CASE MATERIALS OF DU, Study notes of Law

Download CASE MATERIALS OF DU and more Study notes Law in PDF only on Docsity! University of Delhi LL.B. IV TERM Paper – International Institutions Compilation of Reading Materials LB 4032: International Institutions Compiled by Dr. Gurpreet Singh Shourie Anand Singh Pushkar Anand Faculty of Law University of Delhi Delhi – 110007 2023 Intended for Private Circulation only Rubric for Theory Exam Papers: 'All the theory papers, except for CLE subjects*, for LL.B. semester exams carry 100 marks each, for which the University of Delhi conducts an end semester descriptive exam of 3 hours duration. A typical theory question paper contains 8 questions printed both in English and Hindi languages. The student is required to answer 5 out of 8 questions. Each question carries equal marks, that is 20 marks each. Hence the maximum marks for each paper is 100. A student has to secure a minimum of 45 marks out of 100 to pass a paper. Answers may be written either in English or in Hindi but the same medium should be used throughout the paper.' ***************************************************************** 1. Phillipe Sands QC and Pierre Klein, Bowett: Law of International Institutions (6th edn, Sweet & Maxwell 2015). 2. C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, CUP 2009). 3. Jan Klabbers, An Introduction to International Organizations Law (3rd edn, CUP 2015). 4. José E. Alvarez, International Organizations as Law-makers (OUP 2006). 5. Ian Hurd, International Organizations: Politics, Law, Practice (Cambridge University Press, 2011). An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. TOPIC I  Jan Klabbers, An Introduction to International Organizations Law (1st edn, CUP 2002) 16-41.  B S Chimni, ‘International Organizations, 1945–Present’ in Jacob Katz Cogan, Ian Hurd and Ian Johnstone (eds), The Oxford Handbook of International Organizations (OUP 2017).  R P Anand, ‘The Formation of International Organizations and India: A Historical Study’ (2010) 23 Leiden Journal of International Law 5.  ILC, ‘Draft articles on the law of treaties between States and international organizations or between international organizations, with commentaries 1982’ in Yearbook of the International Law Commission, vol II, part two (1982), Article 2(1)(i).  ILC, ‘Articles on the Responsibility of International Organizations, with commentaries’ in Yearbook of the International Law Commission, vol. II, part two (2011), Article 2(1)(a). TOPIC I  Jan Klabbers, An Introduction to International Organizations Law (1st edn, CUP 2002) 16-41.  B S Chimni, ‘International Organizations, 1945–Present’ in Jacob Katz Cogan, Ian Hurd and Ian Johnstone (eds), The Oxford Handbook of International Organizations (OUP 2017).  R P Anand, ‘The Formation of International Organizations and India: A Historical Study’ (2010) 23 Leiden Journal of International Law 5.  ILC, ‘Draft articles on the law of treaties between States and international organizations or between international organizations, with commentaries 1982’ in Yearbook of the International Law Commission, vol II, part two (1982), Article 2(1)(i).  ILC, ‘Articles on the Responsibility of International Organizations, with commentaries’ in Yearbook of the International Law Commission, vol. II, part two (2011), Article 2(1)(a). 1 18 an introduction to international institutional law the World Anti-Slavery Convention was established, and in 1863 a Swiss philanthropist, Henry Dunant, created the Red Cross. The rise of modern organizations It became clear that in many areas, international cooperation was not only required, but alsopossible.Trueenough, stateswere sovereignandpowerful, but, as the river commissions showed, they could sometimes sacrifice some of their sovereign prerogatives in order to facilitate the management of common problems. The most obvious area in which international cooperation may be re- quired is perhaps that of transport and communication, as indicated by the creation of those river commissions. Regulation of othermodes of transport and communicationquickly followed: in 1865 the International Telegraphic Union was established, followed in 1874 by the Universal Postal Union, and in 1890 by the International Union of Railway Freight Transportation.11 Still other areas did not lag that much behind: in 1903 the Interna- tional Office of Public Health was created, and in the field of economics the establishment of the Metric Union (1875), the International Copyright Union (1886), the International Sugar Union (1902) and the International Institute for Agriculture (1905) may be mentioned as early forerunners of present-day international organizations.12 Indeed, some of these are still in existence, albeit under a different name and on the basis of a differ- ent constituent treaty: there runs a direct connection, for example, from the early International Institute for Agriculture to today’s FAO. Slowly but surely, more and more international organizations became established, so much so that public international law gradually transformed (or is said to be gradually transforming) from a law of co-existence to a law of co- operation. Many of the substantive fields of public international law are no longer geared merely to delimiting the spheres of influence of the various states, but are rather geared towards establishing more or less permanent mechanisms for cooperation. Around the turn of the twentieth century it 11 Marxists might claim that these administrative unions were created out of necessity: the logic of ever-increasing international economic relations at the end of the nineteenth century (the internationalization of capital) brought with it the need to organize these relations. For such an argument in brief, see B. S. Chimni, International Law and World Order: A Critique of Contemporary Approaches (New Delhi, 1993), pp. 234–5. 12 Compare Mangone, Short History, ch. 3. 4 the rise of international organizations 19 appeared indeed to be common knowledge that the organization of inter- state cooperation had become well accepted in international law. As the legendary Swiss international lawyer Max Huber could write in 1910, states concluded treaties for basically two reasons: one was the pursuit of self- interest, the other was the pursuit of common interests.13 Themajor breakthrough for international organization, however, would be the year 1919 and theVersailles Peace Settlementwhich followed the First World War.14 On 8 January 1918, US president WoodrowWilson made his famous ‘fourteen points’ speech, in which he called for the creation of a ‘general association of nations . . . under specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike’.15 Wilson’s plea was carried on the waves of public opinion inmany states16 and would lead to the formation of the League of Nations. And not only that: the International LabourOrganizationwas also established at the 1919 Peace Conference. Both proved to be influential in their own right: the League because of its comprehensive character and, perhaps, its dramatic failure as well; the ILO because of its unique representation structures and clever modes of regulation.17 The League of Nations was the first international organizationwhichwas designed not just to organize co-operation between states in areas which some have referred to as ‘low politics’, such as transport and communica- tion, or themoremundane aspects of economic co-operation as exemplified by the Metric Union, but to have as its specific aims to guarantee peace and the establishment of a system of collective security, following which an 13 Max Huber, Die soziologischen Grundlagen des Völkerrechts (Berlin, 1928, first published in 1910). 14 For some, the First WorldWar marks the beginning of the end of the era known as ‘modernity’: the devastations of the war invited a re-appraisal of the sovereign state, which in turn facilitated the establishment of international institutions. See, e.g., Stephen Toulmin, Cosmopolis: The Hidden Agenda of Modernity (Chicago, 1990), esp. p. 152. 15 Point XIV of the Fourteen Points. The text of the speech has been reproduced in Richard Hofstadter and Beatrice K. Hofstadter (eds.), Great Issues in American History, Vol. III: From Reconstruction to the Present Day, 1864–1981 (rev. edn, New York, 1982), pp. 215–19. It has been argued that some elements of the League can be traced back to the 1815 Concert, which already envisaged regular meetings of government representatives on issues of war and peace. See Richard Langhorne, ‘Establishing International Organisations: The Concert and the League’ (1990) 1 Diplomacy & Statecraft , 1–18. 16 Pollock, League of Nations, pp. 74–5 and 84–6, refers to activism in favour of international organization in many western states as well as in, e.g., China. 17 See below, chapters 6 and 10, respectively. 5 20 an introduction to international institutional law attack against one of the member-states of the League would give the rest the right to come to the attacked state’s rescue. As Wilson himself noted in 1919, the beauty of the League was that it was to have ‘unlimited rights of discussion. I mean of discussion of anything that falls within the field of international relations – and that it is especially agreed that war or interna- tional misunderstandings or anything that may lead to friction or trouble is everybody’s business, because it may affect the peace of the world.’18 History, in all its cruelty, has made clear that Wilson’s hopes would remain futile. True enough, the League became a place of unlimited discussion, and true enough, it paved the way for future developments: without the League, the United Nations would have looked different indeed. And even some practices developed in the UN were already tried and tested within the League, peace-keeping being a prominent example.19 But the League failed in its own overriding purpose: preventing war. Arguably, while drafting the Covenant, the politics of international law had temporarily been lost on the wave of good intentions.20 The Covenant made no meaningful distinction between great powers and small powers (except in the composition of the Council21), and made it possible, more- over, for its members to withdraw easily from the League: the option was gratefully used by, among others, Japan and Germany.22 Moreover, in one of those great ironies of history, the United States Senate refused to grant approval to the American government to ratify, thus leaving the newborn organization not only without one of its spiritual and intellectual parents,23 but also, and more importantly, without one 18 Speech to a plenary session of the Peace Conference, reproduced in Hofstadter & Hofstadter (eds.), Great Issues, 219–23. 19 On the League’s peace-keeping mission to the Saar and Dutch foreign policy, a fine study in Dutch is Remco van Diepen,Voor Volkenbond en vrede: Nederland en het streven naar een nieuwe wereldorde 1919–1946 (Amsterdam, 1999). 20 As novelist George Orwell memorably put it, the 1930s turned out to be a decade starting off ‘in the hangover of the “enlightened” post-war age’, with ‘the League of Nations flapping vague wings in the background’, thus illustrating a general sentiment of discomfort. See George Orwell, Collected Essays, Journalism and Letters, Volume I: An Age Like This 1920–1940 (1968; Harmondsworth, 1970), p. 585. 21 Under Article 4 of the Covenant, the principal allied and associated powers had a permanent seat, but no extra voting prerogatives: decisions were to be taken by unanimity. For a discussion, see Bengt Broms, The Doctrine of Equality of States as Applied in International Organizations (Helsinki, 1959), pp. 138–45. 22 The very first article (symbolically, surely) of the Covenant dealt in part with withdrawal from the League. 23 The Covenant was largely based on a mixture of British and American plans. See Mangone, Short History, pp. 130–1; see also Robert Lansing, The Peace Negotiations: A Personal Narrative (Boston, MA, 1921), ch. 3. 6 the rise of international organizations 23 Moreover, elsewhere too organizations mushroomed. On the American continent, the early Pan-American Conference was recreated so as to be- come the Organization of American States. In addition, there are more localized organizations such as Caricom and Mercosur. In Africa, the wave of independence of the 1950s and early 1960s made possible the establishment of the Organization of African Unity in 1963, with later such regional organizations as Ecocas (in central Africa) and Ecowas (western Africa) being added. In Asia, some states assembled in Asean, and, for their security, Australia and New Zealand joined the US in Anzus. A relaxed form of cooperation in the Pacific Rim area, moreover, is channelled through Asia-Pacific Economic Co-operation (APEC). In short, there is not a part of the globe which is not covered by the work of some international organization or other; there is hardly a human activity which is not, to some extent, governed by the work of an interna- tional organization. Even academic research is at the heart of the work of some organizations,most notably perhaps the International Council for the Exploration of the Sea (ICES), originally set up as a scientist’s club, having Fridtjof Nansen as one of its founders, but later ‘internationalized’.34 Classifying international organizations An academic textbook on international organizations is not complete with- out an attempt to classify the various organizations into different types, sorts, forms or categories. Perhaps the main reason for making such clas- sifications resides in the academic psyche: all academic disciplines engage in classification for purposes of organizing knowledge, if nothing else, so legal academics should do the same. As long as it remains clear that classification has the function of orga- nizing knowledge, but no greater ambition, classification may be a useful exercise. As long as the aim is to show that organizations are not mono- lithic, built according to one and the same eternally valid blueprint, but are wide-ranging in variety, classifying themmay even be illuminating. But the suggestion oozing frommost classification attempts that there are also legal differences between the various categories is, by and large, unwarranted. In a very important sense, for the lawyer, each international organization 34 See generally A. E. J. Went, Seventy Years Agrowing: A History of the International Council for the Exploration of the Sea 1902–1972 (Copenhagen, 1972). 9 24 an introduction to international institutional law is unique, based as it is on its own constituent document and influenced as its development will be by peculiar political configurations. Thus, labels should never be substituted for analysis, as Brownlie has pointed out.35 Functions A first point often made by scholars is that organizations may be classified in accordance with their stated functions. Thus, quite a few are active in the economic field; others are engaged in peace and security, or can be classified asmilitary alliances. Yet others deal with issues of nutrition, public health, telecommunications or fisheries conservation, to name just a few possibilities. Here immediately a caveat should be made: whether or not we think of an organization as active in the economic sphere depends most of all on how we define economics. Some would not hesitate to include telecommunications, whereas other might be at pains to exclude it. Moreover, there is the distinct possibility that even if we think that telecommunications is not, properly speaking, an economic issue, there is still a chance that an economically oriented organization can deal with the topic if it can be seen to have economic repercussions. Following a similar kind of reasoning, in particular the European Community has de- veloped from a purely economic organization into one that also deals with other aspects of life, provided there is an economic side to those aspects. A good example of that type of reasoning is to be found in the famous Bosman decision of the European Court of Justice.36 In this case, the ques- tion at issuewaswhether the transfer system in football (i.e., soccer), accord- ing towhich professional players could only switch clubs upon payment of a transfer fee from the new club to the old one, was in contravention of some of the basic principles of the EC Treaty, in particular the free movement of workers as guaranteed by Article 48 (nowadays Article 39) of the Treaty establishing the EC. The Court held that, indeed, the transfer system was not in conformity with Article 48, but in order to do so it first had to reach a finding as to whether professional football came within the scope of the Treaty to begin with. This was found to be the case because professional 35 Brownlie, Principles of Public International Law, p. 131. This would seem to imply also that labelling the EU as being sui generis is of little help: at the end of the day, all organizations are sui generis. 36 Case C-415/93, Union Royale Belge des Sociétés de Football Association ASBL and others v. Jean- Marc Bosman and others [1995] ECR I-4921, paras. 73, 76. 10 the rise of international organizations 25 football, whatever else it may be (hobby, entertainment, leisure activity), also constitutes an economic activity. Therefore, and to that extent, the EC rules apply to professional football, and, therefore, theCourt could rule that the transfer system violated Article 48 TEC. The case indicates, if nothing else, that the boundaries between topics or issuesmay be very fuzzy indeed. Membership Other classifications point to the membership of organizations as being of distinctive value. Thus, some organizations aspire to universal or near- universal membership, inviting in principle all states to join. The United Nations is a typical example, in principle open to all states as long as they meet certain requirements. Hence, the UN is often referred to as an ‘open’ organization, as are (although their membership does not compare to that of the UN) such organizations as the World Health Organization (WHO) and the World Trade Organization (WTO). Other organizations, however, may rest satisfied with a limited member- ship, and usually such limitations may derive from their overall purpose. Thus, many regional organizations, aiming to organize activities in a cer- tain geographical region, are open only for states from that region. The European Union is only open for European states; no Asian state can join theOrganization of AfricanUnity, and theOrganization of American States can only be joined by states from the Americas. The limitation is not always based on considerations of geography, though. For instance, the Organization of Petroleum Exporting Countries (OPEC) is a limited organization, but its membership spans the globe, in- cluding states from the Middle East, Latin America and Africa. Here, the ties are economic. Similarly, the Organization for Economic Co-operation and Development (OECD) has also, in addition to a large number of west European member-states, members from the Americas, Asia and Oceania, and the North Atlantic Treaty Organization (NATO) does justice to the Atlanticism in its name by including members from western and southern Europe as well as the US and Canada, whereas the French-speaking coun- tries are united in an organization devoted to francophonie.37 Where membership is limited to states from a certain region, such organizations 37 The organization is the Organisation Internationale de la Francophonie, headed by former UN Secretary-General Boutros Boutros-Ghali. 11 28 an introduction to international institutional law Somewouldgo further andclaim that onoccasion, themember-states are no longer allowed even to attempt to regulate behaviour:43 the doctrine of pre-emption not only holds thatmember-state action can be overruled, but goes beyond this in saying that member-state action is no longer acceptable in some areas.44 By contrast, the general rule among international organizations is that binding law-making decisions, at least on issues of substantive policy, can usually only be taken by unanimity, or consensus; that such rules do not usually work directly in the domestic legal orders of themember-states; and most assuredly that themember-states are not pre-empted from legislating. Here then, the organization does not rise above its member, but remains between its members (intergovernmental).45 Why co-operate? International organizations are, as outlined earlier, perhaps the most obvi- ous and typical vehicles for interstate co-operation. It is difficult to think of any organization which is not intended to foster co-operation in some way, although obviously some organizations provide for larger degrees of co-operation than others. Thus, the EC, being ‘supranational’, establishes a very intensive form of co-operation; it has even been possible to argue that the EC has risen beyond mere co-operation, and is slowly but surely integrating, something which can loosely be defined as reaching such a level of co-operation that previously independent entities start to form a new one which they cannot undo at will.46 As some people would have it, due to the state of European integration, the member-states alone are no longer in full control of their destinies and that of the EC; they are no longer ‘Herren 43 For a useful discussion in Dutch, see Jan H. Jans, ‘Autonomie van de wetgever? Voorafgaande bemoeienis van Europese instellingen met nationale regelgeving’, in Leonard Besselink et al., Europese Unie en nationale soevereiniteit (Deventer, 1997), 51–113. An English version hereof is published as Jan H. Jans, ‘National Legislative Autonomy? The Procedural Constraints of EuropeanLaw’ (1998/I) 25LIEI, 25–58. See alsoEugeneD.Cross, ‘Pre-emptionofMember-State Law in the European Economic Community: A Framework for Analysis’ (1992) 29 CMLRev, 447–72. 44 For a critique, see Stephen Weatherill, ‘Beyond Preemption? Shared Competence and Institu- tional Change in the European Community’, in David O’Keeffe & Patrick Twomey (eds.), Legal Issues of the Maastricht Treaty (London, 1994), 13–33. 45 See also below, chapters 10 and 11. 46 This definition has been gleaned from J. K. deVree, Political Integration: The Formation of Theory and its Problems (The Hague, 1972). 14 the rise of international organizations 29 der Verträge’: they are no longer masters of the treaty.47 Indeed, much of the debate nowadays concentrates on the need or desirability of a consti- tution for the EC, which suggests that the integration process is considered as irreversible and as having found a life of its own.48 With other organizations, the degree of co-operation is considerably less intensive. Thus, the central provision of the NATO treaty has been held to be fairly non-committal:49 under Article 5 NATO, member-states are obliged to do what they ‘deem necessary’ in the case where one of them comes under attack. Clearly, such an obligation leaves the member-states a rather wide margin of discretion to determine their actions, but, equally clearly, some form of co-operation does take place within NATO, if only in the form of joint military exercises and commands. Throughout history, observers have had a hard time explaining co- operation.That holds true both indomestic societies and, perhaps a fortiori, when international relations are concerned. The question as to why actors will co-operate is one of the central questions of the social sciences, and is particularly prominent in international relations theory. Arguably the most dominant strand of international relations theory, at least since the SecondWorldWar, iswhat is knownas ‘realism’, or, nowadays, ‘neo-realism’.50 Realists and neo-realists start from the proposition that the world is a jungle, an anarchy, where it is a fight of man against man and state against state. In order to ensure survival, the state must guarantee at the very least that its competitors do not become more powerful, and preferably that it itself gains power.51 47 Among the most prominent is Ulrich Everling, ‘Sind die Mitgliedstaaten der Europäischen Gemeinschaft noch Herren der Verträge? Zum Verhältnis von Europäischem Gemeinschafts- recht und Völkerrecht’, in Rudolf Bernhardt et al. (eds.), Völkerrecht als Rechtsordnung, in- ternationale Gerichtsbarkeit, Menschenrechte: Festschrift für Hermann Mosler (Berlin, 1983), 173–91; see also Ulrich Everling, ‘Zur Stellung der Mitgliedstaaten der Europäischen Union als “Herren der Verträge” ’, in Ulrich Beyerlin et al. (eds.),Recht zwischen Umbruch und Bewahrung; Festschrift für Rudolf Bernhardt (Berlin, 1995), 1161–76. 48 On constitutionalization see, e.g., Paul Craig, ‘Constitutions, Constitutionalism, and the Euro- peanUnion’ (2001) 7European Law Journal, 125–50;OliverGerstenberg, ‘Denationalization and the Very Idea of Democratic Constitutionalism: The Case of the European Community’ (2001) 14 Ratio Juris, 298–325; Trevor C. Hartley, ‘The Constitutional Foundations of the European Union’ (2001) 117 Law Quarterly Review, 225–46. 49 See Michael J. Glennon, Constitutional Diplomacy (Princeton, 1990), p. 214. 50 The starting point of modern realism (while not blind to its limitations) was, arguably, the publication of E. H. Carr, The Twenty Years’ Crisis 1919–1939 (1939; London, 1981). 51 The seminal work is Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace (2nd edn, New York, 1955). 15 30 an introduction to international institutional law In such a scheme, co-operation is almost by definition doomed either to remain temporary, or to be the result of submission or coercion. Military alliances, for instance, are not unknown to realists; indeed, they are pre- sumably central tenets of realism.52 International organizations, however, are harder to explain, in particular since these are perceived to be created for longer periods of time. One of the central propositions of realism is, after all, that states will pursue their own interests; as long as organizations can be seen to be helpful in that pursuit, realists will typically be able to explain their existence and functioning. But realists will have a hard time explaining forms of co-operation that apparently go against the national self-interest. It is here that the efforts of other schools of thought come in. Typically, some authors claim that realists have too bleak an outlook on life. Life, so they argue, is a bit more than a war of all against all and the ensuing struggle for survival: social actors may also strive to co-operate in order to combat problems that would typically require a joint effort (this sort of thinking is sometimes referred to as functionalism or neo-functionalism, in particular if followed by the proposition that co-operation in one sector leads to co- operation in other sectors), and if push comes to shove, co-operation may even take place out of sheer altruism or some similar incentive.53 Of course, here themain riddle is how to explain failures of co-operation, or the lack of co-operation in situations where it could theoretically have been expected. And moreover, as idealist thinking is based on a sunny view of human nature, it is intuitively perhaps more difficult to accept than the premises of realism.54 A more normative school of thought takes these views somewhat fur- ther, and defends the thesis that democracies are naturally inclined to co- operate or, at least, not to go to war with one another.55 Based on the works 52 Similarly Alexander Wendt, Social Theory of International Politics (Cambridge, 1999), pp. 299–302. 53 Interestingly, Frost’s adaptation of the value of recognition in international life, as a means of initiating the new into established practices, comes pretty close. See Mervyn Frost, Ethics and International Relations: A Constitutive Theory (Cambridge, 1996), pp. 153–5. 54 Indeed, it is no coincidence that idealism is not known as realism, but usually goes under such labels as ‘institutionalism’. More apposite, many idealists position themselves, and quite understandably so, as realists. 55 For an empirical critique of the thesis that democracies do not fight each other, see JoanneGowa, Ballots and Bullets: The Elusive Democratic Peace (Princeton, 1999). Also critical is Alexander Wendt, Social Theory, ch. 6, arguing that there is no direct relationship between a shared culture and either co-operation or conflict. 