International Organizations

Author: Grazyna Baranowska, Viljam Engström, Tamsin Paige

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Required knowledge: Sources of International Law, Subjects and Actors in International Law, States

Learning objectives: To understand: the concept of international organisation; varieties of international organisations and categorization of organisations; organisations as actors in international law and as international legal persons; the autonomous nature of international organisations; 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

A. Introduction

It has been said that everything we do is today in one way or another dealt with by an international organisation. International organisations have become an established way of structuring interstate relations, today outnumbering, in any definition, the amount of states.^[1] This chapter identifies basic features of international organisations, highlights elements of their autonomy, and explains fundamental concepts relating to organisations. It also introduces the United Nations as the paramount organisation of the international legal system.

B. Identifying an International Organisation

I. Defining an international organisation

While international organisations influence many aspects of our life – they regulate our food, how we travel travel, and who delivers our mail– defining them appears challenging. The International Law Commission’s Draft articles on the responsibility of international organizations defines international organisations as established by a treaty or another instrument governed by international law and possessing international legal personality. The Draft articles further stipulate that such organisations may include other entities as members in addition to States.^[2]

Several characteristics can be identified that – while not being an exhaustive definition – provide a “useful point of departure” for identifying international organisations. These include: (1) being created by 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, international organisations can be jointly created by States and international organisations, not all organisations are based on a treaty but for example a decision of the UN General Assembly or domestic parliaments, and the distinct will may sometimes be difficult to establish.^[3]

II. Categorising international organisations

1. Intergovernmental - supranational - non-governmental

International organisations are traditionally understood to consist of States. As such, a defining feature of international organisations 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 organisations. As a point of departure an intergovernmental organisation does not limit the sovereignty of States.^[4] Although the constituent instrument of an intergovernmental organisation is a treaty, and as such may contain certain obligations for the Member States (such as financial obligations), most organisations can not adopt legally binding decisions. One exception is the United Nations. However, the United Nations would still not qualify as a supranational organisation.^[5]

Supranational organisations differ from intergovernmental organisations in respect of their regulatory authority. The European Union is currently the only example of a truly supranational organisation, exercising a range of law-making, adjudicative, and enforcement powers.^[6] As stated by the Court of Justice of the European Union, by becoming members, States have created an organisation 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'.^[7] In the EU this 'limitation' means that EU legislative measures can have direct effect in the legal orders of EU Member States.

A common way to distinguish between organisations is to scrutinize the body of law that governs the organisation’s activities: only those entities are international organisations that are governed by international law. Consequently, organisations whose activities are governed by domestic law are considered non-governmental organisations.^[8] 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 organisations is also withheld for individuals. This does not mean that non-governmental organisations would not perform important tasks in the practice of international law. This reflects the trend of increasingly recognizing an ever more diverse set of actors.^[9] Moreover, organisations can transit from non-governmental to intergovernmental.

Example for Transition from non-governmental to intergovernmental: The International Commission on Missing Persons was initially established in Sarajevo in 1996 to help to account for missing persons 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 conferred upon it the status of an intergovernmental organisation^[10]

2. Global/open - non-global/closed

Another useful distinction can be made between global and non-global organisations. In global or open organisations all States are eligible to become members, such as the United Nations or the World Health Organization. To the contrary, non-global or closed organisations restrict their membership in one way or another. Closed organisations include for example regional organisations such as the Organization of American States and the African Union, organisations based on a common background such as the Organization of Islamic Cooperation or Organization Internationale de la Francophonie, or organisations where membership is restricted to a particular function, such as The Organization of the Petroleum Exporting Countries or the North Atlantic Treaty Organization.

