditions for loans have no effect. Thus the General Conditions are applicable only by virtue of their incorporation, by reference, in the Legal Agreements, and not by virtue of any legislative power on the part of the Bank. They are parts of the bilateral contract – not unilateral legislation. The position is in this respect different from that of the Regulations of the European Development Fund29 – and from contracts between IGOs and their ofcials, which are subjects to the exclusive organic legislative and judicial power of the organization.30

National law? Nor are the loan agreements subject to the national law of the borrower or to any other particular system of national law, in the sense that this could supersede any provision of the loan agreement. This also follows from Section 8.01 of the General Conditions for Loans, which provides that the rights and obligations of the parties –

On this question, see Seyersted, Indian Journal of International Law, IV (1964), pp. 27–35 and Broches, loc. cit., pp. 362–369. 28 Ibid., p. 369. – Adam, loc. cit., States that “l’accord de prêt ests régi par un acte supérieur (la constitution) qui pose des limites à la volonté des parties”. This statement (wrongly) limits the effect of his (correct) preceding statement that the loan agreements are not governed by the internal law of the Bank. According to Delaume, p. 82, Salmon, p. 230, appears to take the opposite view, considering the agreements to be subject to the internal law of the Bank, but not to its constitution. Apparently none of these three writers considers the constitution as part of the internal law, at the same time as it is (particular) international law. 29 See “Practical Guide to contract procedures nanced from the 9th European Development Fund” (ec.europe.eu/europeaid/index_en.htm – visited August 2007). 30 See Broches, loc. cit., p. 344. 27

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chapter fourteen shall be valid and enforceable in accordance with their terms notwithstanding the law of any State, or political subdivision thereof, to the contrary . . .

It is not stated whether the loan agreements, not even in respect of interpretation and lling of gaps, are governed by the national law of a particular country of the internal law of the bank in accordance with regular rules of conict of laws, or whether even this is excluded.31 The earlier loan agreements of the Bank contained a clause to the effect that their provisions “shall be interpreted in accordance with the law of the State of New York, United States, as at the time in effect”.32 This clause was designed to cover only the interpretation of specic terms of the agreements. It was not intended to make these agreements subject to the law of New York.33 In particular it did not give the legislators of New York the power to alter (retroactively) the terms of the agreements. But the provision was not clear, and was occasionally understood differently by member governments.34 It was therefore omitted in later loan agreements, on the assumption (on the part of the Bank) that American law would in any case be looked to as a guide in the interpretation of the agreements, since these are concluded in the United States, executed in the English language exclusively and in general follow the American pattern of drafting.

Procedure of conclusion With regard to the procedure of conclusion, it may be noted that the provisions concerning signature and approval of the agreements35 are similar for loans to

31

32

33

34

35

See below. In the interpretation of this and of other clauses of the Loan Regulations, due account should be taken of the fact that they, like all other texts of the Bank, have been drafted in the United States legal style, and could not in all respects be interpreted in the same manner as agreements drafted in international style. In particular, one cannot depart from the assumption that each word and each prase is intended to add to the meaning of the text. For example Art. VII, 2, of the Loan Agreement with Finland of 17 October 1949, and Art. X of the Loan Agreement with N.V. Stromvaart Matschappij “Nederland” of 15 July 1948, cf. Art. VII of the Guarantee Agreement with the Netherlands of the same date. Information supplied in 1951 by Mr. Davidson Sommers, General Counsel of the Bank, and subsequently conrmed by himself, Broches and Delaume in Law and Contemporary Problems, 1956, at p. 479. Mann, pp. 38–39, and apparently also Gerald Gold in The Indian Journal of International Law, 1960, p. 637, insisted that the effect of the clause was to subject the loan agreements fully to New York law, thus superseding the contrary statement in (the then) § 7.01 of the Loan Regulations quoted in the text above. Contra: Delaume, pp. 84–85. See Broches, loc. cit., pp. 385 ff. and Delaume, Chapter I.

practice when there is no conflicts provision 499 States and to private parties and are formulated broadly enough to take into account both approval of private law contracts and ratications of treaties.36 Practice in respect of States depends upon their constitution and legislative provisions – the agreement may be approved as a nancial transaction or as a treaty or as both. Loan agreements with private borrowers are signed in the form employed for contracts.

Procedure for settlements of disputes The establishment of an independent inspection panel to receive requests for inspection presented to it by an affected party, being a community or a group of people, in the territory of the borrower, marks an extraordinary development that is intended to contribute to further transparency and accountability of Multilateral Development Banks.37 With regard to the general procedure for the settlement of disputes, it may be recalled that IGOs in principle enjoy immunity from suit in national courts,38 but that Article VII 3 of the constitution of the Bank makes an exception from this inherent immunity by allowing private parties and non-member States to bring action against the Bank in any court of competent jurisdiction. However, as far as the loan agreements are concerned, the Loan Regulations neutralized the exception to the immunity from suit in national courts by providing that disputes arising out of the agreement shall be settled by an arbitral tribunal, the Umpire of which in case of disagreement is to be appointed by the President of the International Court of Justice or the

36 The General Conditions for Loans, Sections 9.01 and 9.02 provide, inter alia, that the

Legal Agreements shall not become effective until evidence satisfactory to the Bank has been furnished to the Bank that the conditions specied have been satised, inter alia that the execution and delivery of each Legal Agreement on behalf of the Loan Party or the Project Implementing Entity which is a party to such Legal Agreement have been duly authorized or ratied by all necessary governmental and corporate action and there shall be furnished to the Bank an opinion or opinions that the Legal Agreement to which it is a party has been duly authorized or ratied by, and executed and delivered on behalf of, such party and is legally binding upon such party in accordance with its terms. 37 Cf. IBRD Resolution 93–10 and IDA Resolution 93–6 on The World Bank Inspection Panel, adopted by the Bank’s Board of Executive Directors on 22 September 1993, text reproduced in The World Bank Operational Manual: http://wbln0018.worldbank. org/Institutional/Manuals/OpManual.nsf/caa51baa1998135f8525705d001727f7/d0ba9 6858dc16bfc8525672c007d081b?OpenDocument – visited September 2007. See further Suzuki and Nanwani, Responsibility of International Organizations: The Accountability Mechanisms of Multilateral Development Banks, Michigan Journal of International Law, Vol. 27, 2005, pp. 177–225. 38 See Seyersted, op. cit., p. 152.

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Secretary-General of the United Nations.39 Only in case of failure to comply with the arbitral award, may actions be brought in national courts to enforce award, subject to any immunity enjoyed by a borrowing or guaranteeing State.40

Registration with the United Nations Since 1952, the Bank submits the agreements for registration with the United Nations Secretariat as “treaties and other international agreements” under Article 102 of the Charter.41 The registration comprises loan and guarantee agreements entered into with members of the United Nations. Agreements entered into with States which were not members of the United Nations were submitted for ling and recording in accordance with Articles 10–11 of the Regulations to Give Effect to Article 102. Loan agreements made with private companies are not considered international agreements within the meaning of the Charter and are thus not regarded as subject to ling and recording. But they are treated as annexes to the relevant guarantee agreements, since they are referred to in the latter. The same is true of the Loan Regulations.42 However, the fact that a loan agreement with a private company is not an international agreement within the meaning of the Charter does not necessarily determine the question of whether such an agreement is subject to international or national law – it may be governed by international law if this was the intention of the parties.

Conclusions In these circumstances it is no doubt correct to assume, as had been done,43 that the agreements with member States are governed by public international law.

39 The then valid Loan Regulations No. 3, § 7.03, and No. 4, § 7.04. For details, see Delaume,

op. cit., pp. 179–197. 40 Ibid., subsection (k). See also Broches, loc. cit., pp. 371–373, and Delaume, pp. 206–

208. Earlier, the Bank proposed to the UN a clause to the effect that it was not bound by Art. 102, see UN doc. E/C.1/SR 56, p. 13, as reported by Kasme, La capacité de l’Organisation des Nations Unies de conclure des traités, p. 98. 42 The factual information has been supplied by Mr. Davidson Sommers in 1951 and has been set forth in greater detail by Broches and Boskey in Nederlands tijdschrift voor internatonaal recht, 1957, at pp. 190–191. 43 Thus Adam, loc. cit., pp. 58–59; Delaume in AJIL LVI (1962), p. 68; Broches, loc. cit., p. 345; Jenks, The proper law of International Organisations, London 1962, p. 180. 41

practice when there is no conflicts provision 501 As for loan agreements with private companies, the matter is less clear. It is obvious that there is a close relationship and great similarity between the two types of agreements. Some writers therefore consider that the loan agreements with private parties, too, are subject to public international law.44 Other writers, belonging to the legal staff of the Bank, deny this emphatically, without making an alternative suggestion, except to State that the Bank feels that its legal position should be essentially the same, irrespective of whether the loan is given to a State for re-lending to a private company or directly to a private company under a guarantee from the State.45 At any rate it is clear that this purpose could not be achieved if one were to apply generally a system of national law for purposes of interpretation and supplementation, despite the fact that similar relations between a State and private parties, according to one of these writers (Delaume), would be governed by national law. The choice must be between public international law and general principles of law. Both are theoretically admissible46 and both have practical advantages. The practical results will in both cases be much the same. Thus, both admit resort to the constitution of the Bank for interpretation and supplementation, but not for supersession of the terms of the loan agreement. And international law must draw its substantive rules from general principles of law. The present writer generally prefers general principles of law – for reasons which will be explained in a different context below. However, in this particular case these reasons are less strong – because of the similarity between the loan agreements with States under the (former) Loan Regulations No. 3 and those with public bodies or private companies under Loan Regulations No. 4, and because of the interrelationship of the latter with the Guarantee Agreements with States. The fact that the loan agreements, as a whole, are subject to international law or general principles of law, does not prevent the application of rules of

See also Jaenicke in Zeitschrift für ausländishes öffentliches Recht und Völkerrecht, XIV (1951–1952), p. 92. 44 Mann, p. 53, and Adam, loc. cit., pp. 57–59. By a number of references to the provisions of loan agreements with private companies and the complementary guarantee agreements with the States concerned, Adam demonstrates the close relationship between these arrangements, as well as the public character of both. Still he States that the loan agreements are not international agreements “purs et simples”, on the pattern of diplomatic ageements. “D’une nature spéciale, ils sont également régis par des sources que ne connaissent pas les accords diplomatiques”. Jenks, pp. 179 and 243, refers to “the autonomous law of the Bank”, but is not talking especially of loans to private parties. In case this term should envisage the internal law of the organization, it is recalled that Jenks, like most writers, considers this as part of international law. 45 Broches, loc. cit., pp. 351–353, cf. Delaume in AJIL LVI (1962), p. 60. 46 Broches, loc. cit., p. 345, may take a different view.

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national or internal law for interpretation and even for supplementation of special provisions of the loan agreements. It has already been indicated that certain terms used in the loan agreements must be interpreted in the light of American law. It is also possible that certain provisions must be supplemented by the internal law of the Bank (including its constitution and regulations other than the General Conditions for Loans) or by the national law of a particular country.47 Thus it may be appropriate to interpret and supplement provisions concerning mortgage, not by general principles of the law of mortgage, but by the particular law of mortgage of the country where the mortgage is made (lex situs)48 or some other particular national law. In fact, the Bank normally does this and even amends the General Conditions to permit enforcement of the security in national courts.49 The constitution of the Bank may also be applied for interpretation or supplementation of the terms of the loan agreement – either as an earlier treaty between the parties – or as an authorizing document of one party known to the other party. However, at the same time it is clearly provided that no rule of any particular system of national law, or of the internal law of the Bank, can supersede any provision of the loan agreement.

United Nations Bond Loan Another type of loan (not relating to the International Bank for Reconstruction and Development) which was obviously not governed by national law was the 200 million US dollars loan (United Nations Bonds) contracted by the United Nations pursuant to General Assembly resolution 1739 (XVI) of 20 December 1961. This was governed, in the rst place, by the annex to that resolution and by the Bond Regulations enacted by the Secretary-General and printed on the reverse side of the bonds. According to paragraph 7 of the said annex the bonds were offered, not only to States, but on certain conditions also to “non-prot

47 It was clearly pointed out by the Permanent Court of International Justice in the Serbian

Loans case that a contract is not necessarily governed by the same legal system in all its aspects (PCIJ, Ser. A, No. 20, p. 41). For an express reference, see the General Conditions for Loans Section 6.02. 48 Davidson Sommers, Broches and Delaume in Law and Contemporary Problems, 1956, pp. 479–480, list two loans that contain no relevant provisions but could be interpreted in this sense. In one of the cases, where the securities were oil royalties due to Iraq from a British company, the security agreement, like the loan agreement, expressly precluded supersession by municipal law and provided for interpretation by New York law, cf. above. (UNTS, Vol. 155, pp. 302 and 336.) 49 See, e.g., UNTS, Vol. 301, pp. 42–45, and Broches, loc. cit., p. 373.

practice when there is no conflicts provision 503 institutions or associations”. As pointed out by Salmon, such loan cannot be subject to national law even vis-à-vis the latter parties.50 On the other hand, the European Investment Bank subjects its loans to borrowers within the European Community to the borrowers’ national law, whereas loans made to borrowers outside the Community are subjected to the national law in the Community’s headquarters or to Swiss law. However, unlike the World Bank, these are pure loans to private parties, not accompanied by a guarantee given by the borrower’s government.51

14.5

An important arbitral award

An important arbitral award (of 1960) concerned the failure of a commercial rm to deliver to an IGO certain commodities pursuant to a contract of sale and to co-operate in the arbitration provided for in the contract. The rm denied that it had accepted arbitration and referred to an action it had brought in the regular courts of the country where the organization had its seat and where the commodities were to be delivered. The Arbitrator, however, declared himself competent, basing his award upon the fact that the contract did contain an arbitration clause, and upon the assumption that contracts of IGOs are governed by international law, and that that law may be supplemented by any particular national law only if this accords with the real or assumed intention of the parties.

Juridical personality and capacity The Arbitrator declared rst that the juridical personality of the organization, its capacity to contract and the validity and binding force of its contracts, as well as the arbitration clause, was based upon international law it was therefore not necessary to base these upon any system of national law, as it would have been in case of a contract between private parties, who “until this day” are subject to the authority of a State, i.e. a national system of law.

50 “L’emprunt de 200 millions de dollars de l’Organisation des Nations Unies”, Annuaire

français de droit international, VIII (1962), pp. 570–574. Salmon speaks instead of additional regulations enacted by the Secretary-General, of international law and of general principles of law. 51 G. van Hecke: “Contracts between International Organizations and Private Law Persons” in Encyclopedia of Private International Law (Max Planck Institute) Vol. 7, Amsterdam 1984, p. 53.

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Supervisory competence of national courts The Arbitrator then discussed whether it would be appropriate to apply national laws which empower national courts to supervise the arbitral procedure or even to substitute themselves for the arbitral tribunal. He stated that they could not assume these supervisory functions, because this would assume “que la cause relève d’un système national ”. In the present case, however, he was faced with “une cause qui ne relève pas d’un système juridique national, mais du droit international public”, and international law does not envisage such supervisory functions. Recourse to national courts was therefore excluded. It is submitted that this result would follow already from the jurisdictional immunity of the organization from suit (to which the Arbitrator also referred), and that, as long as this had not been waived, national courts would have to decline jurisdiction even if the substance of the dispute were governed by national law.

Non-co-operation in arbitration The Arbitrator then discussed the effects of the refusal of the rm to co-operate in the designation of an arbitrator and in the adoption of a compromis. He stated that national laws accorded varying rôles in this respect to reparation and to execution of the arbitration respectively. However, international law, upon which the arbitration clause was based, contained no rules on the subject. He must therefore rely upon the general principle of the binding effect of contracts and of each contracting party’s right to insist upon their fulllment in natura. It is submitted that this inapplicability of the procedural law of any particular State may also follow from the incompetence of national courts and from general principles of international procedural law, when the arbitral tribunal, as in this case, was not linked to any particular country (the Arbitrator was appointed by the President of the Court of Arbitration of the International Chamber of Commerce). If so, the Arbitrator’s result would, in this respect, too, obtain even if the substance were governed by national law.

Rate of interest on reparation The only concrete issue of choice of substantive law, to which the arbitration gave rise, was the question of the rate at which the losing party was to pay interest on the sums he was obliged to pay to the organization for breach of contract. On this point, the Arbitrator stated that, even if contracts concluded by IGOs derive their validity and force from international law, the organizations could

practice when there is no conflicts provision 505 refer voluntarily to a national law “pour préciser les règles applicables à leurs opérations”, as they could incorporate any legal provision by reference. In the absence of any such reference, and of any relevant rule in international law, and since a rule had to be found, the Arbitrator must nd out which law the parties would have referred to if they had thought of the question, i.e. he must nd – as in private international law on contracts – the country with which the contractual operation had the closest links. And this he determined to be the law that was at the same time the lex loci solutionis and the lex domicilii creditoris.

Evaluation The practical results of this award by an ad hoc arbitral tribunal would probably have been the same even if the contract had been considered to be governed by national law, if it is assumed that the inapplicability of national procedural law follows also from the immunity of the organization from suit in national courts, as long as this immunity has not been waived, and from the principle of conict of laws that court procedure is governed by the (organic) law of the State or organization whose organs the courts are (lex fori ). However, in other cases it would have made a practical difference whether the Arbitrator started out from national law or international law. Thus the Legal Adviser of the organization concerned has correctly pointed out to the present writer that “the Arbitrator could not apply any specic rules of that national system which was substantially different from the general principles of law applicable in commercial matters. For, if he did so, he would in effect be substituting a choice of that particular system of law for what I would have regarded as an implied choice of international law”. Indeed, the present writer believes that the Arbitrator rightly assumed that the contract was not governed by any particular national law. However, it may not sufce to deduce this from the fact that the juridical personality of IGOs is derived from (or required by) international law, because even if it were exclusively based upon that law, it would not necessarily follow that the substantive law applicable to the various legal relations of IGOs must be international, rather than national law. It has even inversely – but wrongly – been maintained that an express treaty provision on juridical personality implied that external relations with private parties must be governed by national law even if they otherwise would not have been. The exemption of the contract from national law may instead be derived from the presumed intention of the parties when including in the contract a clause submitting disputes to arbitration, although the Arbitrator in the above case did not rely on that.

CHAPTER FIFTEEN

RELATIONSHIP BETWEEN INTERNATIONAL LAW OF IGOS AND GENERAL PRINCIPLES OF LAW

15.1

The problems

The discussion in the three preceding chapters demonstrates that there are considerable divergences among writers and in practice on the extent to which external relations of IGOs with private parties should be governed by national law. But it demonstrates also the divergences – and even confusion – as to what law should be applied if national law is to be by-passed. Most writers on external relations jure gestionis of IGOs (and a few legal advisers of IGOs) speak of international law as the only alternative to national law, although international law may not mean the same thing to all of them. IGOs never refer to international law in their agreements with private parties, but to general principles of law. Courts speak of both. In addition there is the internal law of IGOs, which writers consider part of international law. Are these all different names for the same thing, since in substance they are all made up from general principles of law? Or are they different systems? If so, must we choose only one of them, or shall we apply one or the other depending upon the circumstances? It is now time to clarify the discussion on this point. We will therefore in this chapter consider rst each type of legal system separately, and then attempt to establish the relationship between them. But rst we will examine the reason for the modern trend away from national law.

15.2

Reasons for avoiding national law.1 Practice

The national law of a particular State has the great advantage of being a relatively fully developed and precise legal system. And, as will be demonstrated

1

See also Jenks, op. cit. supra, chapter 14.4, note 41, pp. 152–153.

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below, national law and regular conict of laws can technically be applied to IGOs without serious difculty. Still, several important IGOs feel that even their commercial transactions, at least those of an operational nature, should not be governed by the national law of any particular State. This has been so in the United Nations and its autonomous organs UNRWA and UNICEF, which are greatly involved in operational business transactions. Similar considerations apply a fortiori to operational relations of a non-commercial nature, for example the research contracts granted by the International Atomic Energy Agency, although some organizations here submit to national law.2 If such relations are governed by national law, there is in the rst place a risk that provisions of the contract or of applicable regulations be superseded by mandatory provisions of the applicable law.3 This can be taken care of by a clause specically precluding supersession, while leaving the way open for interpretation and supplementation under the applicable national law. However, there are few clauses in this sense, and it is doubtful whether those which exist really stop at this point, or whether they do not preclude the application of a specic system of national law even for purposes of interpretation, except on specic points. In the second place there is the problem of the uniformity of contracts which are concluded with, or offered out for tender to, a great number of parties in different countries. Some of these are operational contracts, for example research or loan contracts, which follow a standard pattern set forth in the contract or in regulations incorporated in it by reference. Others are regular business contracts related to the operations of the organization – for example the purchase of supplies by UNICEF, UNRWA and other relief organizations, which are usually made the subject of bids from different countries. In one case as in the other it is important to retain uniformity of the contents, of interpretation of terms and even of the form of the contracts and regulations. For this reason many organizations wish to avoid the law of the other contracting party, because this would make each contract subject to a different law. That law may, moreover, in many cases be unfamiliar to the organization, and may even require textual changes in the contract or cause other administrative inconvenience. (Still, this solution is applied by the European Community in many cases, alternatively that the contract shall be governed by the substantive national law of Belgium where the main EC institutions have their seat. Moreover, only a limited number of national legal systems

2 3

The research contracts of the European Community are expressly submitted to national law. Such supersession appears to have been accepted, e.g. by EURATOM.

relationship between international law 509 are involved and these may be better known to the Secretariat).4 In the case of multilateral agreements it would, of course, be impossible to apply the law of each contracting party. On the other hand, it would seem arbitrary and not consistent with the status of an IGO to refer always to the law of the host State or of some other specic State, although this, too, is done by several regional organizations. These reasons were on one occasion convincingly put in writing by the International Atomic Energy Agency5 in connection with its trilateral contract for the supply of nuclear materials from one member State to the Agency and from the Agency to another member State. In reply to a proposal by one of the two contracting States to include a clause referring to its municipal law, the Agency stated: The Agency has in its various contracts and agreements, never subjected itself to the national law of its contract partner. To do so now, especially in an international agreement, would create an unfortunate precedent. It might be feared other States would insist on similar clauses which would result in (a) Complexities of interpretation in the case of many Member States whose law might be difcult to ascertain. (b) A multiplicity of interpretations of similarly worded agreements concluded with different Member States. (c) The possibility, in a multilateral agreement such as this one, of the other party to the agreement insisting on a similar clause and thereby causing possibly irreconcilable conict.

The contracting State thereupon dropped its proposal. Although the supply agreements of the Agency concern commercial matters and are called “contracts”,6 they are not directly in point for our purposes, because they are concluded with States and not with private parties. Indeed, the agreements are submitted for registration with the United Nations and are by the Agency considered to be governed by international law. Still, the same considerations apply largely also to operational contracts with private parties. In the case of States, considerations of prestige may prevent the express inclusion of a reference to the law of the other party. In the case of IGOs, it is not their own prestige, but the equality of the member States that is important. And also the consideration that there is no balance, in the sense that only the law of the other party, not that of the organization, would enter

4

5 6

In addition, the development of community instruments in the area of contractual law, not least on procurement, has created a jus commune in the relevant areas of national law of the member States. Before the present writer had taken up the post of its legal councel. See the text of a(nother) supply agreement in e.g. UNTS, Vol. 402, p. 255.

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into consideration, because the organization usually has no territory and no private law.

15.3

General principles of law

Practice. Practicability In these and other cases the organization may provide for the application of general principles of law, or the general principles of the laws of its member States, or the internal law of the organization which in fact means the same thing if the organization has not enacted any relevant regulations. However, IGOs do so expressly only in some cases.7 In other cases they merely provide for the settlement of disputes by an ad hoc arbitral tribunal not linked to any particular country, on the assumption that this will apply general principles of law.8 Some organizations also take care that the nal step in concluding each contract is taken at their own headquarters (afxing the organization’s signature after the other party has done so) in order to guard against any claim of application of the lex domicilii of the other party as the lex loci contractus. The major reason why general principles of law, or the general principles of the law of the member States, are not referred to more frequently, is probably that they are not dened anywhere, and that express reference to them in contracts might therefore provoke the other party to press for an explanation of what they would involve with regard to any specic issue that might arise. Still, arbitral tribunals have applied general principles of law or international law even where there was no provision, or no clear provision, in this sense.9 Their decisions demonstrate that general principles can be

7 8 9

Examples, not related to IGOs, were cited by Verdross in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, XVIII (1957/58) at pp. 643–645, cf. pp. 647–649. F.A. Mann: Notes and comments on international law, commercial law and arbitration, Oxford 1992. See, e.g., the arbitral awards between Saudi Arabia and the Arabian American Oil Company (1958) where the tribunal considered that it was unlikely that Saudi Arabia had intended to subject itself to the Swiss legal system, and decided that the case should be treated as an inter-State arbitration, and Lena Goldelds Co. (1930, as reported by Schwarzenberger: International Law, I, 1st ed., London 1945, p. 215) and the Abu Dhabi arbitration cited below. Practice is divergent as to whether arbitral tribunals may accept clauses calling for application of non-legal standards (equity, fair and reasonable), 2 Lloyds List Law Reports (1962) Vol. 2, pp. 357 ff. refusing it, at pp. 264–5, contra Eagle Star Insurance Co. vs. Yural Insurance Co. Ltd., Lloyds List Reports 1978, Vol. 1, pp. 357 ff. accepting such standards, at pp. 361–2. According to F.A. Mann: Notes, Comments and Cases of

relationship between international law 511 deduced, or developed, although they have resorted to the national law of a particular State on specic points where an arbitrary rule was indispensable (and did not deviate from, but merely add to, general principles of law) or where it was not.10 In fact, general principles of law may be applied even in relations between two private parties.11 An outstanding IGO practitioner, Jenks, has very appropriately stated the position as follows:12 . . . whatever the position may be in respect of a contract both of the parties to which are subjects to a particular legal system, there appears to be no reason or principle why a contract concluded by an international body corporate should not be held to be governed by general principles of law, if, applying the subjective test, such a result appears to give the fullest expression to the presumed intentions of the parties, or, applying the objective test, the nature of the transaction is such that the application of general principles is more appropriate than the application of one rather than another of the legal systems with which the transaction might be regarded as having some connection.

Relationship to mandatory national law Many writers do not regard general principles of law as a legal system of its own. However, at least one of these13 has recognized that, in addition to serving as a source of law in national and international law, the general principles of law can govern an agreement in lieu of facultative national law. The present writer goes further, inasmuch as he favours the view, submitted by many writers in the context of relations between States and private parties, that general principles of law can also be an independent system of law, which replaces even mandatory national law. This system, like internal law of IGOs, may still be subject to national law if an action is brought in a national court, in the following two respects: First, the competent court may in principle decide in accordance with its own conict of laws whether the other legal system shall be applied, and in particular whether the choice of law by the parties is valid. Second, even if the other legal system is applicable, the competent court may

10 11 12 13

International Law, Common Law and Arbitration, Oxford 1992, arbitral tribunals in the UK must apply a particular legal system. The arbitration between the Sheik of Abu Dhabi and Petroleum Development (Trucial Coast) Ltd., ICLQ , 1952, at p. 251. See the examples discussed by Batiffol, Problèmes des contrats privés internationaux, Paris 1961–62, pp. 106 ff., and Jessup: Transnational Law, New Haven 1956. Supra note 1, p. 153. K. Zemanek: Das Vertragsrecht der internationalen Organisationen, Vienna 1957, p. 55.

