International Organizations

Author: Grazyna Baranowska, Viljam Engström, Tamsin Paige

Required knowledge:

• Sources of International Law
• Subjects and Actors in International Law
• States

Learning objectives:

To understand:

• The concept of international organization
• Varieties of international organizations and categorization of organizations
• Organizations as actors in international law and as international legal persons
• The autonomous nature of international organizations
• Concepts of legal personality and legal powers / competences
• Main features of the United Nations
• Main structure and function of the United Nations
• The law of the United Nations and the fundamental principles of public international law in the UN charter

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A. Identifying an International Organization

I. Definition of an international organization

While international organizations influence many aspects of our life – they regulate our food, how we travel, and who delivers our mail – defining them appears to be challenging. The International Law Commission’s Draft articles on the responsibility of international organizations defines international organizations as organizations established by a treaty or another instrument governed by international law and possessing international legal personality. The Draft articles further stipulate that such organizations may include other entities as members in addition to States.

Several characteristics can be identified that – while not being an exhaustive definition – provide a “useful point of departure” for identifying international organizations. These include: (1) being created between states, (2) being based on a treaty, and (3) consisting of at least one organ with a distinct will. All these characteristics are fluid and raise further discussion. For example, some international organizations are jointly created by states and international organizations, and there is at least one international organization created exclusively by other organizations.

2.1. Intergovernmental - supranational - non-governmental

International organizations are traditionally understood to consist of states. As such, a defining feature of international organizations as actors in international law is that they are "intergovernmental”. The notion "intergovernmental" can also be used to indicate a distinction to other forms of organizations. Even if some intergovernmental organizations such as the United Nations can adopt binding decisions upon its members (anchor below), the United Nations would still not qualify as a supranational organization. As a point of departure an intergovernmental organization does not limit the sovereignty of states.

Supranational organizations differ from intergovernmental organizations in respect of their regulatory authority. The European Union is currently the only example of a supranational organization, exercising a range of law-making, adjudicative, and enforcement powers, with a high degree of independence (Lindseth 2016, 152). As stated by the [linkCourt of Justice of the European Union], by becoming members, states have limited their sovereign rights by creating an organization of “unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers”.

A common way to delimit an international organization is to scrutinize the body of law that governs the organization’s activities: only those entities are international organizations that are governed by international law. Consequently, organizations whose activities are governed by domestic law are considered non-governmental organizations. By way of examples, the International Committee of the Red Cross is governed by Swiss law, and Amnesty International by British law. Membership in non-governmental organizations is also withheld for individuals.

This does not mean that non-governmental organizations would not perform important tasks in the practice of international law. This reflects the trend of increased recognition an ever more diverse set of actors in public international law (anchor above). Moreover, there are organizations that transition from non-governmental organizations to international organizations. For example, the International Commission on Missing Persons was initially established in Sarajevo in 1996 to help to account for the missing due to the Yugoslav Wars. The Commission gradually expanded its mandate and sphere of activities. Eventually, its status changed in 2014, when five states signed a treaty and gave the organization a new legal status – that of an international organization (Article 1).

2.2. Global/open - non-global/closed

Another useful distinction can be made between global and non-global organizations. Global or open organizations are established so that all states are eligible to become members, such as the [link United Nations] or the [link World Health Organization]. Non-global or closed organizations restrict their membership and are not open for all countries. This includes regional international organizations, such as the Organization of American States and the African Union, or organizations based on a common background, such as the Organization of Islamic Cooperation or Organization international de la Francophonie. Admittance to both international organizations based on reasons of regional proximity and shared background can also be a political decision. For example, Armenia, Azerbaijan, and Georgia were initially found ineligible to partake in the Council of Europe as they were considered geographically part of Asia. Nevertheless, they were eventually admitted (Schermers, Blokker, 2018, 57–59).

