Participants and Membership Issues

Question 1

What two roles can member states play in relation to their organisations?

Answer 1

1) An internal role

2) An external role

Question 2

What is a member state’s internal role?

Answer 2

• Constituent parts of organs of the organisation
• IOs are dependent upon will of member states to cooperate
• Recognised in non-plenary, executive organs
• Often expected to act on behalf of all members of the organisation

Question 3

What is a member state’s external role?

Answer 3

• States are counterparts.
• Organisation is created to influence the policies of the member states.
• Organisation takes decisions directed at an environment outside the organisation itself.

Question 4

What can be the issue with these two roles?

Answer 4

IOs may deal with conflict of interests between states and, same time, are composed of representatives of states.

Question 5

What is an example of the conflict between the internal and external role of member states?

Answer 5

The EC Council decision to provide aid to Bangladesh.

Issue: Was not adopted by Council but by member states, therefore could not be subject of annulment proceedings before the Court under Art 173 of the Treaty?

Court: Nature of given act isn’t determined by its form but by its content and effects.

Conclusion: Characterised as an act of member states and not the Council.

Question 6

What are the four type of members?

Answer 6

1) Full members
2) Associate members
3) Partial members
4) Observers

Question 7

What can an associate member do?

Answer 7

May participate but have no voting rights in the principal organs.

Question 8

What can a partial member do?

Answer 8

Only participate in some activities.

Question 9

What can an observer do?

Answer 9

May be admitted to meetings of international organisations to which they contribute as observers.

Question 10

How can one assess whether the actions are a result of member states or organisations?

Answer 10

• Relationship with powers of the organisation.

- League of Nations and UN = substantive powers have been attributed to the organisation.

Question 11

What is an example of the organisation (or its organ) being responsible, as opposed to its member states?

Answer 11

Art 24(1) of UN Charter:

In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

Question 12

What is an example of member states being responsible for actions, as opposed to organisation?

Answer 12

EU- Turkey Migration deal (2016)

• Official documents provided by European Council at Court’s request show separate summit took place.
• Terms used such as members of European Council and the EU = actions of representatives of member states to EC.

Question 13

What is usually a condition of membership?

Answer 13

Statehood

Question 14

What was an exception to statehood as a condition for membership?

Answer 14

Kosovo:

Following its declaration of independence, became members of IMP, World Bank, IDA, IFC and MIGA.

This was due to majority vote.

However, procedure for admission is different in other organisations eg Art 4 UN Charter - recommendation by SC.

Question 15

Why is full membership important for mini states?

Answer 15

1) Proof of hard-won independence
2) Usually have scant representative in other countries and therefore need the organisation as a meeting point
3) The organisation is considered an instrument that guarantees independence against external aggression.

Question 16

In 1969, during the Committee of Experts, what were the two substantive proposals discussed to reduce mini-states full membership?

Answer 16

1) American - category of associate membership.

2) British - voluntary renunciation of certain rights and obligations upon admission as full member.

Question 17

Why did neither of the two proposals gain support, with regard to mini-states?

Answer 17

1) UN Charter may need to be amended - undesirable.

2) Developed countries, and opposition to full membership was seen as neo-imperialist.

Question 18

What was the main UN Charter provision preventing change in mini-state membership?

Answer 18

Art 2(1) -> principle of sovereign equality .

This would be violated if were to limit the rights of mini members in one way or another.

Question 19

What UN Charter provision favours mini-state membership restrictions?

Answer 19

Art 4(1) - ‘accept the obligations’ and ‘able and willing to carry out these obligations.’

Can mini members carry out their Charter obligations?

Question 20

What prevents IOs from participating as a full member?

Answer 20

1) Does the IO have exclusive competence to enter into treaty obligations?
2) In determining yes, must look not only to internal transfer power to organisation but also on recognition of the organisation by parties to relevant treaties and organisations.

Question 21

Why doesn’t it always suffice to have IOs as observers?

Answer 21

As full members:

1) More effective implementation and representation of EU interests.
2) Increased competences to confer powers of the organisations internally - therefore, a need to fulfil them externally.
3) Greater consistency in policies within a certain area, across member states.