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disregard any rule, or any provision of the contract, which is contrary to its own ordre public. To this extent, even general principles of law as a legal system of its own is subject to national law, if a dispute is brought in a national court and the national court considers itself competent. However, this is true, not only of general principles of law, but also of foreign national law and of IGO law – and even of international law.

Sources. Different systems of general principles of law General principles of law comprise, in principle, the general principles of all legal systems: national law, internal law of IGOs and international law. The actual choice depends upon the purpose. For the purposes of commercial and other relationships of a private law nature, as primarily considered in the present context, general principles of law means largely general principles of national law, since IGO law and international law do not as yet have many applicable rules. However, general principles of law are not necessarily one constant system. In many cases the reference may have been expressly or by implication conned to the principles of law common to certain countries, e.g. those of a particular region, those which are members of the IGO concerned,14 or those which are connected with the particular relationship concerned15 (“the shared principles of law of more than one State”).16 Even if there has been no clear intention towards such a limitation, the competent court will in fact draw largely upon its own law,17 other laws known to it, and upon the law of those countries with which the parties and the relationship are connected. This may lead to considerable divergences in the application of general principles of law. Great practical advantages will accrue when the world, through the practice of international business and international arbitration, has developed a common, independent practice – which may form one well-known body of substantive law to take the place of general principles of law, although this law, too, will basically be a further development and crystallization of general principles of law. Such law has been advocated by

14 E.g. the EC constitution Art. 288. In such cases one may in fact be concerned with the

internal law of the organization. The agreement between Iran and the National Iranian Oil Company of 29 October 1954 provided for application of “the principles of law common to Iran and the civilized nations in which the other parties to this Agreement are incorporated”. 16 This term is used by Schwebel in The Rights and Duties of Private Investors Abroad, New York 1965, p. 202. 17 The Abu Dhabi arbitration is a curious example of this. 15

relationship between international law 513 several writers and has been referred to as “droit privé commun international”.18 The term “transnational law” would also have been appropriate, but it is used in a wider sense by its promoters. Another relevant, but more limited term is lex mercatoria.19

15.4

International law20

International law is the law governing relations between sovereign communities. Its rôle has been discussed above in Part Three. It was pointed out that it is now generally presumed that even relations jure gestionis between subjects of international law are governed by international law if there is no indication to the contrary. This is true, not only of relations between States, but also of relations between States and IGOs and between IGOs inter se. It is commonly, but not unanimously, assumed that even relations between subjects of international law and private parties are governed by international law if the parties have so intended; this is also true of relations of IGOs with private parties. However, the leading writers on external relations jure gestionis of IGOs go further than that. Jenks observation is prudent:21 How far public international law can, in the absence of express agreement of the parties, be inferred to be the law governing the contract from the nature of the transaction and attendant circumstances is a matter for the future concerning which it could be unwise to be dogmatic.

Mann implies an intention to refer to international law if the contract is not of a nature that lends itself to the application of national law (he rejects general principles of law). Batiffol submits a general presumption in favour of international law, at least for important contracts relating to the functions of the organization. And the arbitral award discussed departs from a general presumption for international law, based upon the origin of the juridical personality of IGOs in that law. The parties are at any rate free to refer to international law, within the framework of the applicable law on conict of laws. As Jenks further points out:

Batiffol, op. cit., pp. 106 ff. See Mustill: “The New Lex Mercatoria: The First Twenty-Five Years” in Bos and Brownlie: Liber Amicorum for Lord Wilberforce, Oxford 1987, pp. 149–83. 20 See Jenks, supra note 1, pp. 150–151. 21 Id. p. 151. 18 19

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chapter fifteen . . . there is no reason of policy for which any system of private international law should preclude an international body corporate and a private person, who would be entitled to submit that contract to some other system of municipal law, from submitting it to public international law.

That is, if the parties have really intended to submit the contract to international law. But when they have merely intended to avoid national law, we cannot take it for granted that international law is the law to apply. There are also other possibilities, viz. general principles of law or the internal law of the organization. The same is true if there is no evidence of any intention of the parties, but the circumstances of the relationship indicate that national law is not the appropriate law. In these cases, too, we must evaluate whether the best alternative is international law, general principles of law or the internal law of the organization. This we will do below, under chapters 15.7–8.

15.5

Internal law of IGOs.22 Relationship to international and national law

The internal law of IGOs has been described above in Part Two. As was explained, it is a distinct legal system for each organization, parallel in all important respects to the national public law of States. This is in particular true in respect of conict of laws: The internal law of an IGO is applied as a whole by national and other courts when their own conicts law refers to the law of the organization. The internal law is not incorporated in national law in the same way as public international law, except for those higher parts which are also international law, notably the constitution and other relevant treaties between the members, plus binding substantive regulations enacted by those few organizations which have been specically granted extended jurisdiction over States. Except for certain organizations exercising extended jurisdiction, the internal law of IGOs does not comprise private law. However, in most practical cases when conict of laws refers to the internal law of IGOs, it refers to public law, which they have. The question whether the internal law of IGOs can be extended to cover even private law, if this is called for, will be discussed in its context below, chapter 16.

22

Cf. I. Seidl-Hohenveldern: Du “contrat sans loi nationale” à la “Société sans loi nationale”, in Studi in onore di Guiseppe Sperduti (1984), pp. 321–31.

relationship between international law 515 15.6 General principles of law as a source of the other legal systems The distinction which has been made above between international law, the internal law23 of the organization and general principles of law is not always made. Writers tend to speak either of international law or of general principles of law, or of both interchangeably; indeed, they disagree as to whether general principles of law exist as a separate legal system or only as part of international or national law.24 The internal law of IGOs is not usually considered as separate legal systems, but as part of international law, although several writers recognize the hierarchically lower internal law (regulations, but not the constitution) as being distinct. General principles of law play a large rôle as the primary source of both international law and IGO law, since neither contains many positive rules of its own on the subject-matters we are considering in the present context: Commercial relations, torts and other relations of a private law nature.

International law International law contains rules on inter-State treaties and inter-State responsibility which are largely applicable by analogy to relations with and between IGOs.25 They may also be adaptable to relations of States or IGOs with private parties in those exceptional cases where the intention has been to confer upon non-governmental parties international personality, for example the International Committee of the Red Cross (ICRC).26 But in the normal cases of relations with private parties it is hard to see how they could be applied. The International Law Commission has categorically denied that the law of treaties is applicable to such relations. It is submitted that, if relations between private parties and (States or) IGOs are governed by international law, the substance of the rules to be applied must, at the present stage, in fact be drawn from general principles of law. And this largely means, as pointed out above, general principles of national law, when the substance is of that nature. A different matter

23 Cf. Bin Cheng: General principles of law as applied by International Courts and tribunals,

London 1953. See e.g. Ingrid Detter Delupis: Law making by international organizations, Stockholm 1965, pp. 184–186. 25 The question of the applicability of the law of treaties to IGOs was rst studied by the Fourteenth Commission of the Institut de droit international, which was established in 1968 with the then Secretary-General of the Hague Academy, Professor Dupuy, as Rapporteur. 26 Cf. Seyersted, Indian Journal of International Law, IV (1964), pp. 50–51, note 169. 24

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is that international law gradually may develop its own rules to govern such relations, as demonstrated by Mann and others. However, this, too, will probably depart largely from general principles of national law, rather than from inter-State law.

Internal IGO law Nor do IGOs as yet have any positive rules in their internal law governing the substance of relations with private parties, with a few possible exceptions in the case of the European Community.27 Other organizations merely have “regulations” which have the status of general conditions to be incorporated in contracts with the express or tacit consent of the other contracting party. They certainly express the policy of the organization, but it is doubtful whether they could be applied as its law. IGO law, too, must therefore be drawn from general principles of law, which in commercial and other relations with private parties largely means general principles of national law. It should be noted, however, that an IGO will naturally look for the common principles of the laws of its own member States. This is expressly stated in the constitution of the European Community, while the constitution of the International Institute for Unication of Private Law (naturally) is not so conned. This may make a real difference in the case of small regional organizations – since the general principles common to the laws of for example Anglo-Saxon States (whose legal practice and terminology today dominate many United Nations organizations), former communist States or continental Western European States may be rather different.

Conclusion With this reservation, the conclusion is that – until such time as international law and IGOs may have developed their own, different rules on private law relations – it will in substance make little difference whether we choose international law, IGO law or general principles of law. The practical results will in most cases be much the same, viz. general principles of law.

27

Another exception is, of course, indirect condominia and coimperia.

relationship between international law 517 15.7

Field of application of internal IGO law

Still, IGO law distinguishes itself clearly from the other two. While international law and general principles of law are more or less universal, neutral laws, IGO law is the law of one of the parties, and a law whose contents can be determined by that party unilaterally, through legislation (even if this power has not been taken much advantage of so far). In both these respects it is comparable to national law. It is therefore natural that this law plays a rôle similar to national law in conict of laws, i.e., that it is applied when the relationship is governed by national law and traditional conict of laws (private international law) and the latter refers to the law of the organization, and when otherwise the relationship has its strongest connecting factors with the organization. This is different from the application of international law or general principles of law in cases where the relationship is not, or should not be, subject to national law and in particular not to the arbitrary positive law of one of the parties. In the rst case it is the constitution and the regulations of the organization and its particular customary law that must be applied, as supplemented, like any other legal system, by general principles of law. In the second case we presumably want to avoid the positive and arbitrary law of either party, including the constitution and regulations of the organization as well as the constitution and legislation of the State concerned. And if we do not, then it may be precisely the internal law of the organization that we want. But we must make a choice, also because the internal law is a distinct system for each organization, while international law and general principles of law in principle are only one system each. For these reasons the application of IGO (and national law) must be clearly distinguished from the application of international law and general principles of law. The basic elds of application of the internal law of IGOs are: (1) Internal relations as discussed in Part Two, i.e. relations between the organization and (member States as such or) persons subject to its jurisdiction (or between these inter se), acting in that capacity. (2) External relations that are governed in principle by national law, when the applicable rules of conict of laws refer to the law of the organization, on the basis of the regular organic, personal or territorial connecting factors, as will be discussed below, in chapter 16. (3) Other external relations if the parties have so intended or if the relationship has its strongest connecting factors with the organization. The latter may be true of many organizational or operational relations where the organization acts as an IGO, rather than as a private party, even if the other party is not part of the organization or subject to its jurisdiction in other

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respects. A clear example is the consultative status of NGOs. The special service agreements of the International Atomic Energy Agency and the other relations with agents other than ofcials also lend themselves well to the application of the internal law of the organization. And so do many operational relations outside the strict eld of extended jurisdiction. Thus, when the organization renders assistance of service in pursuance of its functions (e.g. scholarships), it can frequently be presumed that the assistance shall be governed by the law of the organization – including its constitution, its relevant regulations and general principles of law – even if these have not been referred to in a contract between the organization and the receiving party. But the regulations or the contract may of course refer, expressly or by implication, to some national law, as is frequently done within the European Community. In any event, the basic consideration that must be borne in mind is whether it is reasonable to submit the other contracting party to the unilateral legislative power of the organization28 and to its constitution, which in international law is binding upon member States and only if not superseded by a subsequent treaty. If it is not, then we must turn to international law or general principles of law.

15.8

Choice between international law and general principles of law

The distinction between international law and general principles of law and the need for making it are not so obvious. In either case we will, at the present stage, be applying largely general principles of national law if we are concerned with commercial transactions, torts or other relations of a private law nature. And when we exceptionally are faced with a relationship or an aspect29 where principles of genuine international law are called for, then the formula “general principles of law” clearly includes that, too. Still, a hot discussion, not specially concerned with IGOs, has developed between adherents of international law and adherents of general principles of law. Thus Mann and Friedmann insist on international law and emphatically refuse to recognize general principles of law as an independent system of law, although at least Friedmann agrees that the substantive principles of law governing commercial transactions which follow well-established patterns of private law will have to be drawn from general principles of national law

28 29

Jenks goes far in this respect. For example related to the organization’s immunity.

relationship between international law 519 even if both parties are States.30 McNair 31 takes the opposite view, and Verdross goes even a little further with his lex contractus doctrine, even if he qualies the contract as quasi-völkerrechtlich. In the view of the present writer, this question is important from the point of view of legal terminology and reasoning, while the substantive issues involved appear insignicant. A practical difference between the two formulæ arises only when both systems contain (different) rules on the same subject.32 An important example of this is the rules concerning how, in the case of commercial transactions, it will be more natural to look to general principles of national law concerning contracts than to rules of international law concerning treaties. The choice between any other conicting rules of the two systems probably turns the same way. Indeed, it may be asked whether any rules of genuine international law (inter-State law) would be suitable in commercial an other “normal” relations between intergovernmental organizations and private parties, unless they coincide with general principles of law (or the internal law of the organization concerned) or can ll lacunae in such principles. Also from a theoretical point of view the general principles of law formula appears preferable to that of international law. If we use the international law formula, we would be turning the individuals into subjects of international law and expanding the eld of international law beyond its distinctive function: To govern relations between sovereign communities (although one important step in this direction has already been made when we include relations between sovereign communities acting jure gestionis), while in actual fact we are creating a new legal system,33 the main substance of which is drawn from national rather than international law. Even if semantically the term international law would be broad enough to comprise this new system, too, it is better to call it what it really is – general principles of law – until it may have developed its own characteristics and can be given a more distinctive name. 30 In The Changing Structure of International Law, New York 1964, p. 171 (cf. pp. 172–175)

he States that the general principles of law referred to in Art. 38 of the Statute of the International Court of Justice “will have to be discovered from a comparative study of the major principles of commercial contract prevailing among the major legal systems of the world”. Similarly, Mann, p. 37, gives an example of a rule of international law as to the place of payment, and States that the Arbitral Tribunal derived it “from a comparative approach”. 31 “The General Principles of Law Recognized by Civilized Nations”, BYIL, XXXIII (1957). 32 Jessup: A Modern Law of Nations, New York 1949, pp. 140, 142 and 150 gives some interesting examples on the border-line. Mann’s example p. 37 is not on the border-line. 33 Contra: Jenks, p. 257: “Any such substitution of inverted logic for mellow experience cannot but convert the life of the law into its death.” However, in other contexts he, too, speaks of general principles of law, cf. above, under 15.3. He does not explain whether he sees a substantive difference between international law and general principles of law.

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The resistance to the latter approach may partly be based upon the traditional concept, formulated by the Permanent Court of International Justice in the case of the Serbian Loans, that there are only two legal systems: International law and the national law of particular countries. However, it has been demonstrated above that this does not hold true. We must, at least, recognize the internal law of other sovereign communities – such as IGOs and the Holy See – as distinct legal systems. Surely it must then be possible to admit yet another system or other systems, such as general principles of national law, or general principles of the law of the member States, or of the countries with which the relationship is connected, if these, too, can contribute to avoiding confusion in the conict of laws. As explained under 15.3 above, it is part of this proposition that the general principles of law will replace not only facultative, but also mandatory national law, within the limits of the conict of laws and the ordre public of the lex fori. Another reason which may have prompted writers to favour international law may be that they are thinking in part of the internal law of the organization, and, not distinguishing that law from international law, they have to buy the latter in order to get the former. The failure to distinguish these two may in fact also be reminiscence from the same statement in the Serbian Loans Case. International law does not admit the Anglo-Saxon system of binding precedent. Still, the judgments of the Permanent and the International Court of International Justice play a basic rôle in international law. But we would be pressing our natural respect for that Court too far if, on the basis of a dictum in its 80–years old judgment, we were to force into the concept of international law two legal systems which have grown up in a post-war world and which are entirely different. This could but serve to dissolve a hitherto clear and useful concept. IGO law and general principles of law both belong rather on the level of national law and have in fact more in common with that law than with international law. But they do not belong to national law either. They are independent systems of law, and the sooner this is recognized, the sooner we can achieve clarity in modern conicts of laws. Some terminological confusion may also have arisen out of the fact that Article 38 (1) (c) of the Statute of the International Court of Justice expressly incorporates general principles of (national) law into international law as a (primary) source of that law – after treaties and State practice, but before court practice and the doctrine, which are merely subsidiary sources. However, this does not mean that general principles of law from there on exist only as part of international law. Indeed, it is submitted that even if a contract uses the precise words of, or refers expressly to, Article 38 (1) (c) of the Statute,

relationship between international law 521 rather than to “general principles of law”, there is no presumption that it was intended to include also Article 38 (1) (a), (b) and (d).34 And if it does not, then the reference is in fact to general principles of law, rather than to international law. The adherents of international law stress emphatically as a basic substantive reason for limiting the choice to international law and national law that the choice must be between established systems of law with their jus cogens, i.e., international law or national law.35 It is true – as has been pointed out by Hambro36 – speaking in the context of relations between private parties – that there is a practical need for protecting the weaker party against standard conditions imposed by the stronger party, and that this is an important part of mandatory national legislation on the law of contracts. This need may exist even when we leave the eld of relations between two private parties. However, if we admit the applicability of international law, we have already given up the protection contained in any specic national legislation. But we still have that which is common to the various systems of national law. It is submitted that this is binding, whether we speak of international law or of general principles of law. Indeed, it is submitted that, in the elds with which we are concerned in the present context, there is hardly any jus cogens in international law that is not drawn from – or does not coincide with – general principles of law. Nor does international law provide for any enforcement of this jus cogens. The example quoted by Mann – contracts on the execution of Germany’s crimes against humanity – is an example of both. Indeed, it is submitted that a national court, an IGO court or an arbitral tribunal can apply this jus cogens as easily under the name of general principles of law as under that of international law. A different matter is that the court may prefer to apply some of it as part of its own ordre public. For these reasons it is submitted that relations between IGOs (or States) and private parties that are not governed by (national) law or by the internal

34 Art. 46 of the agreement of 29 October 1954 between Iran and the National Iranian Oil

Company reads: “In view of the diverse nationalities of the parties to this Agreement it shall be governed by and interpreted and applied in accordance with the principles of law common to Iran and the civilized nations in which the other parties to this Agreement are incorporated, and in absence of such common principles then by and in accordance with principles of law recognized by civilized nations in general including such of those principles as may have been applied by international tribunals.” Verdross, loc. cit., p. 643, quotes this as a reference or a subsidiary reference to international law. The latter appears justied on the basis of the last 13 words, cf. also above, 15.8 in initio. 35 Mann, p. 50. See also Friedmann, loc. cit. 36 Loc. cit. supra, chapter 12, note 18.

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law of the organization, are normally governed by general principles of law rather than international law. Even if the parties have provided for the application of international law, it is submitted that what they really have in mind is usually general principles of law, if the subject-matter is of a private law nature.37 IGOs therefore rightly do not provide for international law, but for general principles of law in their agreements with private parties and even in many agreements with States.38

15.9

Conclusions. Relations jure gestionis with other sovereign communities

The present writer believes that the modern tendency in practice and the doctrine away from specic national law in international relations is a sound one, at least in relations involving IGOs. This is the important, substantive question. However, the tendency in doctrine to achieve this by expanding the eld of international law to take in relations which have little or nothing in common, not even by analogy, with traditional international law as an inter-State law, is neither sound, nor helpful. In order to avoid confusion, it is necessary to distinguish between international law, internal law of IGOs and general principles of law, and reserve the former for relations between sovereign communities. This does not prevent the two former from being supplemented by general principles of law. Even commercial relations between IGOs and States or other IGOs may in many respects fall more appropriately in the category of general principles of law. It is recalled in this connection that the main reason for the presumption that even relations jure gestionis between subjects of international law are governed by international law, is the negative desire to avoid national law, because “it cannot be taken for granted or lightly assumed that sovereign States, being equal in law, are prepared to subject themselves to the will of another sovereign State”.39 However, this is a different and more doubtful matter, because, when both parties are sovereign communities, the international law of treaties, responsibility, etc., can be applied, even if this is not always done.40 Relations jure gestionis between sovereign communities are in 37 Cf. the statement by Adam, quoted above, chapter 14, note 23: and Detter, op. cit.,

p. 184. Mann, however, in 1967 categorically refused to “leave the rm ground of a specic legal system and to have resort to some ‘droit anational’ or some ‘loi d’autonomie’ ”. 38 Cf. Wortley, ICLQ 1963, Vol. 12, pp. 330–336 (Ariana site). 39 Schwarzenberger: A Manual of International Law, Milton 1976, p. 123. 40 Delaume: Legal aspects of international lending and economic development nancing, New York 1967, chapter I.

relationship between international law 523 fact in an intermediary position. If they, too, are considered to be governed by general principles of law rather than by international law, one might retain the traditional denition of international law as the law governing relations between sovereign States as such,41 only replacing the word “States” by “communities” in order to include IGOs, the Holy See, insurgents, etc., to which traditional international law is basically applicable by analogy. If relations jure gestionis between subjects of international law are considered to be governed by international law, the denition still remains valid, subject to the deletion of the words “as such”. The conclusion thus is that, in those cases where the relationship between an IGO and a private party is not governed by national law, it is normally governed either by the internal law of the organization or by general principles of law. The choice between these two systems must be made with a view to the propriety of the constitution of the organization and its unilateral legislative power being in a position to overrule general principles of law, but as a point of departure it may be said that the internal law of the organization is more suitable where the organization acts as an IGO than in cases where it acts as a private party.

41 The Permanent Court of International Justice said in the Serbian Loans case: “between

States in their capacity as subject of international law”, supra, chapter 14, note 47. This is the same thing stated in a circular manner.

CHAPTER SIXTEEN

CHOICE BETWEEN NATIONAL LAWS: REFERENCES TO THE LAW OF THE ORGANIZATION IN TRADITIONAL CONFLICT OF LAWS

16.1

General

It is a modern tendency to subject external relations jure gestionis of IGOs to legal systems other than national law, and various views have been advanced in the doctrine on the extent to which this should be done. In chapter 14 we discussed some concrete examples of this, and in chapter 15 we discussed the choice between the various alternatives to national law. It was concluded that in some cases the internal law of the organization was the proper law, while in most cases general principles of law must be preferred. International law in the proper sense cannot be applied in other than exceptional cases or on specic points. Whichever of the theoretical views is taken as a point of departure there will still remain a number of cases that are governed by national law,1 or partly by national law and partly by the internal law of the organization.2 We shall in the present chapter discuss the choice between various systems of national law in such cases, in an attempt to establish whether this raises any insoluble difculties. First it should be emphasized that the submission of external relations jure gestionis of IGOs to national law does not, of course, detract from the international personality of IGOs any more than it detracts from that of States. As was stated by the International Court of Justice in its Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations, the fact that the United Nations is an international person does not imply “that all its rights and duties must be upon the international plane, any more than all the rights

1

2

For example under the conventions on civil liability for nuclear damage reported above, chapter 13.2, which refer partly to lex fori and partly to lex situs. See also the many examples given by Batiffol, Problèmes des contrats privés internationaux, Paris 1961–62, pp. 104–105. Two examples of the latter are discussed below, under 16.2.

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and duties of a State must be upon that plane”.3 Thus internal relations may be on the plane of internal IGO law, and external relations jure gestionis may be on the plane of national law (i.e. they may be governed by national law or the internal law of the organization). In order to answer the question of which national law is applicable we must – in the absence of special conventional or legislative provisions or customary law for IGOs – look to traditional conict of laws ( private, administrative or procedural international law) as developed between private parties and between States and private parties, and apply it to IGOs with the necessary modications. In some cases the question of applicable law is answered in the transaction concerned, expressly or by implication. Otherwise, each court will depart from its own conict of laws (lex fori ) and adapt it to IGOs. Internal courts of IGOs, international courts and arbitral tribunals which have no positive conict of laws of their own, will draw their conict of laws from general principles of conict of laws.4 The law governing relations of States with private parties may be the law of the State concerned (as it will always be in the case of relations jure imperii ) or the home State of the individual concerned, or the State with which the relationship has its most substantial connection on the basis of territorial or organic connecting factors. The position is the same, in principle, with regard to relations of IGOs with private parties. On the adaptations which have to be made in the various elds of conict of laws because of the special characteristics of IGOs, reference is made to Jenks’5 thorough eld by eld study. It shall not be attempted here to discuss the conict of laws in substance, as Jenks has done, but only to try and evolve a few principles as to how this law, which was developed with a view to relations between two private parties – or between a private party and a State acting as a private party – can be applied to relations between a private party and an intergovernmental organization. Indeed, we will concentrate upon the major general problem which arises out of the fact that, while all IGOs have an internal administrative law, they have no internal private law. This and other deciencies of IGOs apparently combined with a failure to recognize their general international

3 4

5

ICJ Reports 1949 p. 179. Cf. the statement by the Permanent Court of International Justice in the Serbian Loans case, quoted above, chapter 15. Special reference is made to the following general treaties on conict of laws: Ernst Rabel: The Conict of Laws, 4 vols. (Ann Arbour 1958–64), which is a global, comparative study, and Adolf F. Schnitzer: Handbuch des Internationalen Privatrechts, 2, Basel 1957–58, which is specially concerned with the law of a typical host country, Switzerland, while Schnitzer himself was at the time an international ofcial. Jenks, The proper law of International Organisations, London 1962.

choice between national laws 527 personality – have led some writers to treat such organizations as being in certain respects comparable to non-governmental organizations, rather than to States. However, IGOs are not under the jurisdiction of any particular State, as even international NGOs and other private parties are. Indeed, in those respects where conict of laws distinguishes between (foreign) States and (foreign) individuals, it is the former that afford the appropriate analogy, as will be demonstrated below. In the following we shall examine the problem of what to do if the normally applicable principles of conict of laws refer to the law of the organization. This question was discussed, on an abstract basis, by a number of early writers, with particular regard to the League of Nations.6 Presumably taking for granted that the League did not itself possess any applicable law, they sought to apply the law of some State, in some cases even without making a distinction between external and internal relations (relationships of employment). The majority proposed to apply the national law of the host State, – thereby assimilating IGOs to NGOs. A minority felt that, rather than look for a substitute for the law of the organization, one should apply some other principle of conict of laws which does not refer to the law of the organization, such as the lex loci contractus. One writer, discussing the International Commission of the Cape Spartel Lighthouse, rejected the application of any system of national law (except with regard to real property, which was to be governed by the lex rei sitae) and proposed instead to apply “the general principles of law, and in the event that these principles might not be applicable, the principles of right and equity”.7

6

7

Schücking und Wehberg: Die Satzung des Völkerbundes, I, 3rd ed., Berlin 1931, pp. 160–161; Göppert: Der Völkerbund, Berlin 1938, p. 29; Liermann in Zeitschrift für Völkerrecht (Breslau) XV (1930) at pp. 41–43; an opinion by G. Marchegiano, Juridical Counsellor of the International Zone of Tangier, on “The Juristic Character of the International Commission of Cape Spartel Lighthouse”, translated in AJIL, XXV (1931) pp. 339–347; and Bayer; “Das Privatrecht der Montanunion”, Zeitschrit für ausländisches und internationales Privatrecht, XVII (1952) pp. 331 et seq., especially p. 340. See also Borsi, “Il rapporto d’impiego nella Società delle Nazioni” in Rivista di diritto internazionale, XV (1923) at pp. 283–285; van Haastert: Het international landbouw institut 1947 p. 150; Frankenstein: Internationales Privatrecht, II, Berlin 1926, pp. 507–508; and Gonsiorowski: Société des Nations et problème de la paix, I, Paris 1927, pp. 287–288. The two latter writers discussed primarily contracts of employment, apparently without making any distinction between these internal relations and external relations. Kelsen: The Law of the United Nations, 1950, pp. 313–314 and 318, also applied the national law of the host State even to the internal relationships of employment. G. Marchegiano in AJIL, XXV (1931) pp. 345–347. A similar attitude was taken already by Fedozzi: Gli enti collettivi nel Diritto Internazionale Privato, Padova 1897, p. 120, as quoted by Frankenstein, op. cit., p. 507.