2.3. Political - Technical

While most international organizations are established to perform a specific function, the limited scope and nature of tasks of some organizations make them appear as performing predominantly technical tasks. For example, the Universal Postal Union regulates global postal services. Instead of diplomats, states usually delegate experts to meetings of such organizations, and the discussed matters typically focus on the particular field for which the organizations were created. By contrast, ‘political’ organizations may discuss any subject matter they see fit, and state delegations usually consist of diplomats and politicians, the paradigm example being the United Nations General Assembly (anchor below). At the same time, we cannot sharply distinguish between political and technical organizations . After all, seemingly technical questions can also be intensely political. For example, in 2019 the USA threatened to pull out of the Universal Postal Union claiming that China is taking advantage of its developing country status within the organization.

B. International Organizations as Autonomous Actors

I. Legal personality

Although international organizations have been created by treaty (link in wiki) already since the late 19^th century, it was only with the creation of the League of Nations and the International Labor Organization, that the issue of legal personality of organizations came to be discussed.

International organizations are established legal subjects of international law (link in wiki), and alongside states, the only actors possessing legal personality. This was confirmed by the International Court of Justice in the Reparation for Injuries Advisory Opinion in 1949.

Legal personality of organizations has two dimensions: Personality in domestic law and in international law.

The constituent treaties of international organizations commonly contain a provision granting the organization legal personality under the domestic law of its member states. and Like all of the provisions of the constituent instrument, this grant of domestic legal personality only applies in relation to the members of the organization.

Explicit provisions on international legal personality, on its part, is a rarity especially in open international organizations (anchor to categorization), whereas such provisions may be found in closed organizations (anchor to categorization). .

As to how to acquire international legal personality, no objective set of criteria exists. Suggested criteria coincide with definitions of an intergovernmental organization.. This way the definition also becomes somewhat circular as an international organisation becomes defined as ‘an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality´.

Having international legal personality means having a capacity of possessing rights, duties and to exercise legal powers conferred (anchor) upon the organization. However, no particular set of rights or legal powers can be derived from the possession of personality as such. Instead, the actual extent of rights and obligations is determined by the constituent instrument of each individual organization. The legal personality of organizations, in other words, is not identical to that of states. Nor will two organizations possess the exact same rights and obligations, although common features can be identified, such as the capacity to conclude treaties (link to wiki), to acquire and dispose of property, and to institute legal proceedings..

Advanced: Lack of Legal Personality

Legal personality is important as organizations would not without it be able to function as independent legal actors. Practically, absence of legal personality would prevent it for example from concluding agreements, renting buildings, or participating in international life.. Due to the lack of legal personality, for example the Organization for Security and Co-operation in Europe has faced several practical impediments in its functioning.

II. Competences / Powers

The question of personality and powers are so closely intertwined that they may sometimes be difficult to distinguish from one another. This has to do with the fact that the exercise of powers is an inherent and core element by which legal personality manifests itself.

An organization performs its tasks by exercising legal powers. These powers can be very limited, or fairly extensive. As a general rule there are a very few organizations that can make decisions that become directly binding on member states (basically the European Union, and the United Nations Security Council). Most exercises of powers, in other words, gain their regulatory impact through other means.

Legal powers are organization-specific. The main source of the legal powers of an organizations is the conferral or attribution provided in its constituent instrument.. The basic rule governing powers of organizations is that organizations must remain in all their acts within the confines of those attributed powers. This principle is also explicit for example in the Treaty on European Union, article 5. Similar provisions are explicit in constituent instruments of several organizations.

Whereas the so-called doctrine of attributed powers underlines the limited nature of organizations, their living nature is captured in another doctrine: implied powers. There are in other words two ways of constructing powers of organizations. In addition to express powers, it is accepted that organizations can also exercise those implied powers that are necessary for the performance of its duties. An express embodiment of this idea can be found in the Treaty on the Functioning of the European Union, article 352.