16 the rise of international organizations 33 Recent theorizing concentrates on the role of domestic forces in foster- ing international co-operation. According to what its main representative calls ‘republican liberalism’, co-operation takes place neither for the self- interest of states nor out of altruism, but rather because domestic forces wish to ‘lock’ their positions. Thus, a weak democracy might join a human rights treaty precisely as a means for ensuring that democracy will not be overturned; by the same token, governments may join organizations to strengthen their own positions.66 Finally, and difficult to capture in theoretical terms, states may engage in what looks like co-operation primarily to have a scapegoat for policy failure or, alternatively, as a means of suggesting that activities are taking place.67 Thus, former US diplomat Robert Murphy recalls how Secretary of State John Foster Dulles saw the UN occasionally as something of a storage room for unsolved thorny problems.68 In addition to asking why co-operation takes place, we may also ask ourselves which roles organizations, once established, can and do play, and here a more constructivist school of thought has taken the lead. While for many realists and regime theorists alike, international organizations are mere arenas for power struggles between states, the central tenet of constructivism is rather that organizations are more than mere clearing houses for the opinions of their member-states: they take on a role and dynamics all their own.69 Organizations may become actors on their own stage, so to speak.70 Indeed, this has become one of the core propositions of the constructivist approach to international relations, which argues that 66 SeeAndrewMoravcsik, ‘TheOrigins ofHumanRights Regimes:DemocraticDelegation in Post- war Europe’ (2000) 54 International Organization, 217–52. For a more culturally inclined view (but also stressing domestic factors), see Erik Ringmar, ‘Re-imagining Sweden: The Rhetorical Battle over EU Membership’ (1998) 23 Scandinavian Journal of History, 45–63. 67 See in a similar vein Martin Wight, ‘Why is There No International Theory?’ in Herbert Butterfield&MartinWight (eds.),Diplomatic Investigations: Essays in the Theory of International Politics (London, 1966), 17–34, p. 23. 68 Robert Murphy, Diplomat among Warriors (London, 1964), p. 443. 69 For an excellent overview, seeMichael N. Barnett &Martha Finnemore, ‘The Politics, Power and Pathologies of International Organizations’ (1999) 53 International Organization, 699–732. The so-called ‘new institutionalism’ also envisages an independent role for institutions. Compare Daniel Wincott, ‘Political Theory, Law and European Union’, in Jo Shaw & Gillian More (eds.), New Legal Dynamics of European Union (Oxford, 1995), 293–311. 70 For an intelligent discussion of how the financial institutions have used poverty as an excuse for expanding their own activities, see Balakrishnan Rajagopal, ‘From Resistance to Renewal: The Third World, Social Movements, and the Expansion of International Institutions’ (2000) 41 Harvard ILJ, 529–78. 19 34 an introduction to international institutional law existing rules and institutions help shape not just our behaviour, but also the very world we live in.71 Perhaps the most obvious example is the case of the European Commu- nity which, due to its (partly) supranational character, may well be able to take on dynamics of its own. The belief that similar considerations also hold with respect to more intergovernmental organizations has sometimes been posited, but not unconditionally. Still, it has been noted that organizational leadership and the capacity of organizations to ‘learn’ offer possibilities for enhanced co-operation.72 Either way, what emerges as one of the central problems faced by social scientists in explaining the role and impact of international organizations is the relation between the organization and its member-states: is the orga- nization but a forum, convenient for compiling the aggregate wishes of the variousmember-states, or does the organization present itself as something which is distinct from its member-states? The same problem also haunts the science of law. Legal theory and international organizations Legal theorists ordinarily have little business in trying to explain why states co-operate: such belongs to the social sciences properly. Moreover, the legal theorist is generally ill equipped to perform such a task: whenever lawyers engage in political analysis, more often than not the results fail to persuade professional political scientists. More properly, the task of the legal scholar is to explain the incidence of various legal rules relating to international organizations. This, in turn, calls for a background theory concerning the legal nature of international organizations, but no convincing theory has so far been developed, as far as I am aware. 71 Its main representatives include John Gerard Ruggie, Constructing the World Polity (London, 1998); Alexander Wendt, Social Theory; and Friedrich Kratochwil, Rules, Norms, and Decisions (Cambridge, 1989). Institutionalists do not necessarily adopt the constructivist thesis in full, but do note that the ‘centralization’ and ‘independence’ offered by organizations make them attractive vehicles for international co-operation. See, e.g., KennethW.Abbott&Duncan Snidal, ‘Why States Act through Formal International Organizations’ (1998) 42 Journal of Conflict Resolution, 3–32. 72 Thus, already, Ernst B.Haas inhis classic studyof the International LabourOrganization,Beyond the Nation-State (Stanford, 1964). 20 the rise of international organizations 35 Traditionally, theorists sought refuge in the concept of the state.73 Thus, organizationswere viewed aswould-be states, with, in particular, the federal model beingof attraction.74 This lineof thinkingwasdispelled thoughwhen the ICJ, trying to come to terms with the UN, pronounced that the UN was not the same as a state, let alone a superstate.75 Probably the best general study of the law of international organizations to date, Amerasinghe’s textbook,76 is, its outstanding qualities notwith- standing, illustrative of the theoretical confusion concerning the legal na- ture of international organizations, andmore specifically of what appears to be the heart of the problem: the way the organization relates to its member- states. At somepoints,Amerasinghe treats themember-statesof anorganization as if they are third parties vis-à-vis the organization, who in creating their organization have created a distinct legal entity, and have therewith for instance limited their individual liability for actions of the organization. Precisely because they are considered to be third parties in relation to their organizations, they can escape being held liable for the organization’s acts. Clearly, that is a respectable point of view, held by many international lawyers, and usually defended on the view that since states cannot be held bound by obligations they have not freely consented to,77 it follows that obligations incurred by international organizations cannot as such bind their member-states. After all, that is precisely why they may have created their organization to begin with. Elsewhere, though, Amerasinghe is forced to abandon this view, because, taken to the extreme, itwould, for example, imply that documentswhich the organization sends to its member-states lose their privileged status. As long as those documents circulate on the organization’s premises, they can be regarded as internal and privileged documents, but if they are sent to third parties (such as member-states) they will inevitably lose that status. Hence, 73 For a good overview, indicating that often organizations were thought of as states writ large, see Daniele Archibugi, ‘Models of International Organization in Perpetual Peace Projects’ (1992) 18 Review of International Studies, 295–317. 74 As noted by Michel Virally, L’organisation mondiale (Paris, 1972), pp. 19–24. 75 Reparation for Injuries Suffered in the Service of the United Nations, advisory opinion, [1949] ICJ Reports 174, p. 179. 76 C. F. Amerasinghe, Principles of the Institutional Law of International Organizations (Cambridge, 1996). 77 This point of departure has found recognition, in, e.g., Arts. 34 and following of the 1969Vienna Convention on the Law of Treaties. 21 38 an introduction to international institutional law In part, also, the appeal of organizations to most students of their ac- tivities stems from their pivotal role in what has been referred to as the ‘international project’ of internationalists.86 On this line of thinking, to be an international lawyer (or international political scientist, for that matter87) is to somehowbe in favour of anything international, and it stands to reason that international organizations have benefited greatly from this sentiment in terms of the analysis of their functioning and activities.88 In the end, the question of the attraction of organizations answers it- self: inasmuch as there can be (and are) undoubtedly many international organizations whose work can command general support, there is at least the hypothetical possibility that international organizations can be used for less than worthy purposes.89 Where the organization becomes a cover for exploitation or invasion, there appears to be less and less reason to promote anything which would facilitate its functioning. Moreover, even member-states of an organization are generally keen to keep their creation in check, as is witnessed by the popularity in the present-day EuropeanUnion of notions such as subsidiarity, opting out and ‘flexibility’. This very phenomenon runs counter to the idea that organiza- tions should prosper and therefore their functional needs be honoured. A second problem with the notion of functional necessity is that it is itself rather empty to begin with. For what is the functional necessity of any given organization? Who is to determine such issues? What yardstick is to be used? Thus, the notion itself warrants theoretical elaboration. Instead of providing a theory, it merely shifts any problems stemming from the lack of theory, and hides the absence thereof. Indeed, close observation reveals a shifting in the notion of what con- stitutes functional necessity over time. The concept appears to have been considerably narrowed down from the early 1990s onwards, indicating that 86 Anything international, moreover, has often been considered to carry with it an escape from politics, and has been deemed attractive for that reason alone. See David Kennedy, ‘Receiving the International’ (1994) 10 Conn JIL, 1–26. 87 See, e.g., J. Martin Rochester, ‘The Rise and Fall of International Organization as a Field of Study’ (1986) 40 International Organization, 777–813. 88 The argument is perhaps most pressingly formulated in David Kennedy, ‘A New World Order: Yesterday, Today, andTomorrow’ (1994) 4Transnational Law and Contemporary Problems, 1–47. See alsoMichael N. Barnett, ‘Bringing in the NewWorld Order: Liberalism, Legitimacy, and the United Nations’ (1997) 49 World Politics, 526–51. 89 Such a possible exception was Mussolini’s plan, launched in the 1930s, to create a formal direc- torate of the four leading European powers at the time (i.e., France, Britain, Italy and Hitler’s Germany). See Van Diepen, Voor Volkenbond en vrede, p. 143. 24 the rise of international organizations 39 it is too flexible to be of much use as a theoretical device, indicating that its explanatory force is limited.90 Third, as a matter of theory, the idea of ‘functional necessity’ suffers from the drawback that organizations are rarely, if at all, created according to blueprints involving preconceived theoretical or quasi-theoretical no- tions. Instead, they are the result, invariably, of negotiations, and therewith of power struggles and struggles between competing ideas. Andwhile surely ‘functional necessity’ may be among the ideas launched, its acceptance by negotiating partners is by no means guaranteed. Instead, they are likely to entertain different ideas on the functional necessities of any given organiza- tion at any givenmoment in time. And thus, as a unifying theme underlying the law of international organizations, the concept of ‘functional necessity’ simply will not do. That is not to say that the functional necessity notion is completely useless. In good hands, it may facilitate the solution of practical problems. There can be little doubt that courts and tribunals at times resort to the notion in order to solve disputes before them, and the result may well be a fair one. In addition, it may occasionally constitute, as we shall see, a fair description ex post facto. Organizations and their members Instead of trying to offer the false security of the functional necessity theory with its limited explanatory potential, this book is written on the basis of the idea (theory is too big a word) that much of the law of international orga- nizations is the result of the fundamental tension between the organization and its members. In popular thinking, organizations are probably pretty much perceived as entities which somehow would stand (or at least would have to stand) above theirmembers. This commonposition iswell summarizedbynovelist GeorgeOrwell in the followingquotation,written in1946, just a fewmonths after the creation of the UN: In order to have any efficiency whatever, a world organization must be able to override big states as well as small ones. It must have power to inspect and limit armaments, which means that its officials must have access to every square inch of every country. It must also have at its disposal an armed force 90 See in particular chapter 8 below. 25 40 an introduction to international institutional law bigger than any other armed force and responsible to the organization itself. The two or three great states that really matter have never even pretended to agree to any of these conditions, and they have so arranged the constitution of UNO that their own actions cannot even be discussed. In other words, UNO’s usefulness as an instrument of world peace is nil. This was just as obvious before it began functioning as it is now. Yet only a few months ago millions of well-informed people believed that it was going to be a success.91 The interesting aspect is that Orwell does not stop after having proclaimed that organizations should stand above their members. Instead, he starts by describing an idealtype, then blames themember-states for not creating this idealtype, and finally blames the organization for not living up to the ideal- type. In other words, unwittingly Orwell already captured the fundamen- tal tension between international organizations and their member-states: organizations are, at one and the same time, independent of their members (or at least ought to be so), and fundamentally dependent on them.92 And that idea as such is hardly novel; the French jurist Paul Reuter, without developing it to the fullest extent in his subsequent analysis, could already approach the field in much the same way in 1967.93 In short, many of the ambiguities that the law of international organi- zations appears to be so particularly rich in become understandable when examined against the background of the relationship between the organi- zation and its members, and the idea behind this book is to explore that tension in relation to a variety of topics.94 Seemingly endless discussions on such staple topics as the impliedpowers doctrine, teleological interpretation of constituent documents, or whether the member-states retain a hold on the organization are indeed, quite lit- erally, endless, for a common characteristic of such debates is that one can either occupy a position favouring the member-states or occupy a position favouring the organization without being able to say which is the better 91 See George Orwell, The Collected Essays, Journalism and Letters of George Orwell. Volume 4: In Front of Your Nose 1945–1950 (1968; Harmondsworth, 1970), pp. 152–3. 92 The same tension informs influential politicians and statesmen. For an example, see Richard von Weiszäcker, ‘All Depends on Member-States’, in Georges Abi-Saab et al., Paix, développement, démocratie. Boutros Boutros-Ghali Amicorum Discipulorumque Liber (Brussels, 1999), 827–37. Von Weiszäcker is a former President of Germany, and co-chaired one of the more serious working groups on UN reform in the first half of the 1990s. 93 Paul Reuter, Institutions internationales (Paris, 1967), p. 204. 94 Greater than the number of topics relating to organizations contained in Reuter’s Institutions internationales, and probably less inclined to proclaim a given equilibrium as reflecting the law. 26 114 INTERNATIONAL ORGANIZATIONS, 1945—-PRESENT take the form of the history of individual IOs. There can be both official and unof- ficial histories. The official histories are sanitized histories that tend to embrace a narrative of progress.’ Fourth, the history of IOs can be of different phases of their existence. Each IO goes through distinct phases of development in response to both external and internal factors. In so far as external factors are concerned, general purposes organizations (e.g. United Nations) tend to respond more to the interna- tional political environment and international economic organizations (e.g. World Bank) to the state of global capitalism. The internal factors include changes in the culture of an organization and the quality of leadership. Fifth, the history of IOs can be of particular organs of IOs, especially that of the United Nations (UN), such as for example that of the UN Security Council (UNSC). Even in the instance of a single UN organ the history can be of different phases (e.g. pre- and post-Cold War phases). Sixth, the history of IOs can be told as that of certain broad trends in the world of IOs: the enhanced role of nongovernmental organizations (NGOs), the increasing number of international tribunals, growing regionalism, etc. Seventh, a history can be told of the emergence and development of the law of international organizations in the 1960s reflecting the need to clarify their legal status and grow- ing complexity of their functioning.‘ Eighth, the history of IOs can be of specific themes such as ‘democratic deficit’ or the need for greater accountability and legal responsibility of IOs. This theme has acquired salience in recent years as a result of the growing importance of IOs in global governance. Ninth, the history of IOs can be told as a move towards constitutionalism as in the case of the European Union (EU) whose decisions are binding on member states.° Lastly, the history of IOs can be told as the slow process of the emergence of a world state. The chapter primarily focuses on histories of post-1945 IOs told from different theoretical standpoints by political scientists and legal scholars. In the second sec- tion an attempt is made to narrate in a schematic manner the history of IOs by liberal and neo-liberal scholars of IOs or what may be termed mainstream interna- tional organization scholarship (MIOS). This history is followed in the third sec- tion by thumbnail sketches of third-world, left, and feminist histories of IOs. These histories—that is, mainstream and critical histories—need not be read as mutually exclusive histories. In many ways these capture different dimensions of the history of IOs. The fourth section contains some reflections on salient issues and themes that are the subject of current debates including the emergence of a nascent world > A good example of official history is that of UNDP written by Craig Murphy, otherwise a critical scholar. Craig N. Murphy, The United Nations Development Programme: A Better Way (Cambridge: Cambridge University Press, 2006), 4. * The first textbook on law of international institutions written by Derek Bowett was published in 1963. Jan Klabbers, “The Paradox of International Institutional Law? International Organizations Law Review 5 (2008) 3. 5 Jan Klabbers, “International Institutions,’ in The Cambridge Companion to International Law, ed. James Crawford and Martti Koskenniemi (Cambridge: Cambridge University Press, 2012), 240. 29 MAINSTREAM HISTORY OF IOS 115 state. Readers will excuse the indicative presentation of materials necessitated by constraints of space. MAINSTREAM History OF IOs The mainstream history of IOs is told by liberal and neo-liberal scholars in the form of a narrative of progress. In this view, as two critical scholars note, the con- tribution of increasing and expanding IOs has been positive as IOs ‘help to resolve collective dilemmas and problems of interdependent choice, foster international co-operation, and bring about a more rationalized world that is organized around fundamental liberal values such as liberty, autonomy, markets, democracy, and non- violent conflict resolution.® The history of the post-1945 period is usually divided into two phases: the Cold War and post-Cold War phases. While these phases reveal distinct features, there is as much continuity as change that mark the function of IOs in the two periods. The Cold War Phase: 1945-89 The history of IOs in the Cold War phase is either told in ideological or functional terms. From an ideological perspective Robert Keohane writes that the IOs created after the Second World War ‘had a significant security justification: to create eco- nomic prosperity and patterns of cooperation that would reinforce the position of the West in the struggle with the Soviet Union’’ These IOs ‘were constructed on the basis of principles espoused by the United States, and American power was essential for their construction and maintenance’ It can even be said that the UN system was used to fight communism by other means. Indeed, a separate history can be © Michael Barnett and Martha Finnemore, Rules For the World: International Organizations in Global Politics (Ithaca: Cornell University Press, 2004), 157. In the same vein, Kams and Mingst write that “for liberals, international organizations play a number of key roles, including contributing to hab- its of cooperation and serving as arenas for negotiating and developing coalitions. They are a primary means for mitigating the danger of war, promoting the development of shared norms, and enhancing order.’ Margaret P. Karns and Karen A. Mingst, International Organizations: The Politics and Processes of Global Governance (New Delhi: Viva Books, 2005), 38. Broadly speaking, neo-liberal institutionalists like Robert O. Keohane and John Gerard Ruggie share these assumptions. 7 Robert O. Keohane, “Twenty Years of Institutional Liberalism,’ International Relations 26/2 (2012): 127. § Tid. 30 116 INTERNATIONAL ORGANIZATIONS, 1945—PRESENT written of how each of the UN bodies in this period was implicated in the Cold War. Thus, for example, by focusing on refugees fleeing the violation of civil and political rights, the Office of the UN High Commissioner for Refugees (UNHCR) helped embarrass former Soviet bloc countries. The former Soviet Union adopted a cautious approach towards IOs, albeit playing a relatively more active role in IOs in the post-Stalin era. The East-West ideological divide meant that certain organs of the UN, like the UNSC, were unable to function effectively in this period due to the use of the veto power by the Soviet Union. It was only after Mikhail Gorbachev came to power in 1985 that the Soviet Union sought greater engagement with the UN until its collapse in 1989." The other communist great power, China, also limited its participation in IOs after the revolution. In the Maoist period its participation remained ‘self-consciously parsimonious and largely symbolic." But the 1980s saw Beijing join practically all intergovernmental organiza- tions (IGOs) in the UN system.” China has sought to use IOs to gain authority in the international community and project its views to the outside world. The history of IOs in the Cold War phase is also narrated and assessed by MIOS in functional terms. The focus is on the multidimensional developments in and achievements of the UN system. But attention is also drawn to positive develop- ments outside the UN system. The principal developments and achievements are stated by MIOS to be the following. First, the post-war period saw the creation of new specialized agencies of the UN such as the Food and Agricultural Organization (FAO), the World Health Organization (WHO), the UN Educational, Scientific and Cultural Organization (UNESCO), and the International Atomic Energy Agency (IAEA) even as older organizations such as the International Labour Organization (ILO), the Universal Postal Union (UPU), and the World Meteorological Organization (WMO) were brought into a special relationship with the UN. The UN Economic and Social Council (ECOSOC) also established a number of functional organizations that included the Commission on Status of Women, the Population Commission (subsequently renamed Commission on Population and Development), and the Statistical Commission. A number of other commis- sions were created later. The ECOSOC also created regional commissions such as the Economic Commission for Europe, the Economic Commission for Latin America, and the Economic Commission for Africa. All these functional and regional commissions conduct studies and promote in other ways the specific ° Kazimierz Grzybowski, “International Organizations from a Soviet Point of View,’ Law and Contemporary Problems 29/4 (1964): 886ff. © Jonathan Haslam, “The UN and the Soviet Union: New Thinking?,’ International Affairs 65/4 (1989): 677. “ Samuel S. Kim, “International Organizations in Chinese Foreign Policy,’ ANNALS, AAPSS 519 (1992): 171. ” Kim, “International Organizations in Chinese Foreign Policy.” 171. 31 MAINSTREAM HISTORY OF IOS 119 management of a complex peace operation, usually in the post-civil war con- text, designed to provide interim security and assist parties to make those insti- tutional, material, and ideational transformations that are essential to make a peace sustainable." Second, in this phase certain key IOs were established, the most significant of which was the creation of the World Trade Organization (WTO) in 1995. The WTO not only regulates international trade in goods but also international trade in ser- vices. Further, it enforces a global regime on intellectual property rights. The WTO is a powerful institution for it has a compulsory dispute settlement system that is backed by a system of retaliatory measures. It is seen as contributing in a significant way to the promotion of free and fair trade. Third, IOs and their organs have engaged in increased law-making.” ‘Thus, for example, the UNSC exercised a form of legislative power to establish criminal tri- bunals for former Yugoslavia and Rwanda acting under Chapter VII of the UN Charter."* UNSC Res. 1373 (2001) adopted in the wake of September 11 imposed a number of legal obligations on member states in combating terrorism. While these obligations were drawn from existing antiterrorism conventions, they became binding not because a state had become party to them but under the terms of the resolution. Fourth, the post-Cold War phase has seen the greater judicialization of interna- tional relations.” Besides the International Court of Justice, the principal judicial organ of the UN, a number of other international tribunals have been created. On one count there are ‘twelve international courts and arbitral bodies, nine regional bodies, and four hybrid criminal courts involving a mix of domestic and inter- national judges.” The prominent tribunals are the WTO Appellate Body and the International Criminal Court (ICC). The former promote the peaceful settlement of trade disputes while the ICC brings to justice individuals who have committed war crimes or crimes against humanity. ‘6 Michael W. Doyle and Nicholas Sambanis, “Peacekeeping Operations,’ in The Oxford Handbook on the United Nations, ed. Thomas G, Weiss and Sam Daws (New York: Oxford University Press, 2007), 323-49. ” José Alvarez, International Organizations as Law-Makers (New York: Oxford University Press, 2005), 217. *8 See UNSC Res. 827 (1993) and UNSC Res. 955 (1994) respectively. See generally, Daphna Shraga and Ralph Zacklin, “The International Criminal Tribunal for the Former Yugoslavia” European Journal of International Law 5 (1994): 360-80; Ramses Wessels, and Jan Wouters, “The Phenomenon of Multilevel Regulation: Interactions between Global, EU and National Regulatory Spheres,” International Organizations Law Review 4 (2007): 169-201, 176. » “Tn contrast to the mid-1980s, when only a handful of standing international courts were in place, twenty-five such courts have been identified ... by the Project on International Court and Tribunals” Gregory Shaffer and Tom Ginsburg, “The Empirical turn in International Legal Scholarship,’ American Journal of International Law 106/1 (2012): 16. 2 Tbid., 16, n. 70. 34 120 INTERNATIONAL ORGANIZATIONS, 1945—PRESENT Fifth, recent decades have seen the increased role of NGOs in IOs. In 1948 a mere forty-one NGOs had ECOSOC consultative status. That number has gone up to 3,000 today.” The grant of ‘consultative status has enabled NGOs to make significant con- tributions to international policy making’” Even in the absence of consultative status, NGOs can participate in UN conferences through a process of registration. For exam- ple, it is estimated that 1,400 NGOs registered at the UN Conference on Environment and Development in Rio de Janeiro of which less than half had consultative status.” Sixth, the role of the private sector in the UN system has grown in recent decades.” Christer Jonsson has observed that ‘UN attitudes toward the business community have shifted dramatically ... businesses are now seen as partners rather than threats.