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None of these writers referred to any cases in the matter. IGOs have been involved in several cases of litigation, but the question of a substitute for the law of the organization does not appear to have arisen in any of them. This is particularly so in the cases to which the International Refugee Organization and UNICEF were parties. This may be an indication that the question of a substitute law does not really arise or does not give rise to difculties. We shall now successively examine the application to IGOs of each of the main categories of connecting factors8 that are used in national systems of conict of laws – in order to establish: (1) in what elds of law there may be a reference to the law of the organization and (2) what law then is to be applied. There are three main categories of connecting factors: (a) Organic connecting factors. These refer to the law of the sovereign community to which an organ belongs, but they are not yet recognized by the majority of theoretical writers as a distinct and important type of connecting factor. (b) Personal connecting factors refer to the law of the State with which a person has a more permanent afliation: lex patriae or lex domicilii for natural persons, and the law of the State of incorporation or seat for juridical persons. (c) Territorial connecting factors refer to the law of the territory in which an object (in wide sense) or a person is located or in which an act is performed; for example lex situs ( lex rei sitæ), lex loci contractus, lex loci actus, lex loci solutionis, lex loci delicti. (d) The pure lex domicilii may be treated as a personal or a territorial connecting factor and will therefore be discussed separately at the end.

16.2

Organic connecting factors (in public law)

Organic connecting factor in conict of national law Organic connecting factors may be a new concept and may therefore require rst an explanation of their important role in traditional conict of laws, quite apart from the special problems of IGOs.

8

This term was dened in Cheshire: Private International Law, 5th ed., 1957, p. 45 as “some outstanding fact which establishes a natural connection between the factual situation before the court and a particular system of law”.

choice between national laws 529 Organic connecting factors relate to the exclusive legislative (and other) jurisdiction which each State, IGO or other sovereign community exercises over its organs and which has been explained in depth above. In conict of laws an organic connecting factor refers to the public law of the sovereign community to which the organ belongs. The best known example is the lex fori, which governs procedural law, criminal law and conict of laws. This is usually considered a territorial connecting factor. Indeed, in most cases the organic and territorial connections coincide, because most courts are national and they usually sit in the territory of their own State. However, a court will apply its own procedural, criminal and conicts law even if it sits abroad, for example military courts and consular courts. Similarly, international courts apply their own law, irrespective of where they sit. And so do IGO courts, even if they do not sit in a headquarters district where the organization has territorial legislative power. Arbitral tribunals – or the organization or the parties establishing them – also choose their own procedural and conicts law, the territorial law being one of the alternatives to choose from; however, this is a more complicated matter and is, moreover, relevant to organic connecting factors only when the tribunal is an IGO or an organ of one or more States or IGOs, in which case it may be an international, internal or national court. Another example of organic connecting factors is the form (procedure) of the wedding ceremony and the effect of its non-observance. These are determined by the law of the governmental authority performing the ceremony. Even the substantive conditions for marriage and divorce are in some countries determined by the law, in other countries it is determined by the personal law of the parties or by both. This law, too, is by writers usually referred to as the territorial law. But in fact it is the law of the State to which the administrative or judicial organ belongs, because it is applied even if the organ and the parties sit in the territory of another State, for example if the marriage is performed abroad for sailors or soldiers by a diplomatic or consular ofcer or chaplain of their home State. Article 2 of the Nordic private international law convention on marriage, adoption and guardianship of 6 February 1931 refers to “the law of the State to which the performing authority belongs.”9 9

As amended by Art. 2 of the Convention of 3 November 1969. On the other hand, the Montevideo Treaty on Private International Law of 19 March 1940 (ratied by Argentina, Paraguay and Uruguay) provides that the law of the place where the marriage is performed governs the capacity of the parties to marry and the form, existence and validity of the act of marriage, cf. also Appendix 2395 to the Uruguayan Codigo Civil in Art. 13 that “la capacidad de las personas para contraer matrimonio, la forma del acto y la existencia y validez del mismo, se rigen por la ley del lugar en donde se celebra” (italics added).

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Indeed, it is a general principle of conict of laws that the form and procedure of acts of public organs – judicial or administrative – depend upon the law of the community to which the organ belongs, even if this is not the territorial law. Thus, if a court receives assistance from foreign courts or administrative authorities, these will in principle apply their own law to hearings, to the service of summons and to other acts.10 The latter has been described as an exception from the lex fori.11 However, it is an application of the organic connecting factor, which, within its area, takes precedence over territorial and personal connecting factors. Indeed, lex fori is an organic connecting factor. On the other hand, if the summons is served or hearings are held abroad by the consular authorities or courts of the State of the requesting court, they will apply the law of their home State. While locus regit actum is a valid principle for the form of most private acts, public acts are governed by the law of the State to which the acting organ belongs. A different matter is that the competence of the administrative or judicial organ with regard to the parties concerned may follow from personal or territorial connecting factors ( jurisdiction), for example from the nationality of the parties to be married. But even the competence of the organs concerned may depend upon organic connecting factors ( jurisdiction), for example in matters of public employment with States or IGOs12 and, partly, with regard to the validity of public acts (Act of State doctrine).13 Organic connecting factors occur in the rst place in the public law branches of conict of laws. They dominate procedural and criminal international law. They play an important part also in administrative international law,14 even when this extends into the eld of private international law, as the above example of wedding demonstrates.

10 Convention on Civil Procedure of 1 March 1954, Art. 14. 11 Karlgren, Kortfattad lärobok i internationell privat- och processrätt, 3rd ed., Lund

1971. This is true even of criminal jurisdiction, see Seyersted: United Nations Forces, Leyden 1966, p. 371. On organic jurisdiction as a power distinct from territorial and personal jurisdiction, see above. 13 Cf. above and the constitution of the European Community, Art 234, and EURATOM Art. 150. 14 Not to be confused with “international administrative law”, a concept that some writers used for the internal law of IGOs, or “global administrative law”, which is used to describe a global administrative space distinct from public international law and domestic administrative law, and which includes the common internal (public) law of intergovernmental organizations. 12

choice between national laws 531 Organic connecting factors imply that if the applicable conicts rule refers to an organ, the relationship is governed by the law of the community to which that organ belongs. Thus, if we are concerned with an organ of a State, the national law of that State is applicable. If it is an organ of the Holy See, Canon law is applicable. And if the reference is to an organ of an IGO, the applicable law is the internal law of that organization. National courts do not frequently apply foreign public law. Such law may be based on political, scal or other special considerations to which it may not be natural for the State of the competent court to subject its or its nationals’ interests, even if they do not affect its ordre public.15 However, even if this is true of the public law of foreign States, it may not apply against the administrative law of IGOs, at least not if the State concerned is a member of the organization. It has been suggested that national courts should apply instead their own administrative law. However, this would not be appropriate, at least in respect of organic law. If national courts do not feel in a position to enforce the administrative law of another State, they – rightly – decline competence. This is true for example of tax claims. It is rather on preliminary issues (questions préjudicielles) that the question of applying foreign and IGO administrative law arises. Thus the question of the civil liability of a State for acts of its diplomatic or consular ofcials abroad, or of an IGO for its ofcials can hardly be determined according to the administrative law of the host State governing its liability for its ofcials. Constitutional, procedural and criminal law are denitely applied abroad only on preliminary issues. The distinction between organic and territorial connecting factors may be of a practical importance with regard to States only when their organs exceptionally act abroad. IGOs, however, normally have no territory and therefore always act “abroad”. In their case, therefore, the distinction between organic and personal connecting factors, on the one hand, and territorial connecting factors, on the other hand, are of basic importance for the solution of conicts problems. Organic connecting factors will always refer to public law. So will personal connecting factors in the case of sovereign communities, as will be demonstrated in (3) below. It is submitted that whenever conict rules refer to the public law of the organization it would be impossible to apply the law of a State concerning its organs or concerning those of non-governmental organizations under its jurisdiction. Nor is it necessary in this manner to seek a substitute, because all IGOs have their own law governing their organs, both 15

See however the critical remarks by P.B. Carter, Rejection of Foreign Law: Some Private International Law Inhibitions, in BYIL LV 1984, pp. 111–31.

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in respect of their organization, functions and procedure. This law has been referred to above as the internal law of the organization. More specically this part of the internal law may be referred to as “organic” law. It corresponds to the public law of States.16 Since the organs of an IGO – per denition – are not subject to the authority of any particular State it would be impermissible for any court to apply the law of a State to the organs of an IGO as such. This would not merely deviate from obtaining principles of conict of laws. It would be a violation of public international law, which protects the internal autonomy of all sovereign communities – comprising in the rst place their exclusive jurisdiction over their own organs as such. No court is known to have attempted to do this. Indeed, we are here not merely concerned with a principle to ll any lacunae in the conict of laws of States, but with a public international law limitation upon that law. We shall now look separately at each eld of public law to see whether IGOs have a law of their own and whether this could and should be applied even by national courts, when their conict of laws refers to the law of the organization.

Constitutional and administrative law All IGOs have a constitutional and an administrative law of their own. And even if this should prove to be insufcient in certain respects, it could not possibly be supplemented by the constitutional and administrative law of any particular State, except in those respects where the organization might specically have decided to apply the administrative law of the host State, as IGOs sometimes do in respect of social security for their employees. Otherwise any gaps in the constitutional and administrative law of IGOs must be lled by internal customary law and by general principles of law, including general principles of the constitutional and administrative law of IGOs and of States. This was clearly stated already in 1931 by the Italian Court of Cassation in Proli v. International Institute of Agriculture: The particular system of the Institute must be self-sufcient, both in these substantive rules and with regard to rules governing the enforcement [realizzazione coattiva] of these relations of its internal life, such as those concerning employment. The gaps in its substantive law are lled by means common to all autonomous legal

16 Cf. A. Reinisch, International Organizations Before National Courts, Cambridge 2000,

p. 377, who suggests that a choice-of-law rule with jurisdictional effect would exclude certain internal matters of intergovernmental organizations from the jurisdiction of national courts by analogy with the constitutional and administrative law rules of States.

choice between national laws 533 systems, that is, by analogy and by assimilation, through a process of deduction, from the general or universal principles of law.17

The case concerned internal relations. But the principle must apply likewise when the internal law of IGOs is applied in external relations. Indeed, questions concerning employment with an IGO must be decided exclusively on the basis of its internal law, not only if they arise in the court of the organization, but also if they arise as preliminary questions in disputes brought in national courts by or against persons who are no longer ofcials of the organization or their relatives. In such cases, too, the organic connecting factors are decisive for the conict of laws question. An example would be actions brought by IGOs against former ofcials for reimbursement of over-payment of salary. The available reports of such cases18 do not indicate which law was applied. But it must be assumed that any question as to whether the payment was in fact an over-payment, was determined exclusively on the basis of the internal law of the organization, as supplemented, if necessary, by general principles of administrative international law. This does not mean, of course, that the internal law of the organization is necessarily applicable to the other aspects of the dispute as well, with regard to whether the ex-ofcial is under an obligation to reimburse the over-payment and whether the amount is to be repaid in full (condiction indebiti and the lex domicilii debitoris),19 if the terms of appointment (including notably the staff regulations of the organization) contain no relevant provisions. Another example of application of the organization’s administrative law by national courts is a judgment of the Court of Torino of 11 January 1967 in a tax claim of the (former) European Coal and Steel Community against the bankrupt estate of an Italian steel company. The court applied Community law to determine the existence of the Community’s claim for payment of the taxes it had levied upon the steel company in accordance with the ECSC constitution, and Italian law to determine whether the claim enjoyed the same

17 Translated from Rivista di diritto internazionale, XXIII (1931), p. 386. For concrete

examples of application of general principles of administrative and private law to ll gaps in the internal law of IGOs, see the jurisprudence of their administrative tribunals, for example Schumann v, League of Nations and Perasse v. League of Nations in Annual Digest of Public International Law Cases, 1933/34, Case No. 203. This judgment rejected some principles of private law and accepted others. 18 Annual Report of the Secretary-General, 1952–1953, p. 149; Pasicrisie Belge, 1953, No. 10, p. 65, cf. the nal judgment of the Court of Appeal of Brussels of 30 June 1955 in the same matter. 19 On rules of conict of laws in this respect, see Michaeli: Internationales Privatrecht, Stockholm 1948, pp. 339–40, and Rabel: The Conict of Laws, a comparative study (Ann Arbour 1958–64). The fact that the substance of a debt and certain modalities of its payment may be governed by different legal systems was emphasized by the Permanent Court of International Justice in the Serbian Loans case ( PCIJ, Ser. A, No. 20, p. 41).

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priority in the steel company’s bankruptcy as taxes imposed by the Italian Government.20 This is, however, a more special case, because it concerned a supranational organization. In the rst place, the organization had not merely been granted the extended power to tax nationals of member States, but its law had in addition been accepted as part of the national law of the member States. But the principle of applicable law would have been the same, even if the latter had not been the case. The competence of the organization to levy taxes does not emanate from organic jurisdiction, but from the territorial or personal jurisdiction of the member States, part of which they had ceded to the organization. But once that power has been established, the applicable law is that of the organization.

Procedural law It has already been pointed out that questions of procedural law (and conict of laws) are governed by the lex fori, i.e., the law of the community to which the court belongs. When IGOs establish courts of their own, they also enact the most essential rules of procedure to be followed by such courts. This they do also for non-judicial organs. These rules, again, could not be supplemented by the procedural law of any State, but only by the internal customary law of the organization and by general principles of procedural law.

Criminal law The same is true of questions of criminal law. These, too, are governed by the law of the prosecuting State – i.e. lex fori. In those cases where IGOs exercise criminal jurisdiction,21 they have themselves laid down the criminal law to be applied. The criminal tribunals of IGOs could not apply the criminal code of any particular State, unless this has been specially provided in the constitution or so decided by the organization, something which is practical with respect to so-called “mixed” or “hybrid” criminal tribunals.22

20 CECA c. faillite des “Acciaierie e Ferriere di Bogaro”, S.p.A., French translation in excerpts

in Journal des Tribunaux, Brussels, No. 4621 of 15 June 1968, pp. 403–5. Cf. International Criminal Tribunals, above chapter 1.4. See also international river commissions and other organizations exercising territorial jurisdiction, Seyersted, op. cit. pp. 365–372, and in the Saar, see Transactions of the Grotius Society, 1944 p. 161. 22 Cf. above chapter 1.4. 21

choice between national laws 535 National courts, on the other hand, will apply their own procedural and criminal law, not that of IGOs. But it may in certain cases be necessary to draw upon IGO law in order to determine preliminary questions, for example whether an act was illegal. Thus, national courts which (on the basis of territorial jurisdiction) prosecute persons for unauthorized use of the name, emblem or ag of the united Nations or for violation of the United Nations Flag Code, must apply United Nations law, including the Flag Code and regulations enacted by the Secretary-General, in order to determine what constitutes unauthorized use or violation.23 Thus, the fact that conict rules may refer to the public law of IGOs on the basis of organic connecting factors, does not give rise to special difculties, since the organization in these cases have an applicable law of their own, which can and must be applied.

16.3

Personal connecting factors in the law of persons

In the eld of private law the position is different. Those organizations which do not exercise any substantial territorial jurisdiction – and very few organizations do – usually have no private law of their own. Private international law is dominated by territorial connecting factors and personal connecting factors. We will rst discuss the latter.

Determination of the personal law: lex patriae and lex domicilii The personal law ( lex personalis) is determined by nationality, domicile or similar tests, depending upon the country where the question arises and upon whether a natural or a juridical person is involved. As for natural persons, some countries, including Sweden and most countries on the European continent and many Latin American countries, dene the personal law as the law of the State

23 See GA resolutions 92 (I) and 167 (II); the UN Flag Code of 11 November 1952 and

the Regulation implementing it of 1 January 1967; OR GA, II, Sixth Committee, pp. 310–312. See also Art. 6 ter (1) (b) of the Paris Convention for the Protection of industrial Property, which imposes upon the contracting States an obligation to prohibit the use of emblems, etc., of IGOs without authorization from the latter. See also Art. 44 of the First and Second Geneva Convention of 12 August 1949 and Third Additional Protocol relating to the Adoption of an Additional Distinctive Emblem of 8 December 2005, on restrictions in the use of protected emblems of the Geneva Conventions.

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of which the natural person concerned is a national (lex patriae).24 Other countries, including the Anglo-Saxon countries, several Latin American countries, Denmark, Norway and Switzerland, dene the personal law of a natural person as the law of the State in which he is domiciled (lex domicilii). The personal law of juridical persons is dened in Anglo-Saxon countries and Russia as the law of the State of incorporation, and in most other European and Latin-American countries as the law of the State where the organization has its legal or factual seat25 (siege social, Geschäftssitz). It is curious that those European and LatinAmerican countries which avoid the test of domicile with regard to natural persons, apply it with regard to juridical persons, while, on the other hand, the Anglo-Saxon countries, which apply the test of domicile with regard to natural persons, do not apply it with regard to juridical persons, but apply instead the test of incorporation. This may be seen as an indication that even incorporation is not considered as equivalent to nationality. In the Montevideo Treaty countries26 and Scandinavia there is consistency in this respect. Sweden applies the test of nationality to natural persons and that of incorporation to such juridical persons as are required to be incorporated. Denmark and Norway apply the test of domicile in both respects. In the typical host country, Switzerland, too, the lex domicilii is the point of departure for the determination of the personal law of both natural and juridical persons, but in respect of both several concessions have been made to the lex patriæ. When early writers for IGOs proposed the substitution of the national law of some State, they appear to have had in mind the cases now under discussion, where the applicable conict rules refer to the personal law of the organization,27 although only some of them said so,28 while others talked

24 With regard to the capacity to become bound by bills of exchange and cheques, this

25

26 27

28

principle has been adopted by all countries which have ratied the relevant conict of laws conventions of 7 June 1930 and 19 March 1931, respectively, cf. Art. 2 of both conventions. Likewise, under EC law, a European public limited-liability company (Societas Europaea or SE) is governed by the provisions which would apply to a public limited-liability company with a registered ofce in the Member State in which the SE is registered, cf. Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE), Art. 5, (Ofcial Journal L 294, 10. November 2001, pp. 1–21). Cf. Arts. 1 and 4. And possibly the lex domicilii in Vermögensrecht, see below, under 5 (d). The problem does not arise in respect of territorial connecting factors (below, under 16.4) and organic connecting factors were (and still are?) not recognized at all in legal doctrine. Schücking und Wehberg; Die Satzung des Völkerbundes 3rd ed., Berlin 1931, pp. 160–161; Göppert, Der Völkerbund, Stuttgart 1938, p. 29; Bayer “Das Privatrecht der Montanunion” in Zeitschrift für ausländisches und internationales Privatrecht, XVII (1952) p. 340.

choice between national laws 537 also or only of relations of employment29 in terms as if these were external relations governed by the national law of States. The majority of these writers proposed to apply the law of the host State.30 A minority preferred to apply instead a territorial connection, notably the lex loci contractus. And a few writers proposed to apply general principles of law.31 From a formal point of view it might be felt appropriate to make a distinction as to whether the question arises in a country which denes the personal law as the lex domicilii or in one which denes it as the lex patria. One might maintain that the organization has a domicile in the host country, and that therefore the organization’s lex domicilii would be the municipal law of that country. The problem would then arise only in those countries which dene the personal law as the lex patriæ, since the organization has no nationality. However, such a distinction would imply an undue exaggeration of the difference between those countries which apply the nationality principle and those which apply the principle of domicile. It is therefore with good reason that one of the writers cited above proposes to make this distinction by applying the law of the host country if the question arises in a country which applies the principle of domicile, but not if it arises in a country which applies the nationality principle.32 Those who propose not to apply the law of the host country at all, appear to envisage the latter as well as the former case. They 29 Gonsiorowski: Société des Nations et problème de la paix, Paris 1927, pp. 287–288;

Frankenstein; Internationales Privatrecht, I, Berlin 1926, pp. 507–508; Kelsen: The Law of the United Nations, pp. 313–314. 30 Schücking and Wehberg, loc. cit.; Göppert, loc. cit.; Gonsiorowski, loc. cit.; Bayer, loc. cit. Frankenstein, loc. cit., took the same view to the extent that the internal law of the organization is silent. van Haaster; Het international landbouw instituut (1.1.A) en de Organisatie voor voedsel en landbouw (FAO), ‘s-Hertogenbosch 1947, p. 150, speaking of the International Institute of Agriculture and the FAO, States broadly that the courts [of the host State] must apply their territorial law and that they shall consider the organizations as national legal persons. 31 Marchegiano in AJIL, XXV (1931), p. 346 and Fedozzi: Gli enti collettivi nel diritto internazionale privato, Padova 1897, p. 120 (the latter as cited by Frankenstein, op. cit., p. 507). Seidl-Hohenfeldern/Loibl: Das Recht der Internationalen Organisationen einschliesslich der Supranationalen Gemeinshaften, 7th ed., Cologne 2000, and in Revue égyptienne de droit international, XXI (1965) pp. 66–67, speaking in general of references to the national law of a legal person, proposes the common general principles of the member States, and may thus in fact be thinking of EC Art. 288 or of (part of ) the internal law of the organization, cf. below, under 16.5. This may also be true of another writer, Jenks, when he States that the corporate life of an IGO is governed by a personal law “consisting of international rules”. However, he adds that the organization may adopt a particular system of national law, or part thereof, as its personal law (op. cit., pp. 10 and 200, cf. pp. 219–220). Jessup: Transnational Law, New Haven 1956, p. 99, States that “the authority or capacity of the agent of the United Nations who signed the contract . . . might well be resolved by United Nations law”. 32 Schücking und Wehberg, op. cit., pp. 160.161, make the distinction, but arrive at the same conclusion for both types of countries.

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motivate their proposal for both cases by practical reasons of necessity, while admitting the absence of a logical theoretical basis for this solution. Thus, Göppert emphasizes that, although the League of Nations had its domicile in Switzerland, it was exterritorial in that country, and the establishment of its headquarters in the country therefore did not imply a submission to the laws reigning there, as it would have implied in the case of other juridical persons. This is an overstatement, because “exterritoriality” does not necessarily extend to territorial substantive law, but only to territorial jurisdiction and enforcement.33 Nevertheless, it is true that IGOs do not, by establishing their headquarters in one particular State, submit to its personal law. In these circumstances it would not be appropriate to arrive at the application to IGOs of the personal law of the host State by assimilating it, via the domicile of the organization, to territorial law. Whether dened by nationality or by domicile, it is and remains a personal law. When, despite the obvious theoretical objections to submitting an IGO to the personal law of a State, pre-war writers proposed to apply the law of the host State or of another particular State, most of them did so because they considered it to be the only practical solution. They appear to have taken it for granted that IGOs do not possess any personal law of their own.34 However, if the relations in which the question of the personal law may arise with regard to IGOs are examined in detail, it becomes apparent that both of these assumptions are false. IGOs do have a personal law of their own, and the application of the national law of any particular State would lead to results which would not be helpful, not even from a practical point of view.

