INTERNATIONAL ORGANISATIONS : SUBJECTS OF INTERNATIONAL LAW

Question 1

Defintiion of IO

Answer 1

Art 2-a of the articles on the Responsability of IO, 2011 : an organisation established by a treaty or other instrument governed by international law and possessing its own international le gal personality. 3 conditions to fulfill to be an IO :
- the organisation is based on international law : treaty or other non binding instruments (Helsinki act..).
- the member are states : an IO is created by states and has the competencies that states provide to it. Some organisations have non states members (individuals or other entities) but they need to have sates among them.

• legal personality : an IO is created by states BUT has a different legal personality, its own legal personality. It implicates :
  
  • abiding the basic rules of international law as designed by customary law.
  • having a constitutive treaty : it is the instrument that gives all the competencies of the IO. It is both conventional (= the result of the willingness of the states that made it) and institutional (it creates a new institution, it is a constitutional for the IO).

Question 2

The differences between IO and other international entities

Answer 2

• the LEGAL PERSONALITY : An IO enjoys international legal personality (Bernadotte advisory opinion).A Swedish diplomate who works within the UN is killed by Israel during a mission. Who can claim damages ? Only someone that has international legal personality -> defintiion given by the ICJ :
  
  • the capacity to enjoy rights and obligations
  • the capacity to claim respect for these rights and obligations : this is the element that arises difficulties for individuals (cannot claim before the ICJ for instance but. It is before some regional courts = depending under which jurisdiction they act).

The legal personality of the UN : the ICJ concluded that the UN IS a legal subject by given the possibility to conclude agreements + the detachment from its members + very important competencies (even if it’s not mentioned in the Charter). BUT the court guarantees that the UN is ≠ from sovereign states, states remain sovereign and decide to become member state by exercising their sovereignty.
-> PLUS, the UN has a -n objective personality = it can be opposable to any other states (Israel was not a member state at the Bernadotte time, but still).

• the PRINCIPE OF CONFERRAL (attribution) : an IO is limited by competencies provided to it by the constitutive treaty, it doesn’t have the competence to define its own competences. BUT it can open them through the implied powers theory = competence that are not provided in the treaty but that are implied by the other competences.

Question 3

Competencies of IO

Answer 3

3 :

• normative competence : IO are a device to produce norms. They are permanent = it is a place that assist States in negotiating legal norms, developing and applying them. They can adopt binding norms but the most of the time, the norms are binding in their purpose but give freedom to the state to achieve them ; some also use soft law.
• operational competence : actions on the ground that bring a risk of responsability (peace mission).
• monitoring competence : they are supposed to be neutral so they can monitor what states do.