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General Introduction

Cedric Ryngaert, Ige F Dekker, Ramses A Wessel, and Jan Wouters

Concomitant with the rising relevance of international organizations in international affairs, and the general turn to litigation to settle disputes, international institutional law issues have increasingly become the subject of litigation, before both international and domestic courts.

While there are a number of textbooks introducing the law of international organizations, the judicial treatment of this sub-field of international law has not been given the attention due to it. This book aims to fill that gap. Specifically, it contains excerpts of the most prominent international and domestic judicial decisions that are relevant to the law of international organizations, as well as—most importantly—comments thereto. The book does not seek to replace relevant textbooks; rather, it complements them by providing in-depth analysis of judicial decisions, which often receive only cursory, non-systematic treatment in textbooks.

Methodologically speaking, the book contains case-notes regarding about fifty judicial decisions of international and domestic courts. Each case-note consists of five sections, discussing (1) the relevance of the case, (2) the facts, and (3) the legal question; giving (4) a relevant excerpt of the judicial decision; and (5) commenting on the decision. The commentaries are written by leading experts in the field, both scholars and practitioners. They are opinionated and critically engage with the decision in question, with commentators’ and stakeholders’ reactions thereto, and with later decisions, codifications, or reports. The commentaries have been reviewed by the editors.

While the cases typically address different topics rendering any categorization somewhat arbitrary, the book is divided into seven parts, which correspond to classic categories of international institutional law: (1) legal status (personality), (2) legal powers, (3) institutional structures and position of members, (4) legal acts, (5) obligations, (6) responsibility and accountability, and (7) immunity. Per part, the editors have written an introductory section that presents and contextualizes the legal issues. This allows for a better and more coherent understanding of the bundle of case-notes per part.

Judicial decisions from a variety of courts have been selected: the International Court of Justice and its predecessor, the Permanent Court of International Justice, the Court of Justice of the European Union, the international criminal tribunals, and assorted domestic courts. Although the need to ensure a sufficient degree of diversity of courts and tribunals was taken into account, the selection of cases is ultimately mainly based on the innovative character of the judicial decisions for the law of international organizations in general, regardless of the specific organizational context which formed the factual background for the decision. Every decision is included for the significance of its contribution to the development of the law of international organizations, and thus for marking, to a greater or lesser extent, an advancement in international institutional law thinking. The editors have decided not to include international staff cases before assorted international tribunals, as such cases concern rather specific issues of international labour and administrative law rather than international institutional law.1

Despite the important role which courts play in advancing international institutional law, the editors consider it appropriate to add a caveat: one has to admit that this legal area has predominantly been developed ‘out of court’, and more particularly on the basis of institutional and state practice[1] [2] and advisory practice of legal counsel of international organizations.[3] But even then, courts may play a role as an arbiter of the legality of certain developments and interpretations, and as a provider of legal certainty. For instance, art. 27(3) of the UN Charter—the provision dealing with the UN Security Council’s decision-making procedure—has been interpreted by the members of the UN Security Council itself as not requiring affirmative votes by the permanent members for a resolution in non-procedural matters to be adopted; voluntary abstentions would suffice. This institutional practice was later confirmed by the International Court of Justice,[4] thereby dispelling any lingering doubts as to its lawfulness.

However this may be, there is no denying that the body of judicial rulings with respect to the law of international organizations is eventually rather limited. This is a consequence of the incomplete character of international law, which lacks a compulsory mechanism to settle disputes between international actors. In international institutional law, this incompleteness is brought into even starker relief, as at the international level international organizations do not—as a general rule—have access to dispute settlement mechanisms, nor are there venues where affected actors can sue organizations. In contentious cases, the International Court of Justice only has jurisdiction over inter-state disputes, whereas the jurisdiction of the European Court of Human Rights extends only to—again—inter-state disputes, and applications brought by individuals against states. At the level of domestic courts, international organizations are often shielded by immunities from jurisdiction and enforcement; these obstacles may render domestic litigation a non-starter for injured parties.

In spite of these—often inherent—procedural limitations, issues of international institutional law have come up before courts, both domestic and international. Notably, the International Court of Justice, while not having jurisdiction over organizations in contentious matters, has the competence to ‘give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request’.[5] Many, if not most advisory opinions pertain to legal issues of internal institutional organization of the UN (system), or the relations between an organization belonging to the UN system and its member states. Some of these decisions have been extremely important to ensure the proper functioning of the UN, for example, the 1962 advisory opinion in Certain Expenses, which declared that UN peacekeeping operations are lawful and that their costs are part of the regular expenses of the organization, and to be borne by all the member states.[6] Other decisions have set the terms of the debate in general international law: thus, for instance, the International Court of Justice’s landmark ruling on the international legal personality of the UN in its 1949 advisory opinion Reparation for Injuries has had a profound impact on debates regarding the legal status of international organizations, and even of non-state actors in general, where it held that ‘[t]he subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community’[7] and further developed the doctrine of implied powers.

Judicial decisions on issues of international institutional law may also emanate from international organizations which have a constitutional structure that allows an independent judicial body to review acts of other organs of the organization. The UN and its specialized agencies do not have such a structure, but the European Union (EU) does. Its Court of Justice (CJEU) has developed an intricate body of case-law, in particular on the division of competences between the organization and its member states, and between different institutions of the organization. Insofar as these CJEU cases have seminal importance for general institutional law, they have been included in this book.