Question 22

What two ways can a state become a member?

Answer 22

1) Participation in its creation (Art 3 of UN Charter)

2) Subsequent admission
- Conditions (Art 4(1) of UN Charter)
- Procedure (Art 4(2) UN Charter)

Question 23

When is admission by constitutional amendment required?

Answer 23

When membership is extended to more states, obligations of other members become more onerous.

Simultaneously, members’ rights are also extended because the new members assume obligations with regard to them.

Ex: Council of Europe: Art 26 –> composition of parliamentary assembly.

Question 24

What are the five traditional conditions of membership?

Answer 24

1) Unilateral accession (Syria and OPCW)
2) Decision of the Organisation (World Meteorological Organisation)
3) Belonging to a particular group (Art 49 of Treaty on EU)
4) General conditions (Art 4(1) of UN Charter)
5) Specific conditions can be imposed in each case (WTO Art 7)

Question 25

What does Blocker conclude about admission of members?

Answer 25

1) Nature of admission requirements can usually be explained by examining objectives of IO. 2) Conditions serve to promote that the organisation benefits from an increase in membership. 3) The admission of members to an IO is a predominantly 'political process.'

Question 26

What are the four ways membership can end?

Answer 26

1) Withdrawal by a member 2) Expulsion (by the IO) 3) Disappearance of a member 4) Dissolution of the IO

Question 27

What two types of withdrawals can occur?

Answer 27

1) Withdrawal through constitutional provision | 2) Withdrawal without constitution provisions

Question 28

What are the two main ways withdrawal has been accepted without constitutional provision?

Answer 28

1) Interpretative declarations | 2) Practice

Question 29

What IOs, in practice, accepted withdrawal in some way?

Answer 29

1) UNESCO - eventually included provision to regulate withdrawal. 2) WTO - accepted and granted almost full financial facilities requested by China.

Question 30

How is the legality of withdrawal explored in practice?

Answer 30

1) Organisations' reactions | 2) Subsequent resumption of members by states

Question 31

What does the VCLT say about the legality of withdrawal, without constitutional provision?

Answer 31

Art 56: Without a provision on denunciation or withdrawal, treaty is not subject to denunciation or withdrawal.

Question 32

What are the two exceptions to Art 56?

Answer 32

1) Possible if established that the parties intended to admit the possibility of denunciation or withdrawal 2) May be implied by the nature of the treaty.

Question 33

What arguments in favour of implied acception of withdrawal?

Answer 33

1) State sovereignty, only sovereign state can decide how long it participates. 2) Equity, most IOs are not universal. 3) No sense in prohibiting withdrawal, membership would become passive. 4) General principle of law, membership of private organisation may be cancelled unilaterally. 5) Fundamental change of circumstances (art 62 VCLT)

Question 34

What two ways can explosion occur?

Answer 34

1) Through constitutional provision | 2) Without constitutional provision

Question 35

When can explosion be necessary?

Answer 35

To protect the organisation 1) If member no longer participates in the activities of the organisation but continues to accept its services. 2) Blocks all decisions requiring unanimity 3) Fundamental change in political system of member Expulsion may be considered an implied power of every international organisation to enable it to defend itself against a situation that would prevent it from functioning.

Question 36

Give examples of constitutional provisions providing for expulsion

Answer 36

1) UN Charter (Art 6). 2) World Bank (Art 6 (2)(21) 3) League of Arab States (art 18)

Question 37

What can an organisation do before expulsion?

Answer 37

Exert pressure to withdraw voluntarily. (art 8 of Council of Europe)

Question 38

What is an obvious solution to an organisation that doesn't have constitutional provision to expel?

Answer 38

Amendment of constitution (ICAE, ILO, WHA) Long process, effort, could take years.

Question 39

What are the three legal arguments for expulsion without provision?

Answer 39

1) Implied power to expel 2) Art 60(2) of 1969 and 1986 VCLT - material breach of a multilateral treaty by one of parties entitles the other parties to suspend or terminate by unanimous agreement the operation of the treaty with respect to the defaulting state. 3) Art 62 VCLT - fundamental change of circumstances