The element of attribution emphasizes that organizations do not, unlike states, possess a general competence (also called the "principle of speciality"). However, the "necessities of international life" may reveal the need for exercise of implied powers that are not expressly provided for in the constituent instrument.

Advanced: Inherent powers

The commonality of certain powers has tempted some academics to locate those powers in the possession of legal personality. Legal personality is regarded as the container of a range of inherent powers. There is a bulk of powers, in this logic, that are established in customary law, which means that as soon as an organization comes into existence, it will enjoy all of these powers. As to its basic point of departure (and in sharp contrast to the implied powers reasoning of the ICJ in the Reparation for Injuries case ), in the inherent powers approach organizations are potentially free, like states, to perform any sovereign act which they are in a practical position to perform. In practice, claims to inherent powers are most common in the context of international courts and tribunals. However, the distinction to implied powers is in this practice not always consistent.

III. Other aspects of the autonomy of international organizations

While, states have a virtually unlimited legal personality, international organizations are restricted in all their acts by their aims and purposes (or ‘mandate’). Within those limits, the exercise of legal powers is the most visible way by which organizations express an autonomous existence. However, the autonomy of organizations is also manifested in other features.

Organizations and their employees enjoy privileges and immunities (wiki link), which secure a degree of physical autonomy for organizations. The need for privileges and immunities derives from the fact that organizations will always have a physical presence on the territory of one or more states, and the personnel of the organization will consist of individuals with (various) citizenships. Yet, in order to act independently of any particular state interest and free from political pressure, organizations and staff commonly enjoy those immunities that are necessary for the performance of the functions of the organization (as further defined for example in separate treaties).

In respect of membership, the autonomy expresses itself for example through a right to include and exclude states from an organization. There is on the one hand no automatic right of states to become members in any organization of choice. The right to become a member can be subject to restrictions (anchor to categorization chapter). Also membership rights such as the right to participate in the work of organs and/or the right to vote can be restricted by the organization. A question of who legitimately represents a country can arise for example in cases of war or regime change. Such a decision is made by the organization itself.

C. The United Nations

I. Overview

In understanding how the United Nations work, and the law that underpins this system, it is important first to understand what the goals of the United Nations are, and more importantly what the United Nations is not. The United Nations is not, was never intended to be, and never will be, a global government. The core goal of the United Nations is the maintenance of peace. The horrors of World War I and World War II are reflected in the Preamble of the Charter where the first stated aim of the UN is “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to [human]kind”. This overarching goal is further reflected in Article 1(1) of the Charter, where it is stated that the purpose of the United Nations is “to maintain international peace and security”. Article 2 outlines the principles on which the activities of the United Nations are based. Looking at Article 1(1) in conjunction with Article 2 of the Charter, it is impossible to conclude that the UN has any other primary goal than to ensuring the absence of warfare.

The Charter does also set a number of secondary, aspirational goals, in Article 1; maintenance of peace by collective measures and settlement of disputes; development of friendly relations, equal rights and self-determination; promoting human rights; and international cooperation. The broader UN system works to promote these goals, whereas the primary goal of maintaining peace is a prerogative of the UN main bodies as stated by the International Court of Justice. History tells us that these subsidiary goals, while laudable, are open to being ignored by the UN if ignoring them will assist in achieving the overarching goal of maintaining peace.

In pursuit of these goals, the UN operates as a permanent diplomatic centre to ensure that there is always a universal forum for states engaged in dispute to meet and discuss the possibility of a peaceful resolution. It also, through the Secretariat, works to promote the purposes and principles of the Charter, in the aid of maintaining peace. It is worth noting before exploring the Charter itself, and the different primary organs of the United Nations, that the UN today displays colonial features, as the great powers possess the ability to veto many UN decisions, while the UN is not vested with any enforcement mechanisms in cases of colonial conquest or imperialism undertaken by these powers (this can be seen in relation to US and UK activity in Iraq and Afghanistan, Russian activity in Crimea and Ukraine, and China’s ongoing denial of Taiwanese statehood).