Legal elds where the personal law of the organization is called for The personal connecting factors, as dened above, are important only in the elds of the law of natural and juridical persons, law of succession (probate) and matrimonial law. But here they are dominant factors, particularly in the two former elds. Thus a person’s legal capacity and his capacity to act are determined according to his personal law ( lex personalis), which follows him wherever he happens to be. And the substantive law of succession is in many countries

33 Cf. ICLQ XIV (1965) pp. 518–521. 34 Only Frankenstein, loc. cit., recognized the applicability, in principle, of the constitution

of the organization, but considered it insufcient.

choice between national laws 539 the personal law of the deceased,35 while some countries apply the lex situs to real estate or even to the entire property.36 Most of these elds concern natural persons only and are not relevant to IGOs. Family law is not relevant at all. And in the law of succession IGOs only act as recipients of legacies, etc., and the law of succession is not governed by the recipient’s personal law, but by that of the deceased. Indeed, our problem arises only in the law of persons, and only with regard to such aspects of that law as are applicable to juridical persons. These aspects include such questions as juridical personality and capacities, competent organs, conditions for valid decisions, etc. But these problems are governed by international law37 and by the constitutional and administrative law of the organization, as laid down in its constitution, in regulations and other decisions adopted by its organs and in its internal customary law, and as supplemented by treaties on privileges and immunities and by general principles of public international law and of national constitutional and administrative law.38 It is (this international law and) this internal law of the organization which must be applied as the personal law of the organization. It is true that the written law of many organizations (and certainly general international law) does not contain specic answers to many important legal problems which may arise. But this happens in other legal systems, too. And it does not follow that such problems would be more adequately solved by resorting to the national law of the host country than by applying internal customary law and general principles of international and public national law. On the contrary, the examples below demonstrate that the application of such rules of the national law of any particular State as go beyond what would follow from general principles of law would lead to unsatisfactory or even impossible results. National law may to some extent be applied to international business companies, like the joint undertakings of the European Nuclear Energy Agency and other European IGOs,39 but not with regard to proper intergovernmental organizations serving public purposes. In the following the question of the applicable personal law will be examined specically with regard to major aspects of the law of persons which

E.g. Nordic convention on succession of 19 November 1934, Art. 1. E.g. the Montevideo Treaty on Private International Law of 19 March 1940, Art. 45, and Art. 2400 of the Código civil of Uruguay. 37 See below. 38 In this sense probably also Jenks, op. cit., pp. 6–7 and 225, although he States that “there are still no general rules or principles relating to international bodies corporate to which we can automatically turn when in search of their personal law”. 39 See EURATOM constitution, Art. 49; Seidl-Hohenveldern in Revue égyptienne de droit international, XXI (1965) p. 65; and Jenks, op. cit., p. 200. 35 36

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are of importance in the external relations of IGOs. These are in the rst place the juridical personality and capacities of IGOs and the question of which organs are competent to act on behalf of the organization and what constitutes a valid and binding decision of its organs.40

Juridical personality and capacity to act The juridical personality of non-governmental juridical persons depends upon the law of the State where they were constituted or incorporated41 or where they have their seat,42 although other States may limit their capacities in their territory. Foreign States and public bodies are recognized as juridical persons if they have such personality under their own public law. This is expressly provided in the Montevideo Treaty on Private International Law of 19 March 1940, Article 3: Los Estados y las demás personas jurídicas de derecho público extranjeras, podrán ejercer su capacidad en el territorio de otro Estado, de conformidad con las leyes de este ultimo.43

Certain IGOs of the older type secured juridical personality by way of incorporation in the host State. But most IGOs have refrained from resorting to any such emergency solution – and for good reasons. Court and State practice demonstrate that at least those IGOs which have not themselves submitted to the national law of the host country by seeking incorporation in the same manner as a non-governmental organization, are dealt with and accorded juridical personality, in the host State and in other countries, as sovereign entities by analogy with foreign States, and not according to the rules governing non-governmental organizations or other persons subject to the personal jurisdiction of their home State.44 There is no indication that courts have asked whether the personality is

40 For a more complete list and a precise delimitation between personal and territorial law

41 42

43

44

in respect of private companies, see the Draft Convention on Conicts of Law Relating to Companies in International Law Association, Report of the Forty-Eighth Conference, New York 1958, pp. 645–646. Convention on the Recognition of the Juridical Personality of Foreign Corporations, Associations and Foundations of 1 June 1956, Art. 1. Treaty on Private International Law of 19 March 1940, Art. 4: “La existencia y la capacidad de las personas jurídicas de carácter privado, se rigen por las leyes del país de su domicilio”. Hague Convention, Art. 1, see also Montevideo Treaty, Art. 4, third para. See also Art 17 (1) of the Italian Civil Code cited in the text below, repealed by Art. 73 of Law No. 218 of May 31, 1995. See for example the pre-war Belgian and American judgments reported in Clunet, LIII (1926), pp. 1045–1046 and in AJIL, XX (1926), p. 260; the pre-war statement of the Swiss Government reported in Martin Hill; Immunities and Privileges of International Ofcials,

choice between national laws 541 recognized in the host State or that they have attempted to apply to such IGOs any restriction which the national law of their respective host countries may impose upon the juridical personality of domestic non-governmental organizations or upon the State itself. These and all other aspects of the national law of the host State are entirely irrelevant for the determination of the juridical personality of IGOs. The juridical personality of IGOs must be determined by analogy, not to that of foreign non-governmental organizations, but to that of foreign States. It depends upon whether the lex fori (or the lex causae – i.e., the law which is applied to the substance of the claim) recognizes the juridical personality of (foreign States and) intergovernmental organizations. This all States appear to do, on the basis of applicable treaties and general international law. In so far as either of these legal systems refers to the personal law in order to determine the capacities of the particular organization concerned, recourse must be had, not to the law of the host State of the organization (neither that applicable to non-governmental organizations, nor that applicable to the State itself ), but to applicable treaties and general international law and to the internal law of the organization. This is true, for example, of the question whether an institution is a juridical person of its own or a branch of another juridical person. This question, which also depends in principle upon the personal law, has arisen in courts in respect of States as well as of IGOs. When a Spanish public body claimed immunity from suit in United Kingdom courts on the ground that it was a department of the Spanish State, the British Court of Appeal stated expressly that this latter question depends on the law of the State concerned.45 The question of such distinct juridical personality in respect of an IGO must be determined in accordance with its constitutional law, as supplemented by public international law. It is in this manner that it must be decided whether the European Nuclear Energy Agency or its joint enterprises, the Inter-American Commission on Human Rights or the Military Headquarters of NATO are separate legal entities under international or national law. The tribunal of

the Experience of the League of Nations, Washington D.C. 1947, pp. 126 and 134; and the postwar judgment by the Tribunal civil de Bruxelles of 27 March 1952 reported in Pasicrisie Belge, 1953, No. 10, p. 65. 45 Baccus S.R.L. v. Servicio Nacional del Trigo (1956) 3 W.L.R., as reported in AJIL, LI (1957), p. 428. Still, in the particular case the court held that the defendant was a department of the State of Spain, notwithstanding the fact that it was a corporate body with a separate legal personality (they had the power to make contracts on their own behalf for the buying and selling of wheat and could sue and be sued in their own name) and that hence it was entitled to immunity. There was thus a difference between legal personality in national law and international personality, but this was a matter of Spanish law.

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Firenze decided on 2 January 1954 that the Headquarters of Allied Forces Southern Europe at Napoli had no separate juridical personality, basing itself on an agreement between the member States of NATO which had not been ratied by Italy and which therefore had not become part of Italian law. When the tribunal nevertheless (correctly) applied the agreement, it did so on the analogous basis of the conicts provision in the former Article 17 (1) of the Italian Civil Code, which provides that the status and the legal capacity of persons are regulated by the law of the State to which they belong. The provision the court correctly applied refers to the law of NATO, not to that of the host State of the organization or its headquarters.46 In this case the dispute was really internal, but the same would apply in an external dispute.47

The question of which organs are to act for the organization and what constitutes a valid decision by them Nor could the question of which organs are to act on behalf of the organization and what constitutes a valid and binding decision of such organs be determined on the basis of the arbitrary rules of any particular system of national law. The guiding principle in this matter is that it is up to any juridical person to designate itself which organs shall be competent to act on its behalf and to determine what shall constitute a valid decision by such organs. States do this in a sovereign manner by enacting the necessary rules as part of their administrative law, to the extent to which there are no relevant provisions in their constitutions. But such rules are closely linked up with the organizational structure of the State concerned. They are therefore not adaptable to IGOs, whose organizational structure is different, except in so far as the rules merely express general principles of law, common to all juridical persons. In the case of non-governmental organizations, too, questions as to which are their competent organs and what is the proper procedure for adoption of decisions, are determined in the rst place by the organizations themselves, by provisions in their constitutions or by decisions of their organs (by-laws, rules of procedure). But their freedom in this respect is limited by any 46 International Law Reports, 1955, p. 761. The Court of Appeal on 14 March/23 August

1955 conrmed the judgment, the main substance of which was that the headquarters were “exempt from Italian jurisdiction insofar as concerns the employment relationship involved in the case”. 47 Another internal decision on the question of the distinct juridical personality of the Pensions Fund vis-à-vis the League of Nations is reported in Annual Digest of Public International Law Cases, 1933/34, p. 462 (3).

choice between national laws 543 mandatory rules of the particular system of national law which represents their personal law.48 Such rules have been enacted in the national law of most States with regard to specic types of companies and associations. But these rules, too, are closely linked up with the organizational structure and with the purposes and functions of the specic types of non-governmental organizations concerned. They cannot be applied to other types of juridical persons, and least of all to IGOs, whose organizational set-up, purposes and functions are very different. Clearly, no legal transaction performed by an IGO could be declared invalid merely because it had not been performed or approved by the organ whose action or consent would have been required under national law relating to governmental agencies or private business corporations, respectively, or because the decision had not been made according to the rules prescribed in such a statute. This was clearly conrmed by the Superior Court of Montreal on 2 December 1952 in UN v. Canada Asiatic Lines Ltd. In this case the defendant sought to reject the power of attorney produced by the lawyer for the United Nations, which had been signed by the Secretary-General. However, the Court held the power of attorney to be valid and distinguished the cases which had been cited to it relating to companies on the grounds that “the affairs of the United Nations are administered by the Secretariat and not by a Board of Directors as is done in the case of a company incorporated under Letters Patent”. The Secretary-General was chief administrative ofcer of the United Nations and the institution of the action fell within the scope of the authority of the Secretariat.49 It is therefore with good reason that writers dealing specically with the question of which organs are competent to act on behalf of an IGO, do not apply the national law of the host State.50 They refer instead to international law or treaties or propose that the question be solved by an express

48 The fact that organic representation is governed by the personal law is conrmed by Tomasi

in Revue critique de droit international privé, 1958, p. 652. He points out that all kinds of “representation légale, qu’il s’agisse de représenter en tant qu’organe une personne juridique ou des pouvoir d’un tuteur, est réglée par la loi du siege ou, selon les pays, par la nationalité ou le domicile”, while “representation conventionelle” is complicated by the autonomy of the parties. 49 UN doc. A/CN.4/L.118/Add. 1, p. 33. 50 Thus, Seidl-Hohenveldern stated in Archiv des Völkerrechts, IV (1953), pp. 34–35, somewhat timidly: “Die innerstaatlichen Regeln des Vereins- oder Gesellschaftsrechts dürften nicht immer eine klare Lösung dieser Frage bringen können, da die durch einen internationalen Vertrag geschaffene Organisation in ihrer Konstruktion von den dort vorgesehenen Typen abweichen kann”.

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treaty provision.51 Article 34 (a) of the Cartagena Agreement provides that the Andean Community Secretary General acts as the General Secretariat’s legal representative, and Article 1, paragraph 2, of the General Agreement on the Privileges and Immunities of the Council of Europe provides that in transactions of a national nature “the Secretary General shall act on behalf of the Council of Europe”.52 However, as these examples demonstrate, a constitutional provision will either express merely what follows from the organizational set-up of the organization and from general principles of law, or it will be too rigid and give rise to legal conclusions which have not been intended. In either case, one must resort to other provisions of the internal law of the organization and to general principles of law to give the provisions meaning or to modify them, respectively. Thus the rule that legal transactions are performed by the executive and not by the deliberative organs is a general principle of law. It concerns both governmental and non-governmental organizations, and applies even if nothing has been stated to that effect. Contracts are usually concluded on behalf of IGOs by their secretariats without specic authorization.53 It is also a general principle of law that distinct organs perform legal transactions within their own eld of competence, if they have a secretariat and a budget of their own or if they have otherwise been given a sufciently independent position in this respect – a question which must be determined on the basis of the organizational set-up and the other internal law of the organization. Nor are specic constitutional provisions necessary for formal reasons. It is not a condition for binding effect in national courts that the rules concerning the competent organs and their decisions shall have been embodied in the constitution of the organization or in another treaty, and thus be given the force of public international law. A mere regulation or other decision by the competent organs of the organization, although of a lower hierarchical order than the constitution (which usually is contained in an international convention), will and must similarly be applied by the national courts of the country where the question arises, whenever the rules of conict

51 In the latter sense Jaenicke in Zeitschrift für ausländisches öffentliches Recht und Völ-

kerrecht, XIV (1951–1952) p. 88 and Seidl-Hohenveldern, loc. cit. preceding note. See more generally Schitzer: Handbuch des internationalen Privatrechts unter besonderer Berücksichtigung der schweizerischen Gesetzgebung und Rechtssprechung, 4th ed., Basel 1957–58, pp. 331–2. and Max Egger: Die Vorrechte und Befreiungen zugunsten internationaler Organisationen und ihrer Funktionäre, Vienna 1954, p. 27. 52 Art. 282 of the EC Constitution and art. 185 of Euratom provide that the Commission represents the Community. 53 As for the League of Nations, see a letter from its Secretariat to Liermann, quoted by the latter in Zeitschrift für Völkerrecht, XV (1930), p. 30.

choice between national laws 545 of laws of that country refer to the personal law of the organization. And most IGOs have enacted relevant regulations in the exercise of their inherent organic jurisdiction. Accordingly, for the purposes of external relations, there is no need for constitutional provisions on the subject. Indeed, they would be undesirable, because they would be too rigid. The organizational set-up of an IGO is subject to steady evolution – by regulations of high or low hierarchical order, which, for example, establishes new organs – while a constitutional provision could be altered only by constitutional amendment. Moreover, even a mere restatement of general principles of law in the constitution of the organization may give rise to unfortunate interpretations, for example that the power could not be delegated to new subsidiary organs, or that the plenary or other superior organs could not interfere.54 Even the question of which organ has the power to enact the necessary rules designating the competent organs and how these shall make their decisions, need not be resolved in the constitution. The answer follows from the organizational set-up of the organization and from general principles of law. In the absence of any constitutional provision, the plenary organ will have the power to designate the organ which shall perform legal transactions on behalf of the organization. If it does not do so, and does not so empower another organ, the Secretariat will usually have the power to act on behalf of the organization,55 or to designate other organs to do this. Indeed, express regulations are frequently enacted to designate which ofcers within the Secretariat have the authority to enter into nancial commitments. Thus the Financial Regulations of the United Nations provide in Article 10 that the Secretary-General shall “designate the ofcers who may receive monies, incur obligations and make payments on behalf of the organization”. Similarly, all IGOs have rules, partly in their constitutions and partly in their rules of procedure, on what constitutes a valid decision by the Organization, and in particular on what organs are competent to make decisions and on the procedure that these must follow. These clearly must be applied if any question of validity arises. This has been made abundantly clear in those cases where the constitutions even provide that questions of the validity of the acts of the organization can only be adjudicated by the organizations’

54 Kelsen: The Law of the United Nations, has drawn such conclusions in other elds of

the internal law of the UN, for example that the Trusteeship Council cannot establish subsidiary organs (p. 653, note, cf. p. 144; cf. the criticism above, and that the General Assembly cannot enact regulations for the registration of treaties by the Secretariat under Art. 102 of the Charter (p. 699, cf. p. 703). 55 In this sense also Jaenicke, loc. cit.

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own courts, even if they merely arise as preliminary issues (questions préjudicielles) before national courts.56 Indeed, the question of what organs are competent to act on behalf of the organization and of what constitutes a valid decision by the organization must be decided on the basis of the internal, organic law of the organization, which comprises its constitution, as well as its regulations, its internal customary law and general principles of international and public law. IGOs, like other juridical persons, are entitled to designate themselves those organs which are competent to act on their behalf and to determine what shall constitute a valid decision by such organs. And IGOs – unlike NGOs – are not restricted in the exercise of this power by the national law of the host State, or by that of any other State. They have exclusive jurisdiction over their organs. And in exercising this jurisdiction they create genuine, sovereign law, which is subject only to public international law, and which must be applied whenever rules of conict of laws refer to their personal law. Thus, in this respect, too, the lex personalis of an IGO is its own internal law, in the same manner as the lex personalis of a State is its own national law. However, not all questions depend upon the personal law. Thus many organizations have enacted certain rules concerning the authority of the organs that act for the organization externally to perform binding legal transactions. These latter rules are usually found, not in the constitution, but in the nancial regulations adopted by the plenary organ or in administrative orders enacted by the Secretariat. Thus it is provided in Regulation 5.9 of the Financial Regulations of the United Nations57 that “obligations for the current nancial period or commitments for current and future nancial periods shall be incurred only after allotments or other appropriate authorizations have been made in writing under the authority of the Secretary-General”. This is probably intended merely as internal instructions binding upon the competent ofcials of the organization, but not upon third parties. An earlier (provisional) version of the nancial regulations was different and provided in Regulation 25: No contract, agreement or undertaking of any nature, involving a charge against the United Nations exceeding US$ 100 shall be entered, or have any force or effect, unless: (a) Credits are reserved in the accounts to discharge any obligation which may come in course of payment in the nancial year under such contract, agreement or undertaking;

56 EC, Art. 234 and EURATOM, Art. 150. 57 Financial Regulations and Rules of the United Nations, Secretary-General’s bulletin,

ST/SGB/2003/7, 9 May 2003.

choice between national laws 547 (b) The charge is a proper one against the United Nations; and (c) Proof has been provided that the service is for the benet of the United Nations and the cost thereof is fair and reasonable.58

The question of whether such internal administrative limitations upon the authority of the organization’s representatives are valid vis-à-vis third parties in an external civil law relationship is not an internal question and may therefore depend upon the lex causae, rather than upon the personal law. This may have been the reason why the United Nations dropped the italics words from its nancial regulations. However, since the proper analogy, if any, is not the conict of laws governing foreign corporations, but that governing foreign States,59 the substantive rules may have to be drawn from general principles of law.60 At any rate, whether this matter is governed by the personal law or by the lex causae (or by general principles of law), the law of the host State as such is irrelevant. A court could not set aside the United Nations regulation merely because under the national law of the organization’s host State a public or national private body could not have validly invoked such a provision against third parties.

Conclusion The foregoing concrete examination of some of the more important legal questions which rules of conict of laws refer for decision to the personal law of IGOs, leads, in conclusion, to the general proposition that in those few elds of law where rules of conict of laws refer to the personal law ( lex personalis) of an IGO, one must apply the internal law of the organization. There is no need to deviate in these cases from the general principle of conict of laws that the personal law is the party’s own law – and to start looking for a substitute in the form of some particular system of national law. On the contrary, the application of any particular system of national law as the personal law of the organization would, at least in the most readily conceivable cases, as best offer no guidance, but in most cases lead to inadequate or even impossible solutions. Neither the

Adopted by General Assembly resolution 163 (II). Italics added. In an internal dispute the League of Nations Administrative Tribunal has held that the Secretariat was not responsible for a promise it had given ultra vires on behalf of the Pension Fund, because the rule that a person who promises that an act will be performed by a third party is responsible for the refusal of the third party to perform the promised act was applicable solely to civil law relationships. It did not apply to an administrative law relationship governed by the principles of public law, including the principle that a person cannot be responsible for fulllment of a promise which it was outside his competence to make. (Annual Digest of Public International Law Cases, 1933/34, p. 462 (4).) 60 Cf. Jenks op. cit., p. 9. 58 59

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public law of a State relating to the organization and capacity of the State itself and its subdivisions, nor its law concerning the organization and capacity of corporations and associations, could be applied to IGOs. The internal law of IGOs is not as insufcient as has been generally assumed. It is true that the constitution may not contain the necessary rules. However, it must, like any other legal system, be supplemented by internal legislation, internal customary law, and general principles of law. The latter may be drawn from public international law, as well as from constitutional and administrative national law. Some modern writers who accept the principle of the inapplicability of national law, tend to speak instead of general principles of law or international law, or of a “personal law” consisting of international rules, but distinct from international “administrative law”.61 This may be due to the common failure to recognize the internal law of IGOs as a legal system distinct from international law, or to a failure to admit that the constitution of an IGO forms part of its internal law (as well as constituting particular international law). However, this is not to say that, in addition to the internal law of the organization, there may not also have evolved certain rules of genuine (and general) international law which govern certain aspects of the matters discussed above, for example of the juridical personality of IGOs. Writers tend to base the claim to juridical personality in member States upon express constitutional provisions – and, in non-member States, upon the general principle of conict of laws relating to NGOs that if their juridical personality is recognized at home it is also recognized abroad.62 It is submitted that IGOs enjoy juridical personality even if no provision to that effect has been included in its constitution or in a convention on privileges and immunities. If this is a rule of general international law, then there is no need to rely upon analogy to NGOs. And if it is not, the better analogy is foreign States.63 Even if there are applicable rules of general international law, it is necessary to distinguish between these and the internal law of the organization. Thus, it has already been pointed out that a national court will apply the internal law of IGOs according to its own rules on conict of laws, while it will apply international law according to its constitutional rules on incorporation of treaties and customary international law into its national law and that the constitution of the organization falls in both categories in member States and (only) in the rst category in non-member States.

Jenks, op. cit. pp. xxxviii and 192. Seidl-Hohenveldern, notably in Revue égyptienne de droit international, XXI (1965), pp. 64–65. Cf. also the Hague Convention cited above, note 41. 63 See the Montevideo Treaty quoted above, under (c), and Batiffol: Traité élémentaire de droit international privé, 3rd ed., Paris 1959, pp. 227–8. 61 62

choice between national laws 549 16.4

Territorial connecting factors (in private law)

General. Lex causae in law governing economic matters The connecting factors we have been considering so far will not usually be applied by national courts to the main question of a dispute involving an IGO. They will in such courts usually relate to preliminary issues in disputes which in substance are concerned with commercial matters or other matters of an economic nature. The main substance of such disputes will, if not governed by general principles of law, be governed by some system of national law as the lex causae. An example is cheques, which IGOs have used at least as much as other parties. The Convention for the Settlement of Certain Conicts of Laws in Connection with Cheques of 19 March 1931 provides in Article 2 for the application of the national law to the capacity of a person to bind himself by cheque, and in Articles 3–8 for the application of various territorial laws (lex loci solutions, lex loci actus) to substance and form. In the remaining parts of the present chapter we will consider the question of the lex causae in the non-personal elds of private law – i.e., in the law concerning economic matters or private economic law. These are the most important, because it is mostly in these elds that IGOs become involved in disputes with private parties. We are concerned with such matters as property, contracts and other obligations, torts, and other economic matters. Excluding torts, these legal elds are in Scandinavia referred to as formuesrett, in German Vermögensrecht, as a common denominator. Anglo-Saxon law has no corresponding term. In these elds there are three main methods of choice of law: (1) In some elds there are standard connecting factors, usually of a territorial nature, for example lex rei sitae in real property and, less rigidly, lex loci delicti in torts64 and lex loci actus with regard to the form of private acts65 ( locus regit actum). These principles are applied also to IGOs. Thus, the documents by which land property was transferred to the League of Nations were ordinary notarial acts according to Swiss law.66 The arbitration agreement reported in chapter 14.5 provided for application of the lex loci delicti to the

Bowett: The Law of International Institutions, 4th ed., London 1982, p. 370 nds it “tempting to suggest that, subject to immunities, the local law will apply to torts committed within a headquarters district”. 65 On acts of public organs, see above, under 16.2. 66 The Secretariat of the League to Liermann, quoted by the latter in Zeitschrift für Völkerrecht, XV (1930), p. 30. 64

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non-contractual liability of the United Nations for the loss of a private aircraft in the Congo in 1961. And a Belgian court, in United Nations v. B and others expressly held that the rule locus regit actum was applicable to the cession of a claim from UNRWA to the United Nations. (2) In other elds there is in many countries a more exible method, the individualizing method, which probably coincides with what Anglo-Saxon lawyers refer to as the proper law method. This avoids the application of one rigid connecting factor in all cases of a certain category. It allows instead for a concrete evaluation in each case of all connecting factors, or links, that the legal relationship may have with one or another system of law, in order to determine with which system it has its strongest links. The individualizing method is applied particularly in the law of contracts, partly also in other elds of Vermögensrecht and torts, and is well suited for IGOs. However, this method is not admitted in the conict of laws of all countries, and notably not in a number of Latin American States. (3) Finally, the conict of laws of most, but not all countries, recognizes the autonomy of the parties in certain elds, notably in the law of contracts. The parties may then themselves choose the applicable law, and, if they have done so, this choice is given effect within certain, rather wide, limits. The examples cited above, in chapter 14, prove that IGOs frequently exercise this choice. In the second and third case, the courts and the parties, respectively, will of course choose a law that is practical. They will therefore not normally choose the private law of an IGO that does not have any such law. And should they exceptionally do so, it will be for good reasons, viz. that they want the relationship to be governed by general principles of law and any regulations enacted by the organization. In the rst case, the applicable law will usually be territorial, for example the lex rei sitæ, lex loci actus, lex loci contractus,67 lex loci solutionis,68 or lex loci delicti. Alternatively, the applicable law may be the lex domicilii of one of the parties,69 i.e. of the organization or the other party. We shall now discuss the application to IGOs, rst of territorial connecting factors, and then of the lex domicilii. In all those cases which are governed by a territorial connecting factor – or where the individualizing method leads us to the application of a territorial connecting factor – the applicable law will be the law of the territory to which

67 68 69

Particularly in Belgian, Dutch, French and, partly, Anglo-Saxon law on contracts. Particularly in German and Swiss law on contracts. Notable the lex debitoris in Nordic law on obligations.

choice between national laws 551 the pertinent conicts rules refer, irrespective of who the parties are. There are four different situations.

State territory The normal case is that the territory concerned is under the sovereignty and administration of a State. The national law of that State will then be applicable.70

IGO territory If the territory is under the sovereignty or administration of an IGO, the necessary law, including private law, will have been enacted by or under the authority of the organization or taken over from its predecessor. Thus, in the case of territorial administration authorized by the UN Security Council as part of a peace support operation (e.g. Kosovo and East Timor) or joint Allied military occupation government or other indirect condominium and coimperium, the territorial law previously in force continues to apply to the extent and with the 71 amendments and supplements that the authorized organization determines. The same is usually true of internationalized territories, for example West New Guinea (Irian Barat),72 although the necessary revised or additional law is then more frequently enacted by local organs set up under the supervision of the organization, for example in the Saar. The necessary law for territories under trusteeship would have been enacted by the administering authority or by the UN if the organization itself were to become administering authority, for example in South West Africa. In one case as in the other, the law is

H. Aufricht “Relative Sovereignty” in Cornell Law Quarterly, XXX (1944–1945) VII B, points out that it is “conceivable that a Bill of Exchange in which the League of Nations appears as the ‘drawer’ and the Permanent Court of International Justice as the ‘drawee’ would be subject to the rules established by the conventions of June 7, 1930, since the Netherlands as well as Switzerland have ratied [and presumably implemented in their municipal law] the conventions”. 71 See for illustration UNMIK Regulation no. 1999/24, 12 December 1999, with later amendments, on the law applicable in Kosovo and the UNMIK Ofcial Gazette for a complete list of Regulations and Administrative Directions for Kosovo (www.unmikonline.org/regulations/index.htm – visited September 2007). See also the list of UNTAET Regulations for East Timor (www.unmiset.org/legal/UNTAET-Law/Regulations%20English/regenglish. htm – visited September 2007). 72 The administration of West New Guinea was transferred from the Netherlands to a United Nations Temporary Executive Authority (UNTEA). UNTEA had full authority from 1 October 1962 until 1 May 1963 when full authority was transferred to Indonesia. 70

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supplemented by the means common to all legal systems – notably by internal customary law and general principles of law – and not by any particular foreign system of national law.