Example for Membership in closed organisations: The restricted membership of closed organisations need not however be carved in stone. 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 at the turn of the century.^[11]

3. Political - Technical

While most international organisations are established to perform a specific function, the limited scope and nature of the tasks of some organisations make them appear as dealing with predominantly technical issues. For example, the Universal Postal Union regulates global postal services. Instead of diplomats, states usually delegate experts to meetings of such organisations. By contrast, 'political' organisations may discuss any matter of global governance, and State delegations usually consist of diplomats and politicians, the paradigm example being the United Nations General Assembly.^[12] At the same time, the distinction between political and technical organisations can be difficult to uphold.^[13]

Example for Technical vs Political Organisations: Seemingly technical questions can turn out to be intensely political. The Universal Postal Union´s tasks may be thought of as rather technical. However, in 2019 the United States threatened to withdraw from the Union claiming that China is taking advantage of its developing country status within the organisation.^[14]

C. International Organisations as Autonomous Actors

I. Legal personality

Although international organisations have been created by treaty 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 organisations came to be discussed.^[15] International organisations are established legal subjects of international law.^[16] This was confirmed by the International Court of Justice in the Reparation for Injuries Advisory Opinion in 1949.^[17]

The legal personality of organisations has two dimensions: Personality in domestic law and in international law. The constituent treaties of international organisations commonly contain a provision granting the organisation legal personality under the domestic law of its Member States.^[18] and, ^[19] Like all provisions of the constituent instrument, this grant of domestic legal personality only applies in relation to the members of the organisation. Explicit provisions on international legal personality, on its part, is a rarity especially in open international organisations, whereas such provisions may be found in closed organisations.^[20]

While the question of legal personality may seem rather theoretical, in practice the absence of legal personality has proved problematic as it can prevent an organisation for example from concluding agreements or renting buildings.^[21] Due to the lack of legal personality for example the Organization for Security and Co-operation in Europe has faced several practical obstacles.^[22]

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 element by which legal personality manifests itself.^[23] An organisation performs its tasks by exercising legal powers. As these powers are organisation-specific, they can range from being very limited to exceeding the powers of its Member States. There are very few organisations 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.^[24]

The main source of the legal powers of an organisation is the conferral or attribution by members as provided in its constituent instrument.^[25] The basic rule governing acts of organisations is that they must remain within the confines of its attributed powers.^[26] This principle is also explicit for example in the Treaty on European Union, article 5.^[27] Similar provisions are explicit in constituent instruments of several organisations.

In addition to explicitly conferred powers, it is accepted that organisations can also exercise such 'implied powers' that are necessary for the performance of their duties.^[28] An express embodiment of this idea can be found in the Treaty on the Functioning of the European Union, article 352.^[29] The element of attribution/conferral emphasizes that organisations 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 the exercise of implied powers that are not expressly provided for in the constituent instrument.^[30] As long as an act of an organisation is necessary for achieving the purpose of the organisation, and there is political agreement on that necessity, such an act is not ultra vires. The two doctrines are tools for constructing and adjusting the functions and tasks of organisations in accordance with the desires of their membership.^[31]

No legal powers can be derived from the mere possession of legal personality, which rather indicates a capacity or 'readiness' to exercise powers. Some powers can however be identified that are very common in organisations, such as the capacity to conclude treaties and to bring international claims. In fact, the commonality of certain powers has tempted some academics to locate those powers in the mere possession of legal personality. There is a bulk of powers, in this logic, that have become customary, which means that as soon as an organisation comes into existence, it would enjoy all of these powers.^[32] In the 'inherent powers approach' organisations are potentially free, like States, to perform any sovereign act which they are in a practical position to perform.^[33] In practice, claims to inherent powers are more common in the context of international courts and tribunals. However, the distinction to implied powers is in this practice not always consistent.^[34]

III. Other aspects of the autonomy of international organisations

While legal powers may be the most visible way by which organisations assert an autonomy, it is not the only expression of it. Organisations and their employees enjoy immunities which secure a degree of physical autonomy for organisations.^[35] The need for privileges and immunities derives from the fact that organisations will always have a physical presence on the territory of one or more of its member States, and the personnel of the organisation will consist of individuals with various citizenships. Yet, in order to act independently of any particular State interest and free from political pressure, organisations and staff commonly enjoy those immunities that are necessary for the performance of the functions of the organisation.^[36] In respect of membership, the autonomy of organisations expresses itself for example through a right to include and exclude States. There is no automatic right of States to become members in any organisation of choice. The right to become a member can be subject to restrictions. 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 organisation.^[37]