** This development is viewed by MIOS as a benign development that uses the energy and resources of the private sector to meet the development goals of the UN system. Indeed, IOs see ‘PPPs [public-private partnerships] solve the problems of scarce resources and eroding legitimacy.”* Seventh, the post-Cold War phase has witnessed a second wave of regionalism attributed to ‘global economic changes, the transformation of the Soviet Union and Eastern Europe, uncertainty over the outcome of the Uruguay Round of world trade negotiations, the European Union's deepening and enlargement, fear that a set of trade blocs was emerging, and new attitudes toward international cooperation.” The functions of regional organizations vary greatly. Some organizations are devoted to greater economic cooperation (e.g. the North American Free Trade Agreement) and others to both economic and political cooperation. The second wave of regional- ism has yet to abate. In fact today a ‘region’ has become an ‘imagined community’ delinked from geographical or cultural proximity. The impact of the regionalization of IOs is far from clear. Some see regional organizations as complementing the work of global IOs while others see these as reflecting local trends that may not dovetail with that of universal IOs. Eighth, the UN has continued its work of organizing conferences on important issues facing mankind. For instance, in the area of environmental governance the UN organized the Conference on Environment and Development (1992), the World Summit on Sustainable Development (2002), and the Rio+10 Conference (2012). These conferences resulted in the creation of the Global Environment Facility in 1991 and the Commission on Sustainable Development (1992) that has since been replaced by the UN High-Level Political Forum on Sustainable Development (2013). » Paul Wapner, “Civil Society,” in The Oxford Handbook on the United Nations, ed. Thomas G. Weiss and Sam Daws (New York: Oxford University Press, 2007), 258. ” Tbid., 258. 8 Wapner, “Civil Society,’ 258. 2 See Craig N. Murphy, “Private Sector” in The Oxford Handbook on the United Nations, ed. Thomas G. Weiss and Sam Daws (New York: Oxford University Press, 2007), 264-75. *» Christer Jénsson, “The John Holmes Memorial Lecture: International Organizations at the Moving Public-Private Borderline,’ Global Governance 19 (2013): 2. % Tbid., 10. » Karns and Mingst, International Organizations, 151-2. 35 MAINSTREAM HISTORY OF IOS 121 Ninth, the post-Cold War period has seen the emergence of ‘international forums’ such as the Group of 20 (G20) which brings together advanced and emerg- ing economies to promote international economic cooperation. ‘The leaders of the G2o first met in 2008 in the wake of the global financial crisis. The G2o continues to meet once a year to discuss challenges facing the international community. The creation of the G2o has meant that the ECOSOC no longer plays a central role in the coordination of international economic cooperation. However, in order to strengthen the latter’s role, certain organizational changes were brought about in 2007 including the creation of a High Level Political Forum, Annual Ministerial Review, and a Development Cooperation Forum. Finally, the post-Cold War phase has seen the reframing of the principle of sov- ereignty in the UN system. This reframing has assumed several forms. On the one hand, new concepts such as the ‘responsibility to protect’ have found their way into UN discourse, and on the other hand, the UN has come to assume the form of a sur- rogate state through establishing ‘transitional (or international) administrations as in the case of Kosovo and East Timor. A transitional administration has been defined as an exercise in state-building ‘by assuming some or all of the powers of the state on a temporary basis.* While ‘transitional administrations’ have been part of the history of the twentieth century (e.g. the mandate system under the League of Nations), it has now sought to be given new life and meaning. These developments around reconceiv- ing sovereignty are seen as promoting human rights and responsible government. Decline of Liberal Internationalism? But despite the growing network and role of IOs in the post-Cold War period, some mainstream scholars see it as a phase that has witnessed a decline in liberal inter- nationalism. According to Keohane, in view of ‘the rise of China, India and other emerging economies, structures of power and interest have become more diverse’ leading to reduced coherence of IOs and also the increasing difficulties ‘to construct strong new institutions.” Likewise, Jorge Castaneda writes that ‘the possible acces- sion of Brazil, China, India, and South Africa to the inner sanctum of the world’s leading institutions threatens to undermine those institutions’ principles and prac- tices’ because they are not sufficiently committed to a liberal international order.*® 8 Simon Chesterman, You, The People: The United Nations, Transitional Administration and State- Building (Oxford: Oxford University Press, 2004), 5. 29 Keohane, “Institutional Liberalism? 134-5. % Jorge G. Castaneda, “Not Ready for Prime Time: Why Including Emerging Powers at the Helm Would Hurt Global Governance,” Foreign Affairs, September/October (2010): 112. He also observes (at 122) that “granting emerging powers a greater role on the world stage would probably weaken the trend towards a stronger multilateral system and an international legal regime that upholds democracy, human rights, nuclear nonproliferation, and environmental protection.” 36 124 INTERNATIONAL ORGANIZATIONS, 1945—PRESENT Third, TWAIL sees the history of IOs in the post-1945 period as facilitating a neocolonial project under US hegemony. The key organs or organizations in this respect have been the UNSC, GATT/WTO, IME, and World Bank. These IOs have compelled third-world states to cede economic and political sovereignty to them.” The IFIs in particular have used the tool of conditionalities to make countries of the Global South follow neo-liberal economic policies to the advantage of corporate actors in the Global North.” Fourth, TWAIL notes that MIOS neglects the history of the struggle of third- world nations and peoples against hegemonic states and organizations. There is thus little discussion of the efforts that led to the creation of new IOs like UNCTAD or UNIDO or of debates on how to strengthen ECOSOC in pursuing the develop- ment agenda. A third-world history would also certainly record the contribution of the non-aligned movement to the creation, strengthening, and democratization of IOs in addressing common problems facing humankind.” Instead, it has been said by one mainstream scholar that a role of the UN ‘is to serve as a political-ideologi- cal sink for counter-hegemonic ideas and projects by ushering them into history’s dustbin. Fifth, TWAIL points out that the response to the attempts of third-world coun- tries to reform the UN, especially its key body, the UNSC, and IFIs, has been excru- ciatingly slow. To take the case of reform in IFIs there has been, in the wake of the global financial crisis, a decision to allocate additional quotas and votes to countries like China and India.*° But the United States will continue to have a percentage of votes that allows it to exercise a veto over critical decisions in the IMF and the World Bank. Sixth, TWAIL notes with apprehension that the Western regional security organ- ization NATO has unlawfully used force against third-world countries. ‘The illegal use of force against former Yugoslavia (1999) and Afghanistan (2001- ) are two instances.“ Seventh, TWAIL is concerned that international tribunals are often biased against third-world countries. For instance, the investment jurisprudence that has been produced by ICSID has been pro-investor, neglecting the environmental and “ B, S. Chimni, “International Institutions Today: An Imperial Global State in the Making” European Journal of International Law 15/1 (2004): 1-39. ® B.S. Chimni, “International Financial Institutions and International Law: A Third World Perspective,” in International Financial Institutions and International Law, ed. Daniel D. Bradlow and David Hunter (The Netherlands: Wolters Kluwer, 2010), 31-63. * Changavalli Siva Rama Murthy, “Non Aligned Movement Countries as Drivers of Change in International Organizations,’ Comparativ 23 (2013): 118-36. “ Puchala, “World Hegemony and the United Nations,’ 581. *° Chimni, “International Financial Institutions,” 55 ff. 4 See, for example, G 77 “Ministerial Declaration” adopted in September 1999 which “rejected the so-called right of humanitarian intervention, which had no basis in the UN Charter or in international law,’ http://www.g77.0rg/doc/Decligg9.html. 39 CRITICAL HISTORIES 125 human rights concerns of third-world peoples.’ In the case of the ICC, TWAIL is concerned that it is only indicting leaders of the Third World. It has overlooked the gross violations of human rights and humanitarian laws by Western leaders during the intervention in former Yugoslavia and wars against Iraq and Afghanistan. Eighth, while recognizing the historical significance of greater civil society par- ticipation in deliberations of IOs, TWAIL concurs with the observation that ‘well- organized and well-funded NGOs tend to be overrepresented whereas marginalized groups from developing countries tend to be highly underrepresented:** This has negative connotations for the pursuit of the interests of poor and marginal groups in the developing world. Ninth, TWAIL is sceptical of the benefits that come from IOs embracing public- private partnerships (PPPs). Take for instance two PPPs in the health sector, the Global Alliance for Vaccines and Immunization (GAVI) and the Global Fund to Fight AIDS, Tuberculosis and Malaria (Global Fund). Though these PPPs pro- mote health services, ‘they also illustrate a gradual downgrading of traditional IGOs.* It is the Bill & Melinda Gates Foundation that ‘has emerged as a major player in global health governance. In short, by increasing PPPs IOs ‘run the risk of pursuing the agenda of private actors rather than that of their member states.” The UN Global Compact initiative of Kofi Annan presented as an attempt to enhance Corporate Social Responsibility is also seen as ‘bluewashing’ the image of transna- tional corporations. Tenth, TWAIL expresses concern that debates on the future role of IOs and the creation of a world state draws only on Western intellectual traditions. The usual ref- erence is to Immanuel Kant and his classic work Perpetual Peace or in recent times to the work of David Held or Alexander Wendt. The writings of thinkers from the Global South, such as the work of Sri Aurobindo on human unity, are mostly neglected. Marxist History of IOs The Marxist approach to the history of IOs shares common ground with TWAIL but sees it as tied in a more fundamental way to the forces of global capitalism. The approach that is most popular among left-inclined academics is that of Robert Cox. “” See generally, M. Sornarajah, The International Law on Foreign Investment, 3rd ed. (Cambridge: Cambridge University Press, 2010); UNCTAD, Trade and Development Report, 2014 (New York: UN, 2014). 48 Jonsson, “The John Holmes Memorial Lecture,’ 6. *® On GAVI see http://www.gavi.org/ and on the Global Fund see http://www.theglobalfund.org/en/. 5° Jénsson, “The John Holmes Memorial Lecture,’ 12. * Ibid. ® Thid., 14. 3 B. S$. Chimni, “Retrieving ‘Other’ Visions of the Future: Sri Aurobindo and the Ideal of Human Unity,’ in Decolonizing International Relations, ed. Branwen Gruffydd Jones (Lanham: Rowman and Littlefield, 2006), 197-219. 40 University of Delhi LL.B. IV TERM Paper – International Institutions Compilation of Reading Materials LB 4032: International Institutions Compiled by Dr. Gurpreet Singh Shourie Anand Singh Pushkar Anand Faculty of Law University of Delhi Delhi – 110007 2023 Intended for Private Circulation only Rubric for Theory Exam Papers: 'All the theory papers, except for CLE subjects*, for LL.B. semester exams carry 100 marks each, for which the University of Delhi conducts an end semester descriptive exam of 3 hours duration. A typical theory question paper contains 8 questions printed both in English and Hindi languages. The student is required to answer 5 out of 8 questions. Each question carries equal marks, that is 20 marks each. Hence the maximum marks for each paper is 100. A student has to secure a minimum of 45 marks out of 100 to pass a paper. Answers may be written either in English or in Hindi but the same medium should be used throughout the paper.' ***************************************************************** 1. Phillipe Sands QC and Pierre Klein, Bowett: Law of International Institutions (6th edn, Sweet & Maxwell 2015). 2. C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, CUP 2009). 3. Jan Klabbers, An Introduction to International Organizations Law (3rd edn, CUP 2015). 4. José E. Alvarez, International Organizations as Law-makers (OUP 2006). 5. Ian Hurd, International Organizations: Politics, Law, Practice (Cambridge University Press, 2011). An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. TOPIC I  Jan Klabbers, An Introduction to International Organizations Law (1st edn, CUP 2002) 16-41.  B S Chimni, ‘International Organizations, 1945–Present’ in Jacob Katz Cogan, Ian Hurd and Ian Johnstone (eds), The Oxford Handbook of International Organizations (OUP 2017).  R P Anand, ‘The Formation of International Organizations and India: A Historical Study’ (2010) 23 Leiden Journal of International Law 5.  ILC, ‘Draft articles on the law of treaties between States and international organizations or between international organizations, with commentaries 1982’ in Yearbook of the International Law Commission, vol II, part two (1982), Article 2(1)(i).  ILC, ‘Articles on the Responsibility of International Organizations, with commentaries’ in Yearbook of the International Law Commission, vol. II, part two (2011), Article 2(1)(a). TOPIC I  Jan Klabbers, An Introduction to International Organizations Law (1st edn, CUP 2002) 16-41.  B S Chimni, ‘International Organizations, 1945–Present’ in Jacob Katz Cogan, Ian Hurd and Ian Johnstone (eds), The Oxford Handbook of International Organizations (OUP 2017).  R P Anand, ‘The Formation of International Organizations and India: A Historical Study’ (2010) 23 Leiden Journal of International Law 5.  ILC, ‘Draft articles on the law of treaties between States and international organizations or between international organizations, with commentaries 1982’ in Yearbook of the International Law Commission, vol II, part two (1982), Article 2(1)(i).  ILC, ‘Articles on the Responsibility of International Organizations, with commentaries’ in Yearbook of the International Law Commission, vol. II, part two (2011), Article 2(1)(a). 1 18 an introduction to international institutional law the World Anti-Slavery Convention was established, and in 1863 a Swiss philanthropist, Henry Dunant, created the Red Cross. The rise of modern organizations It became clear that in many areas, international cooperation was not only required, but alsopossible.Trueenough, stateswere sovereignandpowerful, but, as the river commissions showed, they could sometimes sacrifice some of their sovereign prerogatives in order to facilitate the management of common problems. The most obvious area in which international cooperation may be re- quired is perhaps that of transport and communication, as indicated by the creation of those river commissions. Regulation of othermodes of transport and communicationquickly followed: in 1865 the International Telegraphic Union was established, followed in 1874 by the Universal Postal Union, and in 1890 by the International Union of Railway Freight Transportation.11 Still other areas did not lag that much behind: in 1903 the Interna- tional Office of Public Health was created, and in the field of economics the establishment of the Metric Union (1875), the International Copyright Union (1886), the International Sugar Union (1902) and the International Institute for Agriculture (1905) may be mentioned as early forerunners of present-day international organizations.12 Indeed, some of these are still in existence, albeit under a different name and on the basis of a differ- ent constituent treaty: there runs a direct connection, for example, from the early International Institute for Agriculture to today’s FAO. Slowly but surely, more and more international organizations became established, so much so that public international law gradually transformed (or is said to be gradually transforming) from a law of co-existence to a law of co- operation. Many of the substantive fields of public international law are no longer geared merely to delimiting the spheres of influence of the various states, but are rather geared towards establishing more or less permanent mechanisms for cooperation. Around the turn of the twentieth century it 11 Marxists might claim that these administrative unions were created out of necessity: the logic of ever-increasing international economic relations at the end of the nineteenth century (the internationalization of capital) brought with it the need to organize these relations. For such an argument in brief, see B. S. Chimni, International Law and World Order: A Critique of Contemporary Approaches (New Delhi, 1993), pp. 234–5. 12 Compare Mangone, Short History, ch. 3. 4 the rise of international organizations 19 appeared indeed to be common knowledge that the organization of inter- state cooperation had become well accepted in international law. As the legendary Swiss international lawyer Max Huber could write in 1910, states concluded treaties for basically two reasons: one was the pursuit of self- interest, the other was the pursuit of common interests.13 Themajor breakthrough for international organization, however, would be the year 1919 and theVersailles Peace Settlementwhich followed the First World War.14 On 8 January 1918, US president WoodrowWilson made his famous ‘fourteen points’ speech, in which he called for the creation of a ‘general association of nations . . . under specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike’.15 Wilson’s plea was carried on the waves of public opinion inmany states16 and would lead to the formation of the League of Nations. And not only that: the International LabourOrganizationwas also established at the 1919 Peace Conference. Both proved to be influential in their own right: the League because of its comprehensive character and, perhaps, its dramatic failure as well; the ILO because of its unique representation structures and clever modes of regulation.17 The League of Nations was the first international organizationwhichwas designed not just to organize co-operation between states in areas which some have referred to as ‘low politics’, such as transport and communica- tion, or themoremundane aspects of economic co-operation as exemplified by the Metric Union, but to have as its specific aims to guarantee peace and the establishment of a system of collective security, following which an 13 Max Huber, Die soziologischen Grundlagen des Völkerrechts (Berlin, 1928, first published in 1910). 14 For some, the First WorldWar marks the beginning of the end of the era known as ‘modernity’: the devastations of the war invited a re-appraisal of the sovereign state, which in turn facilitated the establishment of international institutions. See, e.g., Stephen Toulmin, Cosmopolis: The Hidden Agenda of Modernity (Chicago, 1990), esp. p. 152. 15 Point XIV of the Fourteen Points. The text of the speech has been reproduced in Richard Hofstadter and Beatrice K. Hofstadter (eds.), Great Issues in American History, Vol. III: From Reconstruction to the Present Day, 1864–1981 (rev. edn, New York, 1982), pp. 215–19. It has been argued that some elements of the League can be traced back to the 1815 Concert, which already envisaged regular meetings of government representatives on issues of war and peace. See Richard Langhorne, ‘Establishing International Organisations: The Concert and the League’ (1990) 1 Diplomacy & Statecraft , 1–18. 16 Pollock, League of Nations, pp. 74–5 and 84–6, refers to activism in favour of international organization in many western states as well as in, e.g., China. 17 See below, chapters 6 and 10, respectively. 5 20 an introduction to international institutional law attack against one of the member-states of the League would give the rest the right to come to the attacked state’s rescue. As Wilson himself noted in 1919, the beauty of the League was that it was to have ‘unlimited rights of discussion. I mean of discussion of anything that falls within the field of international relations – and that it is especially agreed that war or interna- tional misunderstandings or anything that may lead to friction or trouble is everybody’s business, because it may affect the peace of the world.’18 History, in all its cruelty, has made clear that Wilson’s hopes would remain futile. True enough, the League became a place of unlimited discussion, and true enough, it paved the way for future developments: without the League, the United Nations would have looked different indeed. And even some practices developed in the UN were already tried and tested within the League, peace-keeping being a prominent example.19 But the League failed in its own overriding purpose: preventing war. Arguably, while drafting the Covenant, the politics of international law had temporarily been lost on the wave of good intentions.20 The Covenant made no meaningful distinction between great powers and small powers (except in the composition of the Council21), and made it possible, more- over, for its members to withdraw easily from the League: the option was gratefully used by, among others, Japan and Germany.22 Moreover, in one of those great ironies of history, the United States Senate refused to grant approval to the American government to ratify, thus leaving the newborn organization not only without one of its spiritual and intellectual parents,23 but also, and more importantly, without one 18 Speech to a plenary session of the Peace Conference, reproduced in Hofstadter & Hofstadter (eds.), Great Issues, 219–23. 19 On the League’s peace-keeping mission to the Saar and Dutch foreign policy, a fine study in Dutch is Remco van Diepen,Voor Volkenbond en vrede: Nederland en het streven naar een nieuwe wereldorde 1919–1946 (Amsterdam, 1999). 20 As novelist George Orwell memorably put it, the 1930s turned out to be a decade starting off ‘in the hangover of the “enlightened” post-war age’, with ‘the League of Nations flapping vague wings in the background’, thus illustrating a general sentiment of discomfort. See George Orwell, Collected Essays, Journalism and Letters, Volume I: An Age Like This 1920–1940 (1968; Harmondsworth, 1970), p. 585. 21 Under Article 4 of the Covenant, the principal allied and associated powers had a permanent seat, but no extra voting prerogatives: decisions were to be taken by unanimity. For a discussion, see Bengt Broms, The Doctrine of Equality of States as Applied in International Organizations (Helsinki, 1959), pp. 138–45. 22 The very first article (symbolically, surely) of the Covenant dealt in part with withdrawal from the League. 23 The Covenant was largely based on a mixture of British and American plans. See Mangone, Short History, pp. 130–1; see also Robert Lansing, The Peace Negotiations: A Personal Narrative (Boston, MA, 1921), ch. 3. 6 the rise of international organizations 23 Moreover, elsewhere too organizations mushroomed. On the American continent, the early Pan-American Conference was recreated so as to be- come the Organization of American States. In addition, there are more localized organizations such as Caricom and Mercosur. In Africa, the wave of independence of the 1950s and early 1960s made possible the establishment of the Organization of African Unity in 1963, with later such regional organizations as Ecocas (in central Africa) and Ecowas (western Africa) being added. In Asia, some states assembled in Asean, and, for their security, Australia and New Zealand joined the US in Anzus. A relaxed form of cooperation in the Pacific Rim area, moreover, is channelled through Asia-Pacific Economic Co-operation (APEC). In short, there is not a part of the globe which is not covered by the work of some international organization or other; there is hardly a human activity which is not, to some extent, governed by the work of an interna- tional organization. Even academic research is at the heart of the work of some organizations,most notably perhaps the International Council for the Exploration of the Sea (ICES), originally set up as a scientist’s club, having Fridtjof Nansen as one of its founders, but later ‘internationalized’.34 Classifying international organizations An academic textbook on international organizations is not complete with- out an attempt to classify the various organizations into different types, sorts, forms or categories. Perhaps the main reason for making such clas- sifications resides in the academic psyche: all academic disciplines engage in classification for purposes of organizing knowledge, if nothing else, so legal academics should do the same. As long as it remains clear that classification has the function of orga- nizing knowledge, but no greater ambition, classification may be a useful exercise. As long as the aim is to show that organizations are not mono- lithic, built according to one and the same eternally valid blueprint, but are wide-ranging in variety, classifying themmay even be illuminating. But the suggestion oozing frommost classification attempts that there are also legal differences between the various categories is, by and large, unwarranted. In a very important sense, for the lawyer, each international organization 34 See generally A. E. J. Went, Seventy Years Agrowing: A History of the International Council for the Exploration of the Sea 1902–1972 (Copenhagen, 1972). 9 24 an introduction to international institutional law is unique, based as it is on its own constituent document and influenced as its development will be by peculiar political configurations. Thus, labels should never be substituted for analysis, as Brownlie has pointed out.35 Functions A first point often made by scholars is that organizations may be classified in accordance with their stated functions. Thus, quite a few are active in the economic field; others are engaged in peace and security, or can be classified asmilitary alliances. Yet others deal with issues of nutrition, public health, telecommunications or fisheries conservation, to name just a few possibilities. Here immediately a caveat should be made: whether or not we think of an organization as active in the economic sphere depends most of all on how we define economics. Some would not hesitate to include telecommunications, whereas other might be at pains to exclude it. Moreover, there is the distinct possibility that even if we think that telecommunications is not, properly speaking, an economic issue, there is still a chance that an economically oriented organization can deal with the topic if it can be seen to have economic repercussions. Following a similar kind of reasoning, in particular the European Community has de- veloped from a purely economic organization into one that also deals with other aspects of life, provided there is an economic side to those aspects. A good example of that type of reasoning is to be found in the famous Bosman decision of the European Court of Justice.36 In this case, the ques- tion at issuewaswhether the transfer system in football (i.e., soccer), accord- ing towhich professional players could only switch clubs upon payment of a transfer fee from the new club to the old one, was in contravention of some of the basic principles of the EC Treaty, in particular the free movement of workers as guaranteed by Article 48 (nowadays Article 39) of the Treaty establishing the EC. The Court held that, indeed, the transfer system was not in conformity with Article 48, but in order to do so it first had to reach a finding as to whether professional football came within the scope of the Treaty to begin with. This was found to be the case because professional 35 Brownlie, Principles of Public International Law, p. 131. This would seem to imply also that labelling the EU as being sui generis is of little help: at the end of the day, all organizations are sui generis. 36 Case C-415/93, Union Royale Belge des Sociétés de Football Association ASBL and others v. Jean- Marc Bosman and others [1995] ECR I-4921, paras. 73, 76. 