IGO premises A territorial connecting factor may also relate to the premises of an IGO. These are not usually under the sovereignty of the organization or under its territorial jurisdiction. Like premises of embassies, they are inviolable, but not extraterritorial in respect of territorial substantive law. As has been pointed out elsewhere,73 the premises are therefore subject to the territorial law of the host State. The only exceptions are the headquarters districts of the United Nations in New York, of the IAEA in Vienna, of UNESCO in Paris and of the Council of Europe in Strasbourg, in those few respects in which those organizations have enacted headquarters regulations as authorized in their headquarters agreements with the host State. With this minor exception, the law to be applied is in principle the national law of the host State.74 This is so, for example, if a contract which is governed by the lex loci contractus is concluded on the premises of an IGO, or if a tort governed by the lex loci delicti is committed there. However, due account must be taken of the fact that the premises of an IGO are much less closely connected with the law of the host country than are other parts of its territory. Even if the legal relationship concerned has its strongest connection with the premises of an IGO, the comparatively loose connection between the latter and the law of the host country will render the connection of the legal relationship with the law of the host country weaker than it would otherwise have been. It is consequently quite possible that some other connecting factor (territorial, personal or organic) which the legal relationship may have with the same or another legal system will involve a stronger direct connection. If this is the case, it is more natural to apply this connection, at least if we are not within a eld of law which under the conicts law of the lex fori is governed by one rigid principle, but which admits the individualizing or some other exible method. In view of the international nature of the organization, one should not attach undue importance to the fact that its headquarters happens to be in one particular State. The practice of the European Community and EURATOM demonstrates that

73 74

Cf. Seyersted, ICLQ , XIV (1965), pp. 518–521. As pointed out ibid., pp. 505–516. Contracts of employment with ofcials are not governed by territorial, but by organic law, i.e. by the internal law of the organization.

choice between national laws 553 these organizations in some cases avoid the law of their host State as such, and in other cases they do not. This is thus the rst case where we may wish to deviate from the otherwise applicable connecting factor because of the special nature of IGOs. We do so, not because it is necessary in order to nd an applicable law, but because it gives a better solution. And this alternative solution, too, is in accordance with general principles of conict of laws. Jenks,75 discussing torts on international premises, distinguishes, not according to whether or not the conict of laws of the lex fori lays down a rigid rule of lex loci delicti, but according to whether or not the headquarters agreement or host agreement concerned contains an express provision to the effect that the law of the host State shall apply on the premises. Jessup does the same with regard to contracts signed and/or to be performed on the premises.76 However, this clause occurs only in a few headquarters agreements, and then together with a provision which authorizes the organization to enact (territorial) regulations for the headquarters district77 and/or which State that the premises shall enjoy “extraterritoriality” and be under the “control and authority” of the organization.78 It was as a natural supplement to, and limitation of, such provisions that the clause on applicability of local law was added in these few agreements (and in one case of uncritical partial copying of these precedents), and not in order to deviate from general principles of conict of laws. It is therefore submitted that these agreements do not in substance deviate from the normal headquarters agreements and host agreements, which contain no such clauses, but merely add a provision to the effect that the premises shall be “inviolable”,79 or, in a few cases,80 both inviolable and extraterritorial (in different articles). Even the distinction between the two latter terms can hardly be considered as signicant.81 Thus the headquarters agreement between the ILO and Switzerland of 11 March 1946 contains both terms, while the host 75 The Proper Law of International Organizations, London 1962, pp. 213–219, but cf. 76 77 78

79 80 81

p. 141. Transnational Law, New Haven 1956, pp. 98–99. As explained above, these create territorial law, which supersedes the national territorial law. Contra: Jenks, op. cit., p. 141. UN-US of 26 June 1947, §§ 7 (a)-(b) and 8 (“control and authority and power to enact regulations”); International Atomic Energy Agency-Austria of 11 December 1957, Arts. 7–8 (“control and authority”, “extraterritoriality”, power to enact regulations); Council of Europe-France of 2 September 1949. Arts. 1–2 (power to enact regulations); FAO-Italy of 31 October 1950 §§ 6 (a)-(b) (“control and authority”, “extraterritoriality”). League of Nations and UN with Switzerland, ICAO and Pacic Commission with France, ICAO with Canada. The headquarters agreements of ILO, IRO and WHO with Switzerland. Jenks, op. cit. pp. 139–140 and 214, appears to attach signicance to this distinction, too.

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agreement concluded of 1 July that same year between the United Nations and Switzerland merely provides for inviolability. Similarly, two of those headquarters agreements which provide expressly for the application of local law contain both terms (FAO and IAEA), while the remaining three provide for inviolability only (UN, UNESCO, Council of Europe). It is submitted that there is in fact no legal difference between the various provisions (except, of course, in so far as four of them confer a territorial legislative power upon the organization). Their content depends in either case upon the same customary law or analogy82 – which as far as applicable law is concerned – applies also in the absence of any express provision. Any distinctions deduced from differences in the wording of the various headquarters agreements would not reect real differences between the needs of the organizations and the intention of the drafters. The practical result of Jenks’ interpretation would be that local law in fact applies more rigidly on the premises of the United Nations and a few others of the most important IGOs, than on the premises of all other IGOs, including the less important. Indeed, in those cases where there is no express provision in the agreement for the application of local law and a provision for extraterritoriality, rather than, or in addition to, inviolability, Jenks83 proposes to apply the lex fori, rather than the lex loci delicti, to claims made by the organization against persons (ranging from ofcials to private visitors) who have committed torts on the premises of the organization. This is no doubt a practical method. However, it may be appropriate to take into account the relationship of the tortfeasor with the organization. Indeed, there may be more reason to distinguish according to such real differences in the status of the tortfeasor than according to accidental semantic differences in the status agreements of the various organizations. Thus the liability of ofcials may be adjudicated on the basis of the internal law of the organization (i.e. general principles of law) – thus substituting the organic for the territorial connecting factor – while the liability of a visitor for private purposes may remain under the territorial rule of lex loci delicti (i.e. the law of the host State even if he is a foreigner). Jenks himself makes this distinction in respect of the organization’s liability as occupier of premises for injuries or damage suffered there.84 In that case it is obvious that the liability of the organization vis-à-vis its ofcials depends upon its own law, because this is an aspect of the relationship of employment and thus falls under the organic jurisdiction. As

82 83 84

Cf. Jenks, ibid., pp. 217–218. Id. pp. 215–218. Op. cit., pp. 144–145.

choice between national laws 555 for the liability of the organization towards others who use the premises for ofcial international business, Jenks States that “it would appear to be within the competence of the organization’s representative organs to determine the law to be applied to such cases as may arise”. This would seem to point to the internal law of the organization (i.e. general principles of law) if the organization has not decided otherwise.

Ships, aircraft and space-vessels registered with the organization The fourth situation that may arise is when the connecting factors refer to a ship, aircraft or space vessel registered with an IGO (and ying its ag) rather than with a State. When these are in the territory of a State, the law of that State is (with some reservations) the law on board. But when they are on the high seas, in stateless territory or in outer space, the territorial law on board is the law of the sovereign community whose ag they y. However, IGOs which have no other territory do not have a private and a criminal law. This was what made the International Law Commission hesitant about recommending the inclusion in the Convention on the High Seas of 29 April 1958 of an article on ships under the ag of an IGO, and what caused the present writer and the Conference to conne itself to inserting an article (Article 7, proposed by the present writer) reserving the matter.85 Since then, the question has been discussed and partly solved in connection with certain particular conventions or draft conventions, on the basis that the organization shall designate the law of some State as the applicable law86 to the extent that it has not enacted its own laws. As for criminal law, the Tokyo Convention on Offences and Certain Other Acts Occurring on Board Aircraft of 14 September 1963 provides in Article 18 that the member States shall designate one of their number to assume the criminal jurisdiction which the convention confers upon the State of registration; the courts of that State will then, of course, apply their own law, unless the States concerned agree otherwise. The same principle was adopted in respect of civil liability for nuclear damage by the Standing Committee of the Diplomatic Conference on Maritime Law,

85 Yearbook of the International Law Commission, 1956, II, pp. 102–103 and 279; UN

Conference on the Law of the Sea, Genève 1958, OR, II, pp. 20–21, and IV, pp. 65–76, 129 and 138–140; H. Meyers: The Nationality of Ships, the Hague 1967, pp. 329–338. 86 Even a State has done this: Liberia has designated the non-statutory general maritime law of the US as the general maritime law of Liberia, see text quoted by Meyers, op. cit., p. 346.

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in its draft Article XXV bis to the (not yet in force) Brussels Convention on Liability of Operators of Nuclear Ships of 25 May 1962. The article provides that the Organization shall designate the courts of a Contracting Party as the “courts of the licensing State” in respect of ships licensed by the organization. These courts shall then apply their own law whenever the Convention refers to the “applicable national law”, which is dened in the convention as the law of the court having jurisdiction ( lex fori). However, this law shall be applied “together with any special provisions of the Organization which are necessary in view of the international character of the Organization and which have been made applicable by agreement with that Contracting Party”. Moreover, when the convention refers to the “law of the licensing State” (it does so only once), this article provides a reference to “any relevant provisions adopted by the Organization”.87 Indeed, IGOs have an inherent power to enact their own territorial law for sea, air and space vessels which are not registered in any State,88 or to adopt some national law as the territorial law. The latter is, of course, the more practical method whenever there is a need for positive arbitrary rules, but only to the extent that the special nature of the organization or the operation does not require special rules. However, when the organization has neither enacted, nor designated an applicable territorial law – as the United Nations had not done in respect of the ships ying its ag in Korea and the Middle East – then there will be a legal vacuum in respect of objects and acts governed by the territorial law on board, whether or not the organization is a party to the legal relations concerned. This vacuum can be lled, in civil law, by the application of general principles of law as the law of the organization. However, if we are not concerned with relations between the organization and the captain and crew as such 87 International Atomic Energy Agency document CN-6/SC/13, 1965, pp. 70–71, cf.

pp. 17–18. See also the discussion in Meyers, op. cit., pp. 339 et seq., of earlier events and pp. 345–348 of the questions of principle. The provision adopted by ICAO and the UN concerning, respectively, aircraft and space vehicles registered with an IGO, do not provide for jurisdiction. On aircraft, see ICAO constitution, Art. 77, and the Council’s resolution of 14 December 1967 on joint and international registration of aircraft (doc. 8722–C/976); part I D of Appendix 2 to that resolution appears to assume that jurisdiction will be national. On space vehicles, see Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of 27 January 1967, Art. XIII; Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space of 22 April 1968, Art. 6; the Convention on Liability for Damage Caused by Space Objects of 29 March 1972, Art. XXII. and Darwin: “The Outer Space Treaty” in BYIL XLII (1967) pp. 278–89. 88 In this sense also Meyers, op. cit., p. 346.

choice between national laws 557 (which is subject to organic, not to territorial law), the problem can also be solved by the application of the national law of some State on the basis of other (territorial or non-territorial) connecting factors, as suggested above, in respect of certain relations connected with the premises of the organization. Which of these two methods the competent court will apply, will probably depend, inter alia, upon whether the relationship concerned under its own conict of laws is governed by a rigid territorial reference or by some more exible principle, such as the individualizing method or the presumed intention of the parties. Indeed, in the latter cases it may be natural to look for other connecting factors even if the organization has designated an applicable law, if such other connecting factors involve a stronger link to some other law. In criminal law there is no way of lling the gap in the organization’s law if the organization has not made use of its inherent power to establish its own criminal courts and either to enact its own criminal law or to adopt by incorporation the criminal law of some State. Recourse must then be had to national courts, which will apply their lex fori. Indeed, most national criminal courts assume extraterritorial jurisdiction over nationals who have committed criminal acts abroad. The culprit can therefore be handed over to the authorities of his own State for prosecution under its laws. This is the solution adopted for the Atlantic Treaty of 1 December 1959, in respect of observers and exchanged scientic personnel; and in respect of members of United Nations Forces, by the regulations enacted for these and by the agreements which the United Nations has concluded with the host States and the States providing contingents.89

Conclusion In conclusion, the application of territorial connecting factors to civil relations involving IGOs gives rise to special problems only when the connection is with the premises of the organization or with a means of transport registered exclusively with the organization, while it is outside the territory of any State. The direct, logical solution is, in the rst case, to apply the law of the host State, and in the second case, to apply any law enacted or designated by the organization and general principles of law. However, it may often be reasonable to look for

89 Text in Seyersted, op. cit., pp. 428, 441 and 444, discussion pp. 102 and 370 et seq. See

however the problems in this respect reported in UN doc. A/59/710, 24 March 2005, cf. also above chapter 6, note 83 and chapter 10, note 35.

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other connecting factors, if the relationship under the conict of laws of the lex fori is not rigidly governed by this one territorial connection.

16.5

LEX DOMICILII (and

LEX PATRIA)

in economic law

Personal connecting factors in economic law Genuine personal connecting factors do not appear to play any role outside the legal elds discussed under 16.3 above. By genuine personal connecting factors is then meant either the pure lex patriae, or the lex personalis as dened by the lex patriae in those countries which apply the nationality principle and by the lex domicilii in those countries which have adopted the principle of domicile. However, conict rules in the eld of economic law ( Vermögensrecht), and notably in the law of contracts, frequently refer to the lex domicilii of one of the parties, for example the debtor, the vendor, the lender, the donor, the agent or the person he represents, as the lex causae.90 As for loans, conict of laws rules generally hold the lender’s law applicable when there are no special circumstances,91 except that public lenders (States and IGOs) sometimes accept the law of the borrower (and except that bond loans usually are governed by the law of the market).92 In these cases the reference is not to the lex personalis of the party concerned, but to a genuine law of domicile, determined by domicile even in those countries where nationality is the test of the personal law. The difference may be illustrated by examples from Swedish conicts law, which applies the nationality principle. Thus, under Swedish law guardianship for minors and the insane, which is governed by the personal law of the minor or the insane, is governed by his lex patriae. But a power of attorney is governed by the lex domicilii of the agent or the person he represents, if it is not governed

90 The Polish Law on Private International Law of 12 November 1965 No. 46 provides in

Articles 26–27 that, if the parties to a contract have not chosen an applicable law, the contract shall be governed by the lex domicilii of both parties or of the party that provides an object or a service ( lex debitoris). Full text in Revue critique de droit international privé, LV (1966), p. 326. 91 Gerald Gold, “Conict of Law Problems Accompanying the International Credit Transaction”, Indian Journal of International Law, 1960–61, at p. 651. 92 Nurrick, “Choice-of-law clauses and International Contracts” in Proceedings of the American Society of International Law; 1960, at pp. 59–61.

choice between national laws 559 by the law of the country where it is designed to operate or by some other territorially dened law.93 What do we then do if the party, whose lex domicilii is to be applied, is an IGO that has no territory with a private law of its own? The answer depends, in the rst place, upon whether we regard the lex domicilii as a territorial or a personal law, and, in the nal resort, upon whether we are faced with a rigid rule of lex domicilii or whether we are in a country and a eld where the more exible methods are admitted.94

The territorial law of the host country If the lex domicilii is regarded as a territorial connecting factor, the applicable law is in principle the national law of the host State. In the eld of private economic law the theoretical and practical reasons advanced under 16.3 against the application of the national law of the host country do not apply. On the contrary, if the lex domicilii is regarded as territorial law, it will be in accordance with general principles of conict of laws to apply the territorial law governing the premises of the organization. And this is, as has been demonstrated in chapter 16.4, the territorial law of the host country. The organization enjoys no general extraterritoriality with regard to substantive territorial law, as it does with regard to organic (and personal) law. From a practical point of view, too, the application of the national law of a State appears to be a good solution in the eld of Vermögensrecht, because IGOs which exercise no territorial jurisdiction have no such law of their own. The national law of a State will offer adequate solutions in most cases where the external contractual and similar relations of IGOs are not essentially different from those of other parties. If they are, then the matter may not be governed by national law and traditional conict of laws at all, but by general principles of law, as discussed in earlier chapters. It has been pointed out that, where the applicable conict rule contains a direct reference to the territorial law of the premises of an IGO, one must take into account the fact that the link with the territorial law of the host State is usually weaker than when the reference is to State territory for other

93 94

Nial: Internationell förmögenhetsrätt, Stockholm 1944, pp. 59–60. In Scandinavia, however, there is still a tendency in the law of contracts to use the lex domicilii of the debtor as a last resort when the individualizing method does not provide a solution, see Lundgaard: Gaarders innføring i internasjonal privatrett, 3rd ed., Oslo 2000, chapter XIV, cf. Almén as cited by Karlgren: Kortfattad lärobok i internationell privat- och processrätt, 3rd. ed., Lund 1971, p. 106.

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reasons. It was indicated that for this reason it might often be natural to discard this particular connecting factor altogether and apply instead some other connecting factor, at least in those elds and countries where a exible principle of conicts law prevails. This applies with even greater force if the reference is to the lex domicilii than if it is directly to the territory concerned. The link of the organization to its law of domicile, dened as the law of the host country, is very much weaker than that of natural persons, national nongovernmental organizations and States, to their law of domicile. Therefore, if the legal relationship concerned has some other connection, which may be somewhat less dominant, but which points to some system of national law directly rather than via the intermediary of the domicile of the organization, this may be the connection which in the specic case represents the strongest link with any particular system of national law. This connection should then be preferred, at least if one moves in a eld of conict of laws which is governed, not by a rigid principle, but by a concrete evaluation of all the connecting factors involved in each particular case, as are many elds of Vermögensrecht, and particularly the law of contracts. The case for resorting to such an alternative connection is of course particularly strong where there would in any case have been doubt as to which connection should be given preference, for example if there are about equally strong reasons for applying the lex domicilii debitoris and the lex loci solutionis or the lex loci contractus. It appears from the practice reported above that the European Communities in some cases appear to treat their lex domicilii as the territorial law of the host State, notably when the EURATOM general conditions for the provision of goods and services provide that “le droit du pays du siège de la Commission est applicable au marché”.95 In other cases, however, other connecting factors are applied in order to avoid leaning too heavily on the law of the host State.

The internal law of the organization It may be preferable to consider even the pure lex domicilii as personal rather than territorial law. In that case the logical law to apply is the internal law of the organization. This is certainly true if it were to be found that conict rules even within the eld of Vermögensrecht or torts in certain specic respects refer to the

95

However, in many cases this law is also the lex loci solutionis, the lex loci contractus and/or the lex domicilii of the other contracting party.

choice between national laws 561 lex patriae,96 or to the (genuine) lex personalis, as dened by nationality or domicile according to the country.97 The application of the internal law of the organization would in these cases meet with the objection that IGOs usually have no Vermögensrecht of their own. The question would then arise whether the internal law can be extended to take care of such questions. This could be done in the rst place by the organization enacting the necessary rules as part of its internal law. This all IGOs have an inherent power to do, if their constitutions do not provide to the contrary – and they do not. The territorial sovereignty of the host country over the premises of the organization would be no obstacle to the application of this law – if the lex domicilii is considered as personal rather than as territorial law. However, IGOs are not known to have enacted law for the purpose of external relations of a private law nature, either in the form of substantive rules98 or in the form of incorporation of some system of national law, nor of rules of conict of laws prescribing renvoi.99 And they are not likely to do it – unless they establish courts of their own with competence in commercial or other economic disputes. But even the organizations that have done so are not known to have as yet enacted any law to be applied by such courts in external disputes. A different matter is that some organizations meet the need, in those cases which are of greatest practical importance, by enacting general rules for incorporation by reference in certain types of contracts which they conclude in great numbers. When they have been so incorporated, they apply without regard to whether the applicable rules of conict of laws refer to the internal law of the organization or to some system of national law. But in most cases the rules apply only to contracts and only when these refer to the rules. It is

As pointed out above, in 16.3 and 16.4 in initio, Art. 2 of the conventions on cheques and bills of exchange do not extend beyond the law of persons. 97 Karlgren: Kortfattad lärobok i internationell privat- och processrãtt, 4th ed., Lund 1971, pp. 98–99, cites a Swedish judgment in this sense and the criticism which has been advanced against it. If a tort is committed outside the jurisdiction of any State, Jenks, op. cit., pp. 219–222 proposes to substitute the lex fori for the lex loci delicti “subject to any allowance made by the lex fori for the personal law of the tortfeasor”. 98 The Secretariat of the UN at any early stage suggested that the organization enact regulations under § 8 of the Headquarters Agreement between the United Nations and the United States concerning necessary contractual arrangements to be concluded within the headquarters district (document A/1409, para. 1). However this suggestion probably was based upon a misconception, inasmuch as it envisaged in the rst place contracts of employment, which are of an internal nature and not subject to State law. 99 During the discussion of Headquarters Regulations at the Fifth Session of the UN General Assembly, it was proposed drafting a code of regulations which would be helpful in settling disputes involving conict of laws, OR GA, V, Sixth Committee, Summary Records, p. 271. 96

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doubtful whether the rules could be considered part of the internal law of the organization – in the sense that they could be applied also in other cases – when the applicable conict of laws refers to that law. In the absence of any applicable internal regulations one would have to rely upon general principles of law, in particular the general principles of law of the member States, to ll in the law of the organization.100 The arbitral award reported above, chapter 14.5, demonstrates how, even in such cases, any necessary arbitrary rules can be drawn from one specic system of national law, selected in accordance with the presumed intention of the parties (which presumably is virtually the same as the individualizing method), provided that they do not conict with general principles of law. It has been pointed out that the direct application of general principles of law has been more or less expressly provided for in certain IGO constitutions (for torts) and in certain agreements concluded by IGOs. There are several other examples where contractual and other relations of States or IGOs with individuals were held to be governed by general principles of law, despite the fact that they concerned subject-matter similar to that which is governed by national law.101 Few if any of these examples are directly relevant to the question of the law of domicile or the personal law of IGOs. But they demonstrate that it is not considered impracticable for such agreements to be governed by general principles of law, rather than by a specic system of national law.

The law of other connecting factors In many or most cases it may be more practical not to be dogmatic, but to follow the suggestion of pre-war writers and look for an alternative system of national law. The majority proposal in this respect was to apply the law of the host State as the personal law of the organization. This would lead to the same result as the rst solution proposed above. However, in view of the international and sovereign character of IGOs, this solution would appear somewhat arbitrary if one does not consider lex domicilii as a territorial connection,

100 101

Seidl-Hohenveldern proposes these as the general solution whenever the applicable conicts law refers to the national law of a legal person. The application of general principles of national law is also indispensable for the purpose of lling gaps in inter-State loan and other agreements which, although they concern regular commercial matters, are governed by public international law rather than by the national law of one of the contracting States. For examples, see Mann: “The Law Governing State Contracts”, in BYIL, XXI (1944), pp. 11 et seq., especially pp. 20–21 and 28.

choice between national laws 563 and especially if one were concerned with a case of genuine personal law (including lex patriae). It would then be more appropriate to discard altogether the personal connecting factors as determining the lex causae. Rather than look to another legal system with which the organization is loosely connected, it would be appropriate to look for another legal system with which the legal relationship concerned is connected. One would then determine the lex causae according to the next available connecting factors, which, altogether less dominant than that relating to the personal law, has a direct and therefore stronger link with a particular system of national law. This system, too, may in fact often be the law of the host country. Indeed, one or two pre-war writers actually took the view that the League of Nations had no personal law, and that Swiss law could not be applied as a substitute personal law.102 Instead they proposed to apply some principle of conict of laws other than the personal law. However, they apparently had in mind one or two xed alternative principles, such as the lex loci contractus, or the lex rei sitae together with the rule locus regit actum, or the lex fori. But any such rigid alternative would not be in conformity with the exible systems of conict of laws which are applied in a number of national legal systems in many elds of private economic law, and especially in the law of contracts. It is precisely these systems which lead to the recourse to the next strongest connecting factor if the dominant connecting factor refers to a legal system which is not sufciently developed to offer an adequate solution. It would be consistent with this exible system to apply whatever connection is strongest in the given case.

Conclusion In conclusion it may be stated that references to the lex domicilii or to genuine personal law in Vermögensrecht present no problems if we are in a eld of law and a country where the individualizing method, the presumed intention of the parties or some other exible system is admitted, as most countries do in many elds of Vermögensrecht and particularly in respect of contracts. We can then apply the internal law of the organization if the organization has enacted one 102

Liermann: “Der Völkerbund als Privatrechtssubjekt”, in Zeitschrift für Völkerrecht, XV (1930), pp. 41–43. See also Göppert: Der Völkerbund, Stuttgart 1938, p. 29 and, with regard to contracts of employment with persons other than ofcials, Borsi: “Il rapporto d’impiego nella Società delle Nazioni” in Rivista di diritto internazionale, XV (1923) pp. 284–285, note, Frankenstein: Internationales Privatrecht, Berlin 1927–35, I p. 508, note, and Schücking und Wehberg: Die Satzung des Völkerbundes, 2nd ed., Berlin 1924, p. 161, note, considered this solution “strange”.

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or if the case really lends itself to the application of general principles of law. And we can apply the law of the host State when the legal relationship really has its strongest connection with that law. In other cases we can apply any other law with which the relationship concerned has its (second) strongest links. Problems arise only in those cases where even a private law relationship outside the elds discussed under 16.3 above, may be governed by a rigid reference to lex domicilii or to genuine personal law. Even in such cases it may be appropriate to deviate from such conict of laws rules established for relations between private parties. But if the lex fori should insist upon applying its rigid principles of conict of laws even to IGOs, one would have to choose between the law of the host country and the law of the organization (i.e. general principles of the laws of the member States). That is, if we are concerned with genuine lex personalis or lex patriae, only the latter alternative would be open.

16.6

Conclusions

The rm principles of conict of laws – such as the lex rei sitae for transactions relating to immovable property, the lex personalis for questions of personal status and competence to act and the lex fori for form and procedure of acts of public organs and for criminal law – will apply to IGOs as to other parties and will then refer either to a national law or to an internal law of the organization that exists. In other elds of private economic law in which IGOs may – and frequently do – become engaged, the common principles now widely recognized – of the express or implicit will of the parties, and of the individualizing method which relies upon a concrete evaluation in each case of the relative and aggregate weight of all connecting factors – are easily applied to IGOs. In implementing these exible principles, the parties or the courts, respectively, will of course not apply an internal law of the organization that does not exist, unless they really feel that the relationship should be governed by general principles of law and any relevant provisions of the organization. In public law and the law of persons there appears to be no problems at all arising out of references to the law of the organization. Organic connecting factors, which dominate public law, refer to the law of the sovereign community to which the organ belongs, whether this is a State or an IGO. Personal connecting factors in the law of persons also refer, in the case of sovereign communities, to their own public law. In both respects each IGO has the necessary elements in its internal law. And any supplementary rules can and must be drawn from general principles of law. Application of the

choice between national laws 565 national private or public law of a particular State (relating to NGOs or to the State itself ) would lead to strange or impossible results. In the majority of cases, however, and notably in the eld of private economic law (Vermögensrecht and torts), the substance of the relationship is governed by territorial connecting factors. These usually refer to the law of a State, and no problem arises, except that, if the territory concerned is the premises of the organization, we may in some cases nd a stronger genuine connection with some other law. If the territory concerned is under the administration of an IGO, there is also a territorial private law enacted or taken over by the organization. However, this may not be true in the, so far exceptional, cases of ships, aircraft and space vessels registered with an IGO. In such cases the competent court may prefer to look for an alternative connecting factor, rather than apply an internal law of the organization which is not sufciently developed to play the role assigned to it by the conicts rule which applies in the rst place. Alternative connecting factors are easily found in respect of IGO premises and means of transport in the great majority of cases which are governed by the individualizing method or some other exible principle of conict of laws. Only in the rare or non-existent cases of personal connecting factors in private economic law and in the more frequent cases of reference to the pure lex domicilii (if this, too, is treated as a personal connecting factor) do we as a general rule have to look for other connecting factors, if we want to avoid the application of an internal private law of the organization that must be drawn entirely from general principles of law. However, other connecting factors are even more easily found, because references to the lex domicilii are really concentrated in elds of law which in most countries are governed by exible principles of conict of laws. Thus, references to the law of the organization can in the majority of cases be dealt with by direct application of the normally applicable connecting factor, and in other cases by the application of other connecting factors in accordance with the now prevailing exible methods of conict of laws. Only if there should be any rigid personal connecting factors in private economic law may we have to apply an internal law of the organization which consists exclusively of the general principles of the private law of the member States. A different matter is that the special nature of IGOs may in some respects require special conict rules for reasons other than the absence of private IGO law. It should be noted in this respect that the applicable national law or general principles of national law will of course have to take into account any relevant rules of international law, e.g. with regard to the juridical personality of IGOs, in accordance with their constitutional rules on the incorporation

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of treaties and customary international law into their national law. In this and in other respects it should also be noted that, to the extent that the applicable conicts of law differentiates between relations between two private parties and relations between a private party and a State, the latter affords the better analogy for IGOs.103 But there may, of course be yet further special circumstances which distinguish IGOs even from States, and which make even this analogy awkward, but which can easily be accommodated within the exible principles of the autonomy of the parties and the individualizing method. The problems which arise in this connection are mostly special to special elds of law, and require separate examination of each eld of national law.104 The basic general question in this respect is to what extent the external relations of IGOs are governed by national law at all – or by other types of legal systems. This problem has been discussed in earlier chapters. However, it may be concluded from the account of practice (in chapter 14) and from the discussion in the present chapter that the application to IGOs of traditional conict of laws with its references in certain cases to the law of the organization does not present insoluble problems which in themselves would force courts to resort to general principles of law (otherwise than as part of the internal law of the organization) or international law.