II. The Drafting History and Legal Status of the Charter

The term United Nations was first coined on 1 January 1942 in the ‘Declaration by United Nations’, which pledged to uphold the purposes and principles of the Atlantic Charter (a joint statement between Churchill and Roosevelt on 14 August 1941). At the close of the war this term got to form the basis of the new organisation to replace the League of Nations in the wake of World War II. The UN was formed through the drafting of the UN Charter at the San Francisco Conference in April 1945, with 50 nations present, and Poland signing once government was formed to constitute the 51^st original member state. Since the Charter came into force on 24 October 1945, another 144 member states have been admitted to the UN and through such admittance have effectively ratified the treaty.

The Charter is a multilateral treaty, binding upon its member states, that creates a permanent venue for diplomatic relations. The UN Charter establishes the basic structure and procedures of the organization. The volume of membership to the UN gives it near universal status, and also gives rise to a strong argument that the principles enshrined in the Charter should be considered customary law. The most forceful tool at the disposal of the UN, is the binding nature of Chapter VII resolutions by the Security Council, when it finds that there is a threat to international peace.

III. The Law of the United Nations

Article 2 is one of the most important provisions of the Charter, as it lists the principles upon which UN activities are based. These principles have been reproduced and developed in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States. Given the near-universal membership, these principles have also achieved a status as the fundamental principles of public international law. Some of them can be considered customary international law and even peremptory norms. These principles are:

• Sovereign equality
• Fulfillment of obligations in good faith
• Peaceful settlement of disputes
• Prohibition on the use of force
• Non-intervention in internal affairs
• Duty to cooperate
• The Right of self-determination of peoples.

III. The General Assembly

The UN General Assembly (GA) is the primary organ of diplomatic relations within the UN and it was established to be the primary forum for multilateral negotiations. Per Article 9 of the Charter all member states of the UN sit in the GA. The GA meets annually from September to December to discuss issues on its agenda, and as needed from January to September. The latter usually in response to special emergencies or in response to specific committees of the GA. Articles 10 to 17 outline the scope of General Assembly authority, with voting and procedure set out in Articles 18 to 22. Most voting in the General Assembly requires a simple majority, and voting on other ‘important matters’ as per Article 18 (such as the membership of the non-permanent members of the Security Council, membership of the Human Rights Council, membership of the Economic and Social Council, or the budget of the UN) requires a two thirds majority. All voting in the GA is done on a ‘one member, one vote’ system.

Because of the plenary nature of the General Assembly, and the broad scope available for discussion, the majority of the work of the General Assembly is conducted by the six different committees that it oversees. These committees are: Disarmament and International Security; Economic and Financial; Social, Humanitarian and Cultural; Special Political and Decolonisation; Administrative and Budgetary; and Legal. Each member state of the UN may assign one person to each committee. These committees work on matters related to their purview and make draft resolution recommendations to the General Assembly.

It is important to note that resolution from the General Assembly, with the exception of budgetary matters under Article 17, are not legally binding. In terms of legal status, at most, they can be considered evidence of the existence of customary international law on an issue. Nevertheless, GA decisions are indications of global political attitudes as all states are represented without the existence of a veto. An important function of the General Assembly as a permanent, multilateral diplomatic forum is the ability to request advisory opinions from the ICJ (under article 96 (a) of the Charter), thereby contributing to the development of the articulation of the current status of international law.

IV. The UN Security Council

The UN Security Council is the executive body of the UN, charged with taking primary responsibility for the maintenance of international peace and security. The special role of the Security Council is reflected in its structure, the binding nature of Security Council resolutions, and the right of veto granted to the great powers in the Security Council. The Security Council is made up of five permanent members (China, France, Russia, the UK, and the US), and 10 non-permanent members who are elected by the General Assembly and sit in the Security Council for two years. The composition of the non-permanent members is always: five members from African and Asian states, one from Eastern European states, two from Latin American states, and two from Western European and other states. This geographical breakdown of Security Council membership was determined by the General Assembly in the 18^th session of the UN (1963-64).