10 the rise of international organizations 25 football, whatever else it may be (hobby, entertainment, leisure activity), also constitutes an economic activity. Therefore, and to that extent, the EC rules apply to professional football, and, therefore, theCourt could rule that the transfer system violated Article 48 TEC. The case indicates, if nothing else, that the boundaries between topics or issuesmay be very fuzzy indeed. Membership Other classifications point to the membership of organizations as being of distinctive value. Thus, some organizations aspire to universal or near- universal membership, inviting in principle all states to join. The United Nations is a typical example, in principle open to all states as long as they meet certain requirements. Hence, the UN is often referred to as an ‘open’ organization, as are (although their membership does not compare to that of the UN) such organizations as the World Health Organization (WHO) and the World Trade Organization (WTO). Other organizations, however, may rest satisfied with a limited member- ship, and usually such limitations may derive from their overall purpose. Thus, many regional organizations, aiming to organize activities in a cer- tain geographical region, are open only for states from that region. The European Union is only open for European states; no Asian state can join theOrganization of AfricanUnity, and theOrganization of American States can only be joined by states from the Americas. The limitation is not always based on considerations of geography, though. For instance, the Organization of Petroleum Exporting Countries (OPEC) is a limited organization, but its membership spans the globe, in- cluding states from the Middle East, Latin America and Africa. Here, the ties are economic. Similarly, the Organization for Economic Co-operation and Development (OECD) has also, in addition to a large number of west European member-states, members from the Americas, Asia and Oceania, and the North Atlantic Treaty Organization (NATO) does justice to the Atlanticism in its name by including members from western and southern Europe as well as the US and Canada, whereas the French-speaking coun- tries are united in an organization devoted to francophonie.37 Where membership is limited to states from a certain region, such organizations 37 The organization is the Organisation Internationale de la Francophonie, headed by former UN Secretary-General Boutros Boutros-Ghali. 11 28 an introduction to international institutional law Somewouldgo further andclaim that onoccasion, themember-states are no longer allowed even to attempt to regulate behaviour:43 the doctrine of pre-emption not only holds thatmember-state action can be overruled, but goes beyond this in saying that member-state action is no longer acceptable in some areas.44 By contrast, the general rule among international organizations is that binding law-making decisions, at least on issues of substantive policy, can usually only be taken by unanimity, or consensus; that such rules do not usually work directly in the domestic legal orders of themember-states; and most assuredly that themember-states are not pre-empted from legislating. Here then, the organization does not rise above its member, but remains between its members (intergovernmental).45 Why co-operate? International organizations are, as outlined earlier, perhaps the most obvi- ous and typical vehicles for interstate co-operation. It is difficult to think of any organization which is not intended to foster co-operation in some way, although obviously some organizations provide for larger degrees of co-operation than others. Thus, the EC, being ‘supranational’, establishes a very intensive form of co-operation; it has even been possible to argue that the EC has risen beyond mere co-operation, and is slowly but surely integrating, something which can loosely be defined as reaching such a level of co-operation that previously independent entities start to form a new one which they cannot undo at will.46 As some people would have it, due to the state of European integration, the member-states alone are no longer in full control of their destinies and that of the EC; they are no longer ‘Herren 43 For a useful discussion in Dutch, see Jan H. Jans, ‘Autonomie van de wetgever? Voorafgaande bemoeienis van Europese instellingen met nationale regelgeving’, in Leonard Besselink et al., Europese Unie en nationale soevereiniteit (Deventer, 1997), 51–113. An English version hereof is published as Jan H. Jans, ‘National Legislative Autonomy? The Procedural Constraints of EuropeanLaw’ (1998/I) 25LIEI, 25–58. See alsoEugeneD.Cross, ‘Pre-emptionofMember-State Law in the European Economic Community: A Framework for Analysis’ (1992) 29 CMLRev, 447–72. 44 For a critique, see Stephen Weatherill, ‘Beyond Preemption? Shared Competence and Institu- tional Change in the European Community’, in David O’Keeffe & Patrick Twomey (eds.), Legal Issues of the Maastricht Treaty (London, 1994), 13–33. 45 See also below, chapters 10 and 11. 46 This definition has been gleaned from J. K. deVree, Political Integration: The Formation of Theory and its Problems (The Hague, 1972). 14 the rise of international organizations 29 der Verträge’: they are no longer masters of the treaty.47 Indeed, much of the debate nowadays concentrates on the need or desirability of a consti- tution for the EC, which suggests that the integration process is considered as irreversible and as having found a life of its own.48 With other organizations, the degree of co-operation is considerably less intensive. Thus, the central provision of the NATO treaty has been held to be fairly non-committal:49 under Article 5 NATO, member-states are obliged to do what they ‘deem necessary’ in the case where one of them comes under attack. Clearly, such an obligation leaves the member-states a rather wide margin of discretion to determine their actions, but, equally clearly, some form of co-operation does take place within NATO, if only in the form of joint military exercises and commands. Throughout history, observers have had a hard time explaining co- operation.That holds true both indomestic societies and, perhaps a fortiori, when international relations are concerned. The question as to why actors will co-operate is one of the central questions of the social sciences, and is particularly prominent in international relations theory. Arguably the most dominant strand of international relations theory, at least since the SecondWorldWar, iswhat is knownas ‘realism’, or, nowadays, ‘neo-realism’.50 Realists and neo-realists start from the proposition that the world is a jungle, an anarchy, where it is a fight of man against man and state against state. In order to ensure survival, the state must guarantee at the very least that its competitors do not become more powerful, and preferably that it itself gains power.51 47 Among the most prominent is Ulrich Everling, ‘Sind die Mitgliedstaaten der Europäischen Gemeinschaft noch Herren der Verträge? Zum Verhältnis von Europäischem Gemeinschafts- recht und Völkerrecht’, in Rudolf Bernhardt et al. (eds.), Völkerrecht als Rechtsordnung, in- ternationale Gerichtsbarkeit, Menschenrechte: Festschrift für Hermann Mosler (Berlin, 1983), 173–91; see also Ulrich Everling, ‘Zur Stellung der Mitgliedstaaten der Europäischen Union als “Herren der Verträge” ’, in Ulrich Beyerlin et al. (eds.),Recht zwischen Umbruch und Bewahrung; Festschrift für Rudolf Bernhardt (Berlin, 1995), 1161–76. 48 On constitutionalization see, e.g., Paul Craig, ‘Constitutions, Constitutionalism, and the Euro- peanUnion’ (2001) 7European Law Journal, 125–50;OliverGerstenberg, ‘Denationalization and the Very Idea of Democratic Constitutionalism: The Case of the European Community’ (2001) 14 Ratio Juris, 298–325; Trevor C. Hartley, ‘The Constitutional Foundations of the European Union’ (2001) 117 Law Quarterly Review, 225–46. 49 See Michael J. Glennon, Constitutional Diplomacy (Princeton, 1990), p. 214. 50 The starting point of modern realism (while not blind to its limitations) was, arguably, the publication of E. H. Carr, The Twenty Years’ Crisis 1919–1939 (1939; London, 1981). 51 The seminal work is Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace (2nd edn, New York, 1955). 15 30 an introduction to international institutional law In such a scheme, co-operation is almost by definition doomed either to remain temporary, or to be the result of submission or coercion. Military alliances, for instance, are not unknown to realists; indeed, they are pre- sumably central tenets of realism.52 International organizations, however, are harder to explain, in particular since these are perceived to be created for longer periods of time. One of the central propositions of realism is, after all, that states will pursue their own interests; as long as organizations can be seen to be helpful in that pursuit, realists will typically be able to explain their existence and functioning. But realists will have a hard time explaining forms of co-operation that apparently go against the national self-interest. It is here that the efforts of other schools of thought come in. Typically, some authors claim that realists have too bleak an outlook on life. Life, so they argue, is a bit more than a war of all against all and the ensuing struggle for survival: social actors may also strive to co-operate in order to combat problems that would typically require a joint effort (this sort of thinking is sometimes referred to as functionalism or neo-functionalism, in particular if followed by the proposition that co-operation in one sector leads to co- operation in other sectors), and if push comes to shove, co-operation may even take place out of sheer altruism or some similar incentive.53 Of course, here themain riddle is how to explain failures of co-operation, or the lack of co-operation in situations where it could theoretically have been expected. And moreover, as idealist thinking is based on a sunny view of human nature, it is intuitively perhaps more difficult to accept than the premises of realism.54 A more normative school of thought takes these views somewhat fur- ther, and defends the thesis that democracies are naturally inclined to co- operate or, at least, not to go to war with one another.55 Based on the works 52 Similarly Alexander Wendt, Social Theory of International Politics (Cambridge, 1999), pp. 299–302. 53 Interestingly, Frost’s adaptation of the value of recognition in international life, as a means of initiating the new into established practices, comes pretty close. See Mervyn Frost, Ethics and International Relations: A Constitutive Theory (Cambridge, 1996), pp. 153–5. 54 Indeed, it is no coincidence that idealism is not known as realism, but usually goes under such labels as ‘institutionalism’. More apposite, many idealists position themselves, and quite understandably so, as realists. 55 For an empirical critique of the thesis that democracies do not fight each other, see JoanneGowa, Ballots and Bullets: The Elusive Democratic Peace (Princeton, 1999). Also critical is Alexander Wendt, Social Theory, ch. 6, arguing that there is no direct relationship between a shared culture and either co-operation or conflict. 16 the rise of international organizations 33 Recent theorizing concentrates on the role of domestic forces in foster- ing international co-operation. According to what its main representative calls ‘republican liberalism’, co-operation takes place neither for the self- interest of states nor out of altruism, but rather because domestic forces wish to ‘lock’ their positions. Thus, a weak democracy might join a human rights treaty precisely as a means for ensuring that democracy will not be overturned; by the same token, governments may join organizations to strengthen their own positions.66 Finally, and difficult to capture in theoretical terms, states may engage in what looks like co-operation primarily to have a scapegoat for policy failure or, alternatively, as a means of suggesting that activities are taking place.67 Thus, former US diplomat Robert Murphy recalls how Secretary of State John Foster Dulles saw the UN occasionally as something of a storage room for unsolved thorny problems.68 In addition to asking why co-operation takes place, we may also ask ourselves which roles organizations, once established, can and do play, and here a more constructivist school of thought has taken the lead. While for many realists and regime theorists alike, international organizations are mere arenas for power struggles between states, the central tenet of constructivism is rather that organizations are more than mere clearing houses for the opinions of their member-states: they take on a role and dynamics all their own.69 Organizations may become actors on their own stage, so to speak.70 Indeed, this has become one of the core propositions of the constructivist approach to international relations, which argues that 66 SeeAndrewMoravcsik, ‘TheOrigins ofHumanRights Regimes:DemocraticDelegation in Post- war Europe’ (2000) 54 International Organization, 217–52. For a more culturally inclined view (but also stressing domestic factors), see Erik Ringmar, ‘Re-imagining Sweden: The Rhetorical Battle over EU Membership’ (1998) 23 Scandinavian Journal of History, 45–63. 67 See in a similar vein Martin Wight, ‘Why is There No International Theory?’ in Herbert Butterfield&MartinWight (eds.),Diplomatic Investigations: Essays in the Theory of International Politics (London, 1966), 17–34, p. 23. 68 Robert Murphy, Diplomat among Warriors (London, 1964), p. 443. 69 For an excellent overview, seeMichael N. Barnett &Martha Finnemore, ‘The Politics, Power and Pathologies of International Organizations’ (1999) 53 International Organization, 699–732. The so-called ‘new institutionalism’ also envisages an independent role for institutions. Compare Daniel Wincott, ‘Political Theory, Law and European Union’, in Jo Shaw & Gillian More (eds.), New Legal Dynamics of European Union (Oxford, 1995), 293–311. 70 For an intelligent discussion of how the financial institutions have used poverty as an excuse for expanding their own activities, see Balakrishnan Rajagopal, ‘From Resistance to Renewal: The Third World, Social Movements, and the Expansion of International Institutions’ (2000) 41 Harvard ILJ, 529–78. 19 34 an introduction to international institutional law existing rules and institutions help shape not just our behaviour, but also the very world we live in.71 Perhaps the most obvious example is the case of the European Commu- nity which, due to its (partly) supranational character, may well be able to take on dynamics of its own. The belief that similar considerations also hold with respect to more intergovernmental organizations has sometimes been posited, but not unconditionally. Still, it has been noted that organizational leadership and the capacity of organizations to ‘learn’ offer possibilities for enhanced co-operation.72 Either way, what emerges as one of the central problems faced by social scientists in explaining the role and impact of international organizations is the relation between the organization and its member-states: is the orga- nization but a forum, convenient for compiling the aggregate wishes of the variousmember-states, or does the organization present itself as something which is distinct from its member-states? The same problem also haunts the science of law. Legal theory and international organizations Legal theorists ordinarily have little business in trying to explain why states co-operate: such belongs to the social sciences properly. Moreover, the legal theorist is generally ill equipped to perform such a task: whenever lawyers engage in political analysis, more often than not the results fail to persuade professional political scientists. More properly, the task of the legal scholar is to explain the incidence of various legal rules relating to international organizations. This, in turn, calls for a background theory concerning the legal nature of international organizations, but no convincing theory has so far been developed, as far as I am aware. 71 Its main representatives include John Gerard Ruggie, Constructing the World Polity (London, 1998); Alexander Wendt, Social Theory; and Friedrich Kratochwil, Rules, Norms, and Decisions (Cambridge, 1989). Institutionalists do not necessarily adopt the constructivist thesis in full, but do note that the ‘centralization’ and ‘independence’ offered by organizations make them attractive vehicles for international co-operation. See, e.g., KennethW.Abbott&Duncan Snidal, ‘Why States Act through Formal International Organizations’ (1998) 42 Journal of Conflict Resolution, 3–32. 72 Thus, already, Ernst B.Haas inhis classic studyof the International LabourOrganization,Beyond the Nation-State (Stanford, 1964). 20 the rise of international organizations 35 Traditionally, theorists sought refuge in the concept of the state.73 Thus, organizationswere viewed aswould-be states, with, in particular, the federal model beingof attraction.74 This lineof thinkingwasdispelled thoughwhen the ICJ, trying to come to terms with the UN, pronounced that the UN was not the same as a state, let alone a superstate.75 Probably the best general study of the law of international organizations to date, Amerasinghe’s textbook,76 is, its outstanding qualities notwith- standing, illustrative of the theoretical confusion concerning the legal na- ture of international organizations, andmore specifically of what appears to be the heart of the problem: the way the organization relates to its member- states. At somepoints,Amerasinghe treats themember-statesof anorganization as if they are third parties vis-à-vis the organization, who in creating their organization have created a distinct legal entity, and have therewith for instance limited their individual liability for actions of the organization. Precisely because they are considered to be third parties in relation to their organizations, they can escape being held liable for the organization’s acts. Clearly, that is a respectable point of view, held by many international lawyers, and usually defended on the view that since states cannot be held bound by obligations they have not freely consented to,77 it follows that obligations incurred by international organizations cannot as such bind their member-states. After all, that is precisely why they may have created their organization to begin with. Elsewhere, though, Amerasinghe is forced to abandon this view, because, taken to the extreme, itwould, for example, imply that documentswhich the organization sends to its member-states lose their privileged status. As long as those documents circulate on the organization’s premises, they can be regarded as internal and privileged documents, but if they are sent to third parties (such as member-states) they will inevitably lose that status. Hence, 73 For a good overview, indicating that often organizations were thought of as states writ large, see Daniele Archibugi, ‘Models of International Organization in Perpetual Peace Projects’ (1992) 18 Review of International Studies, 295–317. 74 As noted by Michel Virally, L’organisation mondiale (Paris, 1972), pp. 19–24. 75 Reparation for Injuries Suffered in the Service of the United Nations, advisory opinion, [1949] ICJ Reports 174, p. 179. 76 C. F. Amerasinghe, Principles of the Institutional Law of International Organizations (Cambridge, 1996). 77 This point of departure has found recognition, in, e.g., Arts. 34 and following of the 1969Vienna Convention on the Law of Treaties. 21 38 an introduction to international institutional law In part, also, the appeal of organizations to most students of their ac- tivities stems from their pivotal role in what has been referred to as the ‘international project’ of internationalists.86 On this line of thinking, to be an international lawyer (or international political scientist, for that matter87) is to somehowbe in favour of anything international, and it stands to reason that international organizations have benefited greatly from this sentiment in terms of the analysis of their functioning and activities.88 In the end, the question of the attraction of organizations answers it- self: inasmuch as there can be (and are) undoubtedly many international organizations whose work can command general support, there is at least the hypothetical possibility that international organizations can be used for less than worthy purposes.89 Where the organization becomes a cover for exploitation or invasion, there appears to be less and less reason to promote anything which would facilitate its functioning. Moreover, even member-states of an organization are generally keen to keep their creation in check, as is witnessed by the popularity in the present-day EuropeanUnion of notions such as subsidiarity, opting out and ‘flexibility’. This very phenomenon runs counter to the idea that organiza- tions should prosper and therefore their functional needs be honoured. A second problem with the notion of functional necessity is that it is itself rather empty to begin with. For what is the functional necessity of any given organization? Who is to determine such issues? What yardstick is to be used? Thus, the notion itself warrants theoretical elaboration. Instead of providing a theory, it merely shifts any problems stemming from the lack of theory, and hides the absence thereof. Indeed, close observation reveals a shifting in the notion of what con- stitutes functional necessity over time. The concept appears to have been considerably narrowed down from the early 1990s onwards, indicating that 86 Anything international, moreover, has often been considered to carry with it an escape from politics, and has been deemed attractive for that reason alone. See David Kennedy, ‘Receiving the International’ (1994) 10 Conn JIL, 1–26. 87 See, e.g., J. Martin Rochester, ‘The Rise and Fall of International Organization as a Field of Study’ (1986) 40 International Organization, 777–813. 88 The argument is perhaps most pressingly formulated in David Kennedy, ‘A New World Order: Yesterday, Today, andTomorrow’ (1994) 4Transnational Law and Contemporary Problems, 1–47. See alsoMichael N. Barnett, ‘Bringing in the NewWorld Order: Liberalism, Legitimacy, and the United Nations’ (1997) 49 World Politics, 526–51. 89 Such a possible exception was Mussolini’s plan, launched in the 1930s, to create a formal direc- torate of the four leading European powers at the time (i.e., France, Britain, Italy and Hitler’s Germany). See Van Diepen, Voor Volkenbond en vrede, p. 143. 24 the rise of international organizations 39 it is too flexible to be of much use as a theoretical device, indicating that its explanatory force is limited.90 Third, as a matter of theory, the idea of ‘functional necessity’ suffers from the drawback that organizations are rarely, if at all, created according to blueprints involving preconceived theoretical or quasi-theoretical no- tions. Instead, they are the result, invariably, of negotiations, and therewith of power struggles and struggles between competing ideas. Andwhile surely ‘functional necessity’ may be among the ideas launched, its acceptance by negotiating partners is by no means guaranteed. Instead, they are likely to entertain different ideas on the functional necessities of any given organiza- tion at any givenmoment in time. And thus, as a unifying theme underlying the law of international organizations, the concept of ‘functional necessity’ simply will not do. That is not to say that the functional necessity notion is completely useless. In good hands, it may facilitate the solution of practical problems. There can be little doubt that courts and tribunals at times resort to the notion in order to solve disputes before them, and the result may well be a fair one. In addition, it may occasionally constitute, as we shall see, a fair description ex post facto. Organizations and their members Instead of trying to offer the false security of the functional necessity theory with its limited explanatory potential, this book is written on the basis of the idea (theory is too big a word) that much of the law of international orga- nizations is the result of the fundamental tension between the organization and its members. In popular thinking, organizations are probably pretty much perceived as entities which somehow would stand (or at least would have to stand) above theirmembers. This commonposition iswell summarizedbynovelist GeorgeOrwell in the followingquotation,written in1946, just a fewmonths after the creation of the UN: In order to have any efficiency whatever, a world organization must be able to override big states as well as small ones. It must have power to inspect and limit armaments, which means that its officials must have access to every square inch of every country. It must also have at its disposal an armed force 90 See in particular chapter 8 below. 25 40 an introduction to international institutional law bigger than any other armed force and responsible to the organization itself. The two or three great states that really matter have never even pretended to agree to any of these conditions, and they have so arranged the constitution of UNO that their own actions cannot even be discussed. In other words, UNO’s usefulness as an instrument of world peace is nil. This was just as obvious before it began functioning as it is now. Yet only a few months ago millions of well-informed people believed that it was going to be a success.91 The interesting aspect is that Orwell does not stop after having proclaimed that organizations should stand above their members. Instead, he starts by describing an idealtype, then blames themember-states for not creating this idealtype, and finally blames the organization for not living up to the ideal- type. In other words, unwittingly Orwell already captured the fundamen- tal tension between international organizations and their member-states: organizations are, at one and the same time, independent of their members (or at least ought to be so), and fundamentally dependent on them.92 And that idea as such is hardly novel; the French jurist Paul Reuter, without developing it to the fullest extent in his subsequent analysis, could already approach the field in much the same way in 1967.93 In short, many of the ambiguities that the law of international organi- zations appears to be so particularly rich in become understandable when examined against the background of the relationship between the organi- zation and its members, and the idea behind this book is to explore that tension in relation to a variety of topics.94 Seemingly endless discussions on such staple topics as the impliedpowers doctrine, teleological interpretation of constituent documents, or whether the member-states retain a hold on the organization are indeed, quite lit- erally, endless, for a common characteristic of such debates is that one can either occupy a position favouring the member-states or occupy a position favouring the organization without being able to say which is the better 91 See George Orwell, The Collected Essays, Journalism and Letters of George Orwell. Volume 4: In Front of Your Nose 1945–1950 (1968; Harmondsworth, 1970), pp. 152–3. 92 The same tension informs influential politicians and statesmen. For an example, see Richard von Weiszäcker, ‘All Depends on Member-States’, in Georges Abi-Saab et al., Paix, développement, démocratie. Boutros Boutros-Ghali Amicorum Discipulorumque Liber (Brussels, 1999), 827–37. Von Weiszäcker is a former President of Germany, and co-chaired one of the more serious working groups on UN reform in the first half of the 1990s. 93 Paul Reuter, Institutions internationales (Paris, 1967), p. 204. 94 Greater than the number of topics relating to organizations contained in Reuter’s Institutions internationales, and probably less inclined to proclaim a given equilibrium as reflecting the law. 26 114 INTERNATIONAL ORGANIZATIONS, 1945—-PRESENT take the form of the history of individual IOs. There can be both official and unof- ficial histories. The official histories are sanitized histories that tend to embrace a narrative of progress.’ Fourth, the history of IOs can be of different phases of their existence. Each IO goes through distinct phases of development in response to both external and internal factors. In so far as external factors are concerned, general purposes organizations (e.g. United Nations) tend to respond more to the interna- tional political environment and international economic organizations (e.g. World Bank) to the state of global capitalism. The internal factors include changes in the culture of an organization and the quality of leadership. Fifth, the history of IOs can be of particular organs of IOs, especially that of the United Nations (UN), such as for example that of the UN Security Council (UNSC). Even in the instance of a single UN organ the history can be of different phases (e.g. pre- and post-Cold War phases). Sixth, the history of IOs can be told as that of certain broad trends in the world of IOs: the enhanced role of nongovernmental organizations (NGOs), the increasing number of international tribunals, growing regionalism, etc. Seventh, a history can be told of the emergence and development of the law of international organizations in the 1960s reflecting the need to clarify their legal status and grow- ing complexity of their functioning.