DEELTIJDCOLLEGE 4 – PIL
INTERNATIONAL ORGANISATIONS, INTERNATIOL CRIMINAL COURT
INTERNATIONAL ORGANISATIONS:
LEGAL PERSONALITY OF IOS:
International organisations are by definition: international legal entities, they have a legal identity under
international law.
International organisations are institutions established by treaty agreements. The key distinction between an
IO and other international non-governmental organisations is that IO’s are inter-governmental bodies: these
involve governments as member states.
ICJ Advisory Opinion: Reparations for Injuries: IOS have a legal personality in customary international law.
There are a few implications to having a legal personality:
- They can make a claim before international tribunals and be sued before international tribunals. This is
an international capacity that you can only enjoy if you are a legal person under international law.
- They can enter into agreements with other IO’s or with states. This is an international legal act that
you can only enjoy if you are an international legal person under international law.
- They enjoy privileges and immunities roughly similar to the ones we see with states etc.
Art. 104 UN Charter is not international personality:
‘The Organisation shall enjoy in the territory of each of its Members such legal capacity as may be necessary for
the exercise of its functions and the fulfilment of its purposes’ -> This article is saying that if a UN organisation
comes to our country we almost automatically grant it legal personality within our legal system
Any organisation, in order to physically exist in the world, would need to have an office within a country and
employ people etc. it would need a physical existence within territories. Every country can decide on its own
how they want to grant organisations legal personality within their own country.
1
, DECISION MAKING AND POWERS OF IOS:
How do international organisations or bodies within those organisations make decisions?
What type of voting is practiced in most IO’s?
Unanimity: when all voting parties positively vote for the particular measure or decision.
Consensus: when there is not voting member that is objecting to the decision.
Simple, absolute, qualified and weighed majority voting: simple majority is just half + 1, absolute
majority: there has to be a majority from the entire number of the class so all members have to vote,
qualified: majority voting which is subject to a few additional requirements. Weighed majority: to
weigh means to measure -> votes do not count the same, the votes are from a certain weight and that
weight varies. (Security Council, not all votes count equal).
The power or competences of IOS are determined by the instrument that establishes that organisation. In the
case of the UN it is determined by the UN Charter.
There are two types of theories regarding how to interpret any treaty that constitutes an IO:
1. Express powers: IO would only have those powers and competences that are expressly stated in their
constitutive instruments. So, if the charter does not explicitly say that you can do that then the
organisation will not have the power or competence to do that.
2. Implied powers: this is the prevailing view regarding this topic. This doctrine says: yes, IOs do have
those mandates that are expressly put in the constitutive documents but they also have those
mandates and competences that are necessarily implied from those originally expressly stated
mandates. If I say: you can leave the room then the competence to grab the handle of the door and
open the door is necessary implied in that. So, some powers, duties, competences may not be
expressly put in the constitutive documents but we can necessarily imply that the document or charter
meant to give such extra powers aswell. How do we then make the decisions on what is the criteria: it
is by asking is it necessary the expressly given mandates. There was one time such a question
concerning the use of nuclear weapons ->
Legality of Nuclear Weapons Advisory Opinion: the world health organisation, which is a UN
specialized agency, asked an advisory opinion from the ICJ regarding the legality of the threat of use of
nuclear weapons. Because nuclear weapons impose a serious threat for human health and repulls
through generations they wanted to know about its legality. The ICJ said that the WHO does not have
the competence/ the mandates, even the implied mandates to ask this question. why? Because the
mandates of the WHO is only for matters dealing with health. Now, nuclear weapons might have
implications for health but the question that the WHO asked the court was not about the health
implication, it was about the legality (whether or not nuclear weapons are lawful or not). This is
outside the mandate of the WHO because the job of the WHO is to tackle health problems, regardless
of whether that problem is lawful or unlawful. So, the court said: you don’t have the mandate to ask
this question -> here the court is using the implied powers doctrine but it said that even by using the
implied power doctrine this is a very far stretch -> so, there is a limit to what extend you can take or
read into the constitutive document and say: in order to fulfil this duty I need to have that power.
The criteria is thus: it has to be necessary for the fulfilment of your original duty.
The implied powers doctrine is the widest excepted doctrine but there also is a limit to what extend you can
keep on implying a certain power out of your express power. The guiding principle, the ICJ said is the principle
of speciality, this is: normally states have full sovereignty: they have full power and capacity under international
law, they can engage in any topic, sign any type of treaty etc. but the legal personality of IOs is a borrowed legal
personality for a specific purpose, for a specific function, they don’t have full legal capacity under international
law. Therefore, all interpretation needs to be focussed on their function. So, when you apply the implied
powers doctrine you have to restrict interpretation as to only those functions that are necessary for the
execution for the specifically delegated power.
