Week 3

• Membership in an International Organization (IO) involves full membership of states, with two types of Member States: founders and states acceding to the IO
• When a state becomes a member of an IO, it enjoys full rights like voting and privileges, as well as full duties such as financial contributions and adherence to the IO’s rules and decisions
• Accession to an IO is governed by the constituent instrument, with the United Nations requiring a 2/3rd majority decision by the General Assembly and a recommendation by the Security Council, where a veto can apply
• If the Security Council does not recommend, the General Assembly may not admit a state unilaterally, as the decision-making on accession is a balance between the General Assembly and the Security Council
• Art. 4 (1) of the United Nations Charter lists cumulative conditions for membership, with the ICJ advising that no conditions may be added beyond what is listed
• The admission of a new member to an IO is a highly political act, even though it is governed by law
• Suspension of membership rights is a temporary measure that does not free a Member State from its obligations, as outlined in the constituent instrument of the IO
• International Organizations (IOs) derive their legal personality from their powers, purposes, and practice, with a link to the founders' intentions in creating the IO
• IOs have attributed powers granted by Member States, and their powers are limited to what is necessary to perform the functions defined by the founders in the constituent instrument
• IOs have express powers explicitly provided in the constituent instrument and implied powers necessary for carrying out tasks not foreseen by the founders
• Implied powers of IOs are essential for the performance of their duties and are confirmed by the ICJ's 'Effect of Awards' Adv. Op. (1954)
• Delegated powers are those granted by IOs or their principal organs to subsidiary organs, which have no direct link to the will of the IO's Member States
• Delegated powers have no direct link to the will of International Organizations' Member States
• International Organizations can create subsidiary organs to which they may delegate part of their functions
• Restrictions on creating new organs:

  • New organs cannot increase the obligations of the IO or its Member States
  • An IO cannot delegate more powers than it has itself
  • An IO cannot delegate away its responsibility for actions of subsidiary organs for delegated powers
  • Subsidiary organs are typically not permitted to create subsidiary organs to them
• In general, delegation may be retracted and subsidiary organs dissolved by the IO that established them
• Inherent powers of International Organizations:

  • IOs have powers 'by their very nature,' essential to the performance of their duties
  • Implied powers arise only by necessary implication in the constituent instrument
• The legality of IO actions and 'ultra vires':

  • An act/decision by the IO that exceeds or infringes the IO’s powers is 'ultra vires'
  • Ultra vires is an internal question for the IO
  • Acts adopted ultra vires are not identical to acts in violation of international law
  • The consequence of establishing an act as being ultra vires is that the act can be annulled
• Decision-making in International Organizations:

  • Each organ typically has its own rules of procedure based on the IO’s constituent instrument
  • Different IOs have different ways votes are allocated or weighted, not all operate on the principle 'one state one vote'
• Types of decision-making processes:

  1. Decision-making by consensus: no vote, decision taken by 'acclamation'

  2. Decision-making by unanimity: decision adopted only if all vote in favor

  3. Decision-making by majority:

  • Simple majority: 50% + 1 Member State needs to vote in favor
  • Qualified majority: decision might require the support of a specific percentage of total votes and a minimum number of member states to pass
• Vienna Convention on the Law of Treaties (VCLT, 1969): Art. 5 VCLT governs treaties’ entry into force, interpretation, termination etc.
• Internal:

  1. IO’s constituent instrument (‘constitution’)
  2. IO’s secondary law
  3. Case law from IO’s judicial body/ies
  4. IO’s non-codified practice, provided it is established ratherthan one-off
  5. Confirmed by ICJ’s ‘Reparations,’ ‘Namibia,’ ‘Wall’…
• General:

  The relevant rules of international law

  • General principles of law, customary international law...
  • International human rights of universal nature
• Specific:

  IO’s constituent instrument (‘constitution’)

  Other treaties/agreements the IO is party to
• Legal sources applying to IOs can be grouped as:

  1. General and specific
  2. External and internal
• The law establishes boundaries and provides rights and obligations for an IO and its operations: (International Court of Justice, ‘WHO-Egypt’ Advisory Opinion (1980))