‘ Eighth, the history of IOs can be of specific themes such as ‘democratic deficit’ or the need for greater accountability and legal responsibility of IOs. This theme has acquired salience in recent years as a result of the growing importance of IOs in global governance. Ninth, the history of IOs can be told as a move towards constitutionalism as in the case of the European Union (EU) whose decisions are binding on member states.° Lastly, the history of IOs can be told as the slow process of the emergence of a world state. The chapter primarily focuses on histories of post-1945 IOs told from different theoretical standpoints by political scientists and legal scholars. In the second sec- tion an attempt is made to narrate in a schematic manner the history of IOs by liberal and neo-liberal scholars of IOs or what may be termed mainstream interna- tional organization scholarship (MIOS). This history is followed in the third sec- tion by thumbnail sketches of third-world, left, and feminist histories of IOs. These histories—that is, mainstream and critical histories—need not be read as mutually exclusive histories. In many ways these capture different dimensions of the history of IOs. The fourth section contains some reflections on salient issues and themes that are the subject of current debates including the emergence of a nascent world > A good example of official history is that of UNDP written by Craig Murphy, otherwise a critical scholar. Craig N. Murphy, The United Nations Development Programme: A Better Way (Cambridge: Cambridge University Press, 2006), 4. * The first textbook on law of international institutions written by Derek Bowett was published in 1963. Jan Klabbers, “The Paradox of International Institutional Law? International Organizations Law Review 5 (2008) 3. 5 Jan Klabbers, “International Institutions,’ in The Cambridge Companion to International Law, ed. James Crawford and Martti Koskenniemi (Cambridge: Cambridge University Press, 2012), 240. 29 MAINSTREAM HISTORY OF IOS 115 state. Readers will excuse the indicative presentation of materials necessitated by constraints of space. MAINSTREAM History OF IOs The mainstream history of IOs is told by liberal and neo-liberal scholars in the form of a narrative of progress. In this view, as two critical scholars note, the con- tribution of increasing and expanding IOs has been positive as IOs ‘help to resolve collective dilemmas and problems of interdependent choice, foster international co-operation, and bring about a more rationalized world that is organized around fundamental liberal values such as liberty, autonomy, markets, democracy, and non- violent conflict resolution.® The history of the post-1945 period is usually divided into two phases: the Cold War and post-Cold War phases. While these phases reveal distinct features, there is as much continuity as change that mark the function of IOs in the two periods. The Cold War Phase: 1945-89 The history of IOs in the Cold War phase is either told in ideological or functional terms. From an ideological perspective Robert Keohane writes that the IOs created after the Second World War ‘had a significant security justification: to create eco- nomic prosperity and patterns of cooperation that would reinforce the position of the West in the struggle with the Soviet Union’’ These IOs ‘were constructed on the basis of principles espoused by the United States, and American power was essential for their construction and maintenance’ It can even be said that the UN system was used to fight communism by other means. Indeed, a separate history can be © Michael Barnett and Martha Finnemore, Rules For the World: International Organizations in Global Politics (Ithaca: Cornell University Press, 2004), 157. In the same vein, Kams and Mingst write that “for liberals, international organizations play a number of key roles, including contributing to hab- its of cooperation and serving as arenas for negotiating and developing coalitions. They are a primary means for mitigating the danger of war, promoting the development of shared norms, and enhancing order.’ Margaret P. Karns and Karen A. Mingst, International Organizations: The Politics and Processes of Global Governance (New Delhi: Viva Books, 2005), 38. Broadly speaking, neo-liberal institutionalists like Robert O. Keohane and John Gerard Ruggie share these assumptions. 7 Robert O. Keohane, “Twenty Years of Institutional Liberalism,’ International Relations 26/2 (2012): 127. § Tid. 30 116 INTERNATIONAL ORGANIZATIONS, 1945—PRESENT written of how each of the UN bodies in this period was implicated in the Cold War. Thus, for example, by focusing on refugees fleeing the violation of civil and political rights, the Office of the UN High Commissioner for Refugees (UNHCR) helped embarrass former Soviet bloc countries. The former Soviet Union adopted a cautious approach towards IOs, albeit playing a relatively more active role in IOs in the post-Stalin era. The East-West ideological divide meant that certain organs of the UN, like the UNSC, were unable to function effectively in this period due to the use of the veto power by the Soviet Union. It was only after Mikhail Gorbachev came to power in 1985 that the Soviet Union sought greater engagement with the UN until its collapse in 1989." The other communist great power, China, also limited its participation in IOs after the revolution. In the Maoist period its participation remained ‘self-consciously parsimonious and largely symbolic." But the 1980s saw Beijing join practically all intergovernmental organiza- tions (IGOs) in the UN system.” China has sought to use IOs to gain authority in the international community and project its views to the outside world. The history of IOs in the Cold War phase is also narrated and assessed by MIOS in functional terms. The focus is on the multidimensional developments in and achievements of the UN system. But attention is also drawn to positive develop- ments outside the UN system. The principal developments and achievements are stated by MIOS to be the following. First, the post-war period saw the creation of new specialized agencies of the UN such as the Food and Agricultural Organization (FAO), the World Health Organization (WHO), the UN Educational, Scientific and Cultural Organization (UNESCO), and the International Atomic Energy Agency (IAEA) even as older organizations such as the International Labour Organization (ILO), the Universal Postal Union (UPU), and the World Meteorological Organization (WMO) were brought into a special relationship with the UN. The UN Economic and Social Council (ECOSOC) also established a number of functional organizations that included the Commission on Status of Women, the Population Commission (subsequently renamed Commission on Population and Development), and the Statistical Commission. A number of other commis- sions were created later. The ECOSOC also created regional commissions such as the Economic Commission for Europe, the Economic Commission for Latin America, and the Economic Commission for Africa. All these functional and regional commissions conduct studies and promote in other ways the specific ° Kazimierz Grzybowski, “International Organizations from a Soviet Point of View,’ Law and Contemporary Problems 29/4 (1964): 886ff. © Jonathan Haslam, “The UN and the Soviet Union: New Thinking?,’ International Affairs 65/4 (1989): 677. “ Samuel S. Kim, “International Organizations in Chinese Foreign Policy,’ ANNALS, AAPSS 519 (1992): 171. ” Kim, “International Organizations in Chinese Foreign Policy.” 171. 31 MAINSTREAM HISTORY OF IOS 119 management of a complex peace operation, usually in the post-civil war con- text, designed to provide interim security and assist parties to make those insti- tutional, material, and ideational transformations that are essential to make a peace sustainable." Second, in this phase certain key IOs were established, the most significant of which was the creation of the World Trade Organization (WTO) in 1995. The WTO not only regulates international trade in goods but also international trade in ser- vices. Further, it enforces a global regime on intellectual property rights. The WTO is a powerful institution for it has a compulsory dispute settlement system that is backed by a system of retaliatory measures. It is seen as contributing in a significant way to the promotion of free and fair trade. Third, IOs and their organs have engaged in increased law-making.” ‘Thus, for example, the UNSC exercised a form of legislative power to establish criminal tri- bunals for former Yugoslavia and Rwanda acting under Chapter VII of the UN Charter."* UNSC Res. 1373 (2001) adopted in the wake of September 11 imposed a number of legal obligations on member states in combating terrorism. While these obligations were drawn from existing antiterrorism conventions, they became binding not because a state had become party to them but under the terms of the resolution. Fourth, the post-Cold War phase has seen the greater judicialization of interna- tional relations.” Besides the International Court of Justice, the principal judicial organ of the UN, a number of other international tribunals have been created. On one count there are ‘twelve international courts and arbitral bodies, nine regional bodies, and four hybrid criminal courts involving a mix of domestic and inter- national judges.” The prominent tribunals are the WTO Appellate Body and the International Criminal Court (ICC). The former promote the peaceful settlement of trade disputes while the ICC brings to justice individuals who have committed war crimes or crimes against humanity. ‘6 Michael W. Doyle and Nicholas Sambanis, “Peacekeeping Operations,’ in The Oxford Handbook on the United Nations, ed. Thomas G, Weiss and Sam Daws (New York: Oxford University Press, 2007), 323-49. ” José Alvarez, International Organizations as Law-Makers (New York: Oxford University Press, 2005), 217. *8 See UNSC Res. 827 (1993) and UNSC Res. 955 (1994) respectively. See generally, Daphna Shraga and Ralph Zacklin, “The International Criminal Tribunal for the Former Yugoslavia” European Journal of International Law 5 (1994): 360-80; Ramses Wessels, and Jan Wouters, “The Phenomenon of Multilevel Regulation: Interactions between Global, EU and National Regulatory Spheres,” International Organizations Law Review 4 (2007): 169-201, 176. » “Tn contrast to the mid-1980s, when only a handful of standing international courts were in place, twenty-five such courts have been identified ... by the Project on International Court and Tribunals” Gregory Shaffer and Tom Ginsburg, “The Empirical turn in International Legal Scholarship,’ American Journal of International Law 106/1 (2012): 16. 2 Tbid., 16, n. 70. 34 120 INTERNATIONAL ORGANIZATIONS, 1945—PRESENT Fifth, recent decades have seen the increased role of NGOs in IOs. In 1948 a mere forty-one NGOs had ECOSOC consultative status. That number has gone up to 3,000 today.” The grant of ‘consultative status has enabled NGOs to make significant con- tributions to international policy making’” Even in the absence of consultative status, NGOs can participate in UN conferences through a process of registration. For exam- ple, it is estimated that 1,400 NGOs registered at the UN Conference on Environment and Development in Rio de Janeiro of which less than half had consultative status.” Sixth, the role of the private sector in the UN system has grown in recent decades.” Christer Jonsson has observed that ‘UN attitudes toward the business community have shifted dramatically ... businesses are now seen as partners rather than threats.** This development is viewed by MIOS as a benign development that uses the energy and resources of the private sector to meet the development goals of the UN system. Indeed, IOs see ‘PPPs [public-private partnerships] solve the problems of scarce resources and eroding legitimacy.”* Seventh, the post-Cold War phase has witnessed a second wave of regionalism attributed to ‘global economic changes, the transformation of the Soviet Union and Eastern Europe, uncertainty over the outcome of the Uruguay Round of world trade negotiations, the European Union's deepening and enlargement, fear that a set of trade blocs was emerging, and new attitudes toward international cooperation.” The functions of regional organizations vary greatly. Some organizations are devoted to greater economic cooperation (e.g. the North American Free Trade Agreement) and others to both economic and political cooperation. The second wave of regional- ism has yet to abate. In fact today a ‘region’ has become an ‘imagined community’ delinked from geographical or cultural proximity. The impact of the regionalization of IOs is far from clear. Some see regional organizations as complementing the work of global IOs while others see these as reflecting local trends that may not dovetail with that of universal IOs. Eighth, the UN has continued its work of organizing conferences on important issues facing mankind. For instance, in the area of environmental governance the UN organized the Conference on Environment and Development (1992), the World Summit on Sustainable Development (2002), and the Rio+10 Conference (2012). These conferences resulted in the creation of the Global Environment Facility in 1991 and the Commission on Sustainable Development (1992) that has since been replaced by the UN High-Level Political Forum on Sustainable Development (2013). » Paul Wapner, “Civil Society,” in The Oxford Handbook on the United Nations, ed. Thomas G. Weiss and Sam Daws (New York: Oxford University Press, 2007), 258. ” Tbid., 258. 8 Wapner, “Civil Society,’ 258. 2 See Craig N. Murphy, “Private Sector” in The Oxford Handbook on the United Nations, ed. Thomas G. Weiss and Sam Daws (New York: Oxford University Press, 2007), 264-75. *» Christer Jénsson, “The John Holmes Memorial Lecture: International Organizations at the Moving Public-Private Borderline,’ Global Governance 19 (2013): 2. % Tbid., 10. » Karns and Mingst, International Organizations, 151-2. 35 MAINSTREAM HISTORY OF IOS 121 Ninth, the post-Cold War period has seen the emergence of ‘international forums’ such as the Group of 20 (G20) which brings together advanced and emerg- ing economies to promote international economic cooperation. ‘The leaders of the G2o first met in 2008 in the wake of the global financial crisis. The G2o continues to meet once a year to discuss challenges facing the international community. The creation of the G2o has meant that the ECOSOC no longer plays a central role in the coordination of international economic cooperation. However, in order to strengthen the latter’s role, certain organizational changes were brought about in 2007 including the creation of a High Level Political Forum, Annual Ministerial Review, and a Development Cooperation Forum. Finally, the post-Cold War phase has seen the reframing of the principle of sov- ereignty in the UN system. This reframing has assumed several forms. On the one hand, new concepts such as the ‘responsibility to protect’ have found their way into UN discourse, and on the other hand, the UN has come to assume the form of a sur- rogate state through establishing ‘transitional (or international) administrations as in the case of Kosovo and East Timor. A transitional administration has been defined as an exercise in state-building ‘by assuming some or all of the powers of the state on a temporary basis.* While ‘transitional administrations’ have been part of the history of the twentieth century (e.g. the mandate system under the League of Nations), it has now sought to be given new life and meaning. These developments around reconceiv- ing sovereignty are seen as promoting human rights and responsible government. Decline of Liberal Internationalism? But despite the growing network and role of IOs in the post-Cold War period, some mainstream scholars see it as a phase that has witnessed a decline in liberal inter- nationalism. According to Keohane, in view of ‘the rise of China, India and other emerging economies, structures of power and interest have become more diverse’ leading to reduced coherence of IOs and also the increasing difficulties ‘to construct strong new institutions.” Likewise, Jorge Castaneda writes that ‘the possible acces- sion of Brazil, China, India, and South Africa to the inner sanctum of the world’s leading institutions threatens to undermine those institutions’ principles and prac- tices’ because they are not sufficiently committed to a liberal international order.*® 8 Simon Chesterman, You, The People: The United Nations, Transitional Administration and State- Building (Oxford: Oxford University Press, 2004), 5. 29 Keohane, “Institutional Liberalism? 134-5. % Jorge G. Castaneda, “Not Ready for Prime Time: Why Including Emerging Powers at the Helm Would Hurt Global Governance,” Foreign Affairs, September/October (2010): 112. He also observes (at 122) that “granting emerging powers a greater role on the world stage would probably weaken the trend towards a stronger multilateral system and an international legal regime that upholds democracy, human rights, nuclear nonproliferation, and environmental protection.” 36 124 INTERNATIONAL ORGANIZATIONS, 1945—PRESENT Third, TWAIL sees the history of IOs in the post-1945 period as facilitating a neocolonial project under US hegemony. The key organs or organizations in this respect have been the UNSC, GATT/WTO, IME, and World Bank. These IOs have compelled third-world states to cede economic and political sovereignty to them.” The IFIs in particular have used the tool of conditionalities to make countries of the Global South follow neo-liberal economic policies to the advantage of corporate actors in the Global North.” Fourth, TWAIL notes that MIOS neglects the history of the struggle of third- world nations and peoples against hegemonic states and organizations. There is thus little discussion of the efforts that led to the creation of new IOs like UNCTAD or UNIDO or of debates on how to strengthen ECOSOC in pursuing the develop- ment agenda. A third-world history would also certainly record the contribution of the non-aligned movement to the creation, strengthening, and democratization of IOs in addressing common problems facing humankind.” Instead, it has been said by one mainstream scholar that a role of the UN ‘is to serve as a political-ideologi- cal sink for counter-hegemonic ideas and projects by ushering them into history’s dustbin. Fifth, TWAIL points out that the response to the attempts of third-world coun- tries to reform the UN, especially its key body, the UNSC, and IFIs, has been excru- ciatingly slow. To take the case of reform in IFIs there has been, in the wake of the global financial crisis, a decision to allocate additional quotas and votes to countries like China and India.*° But the United States will continue to have a percentage of votes that allows it to exercise a veto over critical decisions in the IMF and the World Bank. Sixth, TWAIL notes with apprehension that the Western regional security organ- ization NATO has unlawfully used force against third-world countries. ‘The illegal use of force against former Yugoslavia (1999) and Afghanistan (2001- ) are two instances.“ Seventh, TWAIL is concerned that international tribunals are often biased against third-world countries. For instance, the investment jurisprudence that has been produced by ICSID has been pro-investor, neglecting the environmental and “ B, S. Chimni, “International Institutions Today: An Imperial Global State in the Making” European Journal of International Law 15/1 (2004): 1-39. ® B.S. Chimni, “International Financial Institutions and International Law: A Third World Perspective,” in International Financial Institutions and International Law, ed. Daniel D. Bradlow and David Hunter (The Netherlands: Wolters Kluwer, 2010), 31-63. * Changavalli Siva Rama Murthy, “Non Aligned Movement Countries as Drivers of Change in International Organizations,’ Comparativ 23 (2013): 118-36. “ Puchala, “World Hegemony and the United Nations,’ 581. *° Chimni, “International Financial Institutions,” 55 ff. 4 See, for example, G 77 “Ministerial Declaration” adopted in September 1999 which “rejected the so-called right of humanitarian intervention, which had no basis in the UN Charter or in international law,’ http://www.g77.0rg/doc/Decligg9.html. 39 CRITICAL HISTORIES 125 human rights concerns of third-world peoples.’ In the case of the ICC, TWAIL is concerned that it is only indicting leaders of the Third World. It has overlooked the gross violations of human rights and humanitarian laws by Western leaders during the intervention in former Yugoslavia and wars against Iraq and Afghanistan. Eighth, while recognizing the historical significance of greater civil society par- ticipation in deliberations of IOs, TWAIL concurs with the observation that ‘well- organized and well-funded NGOs tend to be overrepresented whereas marginalized groups from developing countries tend to be highly underrepresented:** This has negative connotations for the pursuit of the interests of poor and marginal groups in the developing world. Ninth, TWAIL is sceptical of the benefits that come from IOs embracing public- private partnerships (PPPs). Take for instance two PPPs in the health sector, the Global Alliance for Vaccines and Immunization (GAVI) and the Global Fund to Fight AIDS, Tuberculosis and Malaria (Global Fund). Though these PPPs pro- mote health services, ‘they also illustrate a gradual downgrading of traditional IGOs.* It is the Bill & Melinda Gates Foundation that ‘has emerged as a major player in global health governance. In short, by increasing PPPs IOs ‘run the risk of pursuing the agenda of private actors rather than that of their member states.” The UN Global Compact initiative of Kofi Annan presented as an attempt to enhance Corporate Social Responsibility is also seen as ‘bluewashing’ the image of transna- tional corporations. Tenth, TWAIL expresses concern that debates on the future role of IOs and the creation of a world state draws only on Western intellectual traditions. The usual ref- erence is to Immanuel Kant and his classic work Perpetual Peace or in recent times to the work of David Held or Alexander Wendt. The writings of thinkers from the Global South, such as the work of Sri Aurobindo on human unity, are mostly neglected. Marxist History of IOs The Marxist approach to the history of IOs shares common ground with TWAIL but sees it as tied in a more fundamental way to the forces of global capitalism. The approach that is most popular among left-inclined academics is that of Robert Cox. “” See generally, M. Sornarajah, The International Law on Foreign Investment, 3rd ed. (Cambridge: Cambridge University Press, 2010); UNCTAD, Trade and Development Report, 2014 (New York: UN, 2014). 48 Jonsson, “The John Holmes Memorial Lecture,’ 6. *® On GAVI see http://www.gavi.org/ and on the Global Fund see http://www.theglobalfund.org/en/. 5° Jénsson, “The John Holmes Memorial Lecture,’ 12. * Ibid. ® Thid., 14. 3 B. S$. Chimni, “Retrieving ‘Other’ Visions of the Future: Sri Aurobindo and the Ideal of Human Unity,’ in Decolonizing International Relations, ed. Branwen Gruffydd Jones (Lanham: Rowman and Littlefield, 2006), 197-219. 40 126 INTERNATIONAL ORGANIZATIONS, 1945—PRESENT He has used the work of the Italian Marxist Antonio Gramsci to advance the view that IOs support structures of capitalist hegemony: international organization functions as the process through which the institutions of hegem- ony and its ideology are developed. Among the features of an international organization which expresses its hegemonic role are the following: (1) they embody the rules which facili- tate the expansion of hegemonic world orders; (2) they are themselves the product of the hegemonic world order; (3) they ideologically legitimate the norms of the world order; (4) they co-opt elites from peripheral countries; and (5) they absorb counter-hegemonic forces. In short, Cox argues that IOs are ‘structures that provide the conditions for capitalism. The Marxist political theorist Nicos Poulantzas more specifically spoke of the class powers of IOs. In his view, IOs ‘express and crystallize class powers. In the Marxist view, the global social forces that shape the agenda of contemporary IOs constitute an emerging transnational capitalist class (TCC). This class is defined by a set of common interests of the transnational fractions of the national capitalist classes in both the First and Third Worlds that gain from the accelerated globaliza- tion process.” As Ikenberry puts it in relation to emerging powers, ‘internationalist- oriented elites in Brazil, China, India and elsewhere are growing in influence within their societies, creating an expanding global constituency for an open and rule- based international order.** The TCC seeks to redefine the tasks of IOs, in particular IEOs, to push for a world economy in which goods, capital, and services can move unhindered across borders. In other words, IEOs are to facilitate the creation of a unified global economic space where uniform global standards apply as for instance in the domain of international property rights. In fact the prescription and enforce- ment of international property rights by the WTO is an example of the influence of the TCC over the normative agenda and working of IEOs. But there is no determin- ist logic at work. In the Marxist view, the function of IOs is not merely to advance the interests of one or other fraction of the global capitalist classes or of individual advanced capitalist states but to ensure the stability of the global capitalist system. This often requires that IOs serve the interests of subaltern groups and classes. Yet * Robert W. Cox, “Gramsci, Hegemony, and International Relations: An Essay in Method,” in Gramsci, Historical Materialism and International Relations, ed. Stephen Gill (Cambridge: Cambridge University Press, 1993), 62. * “Interview with Robert W. Cox,’ Globalisation, Societies and Education 1/1 (2003): 22. 5° Nicos Poulantzas, Classes in Contemporary Capitalism (London: Verso, 1978), 70. The Marxist perspective partly explains the reluctance of the former Soviet Union to engage with IOs. It looked at IOs through a class lens: “The social character of a particular international organization is determined by the class nature of the participating States and, ultimately, by the nature of their economic system and by relations among them formed on the basis of that system. G. I. Tunkin (ed.), International Law: A Textbook (Moscow: Progress Publishers, 1986), 186. *’ On TCC see Leslie Sklair, Globalization: Capitalism and Its Alternatives (Oxford: Oxford University Press, 2002), 98; and William Robinson and Jerry Harris, “Towards a Global Ruling Class? Globalization and the Transnational Capitalist Class” Science and Society 64 (2000): 11-54. 5° Tkenberry, “The Future of the Liberal World Order, 63. 4 EMERGING THEMES 129 rehabilitation, reintegration and post-conflict reconstruction. In 2010, UN Women, the UN Entity for Gender Equality and the Empowerment of Women, was established and came into operation on 1 January 2011.” It is therefore said that there have been ‘remarkable changes in gender regimes since the mid-twentieth century.” Indeed, the Harvard scholar Janet Halley has used the term ‘governance feminism to describe the phenomenon of women coming to share power in the process of global governance.” EMERGING THEMES ‘The critical histories of IOs raise a number of questions concerning the ‘democratic deficit’ that characterizes their functioning and ways of not only making them more representative but also more accountable for their acts of omission and commission. Indeed, there is ‘a new level of public contestation of international institutions.” In fact an important segment of the anti-globalization protests have IOs as their target, in particular the IFIs and the WTO. There is growing public consciousness in the developing world of the loss of policy space to IOs. However, not all students of IOs accept the view that domestic democracy is diminished. For example, Keohane, Macedo, and Moravcsik have argued that participation in multilateral institutions ‘can enhance the quality of domestic democracy.” In this view even when IOs are ‘captured by special interests, or operate in a nontransparent and unaccountable fashion” it is good to remember that ‘compared to most democratic states multilat- eral institutions are weak’ and ‘enjoy relatively little autonomy.”’ They conclude that multilateral institutions generate a ‘net positive impact.” On the other hand, third- world, left, and feminist critics perceive IOs as unresponsive to the concerns of the poor world or of women and are therefore suffering from a legitimacy crisis. They argue for greater accountability and responsibility of international institutions. ™ See UN Women, http://www.unwomen.org/en/about-us/about-un-women. UN Women incor- porates four existing parts of the UN system dealing with women and has been styled as the new UN “gender architecture.” Hilary Charlesworth and Christine Chinkin, “Ihe New United Nations ‘Gender Architecture’: A Room with a View? in Max Planck Yearbook of United Nations Law, ed. A. von Bogdandy, A. Peters, and R. Wolfrum (2013), vol. 17, 1-60, 3-4. 