103 104

See for example the question discussed above, under 16.3. Reference can here be made to Jenks’ book, op. cit.

CHAPTER SEVENTEEN

RELATIONSHIP BETWEEN COMPETENT COURTS AND APPLICABLE LAW. INTERPRETATION OF JURISDICTIONAL CLAUSES

17.1

Introduction

In the cases discussed above in chapters 15 and 16, there was either an express or implied reference by the parties to a dispute, or other circumstances to indicate the applicable law and in particular whether the relationship was to be governed by national law or by the internal law of the organization or general principles of law (or international law). In such cases that law must be applied by any court before which the dispute arises, within the limits of its own conict of laws and in particular of its recognition of the autonomy of the parties. If there is no express or implicit expression of the intention of the parties (and there usually is not), and if there are no other circumstances that point out an applicable law, then the choice may depend upon the court chosen by the parties.1 Indeed, most contracts concluded by IGOs contain a clause on the settlement of disputes by arbitration, or by a national court or an IGO court. We shall now examine the question of what law each type of court normally applies and how a reference of disputes to that court may be interpreted (qui elegit judicem elegit jus).

17.2

Procedural law

The procedure is in all courts governed by lex fori. In the case of national court and internal or international courts established by IGOs this is the law enacted

1

See Schermers and Blokker, International Institutional Law, Leiden 2003, §§ 597–702 for a presentation of a vast number of specic international and IGO tribunals that adjudicate international and internal disputes.

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by the State or IGO concerned. This follows from their exclusive jurisdiction over their organs and is a recognized general principle of conict of laws In the case of standing arbitral tribunals, the lex fori is the procedure laid down by the parent body. In the case of ad hoc international courts or ad hoc arbitral tribunals, the lex fori is the procedure agreed by the parties.2 Instead of laying down the arbitral procedure themselves, the parties may refer to some standard rules. Or they may submit to the national law of the State where the court sits or to the national law which is applicable to the substance or to some other national law. Such submission may be implicit, for example if the parties refer to the rules of a national arbitration association (but not to those of an international arbitration association, if these do not refer to national law) or if they agree on arbitration in a particular country. However, it follows from the immunity of IGOs from suit in national courts that they are not subject to national procedural law unless they have accepted it.3 Such acceptance cannot easily be implied if the organization has not accepted the jurisdiction of the national courts concerned. In those cases where the parties or the organization establishing the tribunal have not laid down the procedural law, and where national procedural law is not applicable, the procedural law must be laid down by the tribunal itself – or drawn from general principles of procedural law,4 or, in the case of international courts (but not internal IGO courts), from international law.5 If the organization, or the other party with the organization’s consent, i.e. by waiver of immunity, presents the judgment or arbitral award to national authorities or courts for enforcement, the questions of recognition and enforcement will be governed by the procedural law of the State concerned.6

2

3

4 5

6

Cf. the European Convention on International Commercial Arbitration of 21 April 1961, Art. IV (1) (a)–(b), and Mezger in Domke: International Trade Arbitration, New York 1958, p. 236, both opposed by Mann in Liber Amicorum for Martin Domke, the Hague 1967, pp. 164–167, cf. pp. 159–161, in accordance with his general view that all contracts must be governed by an established system of mandatory law, i.e., national or international law. In this sense also Jenks, The Proper Law of International Organizations, London 1962, p. 245, citing rightly the Arbitration between Saudi Arabia and Aramco. There have been cases where the procedural law of the host country was applied (e.g., UNRWA v. Iraq Clothing Co., 1954), but the present writer has been unable to obtain the text in order to verify whether and how the organization had accepted this. In this sense also Jenks, op. cit. p. 245, but cf. p. 244. Contra: Mann. Cf. the ILC Draft Convention on Arbitral Procedure, Report of the International Law Commission Covering the Work of Its Fifth Session 1953 OR GA, VIII, Suppl. No. 9, pp. 9 ff., cf. GA resolutions 797 (VIII) and 989 (X). See above, and Seidl-Hohenveldern: “The Foreign Litigant before the Court of Justice of the European Communities”, Journal of Business Law, 1964, pp. 183–184.

relationship between competent courts and applicable law 569 In the following sections we will examine the choice of substantive law, separately for each type of court.

17.3

International courts7

International courts apply in principle international law. If the parties refer disputes for settlement to an international tribunal, they must therefore be presumed to have intended that the relationship shall be governed by international law, unless the relationship has stronger connections with another legal system and the court is competent under its own constitution to apply that law. Standing tribunals will usually have a statute providing for applicable law, and any reference to such tribunals would then imply a submission to that law. However, reference to genuine international courts of disputes involving private parties is not very practical.8 Internal courts of IGOs are usually referred to as international, but they are not.9 They administer the internal law of the particular organization, which is different from international law. A reference to such a court therefore cannot be interpreted as an implicit reference to public international law, i.e. to the law governing relations between sovereign communities. A reference to an advisory opinion by the International Court of Justice is not conclusive as to the choice of law, because Article 65 of the Court’s Statute provides that the Court may give an advisory opinion “on any legal question”. So far IGOs have asked for advisory opinions only on questions of international law or – more frequently – on questions of the internal law of the organization.10 But it is submitted that an IGO could also ask for an advisory opinion on an external dispute with a private party, subject to similar reservations as were discussed in the advisory opinion on Judgments of the Administrative Tribunal of the ILO upon Complaints Made against the UNESCO.11 Reference of disputes between IGOs and private parties to international tribunals for settlement under contentious procedure is possible only if the 7 8

9 10 11

See also Jenks, op. cit. pp. 13–14, and Detter: Law Making by International Organizations, Stockholm 1965, p. 179. An example was the Mixed Commission established by the Agreement on German External Debts of 27 February 1953. The courts established in the annexes may be more in the nature of private arbitration, because the annexes are private agreements between groups of creditors and debtors. A peculiar example has been given by Mann in BYIL, XXXV (1959), pp. 50–51. See also three examples of the past in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, XXVI (1964), p. 62, notes 193–194. Ibid., pp. 61 et seq. Examples ibid., pp. 112 ff. ICJ Reports 1956, pp. 77 ff.

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tribunal is competent in disputes involving private parties. And then it is difcult to draw the borderline to private arbitration – indeed, there is no clear distinction as far as ad hoc tribunals are concerned. The weight to be attached to a reference to such a tribunal will then depend upon how clearly it distinguishes itself from private arbitration.12 However, one of the criteria in this respect, besides the origin of the court and the admission of private parties, is precisely the law it applies.

17.4

National courts13

National courts apply their own national law. They will apply foreign law if their own conict of laws refers to such a law, or if the parties have done so within the limits set by the applicable law (usually its own conict of laws). If national courts assume jurisdiction in matters which are governed by the internal law of an IGO or by international law, they will no doubt apply that law.14 However, the present writer is not aware of any case where a national court accepted jurisdiction in a case that was exclusively governed by the internal law of an IGO.15 Normally, national courts apply internal law of IGOs only on prejudicial issues. In one case as the other, it is submitted that even the application of non-national law must be within the framework of the conict of laws of the State concerned. If the parties refer disputes to national courts, the presumption must be that they intended the relationship to be governed by national law, unless there are circumstances pointing to some other law. More specically, the relationship is governed by the law to which the conict of laws of the State concerned (the lex fori ) refers. An express reference to the courts of a particular country may even reect an intention of the parties that the substantive law of that

Compare, for example, the procedure of the International Bank to that of the International Chamber of Commerce or the American Arbitration Association. 13 Se also Jenks, op. cit. pp. 18 and 228–241, and Detter, Law Making by International Organizations, Stockholm 1965, p. 179. 14 Detter, op. cit. p. 179, appears to take a different view: “. . . a municipal Court would probably apply municipal law for primary matters in analogy with the rules on l’Etat commerçant. But as far as operative acts are concerned a municipal Court may have to use some form of international law. An international tribunal would probably always have to apply some form of international law.” Primary matters appear to envisage primarily internal matters, cf. ibid., p. 42. 15 The closest examples are the claims by IGOs against former ofcials for reimbursement of overpayment of salary discussed above. 12

relationship between competent courts and applicable law 571 country shall be applied.16 However, the latter may be less likely in cases involving an IGO, if the reference to the national courts became necessary because arbitration was not permitted in the country concerned or because the other party was unwilling to accept reference to the internal court of the organization.17 Moreover, the question arises if the national court may accept a choice of law other than a particular national law, if the parties have agreed to e.g. general principles of law or international law to be applied to the dispute concerned. If proceedings are brought before a national court in a State party to the 1980 Rome (EEC) Convention on the Law Applicable to Contractual Obligations,18 the parties’ choice of law is limited to the law of a State, excluding the choice or application of non-national systems of law, such as the lex mercatoria or general principles of law.19 However, Article 3 (2) of the proposed “Rome I” Regulation of the European Community20 gives the parties a wider scope of choice: The parties may also choose as the applicable law the principles and rules of the substantive law of contract recognised internationally or in the Community. However, questions relating to matters governed by such principles or rules which are not expressly settled by them shall be governed by the general principles underlying them or, failing such principles, in accordance with the law applicable in the absence of a choice under this Regulation.

The Commission comments on the provisions on freedom of choice in the following way: [. . .] paragraph 2 authorises the parties to choose as the applicable law a nonState body of law. The form of words used would authorise the choice of the UNIDROIT principles, the Principles of European Contract Law or a possible future optional Community instrument, while excluding the lex mercatoria, which is not precise enough, or private codications not adequately recognised by the international

16

17

18

19 20

Gaarder: Innføring i internasjonal privatrett 2nd ed., Oslo 1990, p. 19, speaking in the context of two private parties, cf. Mann, The Proper Law of Contracts Concluded by International Persons, in BYIL XXXV (1959). Mr. Knapp of the Legal Ofce of ILO to the present writer. von Welck: Die privatrechtlichen Verträge der Europäischen Gemeinschaften mit Angehörigen dritter Staaten, Göttingen 1967, p. 71, on the other hand, considers quite generally choice of courts as evidence of choice of law. In force from 1 April 1991. See also Art. 17 of the Inter-American Convention on the Law Applicable to International Contracts, 17 March 1994, drawn up under the auspices of the OAS, in 33 ILM 732 (1994), which denes “law” as the law current in a State, however, Art. 10 stipulates that “the guidelines, customs, and principles of international commercial law as well as commercial usage and practices generally accepted shall apply in order to discharge the requirements of justice and equity in the particular case”. Dicey, Morris & Collins, The Conict of Laws, 14th ed., London 2006, Vol. 2, pp. 1567–8. Cf. Doc. COM (2005) 650 nal, 15 December 2005.

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The “Rome II” Regulation on the law applicable to non-contractual obligations21 stipulates in Article 14 that the parties’ choice of law should be expressed or demonstrated with reasonable certainty by the circumstances of the case, but should presumably, by its lack of reference to any other system of law, be understood as a reference to the law of a State. These instruments are without prejudice to mandatory provisions of domestic or community law.

17.5

Arbitral tribunals

Most jurisdictional clauses refer to arbitration, i.e. to a body which is neither an organ of the organization, nor of any State. The question of the law to be applied by arbitral tribunals is a much disputed subject, where decisive rules are not easily discernible.22 In some cases the reference is to an established system of arbitration: thus UNICEF and OAS frequently refer to the rules of the American Arbitration Association, FAO refers mostly to the rules of the International Chamber of Commerce or, in the United States, to the American Arbitration Association.23 In other cases the reference is to an ad hoc arbitration, independent of any established system. Even the established rules of arbitration – such as those of the International Chamber of Commerce, the Inter-American Commercial Arbitration Commission and the American Arbitration Association, to which many contracts Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007, OJ L 199, 31 July 2007 pp. 40 ff., which shall apply from 11 January 2009, cf. Article 32. 22 See, generally, Domke on Commercial Arbitration, revised ed. by G.M. Wilner, Callagan 1990; J.M. Lookofsky: Transnational Litigation and Commercial Arbitration, Copenhagen 1992; H.P. Lowry, International Commercial Law and Arbitration, Boston 1991; F.P. Davidson: International Commercial Arbitration, Edinburgh 1991; F.A. Mann: Notes and comments on cases in international law, commercial law, and arbitration, Oxford 1992; H.A. Grigera Naón: Choice-of-law Problems in International Commercial Arbitration, Tübingen 1992, A. Redfern, Law and Practice of International Commercial Arbitration, London 1991. 23 The general conditions of FAOs requests for bids and purchase orders contain the following arbitration clause: “All disputes arising in connection with the present contract shall be nally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the Rules. If the present contract is performed in the United States, all disputed arising in connection therewith shall be nally settled by arbitration conducted in accordance with the rules of the American Arbitration Association.” 21

relationship between competent courts and applicable law 573 of IGOs refer – contain no provisions on applicable law. Nor is it possible to draw upon practice to any great extent, because arbitral awards are usually not rendered public and do not always give as full reasons as judgments do; indeed, Anglo-Saxon awards do not give reasons at all. If no provision has been made on applicable law, an arbitral tribunal may apply a particular national law, or general principles of law,24 or simply international trade customs and the sense of justice of the arbitrator. If the tribunal applies a particular national law, it may select this according to the conict of laws of the country where it sits, or of the country with which the legal relationship is most closely connected, or according to general principles of conict of laws. In either case, the place where the arbitration takes place is an important connecting factor to be taken into account, together with the usual connecting factors of the contract. Even the European Convention on International Commercial Arbitration of 21 April 1961 was unable to be much more specic than this, when it provided: 1. The parties shall be free to determine, by agreement, the law to be applied by the arbitrators to the substance of the dispute. Failing any indication by the parties as to the applicable law, the arbitrators shall apply the proper law under the rule of conict that the arbitrators deem applicable. In both cases the arbitrators shall take account of the terms of the contract and trade usages. 2. The arbitrators shall act as amiables compositeurs if the parties so decide and if they may do so under the law applicable to the arbitration.25

Later, in 1967, P. Sanders, a leading practitioner on international commercial arbitration, stated the position in these terms: What international trade is looking for are decisions based on the contract, international trade usages and principles common to the law of civilized nations. All those, engaged in drafting international contracts, know how difcult it is to make parties agree on a specic national law to which their contract should be submitted. International trade is not thinking in national terms, but on international lines. International arbitration seems more qualied to develop such a new lex mercatorum, international in essence, than national judges are.26

The main reason why IGOs prefer arbitration is that they usually do not want to give up their immunity and submit to the courts of any State. However, many IGOs – including the United Nations, but not consistently all the specialized

24 According to F.A. Mann, op. cit., arbitral tribunals in England must apply a particular

legal system. 25 Art. VII, UNTS, Vol. 484, p. 374. 26 “Recent Developments in International Commercial Arbitration”, APITOTEEION

IIANEIIITHMION EAONIKH (Saloniki) XVIII (1967), pp. 633–643.

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agencies – include arbitration clauses in their contracts also because they want to secure the application of the terms of the contract supplemented by general principles of law, rather than any particular national law, for the reasons set forth above. In such cases, the arbitration clause should be interpreted as referring to general principles of law27 if there are no indications pointing towards any other law. Such application of general principles of law may be more easily assumed if the parties have agreed upon an ad hoc arbitral tribunal not designed to sit in, or otherwise linked to, any particular country – than if they refer disputes to an established system of commercial arbitration in a given country28 or provide that the court shall sit in a given place. In some cases the arbitration clause resembles the clauses included in international treaties,29 and then the presumption denitely is against national law. Even if the arbitration clause is interpreted as referring to a particular system of national law for purposes of interpretation and supplementation, it must usually be interpreted as designed to avoid the supersession of any terms of the contract by mandatory national law.

17.6

Internal courts of the organization

In some cases the constitution, regulations or the contracts provide that disputes with private parties shall be brought before standing or ad hoc internal courts of the organization (IGO courts).30 Thus contracts concluded by the International Labour Organisation and the International Institute for the Unication of Private Law (UNIDROIT) usually refer disputes to the administrative tribunals of these organizations.31 Their competence to accept such jurisdiction has been set forth, by UNIDROIT in its constitution, Article 7 bis, and by ILO in the regulation containing the statue of the tribunal. Similarly, many contracts concluded

27 Cf. the interpretation in this sense of an arbitration clause in the arbitral award of 15

28

29 30 31

March 1963 in the dispute between Sapphire International Petroleum Ltd. and the National Iranian Oil Co., as reported by Verdross in Zeitschrift für Rechtsvergleichung, 1965, at p. 133 in initio. FAO’s reference to the American Arbitration Association for contracts to be performed in the US can hardly be interpreted differently from its reference to the International Chamber of Commerce. Cf. Section 7.04 (c) and ( j) – but see ( k) – of the Loan Regulations No. 4 of the International Bank, cf. also Section 7.01. On these, see above. Art. 7 bis of the Statute (constitution) of UNIDROIT was amended in 1968 to require that the Tribunal’s competence must have “been expressly recognized by the parties to the contract giving rise to the dispute.” However, this is in fact not done, and there has been no case before the Tribunal.

relationship between competent courts and applicable law 575 earlier by the Council of Europe referred disputes to an administrative court of arbitration to be set up ad hoc by that organization.32 The European Community usually refers contractual disputes to the European Court of Justice, which has been expressly authorized in the constitution to accept such jurisdiction.33 Moreover, the constitutions of the European Communities confer exclusive competence upon the Court in respect of non-contractual liability for ofcial acts. However, all of these provisions have been little used or not at all.34 The standing tribunals of ILO, UNIDROIT and the European Communities are competent both in internal disputes with ofcials and in external disputes arising out of contracts with third parties if these latter contain a reference to the tribunal. The relevant provisions of the European Community speak in this latter context of a clause compromissoire, but this does not mean that the Court shall act as a court of arbitration in the sense that it may disregard the law and decide the case ex aequo et bono,35 at least not if the parties have not agreed to authorize it to do so. The UNIDROIT administrative tribunal, on the other hand, may alternatively decide the case ex aequo et bono if both parties agree. This is expressly stated in Article 7 bis (3) of the UNIDROIT constitution, which provides that the Tribunal shall apply “the provisions of the Statute and of the Regulations as well as the general principles of law. It may also decide ex aequo et bono when such power has been given to it by an agreement between the parties.” According to this provision, the tribunal shall apply the internal law of the organization, as supplemented by general principles of law, even to external disputes. The constitutions of the European Community and EURATOM also contain provisions on applicable law. These have been quoted and discussed above. They refer, in respect of non-contractual liability for ofcial acts, to the common principles of the law of the member States, which in fact largely coincide with the internal law of the organization, considering that the constitution and most regulations of the Communities become part of the law of the member States. In respect of contractual liability the constitutional provisions conform to general principles of conict of laws, inasmuch as they

See for example Art. XIX of the Cahier and the similar provisions in para. 11 of the model contract with experts and the last article of printing contracts. Under Rule no. 481 issued by the Secretary General of the Council, disputes shall be settled by an Arbitration Board set up by the parties in common. 33 EC Art. 238, cf. also EURATOM Art. 153. 34 Smit and Herzog: The Law of the European Community, New York 2005, lists only two cases until 1996. 35 This has been pointed out by the Legal Adviser of EURATOM in a letter to the Court of 11 April 1967. 32

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in fact merely refer to the conict of laws (in the wider sense) of the lex fori. The conict of laws of the European Court of Justice will of course in this respect have to rely largely on the general principles of the conict of laws of the member States, which no doubt would to a great extent apply national law.36 It is recalled in this connection that the European Community and EURATOM in their regulations and contracts confer jurisdiction upon the European Court of Justice, but provide that it shall apply national law. On the other hand, the European Court of Justice will in many cases apply the internal law of the organization because of the nature of the legal relationship concerned, for example because it falls under the community’s supranational jurisdiction, or because it relates to other typical operations of the Community acting as an IGO, or because the other party must be considered to have tacitly accepted the conditions laid down by the Community in its regulations. These principles will no doubt be applied by national courts, too, as part of their conicts law (in the wider sense). The constitutional provisions discussed above create no difference in the law to be applied by the European Court of Justice and national courts, because the rule is the same for both courts in respect of contracts, and because the European Court of Justice has exclusive competence in respect of non-contractual liability for ofcial acts. The other organizations, which have no constitutional provision on applicable law, have an inherent power to enact law to be applied by their courts, including conict of laws.37 However, they are not known to have done so. And, as already stated, there is no known court practice either. In these circumstances it is still an open question what law they will apply. They must of course apply any relevant provisions of the constitution of the organization – which is the supreme law for any internal court, as expressly recognized in Article 7 bis of the UNIDROIT constitution quoted above – and of the statute of the court. – For the rest they may – in the absence of any indication as to the proper law – apply either general principles of law or the (remaining) internal law of the organization or some particular system of law. The latter would have to be selected in accordance with the general principles of conict of laws of the member States, to the extent that no relevant rules or principles can be deduced from the constitution, the regulations or the practice of the organization. This conict of laws of the organization may refer to national law or to the law of the organization. The choice between these three solutions may easily go different ways in different organizations.

36 37

Above, chapter 17.3. In this sense also Jenks, op. cit. p. 17.

relationship between competent courts and applicable law 577 The submission to an IGO court might of course be interpreted, to the same extent as a submission to arbitration, as a reection of an intention of the parties to avoid any particular national law, or at least any supersession of the terms of the contract by mandatory national law. Much will depend upon the policy of the organization concerned, even if this is not laid down in regulations which are binding upon the court. It is still an open question whether the ILO Administrative Tribunal, on the other hand, will conform to the policy laid down by UNIDROIT, in view of the similarity of the provisions and of the types of disputes concerned, by preferring general principles of law (per se or as part of the internal law of the organization) to national law.38 The Council of Europe has found a both easier and more radical way out, by providing in Rule no. 481 issued by the Secretary-General with the approval of the Committee of Ministers as provided in Article 21 of its General Agreement on Privileges and Immunities, that “if the parties do not agree upon the law applicable the Board or, where appropriate, the arbitrator shall decide ex aequo et bono having regard to the general principles of law and to commercial usage”.

17.7

No jurisdictional clause in the contract

We have so far considered jurisdictional clauses contained in the contract. A subsequent agreement between the parties is not quite the same, because, theoretically, the applicable law was established already at the time of the conclusion of the contract. However, if obviously this was not done in a manner that a court can discern, the competent court must be permitted to attach weight to the fact that even at this late stage the parties know that a national court is more used, and will be more likely to apply national law, than a court of arbitration or an IGO court, not to mention an international court. It is then really immaterial whether this is viewed as a fact that can throw light upon the original intention of the parties or upon a subsequent decision. In the absence of any jurisdictional clause, action can be taken unilaterally only before national courts, and then only if the organization itself sues or waives its immunity. In either case, the organization must be considered to have accepted national law if there are no circumstances pointing towards another legal system. 38

Cf. Jenks, op. cit. p. 244. Jenks, as Deputy Director-General of the ILO, stated that the ILO Administrative Tribunal “will probably apply general principles of law”. He may not necessarily have intended thereby to reject the internal law of the organization, which in fact is the same, because he may just have disregarded the possibility of relevant regulations and constitutional provisions which did not exist in the ILO.

CHAPTER EIGHTEEN

CONCLUSIONS

18.1

Applicable provisions and general principles of conflict of laws

As demonstrated there are so far only a few scattered provisions on the conict of laws of IGOs in national statutes, in international conventions on conict of laws, in constitutions of IGOs and in their conventions on privileges and immunities. In some cases, however, the organizations adopt themselves the necessary substantive law in the form of regulations. These become directly binding upon the parties in those cases where the legal relationship is governed by the internal law of the organization.1 But in most cases the “regulations” are intended merely as “general conditions”, which become binding only when they have been accepted by both parties as part of their contract (general conditions). Some regulations, contracts and arbitration agreements contain clauses on applicable law. However, most of them do not. On the other hand, most regulations and most contracts contain jurisdictional clauses, and these may offer some guidance as to the intention of the parties. However, in many cases there are no provisions and no evidence of an intention. The parties may not have thought of the problem. Or they may have considered it too difcult to draw up a satisfactory clause, or not worthwhile to do so. Or they may simply have felt that they could not agree. In such cases the question of applicable law depends in principle upon the conict of laws of the lex fori. This must in the case of internal courts of IGOs, ad hoc arbitral tribunals and international courts usually be drawn from general principles of conict of laws subject to a natural tendency of such courts towards general principles of (substantive) law. Even national courts rely to a great extent upon general principles of conict of laws. However, in respect of the basic choice between national law and other legal systems,

1

Example: Staff Regulations of the European Development Fund.

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the general principles of conict of laws are loose or non-existent. As for the special problems of IGOs, neither the provisions, nor the practice of IGOs in the absence of provisions, offer any uniform picture from which it is possible to discern generally accepted conict rules upon which the competent courts can draw, with a few exceptions.

18.2

Internal relations

The most important exceptions concerns relations between the organization and its organs, including its ofcials and other individual members of its organs acting in that capacity. As demonstrated above in chapter 5, these parties are, according to established customary law, under the inherent organic jurisdiction of the organization, and relations with them are governed exclusively by the internal law of the organization. The same is true of relations between the organization and other individuals who are subject to its extended jurisdiction, or sovereign powers, as far as relations involving exercise of such jurisdiction is concerned. As pointed out above in chapter 6, there are a few organizations upon which member States, or even non-member States, have conferred territorial, personal or supranational jurisdiction. IGOs may even unilaterally assume jurisdiction over territory or persons that are not subject to the jurisdiction of any State, or in respects in which they are not subject to State jurisdiction, although there are few examples so far. These are not merely general principles of conict of laws of the lex fori. They are rules of public international law which are binding upon States (although, in respect of territorial and personal jurisdiction there has not yet been enough time to develop customary law for IGOs, so here it is necessary to rely upon analogy from the law applicable to States). In other words, States are bound to have their courts apply the law of the organization in these cases, to the extent that it does not conict with substantive rules of international law.