Relevant judicial decisions have also been rendered by international dispute settlement mechanisms in inter-state disputes, to the extent that such disputes concern the relationship between a state and an organization of which it is a member. The court will then be called upon to pronounce itself on whether the claim really concerns an act attributable to a state, or rather to an international organization on which this state has conferred competences—in which case it will have to decline jurisdiction. A number of such cases, often pertaining to responsibility questions, have been decided by the International Court of Justice and the European Court of Human Rights.

Finally, regardless of the immunities which international organizations may be said to enjoy before domestic courts, there is a substantial amount of domestic case-law relevant to the law of international organizations. Plaintiffs and accountability advocates have continued to exert pressure on domestic courts to decline the immunity of international organizations on the ground that such immunity is not functionally necessary for the organization, or violates the plaintiffs’ right of access to a remedy. These pressures have obviously generated their own case-law, which, given the variety of courts involved, shoots in various directions. A body of domestic case-law has also been generated as a result of plaintiffs targeting state action taken in an international institutional context, for example, member state implementation of international sanctions, or wrongful action committed by national troop contingents in the context of UN peacekeeping or peace-enforcement operations. To determine whether domestic courts have jurisdiction over such cases, just like the international courts mentioned earlier, these courts have to ascertain whether the impugned acts are attributable to a state or rather an international organization. In so doing, they touch on issues of institutional or operational division of competences between states and organizations.

Ultimately, many of the judicial decisions discussed in this book pertain to the scope and limitations of the powers of international organizations. The legal status of an organization may be considered to be a function of the powers it actually exercises, its institutional structure, and the allocation of powers to and between various organs. International organizations, as is well-known, can only perform legal acts that fall within their powers; they have international obligations that dovetail with the powers conferred on them, they are responsible for action committed in the exercise of their competences, and they enjoy immunities insofar as these are necessary for the performance of their functions as they flow from the powers given to them. The centrality of the concept of ‘powers’ is by no means coincidental. This concept reflects in an outspoken way the fundamental different visions of the legal nature of international organizations: as state-driven entities established on the basis of a conferral of powers by member states, or as relatively autonomous entities with inherent competences to realize their purposes and functions. And not unimportantly, these different principles at the same time functionally determine all actions of organizations, including their limits. Small wonder then that legal disputes often pertain to the question whether the powers that organizations actually exercise are in keeping with the principle of conferral, or whether impugned conduct was carried out within the scope of an organization’s powers.

Courts have not shirked from ruling on these matters, sometimes affecting the balance of powers between states and organizations, or between organs of organizations. States and organizations may not always welcome such judicial decisions, as they may be viewed as meddling in international and national affairs. But for an international system to be based on the rule of law, an independent and impartial judicial control over organizational decisions is called for. This applies with particular force where international organizations and states pass the responsibility buck, and leave third parties clamouring for accountability in the cold.

This book is aimed at students of the law of international organizations in the broad sense, not only university and college students, but also legal practitioners—offices of legal counsel of the organizations, litigators, judges, diplomats, and national and international civil servants—as well as academic researchers. It is hoped that the commentaries prove insightful to all of them, and contribute to the solution of extant questions of international institutional law. The editors would like to extend their thanks to all contributors, as well as to Ana Sofia Barros for her invaluable editorial assistance.

  • [1] See for further reading: O. Elias (ed.), The Development and Effectiveness of InternationalAdministrative Law (Brill 2012); F.C. Amerasinghe, ‘International Administrative Tribunals’, inC.P.R. Romano, K.J. Alter, and Y. Shany (eds), The Oxford Handbook of International Adjudication(Oxford, Oxford University Press 2014), pp. 316-38; O. Elias and M. Thomas, ‘AdministrativeTribunals of International Organizations’, in C. Giorgetti, The Rules, Practice, and Jurisprudence ofInternational Courts and Tribunals (Brill 2012), pp. 159-90.
  • [2] See in respect of the United Nations, the travaux preparatoires of the San Francisco Conferenceestablishing the United Nations, UNCIO Vol. 13, at 831 et seq. (‘in the course of the operations from dayto day of the various organs of the Organization, it is inevitable that each organ will interpret such partsof the Charter as are applicable to its particular functions’).
  • [3] See inter alia H.C.L. Merillat (ed.), Legal Advisers and International Organizations (OceanaPublications 1966); United Nations Office of Legal Affairs (ed.), Collection of Essays by Legal Advisers ofStates, Legal Advisers of International Organizations and Practitioners in the Field of International Law(United Nations Publications 1999); J. Wouters and J. Odermatt (eds), Legal Advisers in InternationalOrganizations (Elgar Publishers, forthcoming); R. Zacklin, ‘The Role of the International Lawyer inan International Organization’, in C. Wickremasinghe (ed.), The International Lawyer as Practitioner(British Inst of Intl & Comparative 2000), pp. 57-68.
  • [4] ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South WestAfrica) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ Rep 16, 22.
  • [5] United Nations, Statute of the International Court of Justice, 18 April 1946, art. 65(1).
  • [6] ICJ, Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), AdvisoryOpinion, [1962] ICJ Rep 151. Not all ICJ opinions have been followed, however. See for an early assessment:K.L. Penegar, ‘Relationship of Advisory Opinions of the International Court of Justice to the Maintenanceof World Minimum Order’, (1965) 113 University of Pennsylvania Law Review 529 (discussing,inter alia, the Admissions Cases).
  • [7] ICJ, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949]ICJ Rep 174, 178.
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