7 See Charlesworth and Chinkin, “The New United Nations ‘Gender Architecture’: A Room with a View?” ” Janet Halley, Prabha Kotiswaran, and Hila Shamir, “From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism, Harvard Journal of Law & Gender 29 (2006): 335-423. % Ziirn, Binder, and Ecker-Ehrhardt, “International Authority,’ 78. ™ Robert O. Keohane, Stephen Macedo, and Andrew Moravcsik, “Democracy-Enhancing Multilateralism,’ International Organization 63 (2009): 2. * Tbid., 22-3. © Thid., 23. 7 Tbid., 27. 44 130 INTERNATIONAL ORGANIZATIONS, 1945—PRESENT The broad area of accountability of IOs has been sought to be addressed by lib- eral legal scholars by bringing to bear on them the principles of what has been called global administrative law (GAL). Indeed, GAL has been described as ‘the most notable attempt’ to establish accountability of IOs.”* GAL has been defined as: comprising the mechanisms, principles, practices, and supporting social understandings that promote or otherwise affect the accountability of global administrative bodies, in particular by ensuring they meet adequate standards of transparency, participation, reasoned decision, and legality, and by providing effective review of the rules and decisions they make.” The problem with the GAL initiative, welcome as it is, is that it is confined to the procedural dimensions of the functioning of IOs. It does not concern itself with the substantive rules that IOs preside over and whose revision is more fundamental to the interest of subaltern states and groups.* However, the extensive GAL literature does identify situations and instances in the functioning of IOs where there is a lack of effective participation and accountability. It also advances principles and best practices that can help improve the accountability of IOs. A final theme that is beginning to receive some attention is whether IOs can be considered as the building blocks of a world state. Alexander Wendt has argued from a philosophical/teleological perspective that a world state is inevitable, albeit he has not considered the forms it may assume.® It is unlikely that a world state will emerge in the near future as a single consolidated entity. But arguably a fragmented but functional world state is already in the process of evolving comprising a net- work of IOs operating in diverse fields of international life backed by the monopoly of the Global North over the legitimate use of force.** The emergence of a nascent world state is also reflected in the fact that international law is slowly being trans- formed into internal law.™ In sum, while IOs are a derivate subject of international relations they are collectively assuming a primary character. If the future world state is democratic, federal, and just there would be less reason to complain. But at present the emerging world state has an imperial character. 78 Klabbers, “International Institutions,” 238. ” Benedict Kingsbury, Nico Krisch, and Richard B. Stewart, “The Emergence of Global Administrative Law,” Law and Contemporary Problems 68 (2005): 17. *° B. S. Chimni, “Co-option and Resistance: Two Faces of Global Administrative Law,’ New York University Journal of International Law and Politics 37 (2005): 799-829. ®\ See website of the Global Administrative Law Project at http://www.iilj.org/gal/. ® Alexander Wendt, “Why a World State is Inevitable” European Journal of International Relations 9/4 (2003): 491-542. ® B.S. Chimni, “International Institutions Today.” ™ Anne-Marie Slaughter and William Burke-White, “The Future of International Law Is Domestic (or, The European Way of Law),” Harvard International Law Journal 47/2 (2006): 327-52. 45 Leiden Journal of International Law, 23 (2010), pp. 5–21 C© Foundation of the Leiden Journal of International Law doi:10.1017/S0922156509990318 The Formation of International Organizations and India: A Historical Study R. P. A NA N D∗ Abstract As the clash of aspirations increased among European countries, a European ‘civil war’ started in 1914, which engulfed the whole world. With all the terrible destruction and loss of life, it was felt that an international organization must be established to avert war in future. At the Paris Peace Conference in 1919, the British government succeeded in gaining separate representation for its dominions, including India. This created a rather anomalous situation, since a dependency of a foreign power, a colony which could not control its internal affairs, was accepted as a sovereign state by an international treaty. Europe had hardly recovered from the First World War in the late 1920s when it drifted towards a second holocaust in 1939. India became a founding member of the United Nations in 1945, even though it was still under British rule, participating in the historic founding conference. But Indian national public opinion was neither very hopeful nor enthusiastic about the conference on the new international organization. Not only India, which was not even independent at that time, but Asian countries as such played a very small and insignificant role in the formulation of the UN Charter. Key words British India; founding of international organizations 1. INTERNATIONAL LAW: PRODUCT OF EUROPEAN STATES AND APPLICABLE ONLY AMONG THEM Although international law is presumed to be applicable among all states, east or west, north or south, big or small, it is only a recent phenomenon, not older than the United Nations itself. Before the Second World War, international law was supposed to be not only a product of the European states and based on their customs and treaties, but applicable only among them – that is, European states or states of European origin. It was only in 1856 that an extra-European country, Turkey, was admitted into the family of civilized states and later, at the beginning of the twentieth century, that Japan forcefully entered the so-called exclusive European club after defeating China and Russia.1 As one of the foremost authorities on modern international law, Oppenheim, points out, ‘There were numerous states outside the international community’ and ‘international law was not as such regarded as containing rules concerning relations ∗ Professor Emeritus of International Law, Jawaharlal Nehru University, New Delhi [profrpanand@gmail.com]. 1 R. Anand, ‘Family of “Civilized” States and Japan: A Story of Humiliation, Assimilation, Defiance and Con- frontation’, in R. Anand (ed.), Studies in International Law and History (2004), 51. 46 8 R. P. A NA N D government wanted to achieve separate representation for its dominions, including India, at the 1919 Paris Peace Conference, and, over the objection of several other participants, it succeeded. India, like the other British dominions – Australia, Canada, New Zealand and South Africa – gained representation in its own right at the conference and its plenipotentiaries actively participated in its deliberations. This created a rather anomalous situation, since a dependency of a foreign power, a colony which could not control its internal affairs, was accepted as a sovereign state by an international treaty. Indian plenipotentiaries, holding full power on behalf of India, took part in the discussions and signed the peace treaties, along with the representatives of other sovereign states, on the basis of ‘legal equality’. India thus acquired a right to become an original member of the League of Nations (since the Covenant of the League of Nations was part of the Peace Treaty), and, for the first time in the modern period, came into direct and formal contact with the outside world.8 4.1. India’s anomalous position under international law It is indeed doubtful that ‘international law contains any objective criteria of inter- national personality’.9 But it is generally believed that ‘the very act or practice of entering into international agreements is sometimes the only test that can be applied to determine whether an entity has such a personality’.10 Although Lord McNair asserts that the ‘criterion is really international recognition’,11 according to Schwar- zenberger ‘an intermediate state on the road from dependence to independence may also lead to a stage of limited international personality’.12 In fact, he states that ‘in- ternational personality may be accorded provisionally or definitely, conditionally or unconditionally, completely or incompletely, and expressly or by implication. The scope of the international personality granted is a matter of intent.’13 Normally, when states lose their international personality, they are referred to as vassal states. The Indian princely states, under the paramountcy of the British crown, provided the best example of vassal states.14 But India’s position from 1919 to 1947, when it was declared to be and recognized as an independent state, was ‘that of an anomalous international person’.15 As Oppenheim explained, 8 India’s position changed only after the First World War, when its tremendous contribution to the war effort led it to become a member of the British Imperial Conference in 1917, something earlier strongly opposed by the white British dominions. D. Verma, India and the League of Nations (1968), 1–9. It may also be mentioned that India had already become a member of such international organizations as the Universal Postal Union in 1876, the Conference of the International Union for the Publication of Tariff Customs in 1890, and the International Telegraph Conference in 1912. Ibid., at 10. 9 O. Lissitzyn, ‘Efforts to Codify or Restate the Law of Treaties’, (1962) 62 Columbia Law Review 1166, at 1183–4. 10 Ibid. 11 A. McNair, The Law of Treaties: British Practice and Opinions (1938), 67, 75–6. 12 G. Schwarzenberger, A Manual of International Law (1967), I, 61. 13 Ibid., at 70. 14 T. Poulose, ‘India as an Anomalous International Person (1919–1947)’, (1970) 44 British Yearbook of International Law 201, at 202. 15 Ibid., at 204. 49 T H E F O R M AT I O N O F I N T E R NAT I O NA L O RGA N I Z AT I O N S A N D I N D I A: A H I STO R I C A L ST U DY 9 The position of India as subject of international law was for a time anomalous. She became a member of the League of Nations; she was invited to the San Francisco Conference of the United Nations . . . She exercised the treaty-making power in her own right. However, so long as the control of her internal and external relations rested ultimately with the British Government and Parliament, she could not be regarded as a sovereign state and a normal subject of international law. In 1947, she became a fully self-governing Dominion and independent state.16 But after 1919 India began to function as a separate entity in its external relations. As far as membership of the League was concerned, at the peace conference President Wilson proposed that ‘only self-governing states shall be admitted to membership of the league; colonies enjoying full power of self-government may be admitted’; he said that although he had great admiration for India, ‘the impression of the whole world is that she is not self-governed, that the greater part is governed by the laws of Westminster, and lesser part is governed by the Princes whose power is recognized and supported by the British government’.17 But in response the British government representative, Lord Robert Cecil, assured the conference that ‘the British Govern- ment is trying just as rapidly as possible to advance India into a self-governing colony; and anything to happen which would exclude India would be unfortunate’.18 In any case, it was pointed out that since India had signed the peace treaty (which also included the Covenant of the League of Nations), India could become a member of the League independently of any condition which might be laid down concerning subsequent membership.19 Ultimately Britain succeeded, and India was included among the original members of the League,20 although Miller called it ‘an anomaly among anomalies’.21 Out of 31 original members of the League, India was the only state which was not self-governing.22 It is significant to note that it was India, and not ‘British India’, which was admitted to the League of Nations. It may be recalled that India was divided into two parts – British India and 562 princely states, which were under the suzerainty of the British crown. But at the peace conference it was felt that it was ‘India’, and not ‘British India’, without the princely states, which should become member of the League; otherwise the Indian states would remain out of the orbit of the League – except to the extent that they could be regarded as represented through the British government. They could not be eligible for separate membership as they were precluded from foreign relations. Thus at the Paris Peace Conference and in the Covenant of the League of Nations, India was accepted and recognized as a composite state. However, this gave the princes an opportunity to be represented on the Indian delegation and every year the Indian delegation included one of the ruling princes as India’s delegate. In fact, 16 L. Oppenheim, International Law, ed. H. Lauterpacht (1955), 209, n. 4. 17 Quoted in Verma, supra note 8, at 16. 18 D. Miller, The Drafting of the Covenant (1928), I, at 164–5. 19 Ibid., at 166. 20 Miller, supra note 18, II, at 261; see also Verma, supra note 8, at 1–44, for an exhaustive discussion of the whole controversy about India’s membership of the League of Nations. 21 Miller, supra note 18, at 493; Verma supra note 8, at 20. 22 Verma, supra note 8, at 21. 50 10 R. P. A NA N D at the Paris Peace Conference, it was a prince, the maharaja of Bikaner, who signed the Treaty of Versailles as one of the plenipotentiaries to act on behalf of India.23 4.2. Indian national opinion against the League of Nations Membership of the League of Nations was not something which Indians liked or appreciated. India was seething with political unrest after the First World War and the Indian nationalist movement, seeking India’s independence, was gaining momentum. Nationalist opinion in India felt that the British were merely trying to ‘hoodwink and camouflage’ world opinion regarding the real state of affairs in India. As an Indian member of the Legislative Assembly of India, M. Asaf Ali, said, We became a member of the League of Nations at a time when the victorious powers were trying to rob the vanquished powers of their colonial possessions. That could not be done easily . . . because unfortunately at that time, President Wilson . . . was thinking in higher terms and the victorious wanted to pacify him. They could not justify swallowing . . . practically half of Africa without showing some reasonable position as far as they themselves were concerned in their relationship to India. It was just before then that we received in India a message from His Majesty King George that we had the beginning of swaraj (self-rule) in India. This message was flashed across the world, and it was under those circumstances, to pacify the powers of the world, that India was made an original member of the League. All these facts were made to present a wholly camouflaged state of affairs to the world, and this is how we became a member of the League of Nations.24 4.3. Opposition by the United States But in addition to Indian national opinion, the membership of India and other British dominions of the League of Nations was strongly resented in the United States. Thus the Majority Report of the Committee on Foreign Relations of the US Senate stated, Great Britain now has under the name of the British Empire one vote in the Council of the League. She has four additional votes in the Assembly of the League for her self- governing dominions and colonies which are most properly members of the League and signatories to the treaty. She also has the vote of India, which is neither a self-governing Dominion nor a Colony but merely a part of the Empire and which apparently was simply put as a signatory and member of the League by the peace Conference because Great Britain desired it.25 It was stressed in the US Congress that a League vote for India was absolutely and completely a second vote for Britain, since India was absolutely and exclusively under British control. When other British colonies signed the preliminary Covenant they signed through native statesmen. When India signed, she signed through ‘The Right Honorable Edwin Montagu, Member of the British Parliament, and the King’s Secretary of State for India.’ . . . The Maharaja of Bikaner, who signed below, was only a rubber-stamp, because these native princes are specifically barred from peace-making authority.26 23 Ibid., at 239–41. 24 Legislative Assembly Debates in India (1936), I, at 895–6; also quoted in Verma, supra note 8, at 25. 25 Quoted in Poulose, supra note 14, at 207; see also T. Poulose, Succession in International Law: A Study of India, Pakistan, Ceylon, and Burma (1974), 23 ff. 26 Quoted in Poulose, supra note 14, at 207. 51 T H E F O R M AT I O N O F I N T E R NAT I O NA L O RGA N I Z AT I O N S A N D I N D I A: A H I STO R I C A L ST U DY 13 always, on the contrary, been considerable and they are becoming more so. They include in particular a degree of international status which India would not now enjoy, nor be able to obtain, if her separate signature to the Treaty of Versailles had not made her an original member of the League.38 6. THE DEMAND FOR SELF-GOVERNING STATUS India’s membership of the League and its participation in international affairs prompted several Indian statesmen to demand a self-governing status like that of other British dominions. A. B. Keith said that ‘by securing admission of India to the League, the British Government bound itself to the task of creating a self-governing India’.39 Pointing to India’s anomalous position, Phiroz Sethna, an Indian member of the Council of State in India, said in 1930, ‘India cannot take her rightful place in international affairs unless she has her rightful place as a nation here in India. Until that is done Indians will regard their representation in the League of Nations as a mockery.’40 Following the repeated wartime declarations of Allied leaders, especially Presid- ent Wilson, that the war was being fought to safeguard democracy and the principle of self-determination, some Indian political leaders were excited and hopeful during the First World War about India’s independent status in the post-war settlement.41 But India’s enthusiasm abated when the people saw the imperialistic attitude of the British Government. It was an alien bureaucratic, autocratic government that ob- tained membership, and not the self-governing India which the Indian leaders had imagined. As long as India was ruled by the British, it mattered little what happened in the outside world. Indians were mainly interested in their freedom. When the United States refused to join the League, they were convinced there was something radically wrong with the League. There was strong criticism and resentment of the manner in which India was rep- resented. India’s representatives at the League and other international conferences were nominated by the Secretary of State for India, or by the British government, or, at most, by the British Viceroy in India.42 The so-called ‘representatives of India’, it was pointed out by Indians, had ‘always been the nominated tools and mouthpieces, megaphones and microphones of the British Government’, and this was considered to be a ‘shameful and disgraceful position with which no self-respecting Indian could be happy’. Indian delegations, it was demanded, should not be represented, or at least not always led, by Englishmen. India, it was said by Indian nationalist leaders, ‘must be represented by the people, by members elected by the Central legislature. If we are not in a position to do this there is no use of India taking part in the League 38 Quoted in ibid., at 36. 39 A. Keith, A Constitutional History of India (1933), 468. 40 Quoted in Verma, supra note 8, at 39. 41 Bal Gangadhar Tilak even wrote a letter to Georges Clemenceau, the president of the Peace Conference, outlining India’s prospective role as a leading Asian power in post-war world affairs. Ibid., at 270. 42 India and the United Nations: Report of a Study Group Set up by the Indian Council of World Affairs, Prepared for the Carnegie Endowment for International Peace (1957), 4. 54 14 R. P. A NA N D of Nations.’43 A typical comment on the issue of India’s representation in the League was, India may be an original member of the League of Nations, but all the world knows that this means an additional voice and vote for the British Foreign Office. The people of India have no say in the matter and their so-called representatives are nominated by the British government.44 To many Indians the League of Nations was nothing more than an instrument of imperialism, a ‘society for the exploitation of the east and protection of the west’. Instances of Britain’s conduct in Egypt and outrages in China and Iraq, and in some of its colonies, were sufficient to prove the utter helplessness of the colonized, oppressed peoples under the rule of the League. The League appeared to Indians as a sort of balance of power or alliances between European states for the maintenance of the status quo. Although the League talked of honour and justice between nations, as Jawaharlal Nehru said, [I]t does not enquire whether existing relationships are based on justice and honour . . . The dependencies of an imperialist power are domestic matters for it. So that, as far as the League is concerned, it looks forward to a perpetual dominance by these powers over their empires.45 The League had not accepted the principle of self-determination outside Europe. The mandate system of the League in India’s view was nothing more than ‘coloni- alism’ and ‘oppression’ of the territories taken from Germany and Turkey and given to the imperialist powers, where conditions had further deteriorated. A leading newspaper in India said, The League’s Mandates can be otherwise described as the control of the European powers over the weaker nationalities in Asia and Africa and from our experience of such control in Egypt, India and elsewhere it can only be said that incessant strife, racial bitterness and intrigues . . . are the almost inevitable concomitants of the League of Nations.46 The League was said to be mainly an organization of the white peoples and it worked primarily for the European countries and their problems. While the League took prompt action in the Graeco-Bulgarian dispute, it ignored Asians altogether. ‘Whites must not fight Whites – this is the business of the League to see’, said an Indian newspaper on 24 March 1927: But the importance of the League is nowhere [more] marked than when Asiatic na- tions have appealed for protection against white imperialism. The bombardment of defenseless Nanking by British and American warships has not been challenged by the League.47 The East, it was thought, was deliberately ignored. ‘It was not surprising’, said an Indian political journal, ‘that the League had in no way interfered to prevent war in 43 Several Indian leaders quoted in Verma, supra note 8, at 270 ff. 44 India and the United Nations, supra note 42, at 4. 45 J. Nehru, Glimpses of World History (1942), 682; see also India and the United Nations, supra note 42, at 5. 46 Anandabazar Patrika (Calcutta), 23 June 1921, also quoted in India and the United Nations, supra note 42, at 7. 47 Anandabazar Patrika (Calcutta), quoted in India and the United Nations, supra note 42, at 8. 55 T H E F O R M AT I O N O F I N T E R NAT I O NA L O RGA N I Z AT I O N S A N D I N D I A: A H I STO R I C A L ST U DY 15 Syria or put a stop to recent British aggression in China for the sufferers there were Asiatics and not Europeans’.48 The failure of the Disarmament Conference and the League’s utter inability to protect China and Abyssinia from the aggression of Japan and Italy respectively caused feelings of disappointment and revulsion among the Indian people, and there were demands for India’s withdrawal from the League, and even the liquidation of the League.49 Although in theory India’s membership of the League was based on the principle of sovereign equality of states, it was really meant to help the British gain more weight in the League. The fact that India and the British dominions – Australia, Canada, New Zealand, and South Africa – which appeared for the first time as members of the international community, did not figure in their proper alphabetical place among other signatories, but were grouped together under the rubric of the ‘British Empire’, clearly showed that they were not regarded as independent sovereign states. Article 1 of the Covenant, permitting ‘any fully self-governing State, Dominion or Colony’, to become a member of the League, was evidently designed to take account of their special status.50 India by and large spoke at Geneva in ‘her master’s voice’. Britain did not want India to contest a non-permanent seat on the Council of the League. The practice of giving an Indian prince representation, first at the peace conference and later in the annual sessions of the League Assembly, aroused the suspicion of the Indian people and, it was felt, was meant to emphasize the political disunity of the country, using the princes against the rising tide of Indian nationalism. India’s financial contribution was by far the largest of any of the non-permanent members of the Council, not because India was a rich country but despite the poverty of its vast population. On the other hand, very few Indians had been appointed to the League secretariat.51 7. THE FAILURE OF THE LEAGUE OF NATIONS The primary purpose of the League was to preserve peace, something it could not do. From the beginning it was hampered by the absence of the United States. Symptoms of weakness soon appeared, and were accentuated towards the end of the first decade of the League’s existence. Only seven Asian and African countries, some of them mere European colonies – China, Japan, Siam, Persia, British India, Liberia, and South Africa – were included among the original 45 members of the League, and five – Afghanistan, Egypt, Ethiopia, Iraq, and Turkey – subsequently joined it. Although the League gave the first opportunity to such countries as Afghanistan, Egypt, Iraq, and India to appear on the modern international stage, its centre of gravity remained western Europe. 48 Modern Review (1927), XLI, 2, at 255. 49 Indian Delegation Report, 1935, Gazette of India, 21 March 1936, at 225; see also India and the United Nations, supra note 42, at 10–11. 50 E. Carr, International Relations between the Two World Wars (1919–1939) (1950), 254. 51 Verma, supra note 8, at 277–8. 56 18 R. P. A NA N D clamouring for dominating the weaker nations for all time to come’, and ‘measures were being adopted to suppress the voice of the enslaved nations of the world’. The conference, therefore, ‘cannot produce much hope in the minds of Indians, still in bondage’.62 Indian national opinion was very critical of the selection process of the Indian delegation by the Viceroy-in-Council to the San Francisco Conference, especially because the British and US delegations included representatives of the major polit- ical parties in their countries. The selected Indian delegates were Sir A. R. Mudaliar (leader), Sir Feroz Khan Noon, and Sir V. T. Krishnamachari (representing the princely states), all supposed to be mere spokesmen of the British government.63 The most prominent Indian national leader, Mahatma Gandhi, said that there were two es- sential conditions for peace as far as India was concerned, namely that India should be free from foreign control and that the peace should be just. ‘If these foregoing essentials of peace are accepted’, he said, it follows that the camouflage of Indian representation through Indians nominated by British imperialism will be worse than no representation. Either India at San Francisco is represented by an elected representative, or represented not at all.64 Supporting Gandhi’s views, the Hindustan Times in the same issue commented editorially, ‘Rather than be a mere appendage to the British Government, we feel India should stand aloof from all international organizations till she can enter them as a free and sovereign state.’ The paper pungently remarked in another editorial that ‘the Government would rather keep up their pretence and allow one of the most important [members] of the United Nations to have the most unrepresentative of delegations’. It added, ‘It will be a hoax on San Francisco.’65 Some other Indian national leaders from other parties were equally critical.66 Indian nationalist elements took the fight against the unrepresentative character of the Indian delegation to the United States. In an advertisement in Washington newspapers, the National Committee for India’s Freedom said that the members of the delegation represented only their ‘British employers’ and that ‘their masquerade in San Francisco as India’s representatives becomes a bitter mockery and a brazen affront to the intelligence of authentic delegates’.67 Mrs Vijayalakshmi Pandit, a respected Indian political leader and sister of Jawaharlal Nehru, said in a press con- ference two days after the UNCIO opened that ‘the so-called Indian representatives’ did not have ‘the slightest representative capacity’.68 62 India and the United Nations, supra note 42, at 24. 