Unlike the General assembly, the Security Council sits permanently and meets as necessary to debate and discuss any situation that falls within its mandate (the maintenance of international peace and security). When making decisions the Security Council has the option to make recommendations with relation to any situation under Chapter VI of the Charter, or binding decisions under Chapter VII of the Charter. Resolutions made under Chapter VII of the Charter are binding upon all member states of the UN by virtue of Article 25 of the Charter. These decisions, while legally binding upon all, are not justiciable. The threshold for Security Council action is Article 39 of the Charter. As long as the Security Council finds a threat to international peace and security under that article, its sphere of action is bery broad. The most succinct description of the legal limits the Security Council faces is provided by Österdahl, who states: ‘[p]ut in simple terms, the Security Council may basically decide or do anything it wishes and it will remain within the limits of the legal framework for its action’; However, it is reasonably well accepted by the Security Council members that their decisions must be consistent with the purposes and principles of the Charter, and the Security Council mandate for the maintenance of international peace and security. Aside from Article 51 self-defence, a Security Council Chapter VII resolution is the only exception to the probably should on the use of force found in Article 2 (4).

Voting in the Security Council on any resolution (Chapter VI or Chapter VII) is governed by Article 27 of the Charter. This section sets out that for a resolution to pass it must have 9 of the 15 votes in the Council, and none of the permanent members can vote against the resolution. This requirement for all permanent members to either vote in the affirmative or abstain from voting for a resolution to pass has become colloquially known as the veto power. Even though the phrase veto was never mentioned in the UN Charter, this requirement is functionally the same as if there was a formal veto mechanism and is regarded as such to the point where the UN Secretariat maintains a veto list to track when permanent members have voted against Security Council resolutions. It is also worth noting that Article 27 requires that any party to a dispute that is subject of a Chapter VI resolution, or a decision under Article 52 (3) is required to abstain from voting. This is not required for Chapter VII resolutions due to the binding nature, and the potential gravity of consequences, of those resolutions. The veto structure is a reflection of the history and origin of the UN. While today standing out as problematic and potentially colonial, it was at the time a prerequisite for granting a monopoly for authorization of use of force to the Council.

V. The Secretariat

The UN Secretariat is set up under Articles 97 to 101 of the Charter, and operates as the administrative arm of all UN activities. The Secretary-General is appointed by the General Assembly, upon the recommendation of the Security Council. They (although the Charter refers to them as he, and to date all of the Secretary-Generals have been men) are responsible for overseeing all of the activities of the Secretariat, and reporting at least annually to the General Assembly on the activities of the UN. They are also charged with bringing before the Security Council any matter which in their opinion may threaten the maintenance of international peace and security. The Secretariat itself is made up of numerous departments that cover the broad functions of the UN globally, each with a specific focus, acting on direction from the Security Council, the General Assembly, and other UN bodies (such as the Human Rights Council, or the Economic and Social Council). A full list of Secretariat departments can be found on the UN website.

VI. Other UN Bodies

The UN Charter specifically establishes 3 other bodies: The Economic and Social Council; The Trusteeship Council; and the ICJ.

The Economic and Social Council

The Economic and Social Council is established under Article 61 of the Charter, and is made up of 54 members of the UN elected for three-year terms by the General Assembly. The role of the Economic and Social Council is to conduct studies and reports with respect to international economic, social, cultural, educational, health, and related matters and to make recommendations to the General Assembly on the basis of those reports, and recommendations for the purpose of promoting respect and observance of human rights.

The Trusteeship Council:

The Trusteeship Council was established under Article 86 of the Charter and charged with overseeing the administration of UN trust territories. The Trusteeship Council suspended operations on 1 November 1994, a month after the last remaining UN trust Territory, Palau, gained independence. While its abolishing has been proposed, its may also experience a revival due to climate change events.