18.3

External relations: the four alternatives

In other elds, no rm rules can be laid down. The choice of law depends, not only upon the nature of the legal relationship concerned, but also upon which organization is involved and upon the type of court before which the question arises and its particular conict of laws. And the choice is not only between different systems of national law, or between the two types of legal systems into which traditionally all law is divided; national law and international law. The choice is between four different categories of legal systems:

conclusions 581 (a) National law. According to the traditional view there is a presumption for the application of national law to external relations of IGOs with private parties. It may be noted in this connection that the national law of the member States of the European Community includes the constitution and regulations and other binding secondary legislation (acquis communautaire) of the organization. Similarly, the Andean Community Law also comprises declarations and decisions in addition to the constitution.2 We have seen that the application of national law to legal relationships involving IGOs does not give rise to such serious difculties as has been thought would arise out of references in the applicable conict of laws to the law of the organization. In most cases where the conict of laws of the lex fori refers to the law of the organization, the organization has a relevant law of its own, and this can and must be applied. Otherwise, and in certain other cases, it may be necessary or appropriate to modify the regular conict rules, but this can easily be done within the framework of the lex fori in the great majority of the practical cases, when we move in a eld and a country which admits the individualizing method, the presumed intention of the parties or some other exible conicts method. Whenever there is a difference in the conicts rules relating to relations between two private parties and those relating to relations between a State and a private party, the latter usually provide the better analogy. On the other hand, we have seen that here is, for other reasons, a general trend away from national law in international relations. This holds true of relations between States inter se and between States and foreign private parties, and even of certain relations between private parties in different countries. There is no reason why IGOs, as international bodies whose external relations are always with “foreign” parties, should be lagging behind in the movement towards some droit anational in such cases in lieu of national law. On the contrary, they are at the spearhead of that movement. However, there are major divergences in the doctrine, not only on the extent to which national law should be avoided, but also on the question of what law should be substituted for it. Indeed, there is some confusion on what the alternatives are and on the relationship between them. There are in fact three possibilities, all made up largely from general principles of law, which, in the eld of commercial and other relations of private law nature means largely general principles of national law. (b) The internal law of the organization has been discussed above. It is not part of international law, as most writers appear to have assumed. It is a series of distinct legal systems for each organization, comparable in most respects to

2

Art. 17 of the Cartagena Agreement. Cf. also Arts. 20, 40 and 42 of Mercosur.

582

chapter eighteen

national, not to public international, law, also with regard to external binding effects. It comprises constitutional and administrative law, and sometimes also other eld of law comprised within a system of national law. As already pointed out, it governs the internal relations of the organization, and is also applicable to external relations when the applicable conict rules refer to the law of the organization. This law thus has its proper characteristics – and its proper place in some relations, where it cannot be replaced by any other law. (c) International law and general principles of law, on the other hand, are more easily interchangeable. Most writers on IGOs seem to prefer international law, but some reject that law in relation to private parties. However, it has been pointed out that international law in the traditional sense is not suitable for normal relations with private parties – outside those exceptional cases where the organization has conferred upon the other party international personality for the purposes of the relations concerned. What should really be applied is general principles of law and the jus cogens derived from these. In these circumstances, it would create unnecessary confusion to expand the concept of international law to take in such relations. (d) In most cases where we want to avoid a particular national law, and where the internal law of the organization is not appropriate, we must thus apply general principles of law. In the case of commercial relations, torts and other relations of a private law nature, this largely means general principles of national law. The general principles of law must be recognized as an independent system of law, distinct from both international and national law. However, its contents, including jus cogens, would be substantially the same even if it were considered part of international law, as most writers on the subject of the conict of laws of IGOs do.

18.4

Substantive presumptions

It is not possible at the present stage to lay down rm rules, or even generally recognized guiding principles, governing the choice between these systems. Quite apart from the confusion in the doctrine between international law, internal law of IGOs and general principles of law, conict of laws in itself is not a precise eld of law, at least not as far as contracts are concerned. And the application of conict of laws to IGOs is a novel problem, where the situation is even more uid. However, the major factor of uncertainty is the rapid evolution that is taking place with regard to international commercial relations generally (i.e. quite apart from the development of IGOs) – and the period of transition in which the law applied to them is at present. The traditional presumption in favour of

conclusions 583 national law is dwindling and at the present stage no general presumption may prevail in favour of one law or the other as far as IGOs is concerned. All that can be offered therefore is tentative, temporary presumptions, which may be of some assistance in the concrete evaluation of each case which must be relied upon in the rst place. This is done with all reservations due to the scarcity of accessible practice and to the divergences in the practice of the various organizations. There is still a presumption in favour of national law in many special elds, such as real estate (lex rei sitae); copyright, etc.3 However there is no such general presumption in the law of contracts, which is the eld where problems of conict of laws are of the greatest practical importance, other than that the greatest number of contracts are not subjected to private national law. As pointed out there is a presumption in favour of the law of the organization in certain relations which are so closely connected with its organization and typical functions that it is natural to submit them to the constitution of the organization as the supreme law and to any regulations adopted by the organization as binding upon the other party. But it is a rather open question how far this presumption extends. Thus it is doubtful whether an analogy can generally be drawn from the eld of application of the French system of contrats administratifs. In other relations closely connected with the typical functions of the organization or of great importance to it, there may now be a presumption for general principles of law, while in a daily incidental transaction of a commercial nature there may still be a presumption for national law.4 However, these presumptions are hardly strong enough to supersede presumptions related to competent courts, cf. below. Indeed, it must be said with regard to the basic borderline between national law and general principles of law that no denite guiding general principle can be offered, any more than when the similar question arises with regard to States.

3

4

Cf. above. In this sense also Batiffol, Problèmes des contrats privés internationaux, Paris 1961–62, p. 105, who also mentions torts. Further, reference is made to chapters 12–25 of Jenks, The proper law of International Organisations, London 1962. This basic distinction has been made by Batiffol, op. cit., p. 466. However, he does not make it clear whether he really bases his views upon that distinction or upon a general presumption in favour of international law, subject to the right of the parties to submit to national law. Furthermore, he is one of the many writers who refer to international law rather than to general principles of law. See, however, van Hecke, supra chapter 12, note 2.

584 18.5

chapter eighteen Jurisdictional presumptions

When such special (but direct) presumptions are not sufciently evident, the choice depends, as submitted in chapter 17, to a large extent upon in what type of court the dispute is brought. A national court will normally apply national law. An arbitral tribunal will often prefer general principles of law, especially if it is not set up under a national system of arbitration or otherwise linked to a particular country. An internal court of an IGO may have a tendency to apply the internal law of the organization or general principles of law, which in practice amount to the same if the organization has enacted no relevant regulations, except that the European Community has express constitutional provisions apparently favouring the application of national law to contracts. In most cases the parties will have been aware of these tendencies to the extent that their reference of the dispute to a particular type of court will reect an intention on their part. In other cases the tendency is merely a fact that lawyers have to take into account. In one case as in the other it is submitted that there is a presumption for national law in national courts. In ad hoc arbitral tribunals there is a presumption for general principles of law, if a policy in this sense is part of the reasons why the organization prefers arbitration to national courts and there is no indication that the other contracting party held a different view. The same may be true of internal IGO courts (other than the European Court of Justice in matter of contracts), except that the presumption may then alternatively be for the internal law of the organization. However, these presumptions do not extend to all types of disputes; cf. what has been said above about special substantive presumptions.

18.6

Tentative nature of presumptions

Although none of the presumptions listed above is general, they might combined appear to cover most cases that would arise, particularly since most contracts contain a jurisdictional clause. However, this does not mean that the law is clear, because in many cases several of these presumptions may be applicable, or one may have to evaluate them as against other circumstances of the particular relationship concerned that point towards another legal system. In such cases it is submitted as a general guiding principle that the circumstances of each case take precedence over general substantive and jurisdictional presumptions. This is not very precise, and perhaps not even very clear. However, conict of laws is not a precise branch of law. This is even more so turning to conict of laws of IGOs, rst because it is still a rather unfamiliar eld, in which there

conclusions 585 has not yet been developed as much written law and practice as in relations between private parties, and second, because there appears to be as many, if not more, differences in the practice and outlook of the various organizations as there is between the conict of laws of different States. Indeed, the conict of laws applicable to IGOs is such a novel and dynamic eld of conict of laws that it would be unrealistic – and even deceptive – to attempt to lay down precise rules for genuinely external relations at the present stage. The main value of these legal presumptions is therefore to assist in legal assessment, e.g. in drafting contract provisions and in safeguarding accountability through adequate mechanisms for dispute resolution.

TABLE OF CASES

Permanent Court of International Justice Certain German Interests in Polish Upper Silesia 326 n. 249 Rights of Minorities in Upper Silesia 325 n. 247, 331 n. 267 Serbian Loans 25, 149, 161 n. 165, 327 n. 255, 457 n. 28, 492 n. 12, 502 n. 47, 520 n. 41, 523 n. 41, 526 n. 3, 533 n. 19 Brazilian Loans 325–327, 329, 331 n. 265, 348 n. 309 Exchange of Greek and Turkish Populations 10, 101, 115 n. 28, 213, 250, 280 Polish Postal Service in Danzig 185 n. 6 Jurisdiction of the European Commission of the Danube 97 n. 56, 360 n. 7 Interpretation of the Greco-Turkish Agreement of 1 December 1926 336 n. 278 ICJ Ethiopia and Liberia v. South Africa 320 n. 229 Legality of Use of Force (Serbia and Montenegro v. France) 426, 426 n. 40 Certain Norwegian Loans (France v. Norway) 327, 327 nn. 254, 256, 328 n. 258 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 411 n. 33 Legality of the Threat or Use of Nuclear Weapons 411, 411 n. 32 Legality of the Use by a State of Nuclear Weapons in Armed Conicts 411 n. 31 Certain Expenses of the United Nations 66 n. 5, 69, 118, 252 n. 27, 256 n. 45, 291 n. 143, 335 nn. 274–275, 350 n. 313, 362, 365, 372 n. 40, 376, 376 n. 47, 393 n. 99, 412, 412 n. 37, 413 n. 39 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization 341 n. 290

Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO 148 n. 118, 252 n. 28, 302, 312 n. 208, 336 n. 276, 339, 341, 569 Effect of Awards of Compensation Made by the United Nations Administrative Tribunal 118, 123 n. 45, 148 n. 118. 155 n. 142, 250, 256 n. 45, 300 Reparation for Injuries Suffered in the Service of the United Nations 29, 53 n. 47, 63 n. 74, 66 n. 3, 129, 138 n. 80, 140, 380, 405 n. 17, 525 On the interpretation of the Agreement of 25 March 1951 between the WHO and Egypt 417 ECHR/ECtHR M & Co. v. Germany 428 n. 46 Waite and Kennedy v. Germany 145 Bosphorus Hava Yollari v. Ireland 309 n. 193 Behrami and Behrami v. France 191 n. 29, 425 n. 37 Saramati v. France, Germany and Norway 191 n. 29, 425 n. 37 ECJ/Court of rst instance Vandervyvere v. Parlement Européen 444 n. 11 Vanhove c. CECA 443 n. 10 Firma E. Kampfmeyer and Others v. CEE 470 n. 30 Société kledingverkoopbedrijf de Geus en Uitdenbogerd contre (1) Société de droit allemand Robert Bosch GmbH, et (2) Société Anonyme Maatschappij tot voortzetting van de zaken der rma Willem van Rijn 344 n. 297 N.V. Algemeene Transport- en expeditie onderneming van Gend & Loos contre Administration scale Néerlandaise 344 n. 297

588

table of cases

Da Costa en Schaake N.V. Jacob Meijer N.V. Hoechst-Holland N.V. contre Administration scale Néerlandaise 344 n. 297 C-141/78: France v. United Kingdom 286 n. 129 C-314/85 Foto-Frost/Hauptzollamt Lübeck-Ost 281 n. 121 Case 302/87, Parliament v. Council 290 n. 140 Case 70/88, Parliament v. Council 290 n. 140 Case C-327/91 France v. Commission 423 n. 28 C-25/94 Commission v. Council 409 n. 26 C-388/95: Belgium v. Spain 286 n. 129 Case C-149/96 Portugal v. Council xiv n. 7 Case T-228/02, Organisation des Mojahedines du peuple d’Iran v. Council of the European Union xx n. 25 Case C-160/03, Spain v Eurojust 257 n. 50 Case C-176/03 Commission v. Council 290 n. 140 National judgments Avenol v. Avenol 210 n. 79, 268 n. 84 Proli v. International Institute of Agriculture 28, 44 n. 20, 49 n. 34, 133 n. 66, 163, 169, 262, 314 n. 213, 361, 451 n. 7, 532 Soucheray et al. v. Corps of Engineers of the United States Army et al. 11 n. 20 Branno v. Ministry of War 42 n 17, 49 n. 34, 169, 445, 445 n. 16 Mazzanti v. Headquarters Allied Forces Southern Europe 49 n. 34, 169 Godman v. Winterton and Others 53 n. 49 Calvaruso v. Byington 86 Mazzucchi v. American Consulate 87, 89 Epoux Prevostchikoff-Germeau v. Canada 87 Little v. Riccio and Fischer 88 n. 22 Kazmann v. Russian Trade Delegation in Italy 88 n. 22, 89 n. 26 Slomnitzky v. Trade Delegation of the U.S.S.R. in Italy 89 n. 27 De Semenoff v. Norwegian State Railways 89 n. 28 Hinton v. Devine 147 n. 111 Chemidlin v. International Bureau of Weights and Measures 158 n. 150, 164, 314 n. 213 UN v. B and Others 161 n. 163 Diaz Diaz v. United Nations Economic Commission for Latin America 164, 307 n. 188

Schuster v. United Nations Information Centre, Buenos Aires 164, 167 Goddard v. Gray 273 n. 101 Charr c. Hasim Ullasahim 273 n. 101 Ehem. M. v. Ehefr. M 276 n. 109 Hewitt v. Speyer et al. 343 n. 293 Bánská a Hutni Spolecnost, národni podnik v. Hahn et al. 343 n. 293 Chapman v. Commissioner of Internal Revenue 369 n. 31 Arab Monetary Fund v. Hashim 370 n. 35 Baccus S.R.L. v. Servicio Nacional del Trigo 541 n. 45 UN v. Canada Asiatic Lines Ltd. 543 United Nations v. B and others 550 CECA c. faillite des “Acciaierie e Ferriere di Bogaro”, S.p.A. 534 n. 20 Sakharoff c. Représentation Commerciale de l’U.R.S.S. 89 nn. 23, 26 Rosati c. Rappresentanza Commerciale dell’U.R.S.S. 86 Guatemala v SINCAFC 447, 447 n. 20 Reg. v. Bow Street Magistrate Ex parte Pinochet (No. 3) 277 n. 110 Arbitration awards Casablanca Deserters (the Permanent Court of Arbitration, the Hague 22 May 1909) 84 UNESCO v France (see p. 174 in the proof text) UNESCO (constitution) case, Special Arbitral Tribunal, 19 September 1949, (see proof text pp. 103, 142) Pallavicini v. the Czechoslovak State 256 n. 45 Pablo Najera (France) v. Mexico 306, 383 n. 75 UNRWA v. Iraq Clothing Co., 568 n. 3 Administrative tribunals The Monod case (League of Nations 1925) 158 n. 152 di Palma Castiglione v. ILO 28 n. 60 Schumann v. League of Nations 161 n. 162 Perasse v. League of Nations 161 n. 162, 533 n. 17 De Merode v. World Bank, (ILO Administrative Tribunal, Judgment No. 61) 156 Kaplan v. Secretary-General of the United Nations (UNAT judgment No. 19) 142 n. 100 Sokolow v. Secretary-General of the United Nations (UNAT judgment No. 23) 142 n. 100

INDEX

Administrative law IGOs, of, 532–534 Administrative tribunals adjudication by, 120 staff, appointment and remuneration, 150 African Union Court of Justice, establishment of, 247 Aircraft international registration, 194–195 jurisdiction over, 100–101, 103 territorial, 192–197 territorial connecting factors, 555–557 Andean Community legal system, 247 Antarctica claims to territory, 202–203, 206 common heritage of mankind, as, 205 global commons, as, 202–207 international obligations, 204–205 internationalization, proposals for, 205 marine living resources, conservation of, 204 mineral resource activities, regulation of, 204 Treaty body, decisions of, 222 Arbitration applicable law, clauses for, 485 failure to deliver commodities, award on, 503–505 independent tribunals and Permanent Court of International Justice compared, 305–306 non-co-operation in, 504 non-member States, decisions binding on, 234 tribunal applicable law, 571–573 lex fori governing, 568 Arctic national territory in, 202 Arctic Council limits of IGOs, falling below, 39–40 Attributed powers doctrine of, 66

Breach of contract rate of interest on reparation, 504–505 Catholic Church Holy See, jurisdiction of, 95–96 Central Commission for the Navigation on the Rhine members, 9 oldest intergovernmental organization, as, 8 Coimperium indirect, 190 territorial jurisdiction, 190–191 Condominium indirect, 190 territorial jurisdiction, 190–191 Conict of laws adjustment of rules, 448 applicable law acceptance of provisions by contracting party, 475–476 arbitral tribunal, in, 571–573 arbitration agreements, clauses in, 485 conclusions, 579 contract clauses, 479–485 copyright, as to, 463–465 court deciding ex aequa et bono, 481–482 courts, before, 567 deviations from normal practice, 487–488 general international conventions, 462–466 general principles, 480–481, 487 host State, of, 482 IGO constitutions, under, 466–471 IGO regulations and general conditions, 474–479 IGOs, in relation to, 461 Institut de Droit International rules, 486 internal courts, in, 573–576 international courts, in, 569–570 lack of clause, where, 478–479 legislation, 486 lex loci solutionis, 484

590

index

loans, place of issue of, 484 local law, standard forms of contract implying, 485 mandatory national laws, 476–478 named State, of, 482–483 national courts, in, 570–571 national legislation, 461–462 no jurisdictional clause in contract, where, 576–577 nuclear damage, liability for, 465–466 organization as party to convention, 466 privileges and immunities conventions, 471–474 procedural, 567–569 regulatory clauses, 476–478 autonomy of parties, 455–457, 550 development of, 458 discussion of, 459 failure to deliver commodities, award on, 503–505 rm principles, application to IGOs, 564 general principles, 457–459 general principles, conclusions, 579 individualizing method, 550 international law of IGOs and general principles, relationship of binding precedent, international law not admitting, 520 choice between, 518–522 conclusion, 522–523 contracts, uniformity of, 508 different rules on same subject, containing, 519 general principles, 510–513 IAEA, contracts of, 509 internal law of IGOs, 514 international law, 513–514 jus cogens, systems with, 521 mandatory national law, 511–512 national law, reasons for avoiding, 507–510 other legal system, general principles as source of, 515–516 practicability, 510–511 practice, 510–511 problem, 507 sources of general principles, 512 jurisdictional presumptions, 584 law of organization and host State, between, 170 law of organization, reference to, 527 national laws, choice between, connecting factors, 528 generally, 525–528

theoretical views, 525 traditional conict law, 526 national laws, inapplicability, 548 no provision for, application of law in case of court practice, 490 general practice, 490–491 IGO policy, 491 IGO practice, 490 international bank loan agreements, 496–503. See also International Bank for Reconstruction and Development; United Nations majority of cases, in, 489 national courts, supervisory competence of, 504 non-governmental organizations, relations with, 491–496. See also Non-governmental organizations organic connecting factors. See Organic connecting factors personal connecting factors. See Personal connecting factors sources of systems of, 457–459 special nature of IGO, special rules required for, 565–566 substance of, 526 substantive presumptions, 582–583 tentative nature of presumptions, 584–585 territorial connecting factors. See Territorial connecting factors Constitutions of IGOs amendment, 218 applicable law under, 466–471 competent organs, dening, 363 disputes, settlement of, 246–248 drafting, 398–400 internal restrictions in, 365 international courts, reference of disputes to, 317–319 interpretation of, 29–33, 396–397 law of host country, reference to, 470 legal capacity, deducing, 361 legal personality, provisions for, 357–359 meaning, 33 non-members, relevance to, 384–385 purposes, limiting, 363–364 sovereign and international acts, legal capacity for, 413–414 State constitutions, equivalent to, 363 substantive limitations, 365 whether international capacities depending on, 362–371 written, 9 Constitutional law IGOs, of, 532–534

index 591 Consultative organizations role of, 12 Contract applicable law, clauses for court deciding ex aequa et bono, 481–482 general principles, 480–481 host State, of, 482 lex loci solutionis, 484 loans, place of issue of, 484 local law, standard forms of contract implying, 485 named State, of, 482–483 simple solution of, 479 breach, rate of interest on reparation, 504–505 capacity, 503 failure to deliver commodities, award on, 503–505 IGO and individual, between, 124–125, 446 jurisdictional clause, lack of, 576–577 uniformity, problem of, 508 Contractors organic jurisdiction over, lack of, 444 Copyright conicts rules, 463–465 Universal Copyright Convention, 463 Criminal law lex fori, governed by, 534–535 Customary law internal law of IGOs, application of, 441–443 Customs union new trading regime, compensation for, 427 Decisions of IGOs binding, becoming, 221–223 environment, protection of, 240 majority all members, binding on, 230–234 States not opting out, binding on, 225–229 member States, binding on, 373 national, international and internal law, effects on, 236–238 non-member States, binding on, 234–235 organs acting for, of, 542–547 rules as to, 545 Rules of Procedure, 373 sanctions, 220–221 settlement of internal disputes, for, 248–251 soft law, 220 treaties, whether, 235–236 unanimous

adoption, binding on, 223–225 binding, becoming, 221–223 weighted voting, 241–242 Delegated powers doctrine of, 66 inherent powers contra, 359–362 inherent powers, versus, 65–70 intergovernmental organizations, of, 29–33 Developing countries technical assistance to, 364 Disputes exercise of functions giving rise to, 245 external, 246 law governing, 285 third parties, with, 266 individuals under extended jurisdiction, with, 279–284 internal, settlement of. See Internal courts; Settlement of internal disputes organization and members of ofcials, between, 245 private individuals, with, under extended jurisdiction, 279–284 within or between organs, 245 Economic law internal law of organization, and, 560–564 lex domicilii and lex patria, 558–564 other connecting factors, law of, 562–563 personal connecting factors, 558–559, 563 territorial law of host country, 559–560 Employment IGOs, relationship with, 442–443 Environment protection, decisions of IGOs, 240 EURATOM conict clauses, interpretation, 478 construction works, conditions for, 477–478 contractual liability, 467 goods and services, contracts for, 477 personal liability of servants, 171 settlement of disputes, provision for, 260 European Community applicable law, provisions on, 466–470 comprehensive jurisdiction, 238, 242 contractual liability, 467 judgment against private individual, enforcement of, 283–284 judicial power against ofcials of, 267 legal sphere, 366 non-contractual liability, 468 personal liability of servants, 171

592

index

settlement of disputes, provision for, 260 Staff Regulations, 370 European Court of Human Rights advisory opinions, 252 disputes in, 299 European Court of Justice compulsory jurisdiction, scope of, 281 establishment of, 299 extension of competence, 294–296 IGOs, judgments relating to activities of, 350 natural or legal persons, actions by, 280 organs, adjudicating disputes between, 290 preliminary ruling by, 282, 343–344 European Nuclear Energy Agency appeals against decisions of, 282–283 establishment of, 299 extension of competence, 296–297 European Union Council binding decisions of, 223–224 weighted voting, 241–242 international legal personality, whether possessing, 52 treaty-making powers, 423 Extended jurisdiction comprehensive, 238 constitutional authority, whether requiring, 239 disputes arising, 245 reference to national courts, 316 environment, protection of, 240 external subjects of law, over, 266 intergovernmental organizations, of concurrent, 96–97 scope of, 100 legal basis for, 183, 242–244 limited, 244 meaning, 35 prescribed powers for, 183 regulations contra treaties, 240 special law, 183 stretching, 243 supranational, 238 weighted voting, 241–242 External courts ad hoc tribunals, 330 disputes between States, competence limited to, 320 IGOs resorting to, 307 internal courts of other IGOs as, 307, 309–313 International Court of Justice as, 308–309 international courts as, 308 ad hoc tribunals, 330

competence in absence of constitutional provisions, 319 compulsory jurisdiction, conferring, 332–333 constitutional provisions, 317–319 existing courts, reference to, 321 law of organization, limitations arising from, 330–333 limitations arising from constitution of court, 319–330 power to refer, 330–332 standing courts, competence ratione materiae, 324–330 standing courts, competence ratione personae, 319–324 national courts as, 308 competence, 314, 316–317 declining jurisdiction, 315 extended jurisdiction, disputes arising under, 316 organic jurisdiction, disputes arising under, 313–317 types of, 307–308 External law of IGOs customary, 23 existing literature, 4 source of, 23 types of, 22 External relations with private parties autonomy of parties, 455–457 conclusions, 580–582 conict of laws. See Conict of laws internal law, application of, 581–582 international law, application of, 582 legal systems, subjection to, 525 national law application of, 449–450, 566, 581 choice between, 457 subjection to, 525 national versus international law, theory on Batiffol of, 453–455 Jenks, of, 451–452 Mann, of, 450 terminological and substantive divergence, 455 nature of law governing, 526 types of, 449 Foreign judgments internal courts, of, external effects of, 272–277 national courts, enforcement by, 273 recognition of, 276 Free trade area new trading regime, compensation for, 427

index 593 Global commons Antarctica, 202–207 areas of, 197 high seas, 197–198 international occupation, 207 international sea bed, 199 meaning, 197 nuclear safeguards, 207 outer space, 200–202 ships in, 193 Global organizations types of, 10 Headquarters agreements conventions, 210 Council of Europe, of, 176 IAEA, of, 175 organic jurisdiction, interference with, 174–176 UNESCO, of, 175 United Nations, of, 174–175 High seas global commons, as, 197–198 law on, 198 Holy See Catholic Churches, jurisdiction over, 95–96 central organs, 93–94 diplomatic envoys, 94–95 international law, as subject of, 45 organic and membership jurisdiction, 92–96 Human rights ECHR, responsibility of member States under, 428 Kosovo, violations in, 425–426 Implied powers doctrine of, 31, 359 exceptional resort to, 65 exercise of functions, necessary for, 31–32 ction of, 65–70 inherent powers contra, 359–362 intergovernmental organizations, of, 30–32 new obligations, imposition of, 69 process of implication, 70 Inherent jurisdiction accessory, 129 acquired jurisdiction distinguished, 103 constitutional limitations, 131–132 delegation, 133–136 delimitation of, 122 distinct legal acts, 136 functional development of, 220

nature of, 219 organizational, and, 219 intergovernmental organizations, of functional matters, in, 100 internal legislation, 107–117 organizational and functional regulations, 107–109 organizational matters, as to, 99–100 representatives of member States, over, 99 internal, 69 internal administration, 117–119 internal judicial power, 120–122 meaning, 35, 122 member States, over, 216 membership. See Membership jurisdiction organs and members of organization, over, 68, 74 organs and ofcials, over, 366 private individuals, contracts with, 124–125 resolutions, nature of, 125–126 scope of bilateral external relations, 124–127 constitutional limitations, 131–132 generally, 122 internal relations stricto sensu, 123–124 public order of host country, respecting, 132–133 unilateral external decisions, 127–129 Inherent powers adoption of principle, 66 delegated and implied powers contra, 359–362 delegated powers, versus, 65–70 intergovernmental organizations, of, 31, 33 internal and external jurisdiction, 65 limitations on, 393–396 meaning, 35 Intergovernmental organizations acts committing, 366 administration. See Internal administration of IGOs authorized acts of, 30 basic aid to, 3 bilateral, 11 capacity to perform acts, 376 capacity to perform sovereign and international acts, test of, 63–64 characteristic elements of, 38 common law of, 3–4 all types, applying to, 21 customary, 21 external. See External law of IGOs