63 It was not easy for the British government to select members of the Indian delegation because of serious criticism coming from Indian national leaders. See another article by Professor M. S. Rajan, ‘India and the Making of the UN Charter – II (from British Sources)’, (1999) 36 International Studies 3. The articles complement each other. 64 Hindustan Times, 7 March 1945. 65 9 March 1945, quoted in Rajan, supra note 63, at 434. 66 T. Bahadur Sapru, H. Kunzru, Right Hon. V. S. Srinivasa Sastri, C. Rajagopalachari, quoted in ibid. 67 The Hindu, 13 April 1945, quoted in Rajan, supra note 63, at 435. 68 One year later she led the Indian delegation to the UN General Assembly, and was elected president of the General Assembly’s eighth session in 1953. Ibid. 59 T H E F O R M AT I O N O F I N T E R NAT I O NA L O RGA N I Z AT I O N S A N D I N D I A: A H I STO R I C A L ST U DY 19 10. THE LONDON CONFERENCE As a preliminary to the San Francisco Conference, the Indian delegation, along with other members of the British Commonwealth – Australia, Canada, New Zealand, South Africa, and the United Kingdom – participated in a conference in London on 4–13 April 1945, to exchange ideas and consult each other on the draft proposals for the establishment of the world organization. Speaking for the Indian delegation, Sir Feroz Khan Noon, obviously referring to the criticism of the unrepresentative character of the delegation, pointed out that ‘We are here to represent India and not His Majesty’s Government’, that the government had not given any instructions to them but they had ‘instructions from our government’, and that India had quietly grown into a dominion without the British government actually knowing it.69 Discussing the role of the small versus the great powers in the proposed world organization, the leader of the Indian delegation, Sir A. R. Mudaliar, agreed with the Canadian contention that in the DOP, the five great powers had safeguarded their position at the expense of the smaller powers. From the point of view of India, he said, the draft provision regarding the nature of representation of states other than the Big Five was one of the most important: India felt that the present position was almost intolerable. China had been classified as a Great Power at the instigation of the United States. It only required a moment’s comparison to realize the anomaly of this situation. On the test suggested by Australia and New Zealand, of past and potential contributions to the war effort, India deserved better representation.70 Mudaliar also pointed out that in the previous 25 years India had not once been elected to the Council of the League of Nations. In the future, however, it was likely that a great deal would be expected of India, militarily and economically, by the new world organization. Therefore the position put forward in the DOP was not, he thought, ‘one which his countrymen could accept’. It was not a question of prestige, he said, ‘it was merely an extension of the logical decision reached in regard to the Great Powers, namely, that power and responsibility should count’.71 The Indian delegation, while supporting the ‘Yalta formula’ and the right of veto of some great powers, found it, however, ‘particularly unpalatable’ that such rights were given to China and France. It agreed that it was consistent for a permanent member to exercise its veto in a dispute to which it was not a party, and it was also desirable that the veto should be applicable in some other matters also.72 The Indian delegation also took a lot of interest in the future of the League of Nations mandates. Mudaliar reiterated Indian opposition to the restoration of colonies to their original colonizers, because such a policy would ‘encourage the belief which was held in Eastern countries that the object of the struggle [i.e. the Second World War] was to bring about the re-establishment of colonial rule by the European powers’. He suggested that these colonial territories be put under 69 British Commonwealth Meeting, 4 April 1945, quoted in ibid., at 437. 70 Quoted in Rajan, supra note 61, at 438–9. 71 Quoted in ibid., at 438–9. 72 Quoted in ibid., at 140. 60 20 R. P. A NA N D international trusteeship with a view to removing ‘a fundamental cause of future wars’.73 11. THE SAN FRANCISCO CONFERENCE The London Conference was considered as a ‘useful rehearsal’ for Commonwealth delegations before going on to the San Francisco Conference. The Indian delegation was one of the smallest at San Francisco and, according to the Indian Report, there was a great deal of stress on its members and pressure to attend committees which met simultaneously. In his preliminary remarks the leader of the Indian delegation referred to the part played by India in the First and Second World Wars. While commending the four sponsoring powers for their contribution to victory in the Second World War, Mudaliar added, We talk of the Great Powers and of small powers; we talk of the special responsibility of the Great Powers, and the special privileges of the Great Powers also. I should therefore like to put in its appropriate perspective what India has done in this war. Two and a half million sons of India . . . drawn on a voluntary basis, are today fighting in the different parts of the world. He pointed out that, next to the armed forces of the sponsoring powers, the Indian army was the largest in the field. Further, none of the great powers standing alone could have withstood the aggressor states. He reminded the great powers of the great contribution of the smaller countries.74 The Indian delegation sponsored four amendments to the DOP relating to (i) human rights, (ii) penalizing a member if it failed in its financial obligations, (iii) criteria for the selection of the non-permanent members of the Security Coun- cil, and (iv) the inclusion of observers in the Security Council. The Indian delegation was quite concerned about the selection of states to sit on the Security Council which, it argued, should be based, inter alia, on population, industrial potential, will- ingness and ability to contribute to international security arrangements, and past performance. It supported the Yalta formula regarding the veto, but suggested that the provision should be open to revision after ten years. Since the big powers were determined to have the Charter as they wanted, India and other smaller countries hardly mattered. In the end, as Mudaliar said, ‘We realize as earnestly as anyone else in this conference that it is vital to bring into existence an organization, however defective, on which the hopes, the aspirations of the people of the world depend.’75 It may be mentioned that not only India, which was not even independent at that time, but Asian countries as such played a very small and insignificant role in the formulation of the UN Charter.76 In the UNCIO, there were only six of them, and two of these – India and the Philippines – were not yet independent. The Indian 73 Ibid., at 441. 74 Report of the Conference of the United Nations in San Francisco, 3 August 1945, quoted in ibid., at 443–5. 75 Quoted in Rajan, supra note 61, at 449; see also ibid., at 40. 76 A. Lall, ‘The Asian Nations and the United Nations’, in N. Padelford and L. Goodrich (eds.), The United Nations in the Balance (1965), 365. 61 Treaties concluded between States and international organizations or between two or more international organizations 21 (23) Yet the Commission has wondered whether the concept of international organization should not be defined by something other than the "intergovernmen- tal" nature of the organization. In connection with the second reading of the article, several Governments also suggested that this should be the case.31 After having further discussed this question, the Commission has de- cided to keep its earlier definition, taken from the Vienna Convention, because it is adequate for the pur- poses of the draft articles; either an international organization has the capacity to conclude at least one treaty, in which case the rules in the draft articles will be applicable to it, or, despite its title, it does not have that capacity, in which case it is pointless to state explicitly that the draft articles do not apply to it. (24) Subparagraph 1 (j) is a new provision by com- parison with the Vienna Convention. In the light of a number of references which appear in the present draft articles to the rules of an international organization, it was thought useful to provide a definition for the term "rules of the organization". Reference was made in particular to the definition that had recently been given in the Convention on the Representation of States. The Commission accordingly adopted the present sub- paragraph, which reproduces verbatim the definition given in that Convention. (25) However, a question which occupied the Com- mission for some considerable time was that of the terms referring to the organization's own law, or that body of law which is known as "the internal law" of a State and which the Commission has called "the rules" of an international organization. The Commission has, finally, left its definition unchanged. There would have been problems in referring to the "internal law" of an organization, for while it has an internal aspect, this law also has in other respects an international aspect. The definition itself would have been incomplete without a reference to "the constituent instruments ... of the organization"; it also had to mention the precepts established by the organization itself, but the ter- minology used to denote such precepts varies from organization to organization. Hence, while the precepts might have been designated by a general formula through the use of some abstract theoretical expression, the Commission, opting for a descriptive approach, has employed the words "decisions" and "resolutions"; the adverbial phrase "in particular" shows that the adop- tion of a "decision" or of a "resolution" is only one ex- ample of the kind of formal act that can give rise to "rules of the organization". The effect of the adjective "relevant" is to underline the fact that it is not all "decisions" or "resolutions" which give rise to rules, but only those which are of relevance in that respect. Lastly, reference is made to established practice. This point once again evoked comment from Governments and international organizations." It is true that most in- ternational organizations have, after a number of years, a body of practice which forms an integral part of their rules.53 However, the reference in question is in no way intended to suggest that practice has the same standing in all organizations; on the contrary, each organization has its own characteristics in that respect. Similarly, by referring to "established" practice, the Commission seeks only to rule out uncertain or disputed practice; it is not its wish to freeze practice at a particular moment in an organization's history. Organizations stressed this point at the United Nations Conference on the Law of Treaties (1969) and the United Nations Conference on the Representation of States in Their Relations with In- ternational Organizations (1975).34 (26) Article 2, paragraph 2, extends to international organizations the provisions of article 2, paragraph 2, of the Vienna Convention, adjusted in the light of the adoption of the term "rules of the organization" as ex- plained above. Article 3. International agreements not within the scope of the present articles The fact that the present articles do not apply: (i) to international agreements to which one or more States, one or more international organizations and one or more subjects of international law other than States or organizations are parties; or (ii) to international agreements to which one or more international organizations and one or more sub- jects of international law other than States or organizations are parties; or (iii) to international agreements not in written form between one or more States and one or more in- ternational organizations, or between interna- tional organizations; shall not affect: (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present articles to which they would be sub- ject under international law independently of the pres- ent articles; (c) the application of the present articles to the rela- tions between States and international organizations or to the relations of organizations as between themselves, when those relations are governed by international agreements to which other subjects of international law are also parties. 51 See "Topical summary..." (A/CN.4/L.311), para. 171; and Yearbook ... 1981, vol. II (Part Two), pp. 188-189, annex II, sect. A. 10, subsect. IV. 1. 52 See, for example, Yearbook ... 1981, vol. II (Part Two), p. 189, annex II, sect A. 10, subsect. IV.2. " This was the view taken by the International Court of Justice with regard to the effect of abstentions by permanent members of the Security Council in voting in that body, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, I.C.J. Reports 1971, p. 22, para. 22. 54 See Yearbook ... 1972, vol. II, pp. 106 and 107, document A/CN.4/258, para. 51. 64 Responsibility of international organizations 49 may be understood as covering by analogy also the case where a valid consent to the commission of the act of the State is given by an international organization. Article 2. Use of terms For the purposes of the present draft articles: (a) “international organization” means an or- ganization established by a treaty or other instru- ment governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities; (b) “rules of the organization” means, in par- ticular, the constituent instruments, decisions, resolu- tions and other acts of the international organization adopted in accordance with those instruments, and established practice of the organization; (c) “organ of an international organization” means any person or entity which has that status in accordance with the rules of the organization; (d) “agent of an international organization” mea a o al or ot er er o or e t t ot er than an organ, who is charged by the organization with carrying out, or helping to carry out, one of its functions, and thus through whom the organization acts. Commentary (1) The definition of “international organization” given in article 2, subparagraph (a), is considered as appropriate for the purposes of the present draft articles and is not intended as a definition for all purposes. It outlines certain common characteristics of the international organizations to which the following articles apply. The same characteristics may be relevant for purposes other than the international re- sponsibility of international organizations. (2) The fact that an international organization does not possess one or more of the characteristics set forth in art- icle 2, subparagraph (a), and thus is not within the def- inition for the purposes of the present articles, does not imply that certain principles and rules stated in the fol- lowing articles do not apply also to that organization. (3) Starting with the 1969 Vienna Convention,57 sev- eral codification conventions have succinctly defined the term “international organization” as “intergovernmental organization”.58 In each case, the definition was given only for the purposes of the relevant convention and not for all purposes. The text of some of these codification conventions added some further elements to the defini- tion: for instance, the 1986 Vienna Convention only applies to those intergovernmental organizations that 57 The relevant provision is article 2, paragraph (1) (i). 58 See article 1, paragraph 1 (1), of the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character; article 2, paragraph 1 (n), of the 1978 Vienna Convention; and article 2, paragraph 1 (i), of the 1986 Vienna Convention. have the capacity to conclude treaties.59 No additional element would be required in the case of international responsibility apart from possessing an obligation under international law. However, the adoption of a different definition is preferable for several reasons. First, it is questionable whether by defining an international organ- ization as an intergovernmental organization one provides much information: it is not even clear whether the term “intergovernmental organization” refers to the constituent instrument or to actual membership. Second, the term “intergovernmental” is in any case inappropriate to a certain extent, because several important international organizations have been established with the participa- tion also of State organs other than Governments. Third, an increasing number of international organizations in- clude among their members entities other than States as well as States; the term “intergovernmental organization” might be thought to exclude these organizations, although with regard to international responsibility it is difficult to see why one should reach solutions that differ from those applying to organizations of which only States are members. (4) Most international organizations are established by treaties. Thus, a reference in the definition to treaties as constituent instruments reflects prevailing practice. How- ever, forms of international cooperation are sometimes established without a treaty. In certain cases, for instance with regard to the Nordic Council of Ministers, a treaty was subsequently concluded.60 In order to cover organizations established by States on the international plane without a treaty, article 2 refers, as an alternative to treaties, to any “other instrument governed by inter- national law”. This wording is intended to include instru- ments such as resolutions adopted by an international organization or by a conference of States. Examples of international organizations that have been so estab- lished include the Pan American Institute of Geography and History61 and the Organization of the Petroleum Exporting Countries.62 (5) The reference to “a treaty or other instrument governed by international law” is not intended to exclude entities other than States from being regarded as members of an international organization. This is unproblematic with regard to international organizations which, so long as they have a treaty-making capacity, may well be a party to a constituent treaty. The situation is likely to be different with regard to entities other than States and international 59 See article 6 of the Convention. As the Commission noted with regard to the draft articles on treaties concluded between States and international organizations or between two or more international organizations (paragraph (22) of the commentary to article 2), “Either an international organization has the capacity to conclude at least one treaty, in which case the rules in the draft articles will be applicable to it, or, despite its title, it does not have that capacity, in which case it is pointless to state explicitly that the draft articles do not apply to it” (Yearbook … 1981, vol. II (Part Two), p. 124). 60 1962 Agreement concerning co-operation (Finland, Denmark, Iceland, Norway and Sweden), amended in 1971. 61 See A. J. Peaslee (ed.), International Governmental Organizations—Constitutional Documents, 3rd rev. ed., Parts Three and Four, The Hague, Martinus Nijhoff, 1979, pp. 389–403. 62 See P. J. G. Kapteyn et al. (eds.), International Organization and Integration—Annotated Basic Documents and Descriptive Directory of International Organizations and Arrangements, 2nd rev. ed., The Hague, Martinus Nijhoff, 1984, II.K.3.2.a. 65 50 Report of the International Law Commission on the work of its sixty-third session organizations. However, even if the entity other than a State does not possess treaty-making capacity or cannot take part in the adoption of the constituent instrument, it may be accepted as a member of the organization if the rules of that organization so provide. (6) The definition in article 2 does not cover organizations that are established through instruments governed by municipal law, unless a treaty or another instrument governed by international law has been sub- sequently adopted and has entered into force.63 Thus the definition does not include organizations such as the In- ternational Union for Conservation of Nature (IUCN), although over 70 States are among its members,64 or the Institut du monde arabe, which was established as a foundation under French law by 20 States.65 (7) Article 2 also requires the international organiza- tion to possess “international legal personality”. The acquisition of legal personality under international law does not depend on the inclusion in the constituent instru- ment of a provision such as Article 104 of the Charter of the United Nations, which reads as follows: The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. The purpose of this type of provision in the constituent instrument is to impose on the member States an obli- gation to recognize the organization’s legal personality under their internal laws. A similar obligation is imposed on the host State when a similar text is included in the headquarters agreement.66 (8) The acquisition by an international organization of legal personality under international law is appraised in different ways. According to one view, the mere existence for an organization of an obligation under international law implies that the organization possesses legal personality. According to another view, further elements are required. While the International Court of Justice has not identified particular prerequisites, its dicta on the legal personality of international organizations do not appear to set stringent requirements for this purpose. In its advisory opinion on the Interpretation of the Agreement of 25 March 1951 be- tween the WHO and Egypt, the Court stated that [i]nternational organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under interna- tional agreements to which they are parties.67 63 This was the case of the Nordic Council of Ministers (see footnote 60 above). 64 See www.iucn.org. 65 A description of the status of this organization may be found in a reply by the Minister for Foreign Affairs of France to a parliamentary question, AFDI, vol. 37 (1991), pp. 1024–1025. 66 Thus, in its judgment No. 149 of 18 March 1999 in Istituto Universitario Europeo v. Piette, the Italian Court of Cassation found that “[t]he provision in an international agreement of the obligation to recognize legal personality to an organization and the implementation by law of that provision only mean that the organization acquires legal personality under the municipal law of the contracting States” (Giustizia civile, vol. 49 (1999), p. 1313). 67 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, p. 73, at pp. 89–90, para. 37. In its advisory opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, the Court noted that [t]he Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a gen- eral competence.68 While it may be held that, when making both these statements, the Court had an international organization of the type of the World Health Organization (WHO) in mind, the wording is quite general and appears to take a liberal view of the acquisition by international organizations of legal personality under international law. (9) In the passages quoted in the previous paragraph, and more explicitly in its advisory opinion on Repara- tion for Injuries,69 the Court appeared to favour the view that when legal personality of an organization exists, it is an “objective” personality. Thus, it would not be ne- cessary to enquire whether the legal personality of an or- ganization has been recognized by an injured State before considering whether the organization may be held inter- nationally responsible according to the present articles. (10) The legal personality of an organization, which is a precondition of the international responsibility of that or- ganization, needs to be “distinct from that of its member- States”.70 This element is reflected in the requirement in article 2, subparagraph (a), that the international legal personality should be the organization’s “own”, a term that the Commission considers as synonymous with the phrase “distinct from that of its member States”. The ex- istence for the organization of a distinct legal personality does not exclude the possibility of a certain conduct being attributed both to the organization and to one or more of its members or to all its members. (11) The second sentence of article 2, subparagraph (a), seeks first of all to emphasize the role that States play in practice with regard to all the international organizations which are covered by the present articles. This key role was expressed by the International Court of Justice, albeit incidentally, in its advisory opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, in the following sentence: International organizations are governed by the “principle of speciality”, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.71 Many international organizations have only States as members. In other organizations, which have a different 68 Legality of the Use by a State of Nuclear Weapons in Armed Con- flict, Advisory Opinion, I.C.J. Reports 1996, p. 66, at p. 78, para. 25. 69 Reparation for injuries suffered in the service of the United Na- tions, Advisory Opinion: I.C.J. Reports 1949, p. 174, at p. 185. 70 This wording was used by G. G. Fitzmaurice in the definition of the term “international organization” that he proposed in his first report on the law of treaties (Yearbook … 1956, vol. II, document A/ CN.4/101, p. 108) and by the Institute of International Law in its 1995 Lisbon resolution on “The legal consequences for member states of the non-fulfilment by international organizations of their obligations toward third parties” (Institute of International Law, Yearbook, vol. 66, Part II, Session of Lisbon (1995), p. 445; available from www.idi-iil. org, “Resolutions”). 71 See footnote 68 above. 66 INTERNATIONAL COURT OF JUSTICE YEAR 1949. April llth, 1949. REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NAl-IONS l~tjrivies sttgered by agents of United Nations i n course of per- formance of dttties.-Damage to United Nations.-Dafnage fo agents. -Capacity of United Nations to bring claims for re#avation due i n respect of both.-International personality of United Nattons.- Capacity as necessary implication arising from CAnrtev and actiaities of United Nations.-Functional protection of agents.-Clnim against a Mevnber of the United 1Vations.-Claim against n non-~izew~bcv.- Reconciliation of claim by ?zutional State and claim by United Natzons. -Clailn by United Nations ngainst agent's national Statr. ADVISORY OPINION. 1949. April I th. General List No. 4. Present : President BASDEVANT ; Vice-President GUERRERO ; Judges ALVAREZ, FABELA, HACKWORTH, WINIARSKI, ZORICIC, DE VISSCHER, Sir Arnold MCNAIR, KLAESTAD, BADAWI PASHA, KRYLOV, READ, HSU MO, AZEVEDO. 69 OPIN. O F II I V 49 (REP.IKATIOS FOR ISJCKIICS SCPFERED) I7j THE COURT, composed a s above, gives the folloming ad1-içory opinion : On Decenlber 3rd, 1948, the General Xssc.mbl'- of t h , Uilitccl Nations adopted the following Kcsolution : "LVhereas the series of tragic el*ents ahicli 1iax.e lately befallen agents of the United Nations engaged in the performance of tlieir duties raises, with greater urgency than ever, the question of the arrangements to be made by the l-nited Sations with a view to ensuring to its agents the fiillest Ineasiire o f protection in the future and ensiiring that reparation be made for the injuries suffered ; and \Vhereas it is highly desirable tliat the Secretar\.-Gc~itral slioiiltl be able to act withoiit question as eificacioiisly as possible \vit11 a view to obtaining any reparation dile ; tlieretore The General Assenlbly Decides to siibmit the following legal questions to tlie Inter- national Court of Justice for an acivisor>- opinion : '1. In the event of an agent of the United Xatioiis in the performance of his duties suffering injury in circiimstances iilvolving the responsibility of a State, has the United Sations, as an Or-ganization, the capacity to bring an interiiatio~ia: claim against the responsible de jure or de facto governilient with a view to obtaining the reparation due in respect of tlie clamage caused (a) to the United Xations, ( h ) to tlie \ictini or to perçons entitled tlirough him ? II. In the event of an affirmative reply on point 1 ( b ) , how is action by the United Nations to be reconcilecl \vit11 siicli rights as niay be possessed hy the State of wliicli the xictini is a national ?' Instructs the Secretary-General, after the Court lias gi\-en its opinion, to prepare proposais in the liglit of tliat opinion, and to submit thein to the General Assembly at its nest regiilar session." In a letter of December 4th, 1948, filed in the Registry on December 7th, the Secretary-General of the United ,Vations for- warded t o the Court a certified true copy of the liesoliitioii of the General Assembly. On December ~ o t h , i11 accor(1ance n i t h paragraph I of Article 66 of the Statute, the Kegistrar gave notice of the Request t o al1 States entitled t o appear before the Court. On Ilecember r ~ t h , by ineans of a special and direct commiini- cation as provided in paragraph 2 of Article 66, he informed these States thnt , in an Ortler made on the sanie date, the Court had 5 70 stated that it was prepared to receive written statements on the questions before February q t h , 1949, and to hear oral statements on March 7th, 1949. Written statements were received from the following States : India, China, United States of Amenca, United Kingdom of Great Bntain and Northern Ireland, and France. These state- ments were communicated to al1 States entitled to appear before the Court and to the Secretary-General of the United Nations. 