Institutional Structure and the Position of Members
This Part brings together two subjects, which are usually dealt with separately in textbooks on international institutional law. The heading ‘institutional structure’ is usually used to cover issues relating to the various organs of an international organization, such their composition, tasks, decision-making, and their mutual relations. ‘The position of members’ covers a variety of issues of states and other actors in relation to international organizations, such as different forms of membership, the admission of new members, the termination and suspension of membership, membership questions in case of the association and disintegration of states, and the representation of members.
Yet, there are strong links between both subjects. For instance, the admission of new members is often subject to procedures in which organs of the organization concerned have a role to play. The same holds true for the suspension or termination of membership. The link exists also very clearly and directly the other way around, in that, for instance, most organs of international organizations are composed of representatives of member states. And sometimes members are even seen and coined as an organ or as organs of the organization. Whether this designation is useful remains open for debate. What has to be underlined is that member states have more than one crucial function in relation to the institutional structure of international organizations. They are not only the ‘masters’ of the constituent instruments and thus the existence of the organization as such; they occupy at the same time seats in the governmental— and normally most important—organs of the organization and, in that capacity, bear responsibilities for the organization as a whole. In other words, the position of the member states in the institutional structure of international organizations reflects as such the fundamental dual structure of international organizations (compare the first two Parts in this book on legal personality and legal powers).
It may be argued that both organs and members are the buildings blocks of international organizations. While they, indeed, may coincide, at least theoretically the distinction is quite clear. This is also evidenced by the distinction that is usually made between so-called ‘Boards’ or ‘Councils’ and the ‘Assembly’ of an international organization. ‘Board’ (such as the UN Security Council) perhaps best represents the distinctive position of the organization vis-a-vis its member states. Alongside a central congress in the form of an ‘Assembly’ and a Secretariat, the Board completes the ‘elementary triad’ forming the basis of the institutional structure of most universal international organizations. Whereas the plenary general congress is usually the reflection of the ‘agora’ function of an international organization and the Secretariat has mainly administrative functions, Boards were created to allow organizations to act more effectively through a non-plenary organ that would meet more frequently than the general congress or which would even be in session on a ‘permanent’ basis. The fact that not all members of the organization are represented in the Board and that members may be selected on the basis of the knowledge of the field turns this organ into a ‘true’ part of the institutional structure of the organization. While there are good reasons also to view general congresses as ‘true’ organs of the organization (in which the participating states obtain a new identity as ‘member state’, following the rules and procedures of the organization and taking decisions that can be accredited to the organization), the fact that Boards are in most cases non-plenary organs strengthens the idea of autonomy.
Issues relating to the institutional structure and the position of members are only in rare instances the subject of cases before international courts. With regard to the institutional structure two kind of issues stand out. The first one relates to the relations between organs of international organizations, in particular the division of powers and the question whether relations between main organs are hierarchical or not. The division of powers was a central element in the Certain Expenses case, discussed in Part 2 of this volume, in which the ICJ, inter alia, extensively considered the distinctive functions and powers of the General Assembly and the Security Council for the maintenance of international peace and security. It spelled out that both organs, to a certain extent, have concurrent powers, with the Council having a primary responsibility in these matters but only a monopoly on mandatory coercive action, leaving for the General Assembly a broad field of discretionary power.
The first case in the present Part of this volume, concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, covering two contentious proceedings before the ICJ between Libya and the United Kingdom/United States, could have had, at least potentially, far-reaching consequences for the relationship between two main organs of the United Nations (Davies- Bright and White). The crucial legal question was whether the Court had the capacity to review decisions of the Security Council of the United Nations and, eventually, could judge that a resolution was not in conformity with the UN Charter and thus was taken ultra vires. For several reasons, the Court did not get to pronounce itself as such on its ‘constitutional’ function as to the primary responsibility of the Security Council, but the issue of judicial review by the Court was dealt with in the pleadings and in some of the separate and dissenting opinions.
As far as the validity of Security Council resolutions is concerned, the advisory opinion of the ICJ in the Namibia case—discussed in the next Part—may also be of relevance. There is some difference of opinion whether the Court asserted in this case a judicial review role or not. The fact is, that it made an interesting analysis of UN Security Council resolutions and their legal bases.
The second line of institutional questions concerns the power of organs of international organizations to create new organs. Such a power is certainly not an exception and its use is usually not contested because these new organs have a subsidiary status and have only certain delegated functions. Problems arise where the newly created organ has an autonomous status and is entrusted with functions that the parent organs do not have, that is in case a political organ creates a judicial one. The Effect of Awards case, discussed in Part 2 of this volume, concerned the United Nations Administrative Tribunal (UNAT), a judicial organ created by the General Assembly of the United Nations to settle disputes between the organization and its staff members. According to the International Court of Justice, the Assembly had the power to establish such a judicial organ with the capacity to take decisions, which were, under its Statute, ‘final and without appeal’ and thus binding on all the parties, including the General Assembly itself.
Whether the Security Council has a similarly broad discretionary power to establish a judicial organ, and in particular an International Criminal Tribunal for the prosecution and trial of persons suspected of having committed serious international crimes, such as war crimes or crimes against humanity, is the question in the Prosecutor v Dusko Tadic case, discussed in this Part (Dekker and Wessel). A peculiar feature of this case is the fact that the question whether the creation of the tribunal was intra vires or not, was decided by the Appeal Chamber of the Tribunal itself. That the Chamber reached a positive conclusion did not come as a big surprise, but it is, in particular, its argumentation that has led to heated debates on the ‘dynamic’ powers of organs of international organizations.
With regard to the position of member states, two advisory opinions of the ICJ on the conditions and procedure with regard to the admission of new members are discussed in this Part. Both cases—Conditions of Admissions of a State to Membership in the United Nations and Competence of the General Assembly for the Admission of a State to the United Nations—can only be understood well against the background of the political situation in the first years after the Second World War, especially the fast development of the Cold War (Fry and Chong). At the same time, they are still of interest these days as they illustrate how courts try and uphold the interests of the United Nations as such in a very difficult political situation.
In the second opinion, the Court had the opportunity to pronounce itself for the first time on the relationship between the General Assembly and the Security Council. It made clear that both organs have their own responsibilities in the admission procedure and, although the Security Council is given only a hortatory role in that respect, it does not mean that that role can be disregarded by the General Assembly.
-  H.G. Schermers and N.M. Blokker, International Institutional Law (Boston/Leiden, MartinusNijhoff Publishers 2011), p. 293.
-  J. Klabbers, ‘Two Concepts of International Organization’, (2005) International OrganizationsLaw Review 277-93; as well as his ‘Contending Approaches to International Organizations: BetweenFunctionalism and Constitutionalism’, in J. Klabbers and A. Wallendahl (eds), Research Handbook onthe Law of International Organizations (Cheltenham/Northampton, Edward Elgar Publishing 2011),pp. 3-30.
-  See in general also R. Collins and N.D. White, International Organizations and the Ideaof Autonomy: Institutional Independence in the International Legal Order (London/New York,Routledge 2011).
-  See also Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal,Advisory Opinion,  ICJ Rep 166.