Example for Losing Membership Rights: A member that acts in breach of the constituent instrument of an organisation may be expelled from an organisation. As a reaction to the Russian aggression against Ukraine, the Council of Europe decided to exclude the Russian Federation.^[38] Although the same mechanism exists in the UN Charter,^[39] it has never been used. Instead, the UN has used other means towards states in violation of the Charter, such as withholding credentials.^[40]

D. The United Nations

I. Overview

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 UN Charter, its foundational treaty, 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'.^[41] 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'.^[42] Article 1 defines as goals of the UN; 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.^[43] Whereas the primary goal of maintaining peace is a prerogative of the UN main bodies, as stated by the International Court of Justice in the Legality of the Use by a State of Nuclear Weapons in Armed Conflict case,^[44] in the pursuit of the broader set of goals the UN not only works through the core organisation but also the broader UN system.

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’,^[45] which pledged to uphold the purposes and principles of the Atlantic Charter (a joint statement between Churchill and Roosevelt on 14 August 1941).^[46] At the close of World War II, this term got to form the basis of the new organisation to replace the League of Nations. 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.^[47] As of June 2023, the UN has 193 member states.^[48] 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 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 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. Today the UN main areas of work are international peace and security, the protection of human rights, humanitarian aid, sustainable development and climate action, and upholding international law.

Advanced: The Charter as a Global Constitution

The UN Charter is sometimes characterized as a world constitution.^[49] The argument builds on the fact that 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. Interestingly, article 2(6) of the Charter also states that 'The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles'. Yet, there are also profound problems with the idea of global constitutionalism.^[50] Article 2(6) can also be considered to contradict the fundamental principle of the Law of Treaties whereby: 'A treaty does not create either obligations or rights for a third State without its consent'.^[51]

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 further defined in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States (1970). Given the near-universal membership of the UN, these principles are often referred to as the fundamental principles of public international law/international relations.^[52] Some of them can even be considered peremptory norms.^[53] 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^[54]

III. The General Assembly

The UN General Assembly (GA) is the primary organ of diplomatic relations within the UN and was established to be the primary forum for multilateral negotiations. Article 9 of the Charter grants all member States of the UN representation in the GA. The GA meets annually from September to December to discuss issues on its agenda, and as needed from January to September.^[55] 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 GA requires a simple majority, and voting on 'important matters' (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.^[56] All voting in the GA is done on a 'one member, one vote' basis.^[57]

Apart from the annual sessions, the majority of the work of the GA is conducted by six committees that it oversees. These are: Disarmament and International Security (First Committee); Economic and Financial (Second Committee); Social, Humanitarian and Cultural (Third Committee); Special Political and Decolonisation (Fourth Committee); Administrative and Budgetary (Fifth Committee); and Legal (Sixth Committee). Each member state of the UN may assign one person to each committee.^[58] The committees for example prepare draft resolutions to the GA.

It is important to note that GA resolutions, with the exception of budgetary matters under article 17, are not formally legally binding.^[59] In terms of legal status they can however be considered expressions of state practice, and as such, give support to the existence of customary law.^[60] GA resolutions can also gain the status as customary law, as for example in the case of the Universal Declaration of Human Rights.^[61] An important function of the GA as a permanent multilateral diplomatic forum is the ability to request advisory opinions from the ICJ thereby contributing to the development of the articulation of the current status of international law.^[62]

IV. The UN Security Council

The UN Security Council (SC) is the executive body of the UN, charged with taking primary responsibility for the maintenance of international peace and security.^[63] The SC 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 GA and sit in the SC for two years at a time.^[64] The composition of the non-permanent members is fixed: 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 SC membership was determined by the GA in the 18^th session of the UN (1963-64).^[65] The special role of the SC is reflected in its structure, the binding nature of SC resolutions, and the right of veto granted to the permanent members of the SC.