The International Court of Justice:

The ICJ was established under Article 92 of the UN Charter, and the annexed statute of the ICJ. The ICJ was established as a successor to the Permanent Court of International Justice. For more details on the ICJ see the Chapter on the Peaceful Settlement of Disputes.

Advanced: The Charter as a Global Constitution

This is your advanced content.

The UN Charter is sometimes characterized as a world constitution. The Charter does for example contain the fundamental principles of public international law, and Article 103 of the UN Charter grants the UN Charter precedence before conflicting obligations of member states, elevating the status of the Charter as a source of international law. Yet, there are also profound problems with the idea of global constitutionalism.

Further Readings

• José E. Alvarez, International Organizations as Law-makers (Oxford University Press 2005)
• Chittharanjan Felix Amerasinghe, Principles of the institutional law of international organizations (Cambridge University Press 2005)
• David J. Bederman, 'The Souls of International Organizations: Legal Personality and the Lighthouse at Cape Spartel' (1996) 36 Virginia Journal of International Law
• Viljam Engström, [https://cilrap-lexsitus.org/clicc/4 Article 4, Lexcitus.
• Viljam Engström, 'Credentials and the Politics of Representation: What’s in it for the UN?' (EJILtalk, 11 October 2021) <https://www.ejiltalk.org/credentials-and-the-politics-of-representation-whats-in-it-for-the-un/> accessed 14 June 2022
• Viljam Engström, Constructing the Powers of International Institutions (Martinus Nijhoff Publishers 2012)
• Jan Klabbers, An Introduction to International Organizations Law (3rd edn, Cambridge University Press 2015)
• Jan Klabbers, ‘Formal Intergovernmental Organizations’ in Jacob Katz Cogan, Ian Hurd, Ian Johnstone (eds) The Oxford Handbook of International Organizations (Oxford University Press 2016)
• Jan Klabbers, 'Institutional Ambivalence by Design: Soft Organizations in International Law', (2001) 70 Nordic Journal of International Law 403
• Isabelle Ley, 'Legal personality for the OSCE? Some observations at the occasion of the recent conference on the legal status of the OSCE' (Völkerrechtsblog, 8 August 2016) <Legal personality for the OSCE? - Völkerrechtsblog (voelkerrechtsblog.org)> accessed 14 June 2022
• Peter L. Lindseth, ‘Supranational Organizations’ in Jacob Katz Cogan, Ian Hurd, Ian Johnstone (eds) The Oxford Handbook of International Organizations (Oxford University Press 2016)
• PK Menon, 'International Organizations as Subjects of International Law', (1993) 70 Revue de Droit International
• Bob Reinalda, Routledge History of International Organizations: From 1815 to the Present Day, (Routledge 2009)
• Philippe Sands, Pierre Klein, Bowett´s Law of International Institutions (Sweet & Maxwell, 2001)
• Danesh Sarooshi, International Organizations and their Exercise of Sovereign Powers, (Oxford University Press 2005)
• Finn Seyersted, Common Law of International Organizations (Martinus Nijhoff Publishers 2008).
• Henry G. Schermers, Niels M. Blokker, International Institutional Law: Unity within Diversity, (4^th edn, Martinus Nijhoff Publishers, 2011)
• Henry G. Schermers, Niels M. Blokker, International Institutional Law: Unity within Diversity, (6^th edn, Martinus Nijhoff Publishers, 2018)

Conclusion

• International organizations are well established international actors that today outnumber the amount of states. International organizations are also autonomous legal persons alongside states.
• Although each international organization has a specific mandate and tasks, they display many common features. These similarities give rise to what is known as international institutional law.
• The international organization par excellence in international law is the United Nations. This follows from its inclusive membership, openly political agenda, and the fundamental principles of public international law as codified in the United Nations Charter.