594

index

internal. See Internal law of IGOs use of term, 23 constitutional limitations, 366–367 constitutions. See Constitutions of IGOs consultative, 12 convention, establishment by, 38 criminal jurisdiction, lacking, 113 criteria, 39 decisions of. See Decisions of IGOs denition, establishment of, 41–42 description of, 392 developing countries, technical assistance to, 364 duration, 10 establishment of, 38, 43, 46–52 expenses of, 128 extended jurisdiction, 5 factual existence and functioning of, 49 freedom of action, 54 functions and powers, 10 general political, 11 general subjects of international law, as, 394 global and regional, 10 governmental functions, failure to carry out, 186–187 history of, 8–9 implied functions, 24 internal law, 9 international acts of. See International acts international legal persons, as, 64 international organs, as, 39 international persons, as, 43–46, 51 international public corporations, 17–18 international tribunals, 13–17 judicial power. See Internal judicial power of IGOs juridical personality and capacity to act, 540–542 legal concept of, 37–38 legal personality. See Legal personality of IGOs limitation on powers of, 366 limited functions, of, 56 limited legal capacity, 60 literature on law of, 4 lower and upper limits, 37–42 member States, dependence on, 62 members self-governing entities, 41 sovereign communities, 45 mixed agreements by, 367 mixed governmental and non-governmental, 18–19 non-governmental organizations, and, 3

non-member States, relations with, 370–371 non-members, validity vis-à-vis constitution, relevance of provisions of, 384–385 existence of convention, relevance of, 385–386 recognition, consequences of declaration and constitutive view of, 386–390 Reparations case, 380–382 UN Charter, whether binding, 382–384 number of, 4 objective international personality, 61–63 operational, 12 organizations of, 12–13 organs acting for, 542–547 other organizations, membership of, 409–410 post-World War I and II, 9 public and private international law, actors in, 4 public laws, 28 purposes, 9 regulatory, 12 resolution, establishment by, 38–39, 46 responsibility. See Responsibility of IGOs right to remedy against, 257 rights and duties created for, 371–372 rights, duties and actions under international law, capacity for, 53–55 rules of procedure, 99 self-governing entities, separate membership for, 41 size of, 9 sovereign acts by, 362 sovereign and international acts, capacity for, 376–377, 391–392 sovereign or government functions, 38, 46–52 specialized, 11 States distinguished, 377–378 subjects of national and international law, acting as, 67 subsidiary organs, 118 supranational, 12 technical, 11 temporary, 19 terminology, 33 territory, lack of, 45 treaties. See Treaties treaty organs, 13 type dependant, 19–21 types of, 9–21

index 595 ultra vires acts, bound by, 362–363 upper limit, 40–42 Internal administration of IGOs constitutional authorisation, without, 118–119 decisions, making, 117–118 delegation, 133–136 exclusive executive power, 119 jurisdiction, 117–118 subsidiary organs, establishment of, 118 Internal courts actions by ofcials against organization, 258–263 actions by organization against ofcials, 263–266 actions by third parties against ofcials or members of UN force, 266–270 ad hoc, 259 administrative tribunals, actions in, 258–263 applicable law, 573–576 capacity to establish, 277 compulsory jurisdiction, 265, 280–281, 293–294 disputes largo sensu, for, 288–289 disputes stricto sensu, for, 286–288 disputes with private individuals, for, 279–284 establishment of, 257–258, 350–351, 353 exclusive jurisdiction 351 extension of competence, 294–297 external court, as, 307, 309–313 internal disputes of other organizations, jurisdiction over, 309–313 international competence, 275 international law questions arising before, 348 judgments against private individual, enforcement of, 283–284 external effects, 272–277, 294 internal enforcement, 270–272 rendered in organic disputes, binding force of, 349 territorial jurisdiction, lack of, 351 judicial protection by, 353 largo sensu, 303–304 law of international courts, whether governed by courts largo sensu, 303–304 courts stricto sensu, 300–303 generally, 297–300 International Court of Justice, 304–307 limited jurisdiction of, 307

member States and other States under jurisdiction, disputes between, 286–289 national courts, comparable to, 298 nature of jurisdiction, 262 need and justication for, 268 ofcials, actions against, 278 organs, disputes between, 289–292 parties before, 297–298 power to establish, 292–294 scope of competence, 263, 278 stricto sensu, 300–303 submission to, 576 tribunals, referred to as, 297 types of, 298–299 Internal judicial power of IGOs administrative tribunals, of, 120 compulsory jurisdiction, 120–121 courts, establishment of, 121 delegation, 133–136 enforcement of judgments, 121 exclusive, 121 member States, disputes between, 122 ofcials, in relation to, 120 organs and ofcials, over, 120 scope of, 120 Internal law of IGOs basis of, 172 constitutional and administrative law, 532–534 constitutional conventions, laid down in, 22 customary, 27 distinct legal systems, as, 24–29 distribution of powers, 117 each organization, for, 74 economic law, 560–564 effects in national law, 73–74 elements of, 73 employment, relationship of, 149–150 exclusive application of, 441–443 existing literature, 4 external application, 77 external relations, application to, 533, 581–582 false analogies from international law, 25 eld of application, 517–518 general principles as source of, 516 hierarchical levels, 28, 76 inherent jurisdiction, 24–25 international administrative law, as, 25–26 international and national law, relationship to, 514 international courts, questions arising before, 348 international law, clarication as, 25 legal systems, constituting, 325

596

index

legal texts, in, 22 legislation authority to enact, 110–111 constitutional provisions, absence of, 109–112 general power of, 116–117 genuine, 112–116 individuals, whether binding, 114 limitation, legal basis for, 110 organizational and functional regulations, 107–109 right to enact, 112 system of, 116 types of, 107–108 use of term, 115 matters governed by, 26–27 meaning, 34, 532 national public law, legal systems parallel to, 72–77 organic, 532 organic connecting factor, 441–443 organizational and functional regulations, 107–109 principle of legality, 24 procedural, 26 public international law, and, 24–25 confusion with, 75 relations with members and individuals, governing, 27 sources of, 27, 76 special customary law, development of, 22 stricto sensu, 329 subject matter of, 75 subjects of, 75–76 territorial or personal connecting factors, applicable to, 71 use of term, 28, 72 Internal relations conclusions, 580 individuals, with, 447 jure imperii, 445–447 non-governmental organizations, with, 447–448 ofcials, delimitation of organic jurisdiction over, 443–445 organic connecting factor, 441–443 International acts actual performance of, 56–58 delegations, privileges and immunities, 408–409 IGOs, of, 48–50, 406–410 international conferences, convocation and participation in, 407–408 jurisdiction for, 406 legal capacity for, 413–414

other organizations, membership of, 409–410 positive and negative jus legationis, 406–407 International Atomic Energy Agency headquarters agreement, 175 nuclear safeguards, 207 trilateral contract, governing law, 509 International Bank for Reconstruction and Development loan agreements general conditions, 497 internal law, not subject to, 496–497 international law, subject to, 501–502 national law, whether governed by, 497–498 procedure of conclusion, 498–499 settlement of disputes, procedure for, 499–502 terns of, 496 loans by, 496 weighted voting, 241 International Civil Aviation Authority decisions, sanctions, 221 majority decisions, 229, 232 International Committee of the Red Cross functions of, 8 international functions, 54–55 International conferences convocation and participation in, 407–408 International Court of Justice advisory opinions, 251–252, 254 binding. See binding advisory opinions, above competence, request exceeding, 411 constitutional basis for request, 412–413 jurisdiction, conditions for, 410–412 limitation of scope of request, 411 regular, 336 request for, 410 binding advisory opinions both parties, binding on, 338–339 competence to render, 339–340 examples of, 337–339 external disputes between IGOs, in, 336 internal disputes, settlement of, 308–309 jurisdiction as to, 334 power of IGO to require, 340–341 truly advisory, 335–337 undertaking to be bound, 339 contentious jurisdiction, scope of, 322 dispute of national law, compulsory jurisdiction in, 327 disputes between States, competence limited to, 320 disputes in, 299

index 597 employees of international organizations, jurisdiction over, 269 internal law disputes in, 269 International Labour Organization, reference of disputes from, 321 law governing, 304–307 non-member States, determining validity of action vis-à-vis, 305 organs, adjudicating disputes between, 290–292 parties other than States, extension of jurisdiction to, 322–323 reference of internal disputes to, constitutional provisions, 317–319 scope of jurisdiction, 326–327 voluntary jurisdiction, 330 International courts competence ratione materiae, 324–330 competence ratione personae, 319–324 disputes of international law, adjudication of, 324–325 disputes of national law, acceptance of jurisdiction in, 328 internal disputes between States, assumption of jurisdiction, 329 internal law of IGOs, jurisdiction as to disputes arising from, 329 settlement of internal disputes by, 308 ad hoc tribunals, 330 competence in absence of constitutional provisions, 319 compulsory jurisdiction, conferring, 332–333 existing courts, reference to, 321 law of organization, limitations arising from, 330–333 limitations arising from constitution of court, 319–330 power to refer, 330–332 standing courts, competence ratione materiae, 324–330 standing courts, competence ratione personae, 319–324 subjects of international law, jurisdiction in disputes over, 333 International Criminal Court establishment of, 15 judicial independence, 16 jurisdiction, 214 membership, 214 permanency, 15 UN Security Council, relationship with, 15–16 International criminal law international tribunals, 15

International Criminal Tribunal for Rwanda establishment of, 15 International Criminal Tribunal for the Former Yugoslavia establishment of, 15 International criminal tribunals post-conict situations, in, 214–215 International Institute of Agriculture private law, as subject of, 361 International Labour Organization Administrative Tribunal competence, 284 questions of internal law of IGO arising before, 345–346 constitution, interpretation of, 321 functions of, 8 International Court of Justice, reference of disputes to, 321 International law binding precedent, not admitting, 520 derived subjects of, 395 general principles as source of, 515–516 general principles, choice between, 518–522 procedural, 274 recognition as subject of, 377 relations between sovereign communities, governing, 513 soft law, 220 States as original or necessary subjects of, 375–380 subjects of, 54 submission of contract to, 513–514 violations by State or IGO, responsibility for, 428–429 International Law Commission State responsibility, work on, 415–419 International Monetary Fund decisions, sanctions, 221 majority decisions, 225 weighted voting, 241 International organizations characteristic elements of, 38 denition, 37, 41–42 international persons, as, 43–46 International persons organizations as, 43–46 sovereignty, 43–46 International sea bed recommendation on, 199 International tribunals common law applying to, 17 exercise of jurisdiction, 14 growth in, 13 intergovernmental organizations, as, 14

598

index

intergovernmental organizations, as organs of, 14 international criminal law eld, in, 15 judicial powers, 14 mixed or hybrid criminal, 16–17 Internationalized territories jurisdiction over, 184–190 mandated, 184 special IGO, establishment of, 188–190 United Nations, governmental functions of, 185–188 Jurisdiction acquisition by IGOs, 97 administrative tribunals, of, 262 criminal, over international crimes, 213–215 different sovereign communities or States, of, 97 extended. See Extended jurisdiction inherent. See Inherent jurisdiction intergovernmental organizations, of criminal, lack of, 113 functional, 103 organs and ofcials, over, 104 specic categories of person, over, 101 specic territory, over, 100 States, over, 102–103 international acts, for, 406 membership. See Membership jurisdiction organic. See Organic jurisdiction personal. See Personal jurisdiction scope of, 81 ships, aircraft and space vehicles, over, 100–101, 103 States, of, 81 territorial. See Territorial jurisdiction Legal personality of IGOs constitutional provisions for, 357–359 general international, reasons for denying acts imposing obligations, confusion with, 59–61 associations of individuals, assimilation to, 58–59 duty to enter into ofcial relations, confusion with, 62–63 nancial obligations, confusion with, 59–61 member States, dependence on, 62 resources for fullment of obligations, lack of, 61–62 States as subjects of international law, doctrine of, 58 inherent general international, 392–393 international

certain organizations, of, 362 European Union, whether possessing, 52 scope of, 362–371 limited, 421 national law, in, 357–359 objective, 61–63 denial of, 368 United Nations, of, 380 objective international acquiescence, 390 legal nature and basis of, 387 recognition, 386–390 refusal to recognize, 389–390 practice, 368–371 rights and obligations as corollary to, 415 Mandated territories jurisdiction over, 184 Member States decisions binding on, authorization of, 373 delegation of authority to commit, 372–375 delegation of powers to IGO, effect of, 420–429 dependence on, 62 disputes between, 122 inherent jurisdiction over, 216 international rights and duties, as subjects of, 371–375 jurisdiction over. See Membership jurisdiction loans by, 374 other States under jurisdiction, disputes between, 286–289 Membership jurisdiction functional, 219 Holy See, of, 92–96 intergovernmental organizations, of admission and exclusion, as to, 105 concurrent, 96–97 dependence on, 98 genuine nature of, 98 member or other States, over, 105 nature of, 104 organic jurisdiction, and, 104 meaning, 219 member States, over, 181–182 organizational, 97–105, 217–219 reference to, 102 MERCOSUR settlement of disputes, 248 National law conict. See Conict of laws internal law, as, 34

index 599 meaning, 34 subjects of, 6 Non-governmental organizations acts of, 7 co-operation agreements, 491–494 consultative status, 445, 491–494 internal regulations, binding, 112 internal relations with, 447–448 international, 6–8 meaning, 6 mixed governmental and non-governmental, 18–19 national law, subject to, 7 organs acting for, 542–543 organs and employees, powers over, 179 relationships with IGOs agreement as to applicable law, 494–496 applicable law, 492–494 co-operation agreements, 491–494 consultative status, 491–494 non-commercial, 492 types of, 6–7 Nordic Council decisions of, 223 establishment of, 46–47 North American Free Trade Agreement settlement of disputes, 248 Nuclear damage liability for, conventions, 465–466 Nuclear safeguards International Atomic Energy Agency, of, 207 Ofcials actions by organization against, 263–266 applicants for position, relations with, 443 appointment and dismissal, 142–149 compulsory judicial power over, legal basis for, 265–266 employment, relationship of acquired rights, delimitation, 159 character of, 149 contractual, 151 contractual elements, 137 general, 149–150 internal courts, governed by, 160–172 internal law, under, 149–150 international or national ofcials, as, 170 judicial aspect, in, 163 legal system of organization, governed by, 171–172 letters of appointment, 151 national courts, actions in, 161, 163–169 national law, application of, 161–162 public law nature of, 158

regulations applied, 160 salaries, reduction of, 154, 156–157 Staff Rules, 152–153 statutory, 137, 157 termination indemnities, 171 terms, 151–152 variation between organizations, 159 functional protection, 139–142 IGOs, relationship of employment with, 442–443 independence, 142–149 international immunity of, 268 meaning, 138 national juridical proceedings involving, 145 ofcial duties, performance of, 139–142 organic jurisdiction over. See Organic jurisdiction organization, actions against, 258–263 organs of organization, disputes with, 352 permanent and temporary appointments, 147 private acts, jurisdiction as to, 278–279 procedure of appointment, abuse, 147 seconded, 143 social security, 172–174 specic posts, earmarking, 147 staff of tribunals and courts, appointment and remuneration, 150 taxation of, 208–211 third parties, actions by against, 266–270 tribunals to adjudication actions against, 278 US practice as to, 155 Operational organizations role of, 12 Organic connecting factors administrative or judicial organ, competence of, 530 conict of national law, in, 528–532 constitutional and administrative law, 532–534 criminal law, 534–535 internal law of IGOs, application of, 441–443 law of community, relationship governed by, 531 lex fori, 529 meaning, 34–35, 528 procedural law, 534 public law branches of conict, occurring in, 530 public law, referring to, 531

600

index

public organs, acts of, 530 territorial and personal, 70–72 wedding ceremony, form and procedure, 529 Organic jurisdiction absolute, 179 active nature of, 177 acts of, 178 connecting factors, 70–72 constitutional aspects of, 178 delimitation over ofcials, 443–445 disputes under, reference to national courts, 313–317 distinct legal acts, 136 effects, 71 exclusive, 178 external relations, 125 headquarters agreements, interference by, 174–176 Holy See, of, 92–96 immunity, and, 177–178 importance of, 98 independence, 177 inherent, 181 intergovernmental organizations, of, 68 concurrent, 96–97 dependence on, 98 genuine nature of, 98 membership jurisdiction, and, 104 States, vested in, 97 internal law of IGOs, application of, 441–443 internal relations, 179 international peace support operations, 97 legal force, 180 limitations, 179 meaning, 34 nature of, 71 ofcials, over appointment and dismissal, 142–149 concurrent, 137–138 delimitation, 137 employment, relationship of, 137–174 exclusive, 137 functional protection, 139–142 host and other member States, wishes of, 148 independence, 142–149 intergovernmental organizations, of, 104 legal protection, 142 local personnel, 144 national juridical proceedings involving, 145 ofcial duties, performance of, 139–142 questioning, 140

seconded, 143 social security, 172–174 States, of, 82, 137–174 organizational, 97–105 personnel, over, 138 powers of non-governmental organizations, and, 179 representatives of member States, over, 215–216 self-governing communities, exercise by, 82 States, of case on, 84–85 employees of commercial agencies of State, over, 89 exclusive and overriding, 89, 91 exclusive, 83 existence and scope as competence of States, 83–84 host State consumer employees, over, 85–89 organs and ofcials, governing relations with, 82 privileges and immunities, and, 83 rights of other States, not violating, 91 scope, guidelines as to, 90 territorial and personal, coincidence with, 90 territorial and personal jurisdiction, differences, 180 theoretical and practical importance, 181 type dependent organizations, 97 Organization for Economic Co-operation and Development decisions of, 221–222 Organization for European Economic Co-operation decisions of, 224 Organization for Security and Co-operation in Europe ambiguity of intentions, 51 governmental functions, 51 intergovernmental organizations, not functioning as, 52 Outer space damage caused by space objects, 200–201 global commons, as, 200–202 international government for, 201–202 treaties and resolutions, 200–201 Peace treaties non-member States, binding on, 234 Permanent Court of Arbitration disputes between States, competence limited to, 323–325

index 601 Permanent Court of International Justice independent arbitral tribunals compared, 305–306 practice, 25 scope of jurisdiction, 325–327 Personal connecting factors are or non-existent cases of, 565 conicts of laws, legal questions, 547 economic law, in, 558–559, 563 elds in which important, 538 juridical personality and capacity to act, 540–542 lex domicilii or lex patria, 535–538 meaning, 528 organs acting for organization, 542–547 personal law, determination of, 535–538 personal law or organization, call for, 538–540 persons, law of, 535–548 sovereign communities, in relation to, 531 succession, law of, 538–539 Personal jurisdiction consulate, of, 85 IGOs, exercise by administered territory, in, 208 courts, establishment of, 210 criminal, 211, 213–215 international ofcials and agents, taxation of, 208–211 private relations, 208–211 refugees, over, 211–213 stateless persons, over, 211–213 organic jurisdiction, and, 70–72 coincidence with, 90 scope of, 81, 177 State, vested in, 85 Political organizations concerns of, 11 Premises IGO, of, 552–555 international, torts on, 553–555 Privileges and immunities conventions, 210 conventions, conict of laws express provisions, 471–472 juridical personality provisions, 473–474 settlement of disputes, 473–474 delegations to IGOs, of, 408–409 foreign State, of, 88 General Agreement, 284–285 host State infringement, 91–92 IGOs invoking or waiving, 362 interpretation of application, 300 Italian law, 361 organic jurisdiction, and, 83

private acts of ofcials, jurisdiction as to, 278–279 Procedural law arbitral tribunal, in, 571–573 internal courts, in, 573–576 international courts, in, 569–570 lex fori, governed by, 534, 567–569 national courts, in, 570–571 Public international law actors in, 359 sources of, 27 Public law foreign, national courts applying, 531 IGOs, not applicable to, 548 law of IGO, reference to, 564–565 organic connecting factors. See Organic connecting factors Public order host country, of, 132–133 Refugees asylum, 213 High Commissioner, 212 personal jurisdiction over, 211–213 Regional organizations types of, 10 Regulatory organizations role of, 12 Relations jure imperii IGO and persons under jurisdiction, between, 445–447 Responsibility of IGOs delegation of powers by States, effect of, 420–429 Geneva Conventions, application of, 424 headquarters district, in, 426–427 intergovernmental organization, meaning for purposes of, 416–417 International Law Commission, work of, 415–419 international law violations, for, 428–429 international personality, as corollary to, 415 members, of, 419 new member States joining, on, 427 no delegated powers, elds of, 430–432 part of member State powers, transfer of, 425 principle, summary, 434–436 remedies, 437 scope of, 418–419 States having delegated powers relief from responsibility, 432–433 situations of, 433–434

602

index

States remaining responsible, effect of, 429–430 Rivers international commissions, jurisdiction of, 238 international, territorial jurisdiction, 191 Secretariat meaning, 34 Self-governing communities international law, as subjects of, 379 relationship of IGOs with, 395 types of, 380 Settlement of internal disputes actions by ofcials against organization, 258–263 actions by organization against ofcials, 263–266 actions by third parties against ofcials or members of UN force, 266–270 ad hoc tribunals, 330 administrative decisions, whether binding, 254–257 administrative organs, decisions by, 248–251 administrative tribunals, actions in, 258–263 another legal system, preliminary questions of conict rules, 341 constitution precluding, 343 European Court of Justice, before, 343–344 generally, 341 internal law of organization arising before national courts, 342–344 internal law, questions before international courts, 348 international law, questions of, 348 national law, questions of, 347 nature of, 341–342 organic disputes, binding force of judgments rendered in, 349 questions of internal law of one organization arising before courts of another, 344–346 binding advisory opinions from ICJ, seeking. See International Court of Justice compulsory judicial power over ofcials, legal basis for, 265–266 constitutional provisions, 246–248 disputes largo sensu, 288–289 disputes stricto sensu, 286–288 external courts. See External courts

individuals not under jurisdiction of organization, involving, 284–285 internal courts. See Internal courts international court, reference to, 333–334 judgments external effects, 272–277, 294 internal enforcement, 270–272 law of organization, limitations arising from, 330–333 legal body, advisory opinions from, 251–254 need for, 350 only one party subject to jurisdiction, 275 organic jurisdiction, outside, 352 organization and member States, between, 353 organization and ofcials, between, 352 organization and private parties, between, 353 organs, between, 289–292, 352 private acts of ofcials, jurisdiction as to, 278–279 UN commissions, establishment of, 270 Ships global commons, in, 193 jurisdiction over, 100–101, 103 territorial, 192–197 territorial connecting factors, 555–557 United Nations, 192, 194 Social security jurisdiction, 172–174 large organizations, systems of, 172 UN system, 173–174 Soft law regulation of conduct by, 220 Sovereign communities international law, as subjects of, 378–379 Sovereignty international persons, of, 43–46 Space vehicles damage causes by, 196 jurisdiction over, 100–101, 103 territorial, 192–197 permanently manned stations, 193 territorial connecting factors, 555–557 treaties, 195–196 Specialized organizations concerns of, 11 Stateless persons personal jurisdiction over, 211–213 States coming into existence, 43 exclusive legislative power, 88 IGOs distinguished, 377–378 international law, as subjects of, 58

index 603 jurisdiction. See Jurisdiction original or necessary subjects of international law, as, 375–380 other communities, relationships with, 395 Succession substantive law of, 538–539 Supranational organizations role of, 12 Taxation international ofcials and agents, of, 208–211 Technical organizations concerns of, 11 Territorial connecting factors choice of law, methods of, 549–550 civil relations, application to, 557 economic matters, lex causae, 549–551 IGO premises, 552–555 IGO territory, 551 meaning, 528 organic, coincidence with, 90 ships, aircraft and space vessels, 555–557 State territory, 551 substance of relationship, governing, 565 Territorial jurisdiction condominia and coimperia, over, 190–191 constitutional provisions, 188 diminutions, 179–180 global commons, 197–207. See also Global commons IGO administration, resurgence in, 190 intergovernmental organizations, of, 100 international rivers, over, 191 internationalized territories, 184–190 legal basis for, 190 organic jurisdiction, and, 70–72 scope of, 177 ships, aircraft and space vehicles, over, 192–197 special IGO, establishment of, 188–190 State, vested in, 85 States, of, 102–103 Treaties conclusion of, 401–405 decisions of IGOs as, 235–236 IGOs entering into, 366–367 authorization, lack of, 402 authorization, requiring, 404–405 co-operation agreements, 403–404 inherent powers, 405 legal capacity, lack of, 405 multilateral, 405 non-member States, with, 403

power of, 401–405 specic types, 401 intergovernmental organizations concluding, 366–367 mixed agreements, 423 organs of, 13 Regulations on Registration of, 129–131 United Nations Administrative Tribunal, 160–161 competence, scope of, 169 effect of awards, 250, 260–262 internal disputes of other organizations, jurisdiction over, 311–312 questions of internal law of IGO arising before, 344–345 staff regulations, proceedings as to, 277 Bond Loan, 502–503 Charter legal position of, 29 non-members, whether binding on, 382–384 commissions, establishment of, 270 consultative nature, 12 delegation by, 133–136 Flag Code, 114–115 forces actions by third parties against, 269–270 external courts of arbitration, 270 General Assembly plan, implementation of, 126–127 general political organization, as, 11 global nature of, 10 governmental functions, assumption of, 185–188 headquarters agreement, 174–175 international person, acting as, 167 military personnel, international nature of, 150 non-application of national law, basis for, 174 objective legal personality, 380 ofcials functional protection, 141 governing law, 160–172 independence, 144–146 national courts, actions in, 161 new provisions, discharge on basis of, 155 procedure of appointment, abuse, 147 serious misconduct, dismissal for, 155–156 specic posts, earmarking, 147 Staff Rules, 152–153 tax refunds, 157

604

index

UNRWA staff, 158, 162–183 organs, disputes between, 290–292 Regulations on Registration of Treaties, 129–131 Security Council agreements with members, 401–402 decisions and orders relating to non-members, 383

ships, operation of, 192, 194 social security system, 173–174 specialized agencies, 11 UNRWA staff, 158, 162–183 voting in, 241 World Trade Organization majority decisions, 233