You can’t add a whole new competence or mandate to yourself in the name of implied doctrines. For example:
the WHO cannot adopt the power to engage in development work as its new mandate. You cannot give a new
mandate to yourself, you can only have certain have certain functions that are necessary for your original
2
INTERNATIONAL ORGANISATIONS, INTERNATIOL CRIMINAL COURT
INTERNATIONAL ORGANISATIONS:
LEGAL PERSONALITY OF IOS:
International organisations are by definition: international legal entities, they have a legal identity under
international law.
International organisations are institutions established by treaty agreements. The key distinction between an
IO and other international non-governmental organisations is that IO’s are inter-governmental bodies: these
involve governments as member states.
ICJ Advisory Opinion: Reparations for Injuries: IOS have a legal personality in customary international law.
There are a few implications to having a legal personality:
- They can make a claim before international tribunals and be sued before international tribunals. This is
an international capacity that you can only enjoy if you are a legal person under international law.
- They can enter into agreements with other IO’s or with states. This is an international legal act that
you can only enjoy if you are an international legal person under international law.
- They enjoy privileges and immunities roughly similar to the ones we see with states etc.
Art. 104 UN Charter is not international personality:
‘The Organisation shall enjoy in the territory of each of its Members such legal capacity as may be necessary for
the exercise of its functions and the fulfilment of its purposes’ -> This article is saying that if a UN organisation
comes to our country we almost automatically grant it legal personality within our legal system
Any organisation, in order to physically exist in the world, would need to have an office within a country and
employ people etc. it would need a physical existence within territories. Every country can decide on its own
how they want to grant organisations legal personality within their own country.
1
, DECISION MAKING AND POWERS OF IOS:
How do international organisations or bodies within those organisations make decisions?
What type of voting is practiced in most IO’s?
Unanimity: when all voting parties positively vote for the particular measure or decision.
Consensus: when there is not voting member that is objecting to the decision.
Simple, absolute, qualified and weighed majority voting: simple majority is just half + 1, absolute
majority: there has to be a majority from the entire number of the class so all members have to vote,
qualified: majority voting which is subject to a few additional requirements. Weighed majority: to
weigh means to measure -> votes do not count the same, the votes are from a certain weight and that
weight varies. (Security Council, not all votes count equal).
The power or competences of IOS are determined by the instrument that establishes that organisation. In the
case of the UN it is determined by the UN Charter.
There are two types of theories regarding how to interpret any treaty that constitutes an IO:
1. Express powers: IO would only have those powers and competences that are expressly stated in their
constitutive instruments. So, if the charter does not explicitly say that you can do that then the
organisation will not have the power or competence to do that.
2. Implied powers: this is the prevailing view regarding this topic. This doctrine says: yes, IOs do have
those mandates that are expressly put in the constitutive documents but they also have those
mandates and competences that are necessarily implied from those originally expressly stated
mandates. If I say: you can leave the room then the competence to grab the handle of the door and
open the door is necessary implied in that. So, some powers, duties, competences may not be
expressly put in the constitutive documents but we can necessarily imply that the document or charter
meant to give such extra powers aswell. How do we then make the decisions on what is the criteria: it
is by asking is it necessary the expressly given mandates. There was one time such a question
concerning the use of nuclear weapons ->
Legality of Nuclear Weapons Advisory Opinion: the world health organisation, which is a UN
specialized agency, asked an advisory opinion from the ICJ regarding the legality of the threat of use of
nuclear weapons. Because nuclear weapons impose a serious threat for human health and repulls
through generations they wanted to know about its legality. The ICJ said that the WHO does not have
the competence/ the mandates, even the implied mandates to ask this question. why? Because the
mandates of the WHO is only for matters dealing with health. Now, nuclear weapons might have
implications for health but the question that the WHO asked the court was not about the health
implication, it was about the legality (whether or not nuclear weapons are lawful or not). This is
outside the mandate of the WHO because the job of the WHO is to tackle health problems, regardless
of whether that problem is lawful or unlawful. So, the court said: you don’t have the mandate to ask
this question -> here the court is using the implied powers doctrine but it said that even by using the
implied power doctrine this is a very far stretch -> so, there is a limit to what extend you can take or
read into the constitutive document and say: in order to fulfil this duty I need to have that power.
The criteria is thus: it has to be necessary for the fulfilment of your original duty.
The implied powers doctrine is the widest excepted doctrine but there also is a limit to what extend you can
keep on implying a certain power out of your express power. The guiding principle, the ICJ said is the principle
of speciality, this is: normally states have full sovereignty: they have full power and capacity under international
law, they can engage in any topic, sign any type of treaty etc. but the legal personality of IOs is a borrowed legal
personality for a specific purpose, for a specific function, they don’t have full legal capacity under international
law. Therefore, all interpretation needs to be focussed on their function. So, when you apply the implied
powers doctrine you have to restrict interpretation as to only those functions that are necessary for the
execution for the specifically delegated power.
You can’t add a whole new competence or mandate to yourself in the name of implied doctrines. For example:
the WHO cannot adopt the power to engage in development work as its new mandate. You cannot give a new
mandate to yourself, you can only have certain have certain functions that are necessary for your original
2