Unlike the GA, the SC 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 SC has the option to make recommendations with relation to any situation under Chapter VI (Pacific Settlement of Disputes) of the Charter, or binding decisions under Chapter VII (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression) 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. The threshold for SC action according to Article 39 of the Charter is the finding of 'the existence of any threat to the peace, breach of the peace, or act of aggression'. Voting in the SC on any resolution (Chapter VI or Chapter VII) is governed by Article 27 of the Charter. This article 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 (although the phrase veto is not mentioned in the UN Charter as such). 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) (pacific settlement of local disputes) is required to abstain from voting. This is not, however, required for Chapter VII decisions. A Chapter VII resolution is the only generally accepted exception (beside self-defence) to the prohibition on the use of force found in article 2(4) of the UN Charter.^[66]

Example for Limits to UN SC Powers: A claim has been made that '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’.^[67] The interpretation of what can be considered a 'threat to the peace, breach of the peace, or act of aggression', triggering the article 39 threshold, has indeed been expanding.^[68] While SC decisions must be consistent with the purposes and principles of the Charter, the SC has for example relied upon its implied powers in order to establish criminal tribunals.^[69] The SC has also made decisions obliging UN Member States to undertake legislative measures domestically, hereby assuming something of a role of a 'world legislature'.^[70]

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 GA, upon the recommendation of the SC. The SG (awkwardly referred to as 'he' in the Charter) is responsible for overseeing all the activities of the Secretariat, and reporting annually to the GA on the activities of the UN. The SG is also charged with bringing before the SC any matter that may threaten the maintenance of international peace and security. The Secretariat itself is made up of a number of departments that cover the broad functions of the UN globally, each with a specific focus, acting on direction from the SC, the GA, and other UN bodies (such as the Human Rights Council, or the Economic and Social Council).

VI. Other UN Bodies

The UN Charter establishes 3 other bodies: The Economic and Social Council; The Trusteeship Council; and the International Court of Justice.

1. 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 GA. 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.

2. 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, it may also experience a revival due to climate change events.

3. 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. The ICJ is discussed more in detail in the Chapter on the Peaceful Settlement of Disputes.^[71]

Advanced: The effectiveness of the UN

Advanced: The UN meets criticism from many directions. The UN (and the UN SC in particular) is for example accused of applying double standards and selectivity. The UN has also been accused for failing to deliver on the maintenance of international peace and security, such as preventing the genocide in Rwanda.^[72] The Russian aggression against Ukraine has recently highlighted anew the structural problem of the veto power of permanent members in the UN SC, which can render the Council incapable of acting. While the shortcomings of the UN Charter have been subject of debate at least since the so-called Cold War, the veto power was at the time of the UN´s establishment a prerequisite for granting a monopoly for authorization of use of force to the SC.^[73] Whereas the UN at the time of its establishment was strongly focused on the prevention of war, it is nowadays engaged in activities across societal sectors.^[74] While many of the criticisms towards the UN are valid, the UN still remains 'the go-to forum in a time of crisis, and is likely to remain so well into the future'.^[75]

E. Conclusion

This chapter has provided an overview of international organisations as subjects of international law. In characterizing and classifying organisations, the role of state consent was noted as central both for the establishment of an organisation, as well as for delimiting it for example from non-governmental organisations. One of the defining features of international organisations is their autonomy from their member states. While this autonomy may take various forms, the conferral of legal personality upon an organisation, and its exercise of legal powers, are undoubtedly crucial features. The second part of the chapter introduced the United Nations as the primary example of a global/open organisation with an openly political agenda. The UN Charter assumes a special position among legal sources of public international law, and the General Assembly and the Security Council are important venues for bringing states together in addressing global challenges. Although the international legal system today acknowledges a range of non-state actors,^[76] international organisations have retained their central role as venues for State collaboration in global governance.

Summary

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.
The UN system at large works to promote a range of issues that are of global concern. The UN SC can make decisions that are binding upon all UN Member States when finding the existence of a threat to the peace, breach of the peace, or act of aggression.