111 the meantime, the Secretary-General of the United Nations, having regard to Article 65 of the Statute (paragraph 2 of which provides that every- question submitted for an opinion shall be accompanied by al1 documents likely to throw light upon it), had sent to the Registrar the documents whkh are enumerated in the list annexed to this Opinion. Furthermore, the Secretary-General of the United Nations and the Governments of the French Republic, of the United Kingdom and of the Kingdom of Belgium informed the Court that they had designated representatives to present oral statements. In the course of public sittings held on March 7th, 8th and gth, 1949, the Court heard the oral statements presented on bel-ialf of the Secretary-General of the United Nations by Mr. Ivan Kerno, Assistant Secretary-General in charge of the Legal Department as his Representative, and by Mr. A. H. Feller, Principal Director of that Department, as Counsel ; on behalf of the Government of the Kingdom of Kelgiurn, by M. Georges Kaeckenbeeck, D.C.L., Minister Plenipotentiary of His Majesty the King of the Belgians, Head of the Divisioii for Peace Conferences and International Organization at the JIinistry for Foreign Affairs, Member of the Permanent Court of Xrbitration ; on behalf of the Government of the French Iiepublic, by M. Charles Chaumont, Professor of Public International Law at the Faculty of Law, Nancy ; Legai Adviser to the Ministry for Foreign Affairs ; on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland by Mr. G. G. Fitzmaurice, Second Legal Adviser to the Foreign Office. The first question asked of the Court is as folbws : "In the event of an agent of the Cnited Sations in tlie per- formance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Xations, as an Organization, the capacit!. to bring an international clnini :igain.;t O 71 OPIN. OF II IV 49 (REPARATION FOR INJURIES SUFFERED) 179 by giving the Organization legal capacity and privileges and immunities in the territory of each of its Members ; and by providing for the conclusion of agreements between the Organization and its Members. Practice—in particular the conclusion of conventions to which the Organization is a party—has confirmed this character of the Organization, which occupies a position in certain respects in detachment from its Members, and which’is under a duty to temind them, if need be, of certain obligations. It must be added that the Organization is a political body, charged with political tasks of an important character, and covering a wide field namely, the maintenance of international peace and security, the develop- ment of friendly relations among nations, and the achievement of international co-operation in the solution of problems ofan economic, social, cultural or humanitarian character (Article 1) ; and in dealing with its Members it employs political means. The ‘“Convention on the Privileges and Immunities of the United Nations’ of 1946 creates rights and duties between each of the signatories and the Organization (see, in particular, Section 35). It is difficult to see how such a convention could operate except upon the international plane and as between parties possessing international personality. In the opinion of the Court, the Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane, It is at present the supreme type of international organization, and it could not carry out the intentions of its founders if it was devoid of international personality. It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged. Accordingly, the Court has come to the conclusion that the Organization is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are ‘the same as those of a State. Still less is it the same thing as saying that it is “a super-State”, whatever that expression may mean, It does not even imply that all its rights and duties must be upon the inter- national plane, any more than all the rights and duties of a State must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims. The next question is whether the sum of the international rights of the Organization comprises the right to bring the kind of inter- national claim described in the Request for this Opinion. That is a claim against a State to obtain reparation in respect of the 9 74 damage caused by the injury of an agent of the Organization in the course of the performance of his duties. Whereas a State possesses the totality of international nghts and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice. The functions of the Organization are of such a character that they could not be effectively discharged if they involved the concurrent action, on the international plane, of fifty-eight or more Foreign Offices, and the Court concludes that the Members h a ~ e endowed the Organization with capacity to bring international claims when necessitated by the discharge of its functions. What is the position as regards the claims mentioned in the request for an opinion ? Question 1 is divided into two points. which must be considered in turn. Question 1 (a) is as follows : "In the event of an agent of the United Nations in the per- formance of his duties suffering injury in circumstances involving the responsibility of a State, has the United' Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations .... ?" The question is concerned solely with the reparation of damage caused to the Organization when one of its agents suffers injury at the same tirne. I t cannot be doubted that the Organization has the capacity to bnng an international claim against one of its Mem- bers which has caused injury to it by a breach of its international obligations towards it. The damage specified in Question 1 (a) means exclusively damage caused to the interests of the Organiza- tion itself, to its administrative machine, to its property and assets, and to the interests of which it is the guardian. I t is clear that the Organization has the capacity to bring a claim for tliis damage. As the claim is based on the breach of an international obligation on the part of the Member held responsible by the Organ- ization, the Member cannot contend that this obligation is governed by municipal law, and the Organization is justified in giving its claim the character of an international claim. When the Organization has sustained damage resulting from a breach by a Member of its international obligations, it is impossible to see how it can obtain reparation unless it possesses capacity to bring an international claim. I t cannot be supposed that in such an event al1 the Members of the Organization, Save the defendant IO 75 OPIN. OF II IV 49 (REPARATION FOR INJURIES SUFFERED) 181 State, must combine to bring a claim against the defendant for the damage suffered by the Organization. The Court is not called upon to determine the precise extent of the reparation which the Organization would be entitled to recover. I t may, however, be said that the measure of the reparation should depend upon the amount of the damage which the Organization has suffered as the result of the wrongful act or omission of the defendant State and should be calculated in accordance with the rules of international law. Amongst other things, this damage would include the reimbursement of any reasonable compensation which the Organization had to pay to its agent or to persons entitled through him. Again, the death or disablement of one of its agents engaged upon a distant mission might involve very considerable expenditure in replacing him. These are mere illustrations, and the Court cannot pretend to forecast al1 the kinds of damage which the Organization itself might sustain. Question 1 (b) is as follows : ...." has the United Nations, as an Organization, ,the capacity to bring an international claim .... in respect of the damage caiised .... (b) to the victim or to persons entitled through him ? " In dealing with the question of law which arises out of Question 1 (b) , it is unnecessary to repeat the consideïations which led to an affirmative answer being given to Question 1 (a). I t can now be assumed that the Organization has the capacity to bring a claim on the international plane, to negotiate, to conclude a special agreement and to prosecute a claim before an international tribunal. The only legal question which remains to be considered is whether, in the course of bringing an international claim of this kind, the Organiza- tion can recover "the reparation due in respect of the damage caused .... to the victim .... ". The traditional rule that diplomatic protection is exercised by the national State does not involve the giving of a negative answer to Question 1 (b). In the first place, this rule applies to claims brought by a State. But here we have the different and new case of a claim that would be brought by the Orgaiiization. In the second place, even in inter-State relations, there are impor- tant exceptions to the rule, for there are cases in which protection may be exercised by a State on behalf of perçons not having its nationalit y. In the third place, the rule rests on two bases. The first is that the defendant State has broken an obligation towards the national State in respect of its nationals. The second is that only the pnrty 76 whether the agent belongs to a powerful or to a weak State; to one more affected or less affected, by the complications of inter- national life; to one in syrnpathy or#not in sympathy with the mission of the agent-he should know that in the performance of his duties he is under the protection of the Organization. This assurance is even more necessary when the agent is stateless. Upon examination of the character of the functions entrusted to the Organization and of the nature of the missions of its agents, it becomes clear that the capacity of the Organization to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter. The obligations entered into by States to enable the agents of the Organization to perform their duties are undertaken not in the interest of the agents, but in that of the Organization. Il'hen it clairns redress for a breach of these obligations, the Organization is invoking its own right, the right that trie obligations due to it should be respected. On this ground, it asks for reparation of the injury suffered, for "it is a principle of international laïv that the breach of an engagement involves an obligation to make reparation in an adequate form"; as was stated bv the Permanent Court in its Judgment No. 8 of July 26th, 1927 (Series A., No. g, p. 21). In claiming reparation based oii the injury suffered by its agent, the Organization does not represent the agent, but is asserting its own right, the right to secure respect for undertakings entered into towards the Organization. Having regard to the foregoing considerations, and to the un- deniable right of the Organization to demand tliat its Members shall fulfil the obligations entered into by them in the interest of the good working of the Organization, the Court is of the opinion that, in the case of a breach of these obligations, the Organization has the capacity to claim ad.equate reparation, and that in assessing this reparation it is authorized to include the darnage suffered by the victini or by persons entitled through him. The question remains whether the Organization has "the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, ( b ) to the victim or to persons entitled through him" when the defen- dant State is not a member of the Organization. In considering this aspect of Question 1 (a) and ( b ) , it is neces- sary to keep in mind the reasons which liave led the Court to give an affirmative answer to it when the defendant State is a Member of the Organization. I t has now been established that the Organization has capacity to bring ciaims on the international 79 plane, arid that it possesses a right of functio~ial protection in respect of its agents. Here again the Court is authorized to assume that the damage suffered involves the responsibility of a State, and i t is not called upon to express an opinion upon the various ways in which that responsibility might be engaged. Accordingly the question is whether the Organization has capacity to bring a claim against the defendant State to recover reparation in respect of that damage or whether, on the contrary, the defendant State, not being a member, is justified in raising the objection that the Organization lacks the capacity to bring an international claim. On this point, the Court's opinion is that fifty States, rcpresenting the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims. Accordingly, the Court arrives a t the conclusion that ail affir- mative answer should be given to Question 1 (a) and (b) whether or not the defendant State is a Member of the United Xations. Question II is as follo~vs : "In the event of an affirmative reply on point 1 ( O ) , Iiow is action by the Cnited Xations to be reconciled u i t h siicli rights as may be possessed by the State of which tlie victim is a national ? " The affirmative reply given by the Court on point 1 (b) obliges it now to examine Question II. When the victim has a ilationality, cases can clearly occur in which the injury suffered by him may engage the interest both of his national State and of the Organ- ization. In such an event, competition between the State's right of diplomatic protection and the Organization's right of functional protection might arise, and this is the only case with which the Court is invited to deal. In such a case, there is no rule of l a n n:hich assigns priority to the one or to the other, or which compels either the State or the Organization to refrain from bri~ging an international claim. 80 The Court sees no reason why the parties concerned should not find solutions inspired by goodwill and common sense, and as between the Organization and its Members it draws attention to their duty to render "every assistance" provided by -4rticle 2, paragraph 5, of the Charter. hlthoiigh the bases of the two claims are different, that doeî not mean that the defendant State can be compelled to pay the reparation due in respect of the damage twice over. International tribunals are already familiar with the problem of a claim in which two or more national States are interested. and thev know how to protect the defendant State in such a case. The risk of competition between the Organization and the national State can be reduced or eliminated either by a general convention or by agreements entered into in each particular case. There is no doubt that in due course a practice will be developed, and it is worthy of note that already certain States whose nationals have been iniured in the ~erformance of missions undertaken for the Organization have shown a reasonable and CO-operative disposi- tion to find a practical solution. The question of reconciling action by the Organizatiori with the rights of a national State may arise in another wdy ; that is to say, when the agent bears the nationality of the defendant State. The ordinary practice whereby a State does not exercise protcc- tion on behalf of one of its nationals against a State which regards him as its own national, does not constitute a precedent which is relevant here. The action of the Organization is in fact based not upon the nationality of the victim but upon his status as agent of the Organization. Therefore i t does not inatter whether or not the State to which the claim is addressed regards him as its own national, because the question of nationality is not pertinent to the admissibility of the claim. In law, therefore, it does not seem that the fact of the possession of the nationality of the defendant State by the agent constitutes any obstacle to a claim brought by the Organization for a breach of obligations towards i t occurring in relation to the performance of his mission by that agent. 81 OPIN. O F II I V 49 (REPARATION FOR I N J U R I E S SUFFERED) 189 Judge WINIARSKI states with regret that he is unable to concur in the reply given by the Court to Question 1 (b). In general, he shares the views expressed in Judge Hackworth's dissenting opinion. Judges ALVAREZ and AZEVEDO, whilst concurring in the Opinion of the Court, have availed themselves of the right conferred on them by Article 57 of the Statute and appended to the Opinion statements of their individual opinion. Judges HACKWORTH, BADAWI PASHA and KRYLOV, declaring that they are unable to concur in the Opinion of the Court, have availed themselves of the right conferred on them by Article 57 of the Statute and appended to the Opinion statements of their dissenting opinion. 84 INTERNATIONAL COURT OF JUSTICE 1962 2 0 July General List No. 49 YEAR 1962 20 July 1962 CERTAIN EXPENSES OF THE UNITED NATIONS (ARTICLE 17, PARAGRAPH 2 , OF THE CHARTER) Resolution I73I ( X V I ) of General Assembly requesting advisory opinion.-ûbjections to giving opinion based o n proceedings in Gen- eral Assemb1y.-Interpretation of meaning of "expenses of the Organization".-Article 17, paragraphs I and 2, of Charter.-Lack of jzcstification for limiting terms "budget" and "exPenses".-Article 17 i n context of Charter.-Respective functions of Security Council and General Assemb1y.-Article II, fiaragraph 2 , in relation to budgetary powers of General Assemb1y.-Role of General Assembly in mailztenance of international peace and security.-Agreements under Article 43.- Expenses incurred for purposes of United Nations.-Obligations incurred by Secretary-General acting under authority of Security Council or General Assemb1y.-Nature of operations of U N E F and 0NUC.-Financing of U N E F and O N U C based on Article 17, paragraph 2.-Implementation by Secretary-General of Security Council reso1utions.-Expenditures for U N E F and O N U C and Article 17, $aragraPh 2, of Charter. ADVISORY O P I N I O N Prescîzt : President WINIARSKI ; Vice-President ALFARO ; Judges BASDEVANT, BADAWI, MORENO QUINTANA, WELLINGTON K o o , SPIROPOULOS, Sir Percy SPENDER, Sir Gerald FITZ- MAURICE, KORETSKY, TANAKA, BUSTAMANTE Y RIVERO, JESSUP, MORELLI ; Registrar GARNIER-COIGNET. 85 152 CERTAIN EXPENSES O F U.N. (OPINION O F 20 VI1 62) Concerning the question whether certain expenditures authorized by the General Assembly "constitute 'expenses of the Organization' within the meaning of Article 17, paragraph 2, of the Charter of the United Nations", composed as above, gives the following Advisory Opinion: The request which laid the matter before the Court was formu- lated in a letter dated 21 December 1961 from the Acting Secre- tary-General of the United Nations to the President of the Court, received in the Registry on 27 December. In that letter the Acting Secretary-General informed the President of the Court that the General Assembly, by a resolution adopted on 20 December 1961, had decided to request the International Court of Justice to give an advisory opiniotl on the following question : "Do the expenditures authorized in General Assembly resolutions 1583 (XV) and 1590 (XV) of 20 December 1960, 1595 (XV) of 3 April 1961, 1619 (XV) of 21 April 1961 and 1633 (XVI) of 30 Oc- tober 1961 relating to the United Nations operations in the Congo undertaken in pursuance of the Security Council resolutions of 14 July, 22 July and 9 August 1960, and 21 February and 24 No- vember 1961, and General Assembly resolutions 1474 (ES-IV) of 20 September 1960 and 1599 (XV), 1600 (XV) and 1601 (XV) of 15 April1961, and the expenditures authorized in General Assembly resolutions 1122 (XI) of 26 November 1956, 1089 (XI) of 21 Decem- ber 1956, 1090 (XI) of 27 February 1957, 1151 (XII) of 22 Novem- ber 1957, 1204 (XII) of 13 December 1957, 1337 (XIII) of 13 De- cember 1958, 14.41 (XIV) of 5 December 1959 and 1575 (XV) of 20 December 1960 relating to the operations of the United Nations Emergency Force undertaken in pursuance of General Assembly resolutions 997 (ES-1) of 2 November 1956, 998 (ES-1) and 999 (ES-1) of 4 November 1956, 1000 (ES-1) of 5 November 1956, 1001 (ES-1) of 7 November 1956, 1121 (XI) of 24 November 1956 and 1263 (XIII) of 14 November 1958, constitue 'expenses of the Organization' within the meaning of Article 17, paragraph 2, of the Charter of the United Nations?" I n the Acting Secretary-General's letter was enclosed a certified copy of the aforementioned resolution of the General Assembly. At the same time the Acting Secretary-General announced that he would transmit to the Court, in accordance with Article 65 of the Statute, al1 documents likely to throw light upon the question. Resolution 1731 (XVI) by which the General Assembly decided to request an advisory opinion from the Court reads as follows: "The General Assembly, Recognizing its need for authoritative legal guidance as to obli- gations of Member States under the Charter of the United Nations 5 86 155 CERTAIN EXPENSES O F U.N. (OPINION O F 20 SrII 62) Before prcceeding to give its opinion on the question put to it, the Court considers it necessary to make the following preliminary remarks : The power of the Court to give an advisory opinion is derived from Article 65 of the Statute. The power granted is of a discre- tionary character. In exercising its discretion, the International Court of Justice, like the Permanent Court of International Justice, has always been guided by the pnnciple which the Permanent Court stated in the case concerning the Status of Eastern Carelia on 23 July 1923: "The Court, being a Court of Justice, cannot, even in giving advisory opinions, depart from the essential rules guiding their activity as a Court" (P.C.I. J., Series B, No. 5, p. 29). Therefore, and in accordance with Article 65 of its Statute, the Court can give an advisory opinion only on a legal question. If a question is no1 a legal one, the Court has no discretion in the matter; it must decline to'give the opinion requested. But even if the question is a legal one, which the Court is undoubtedly competent to answer, it may nonetheless decline to do so. As this Court said in its Opinion of 30 March 1950, the permissive character of Article 65 "gives the Court the power to examine whether the circumstances of the case are of such a character as should lead it to decline to answer the Request" (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase), I.C. J . Reports 1950, p. 72). But, as the Court also said in the same Opinion, "the reply of the Court, itself an 'organ of the United Nations', represents its participation in the activities of the Organization, and, in principle, should not be refused" (ibid., p. 71). Still more emphatically, in its Opinion of 23 October 1956, the Court said that only "compelling reasons" should lead it to refuse to give a requested advisory opinion (Judg- ments of the Administrative Tribunal of the I.L.O. upon complaints made against the Unesco, I.C. J . Reports 1956, p. 86). The Court finds no "compelling reason" why.it should not give the advisory opinion which the General Assembly requested by its resolution 1731 (XVI). I t has been argued that the question put to the Court is intertwined with political questions, and that for this reason the Court should refuse to give an opinion. I t is tme that most interpretations of the Charter of the United Nations will have political significance, great or small. In the nature of things it could not be othenvise. The Court, however, cannot attribute a political character to a request which invites it to undertake an essentially judicial task, namely, the interpretation of a treaty provision. In the preamble to the resolution requesting this opinion, the General Assembly expressed its recognition of "its need for authori- 8 89 tative legal guidance". In its search for such guidance it has put to the Court a legal question-a question of the interpretation of Article 17, paragraph 2, of the Charter of the United Nations. In its Opinion of 28 May 1948, the Court made it clear that as "the principal judicial organ of the United Nations", it was entitled to exercise in regard to an article of the Charter, "a multilateral treaty, an interpretative function which falls within the normal exercise of its judicial powers" (Conditions of Adlnission of a State to Member- ship in the United Nations (Article 4 of the Charter), I.C. J . Reports 1947-1948, p. 61). The Court, therefore, having been asked to give an advisory opinion upon a concrete legal question, will proceed to give its opinion. The question on which the Court is asked to give its opinion is whether certain expenditures which were authorized by the General Assembly to cover the costs of the United Nations operations in the Congo (hereinafter referred to as ONUC) and of the operations of the United Nations Emergency Force in the Middle East (hereinafter referred to as UNEF), "constitute 'expenses of the Organization' within the meaning of Article 17, paragraph 2, of the Charter of the United Nations". Before entering upon the detailed aspects of this question, the Court will examine the view that it should take into consideration the circumstance that at the 1086th Plenary Meeting of the General Assembly on 20 December 1961, an amendment was proposed, by the representative of France, to the draft resolution requesting the advisory opinion, and that this amendment was rejected. The amendment would have asked the Court to give an opinion on the question whether the expenditures relating to the indicated opera- tions were "decided on in conformity with the provisions of the Charter"; if that question were answered in the affirmative, the Court would have been asked to proceed to answer the question which the resolution as adopted actually poses. If the amendment had been adopted, the Court would have been asked to consider whether the resolutions authorizing the expendi- tures were decided on in conformity with the Charter; the French amendment did not propose to ask the Court whether the resolutions in pursuance of which the operations in the Middle East and in the Congo were undertaken, were adopted in conformity with the Charter. The Court does not find it necessary to expound the extent to which the proceedings of the General Assembly, antecedent to the adoption of a resolution, should be taken into account in interpret- ing that resolution, but it makes the following comments on the argument based upon the rejection of the French amendment. 9 90 157 CERTAIN EXPENSES OF U.N. (OPISION OF 20 VI1 62) The rejection of the French amendment does not constitute a directive to the Court to exclude from its consideration the question whether certain expenditures were "decided on in conformity with the Charter", if the Court finds such consideration appropriate. I t is not to be assumed that the General Assembly would thus seek to fetter or hamper the Court in.the discharge of its judicial functions; the Court must have full liberty to consider al1 relevant data available to it in forming an opinion on a question posed to it for an advisory opinion. Nor can the Court agree that the rejection of the French amendment has any bearing upon the question whether the General Assembly sought to preclude the Court from interpreting Article 17 in the light of other articles of the Charter, that is, in the whole context of the treaty. If any deduction is to be made from the debates on this point, the opposite conclusion would be drawn from the clear statements of sponsoring delegations that they took it for granted the Court would consider the Charter as a whole. Turning to the question which has been posed, the Court observes that it involves an interpretation of Article 17, paragraph 2, of the Charter. On the previous occasions when the Court has had to interpret the Charter of the United Nations, it has followed the principles and rules applicable in general to the interpretation of treaties, since it has recognized that the Charter is a multilateral treaty, albeit a treaty having certain special characteristics. In interpreting Article 4 of the Charter, the Court was led to consider "the structure of the Charter" and "the relations established by it between the General Assembly and the Security Council" ; a com- parable problem confronts the Court in the instant matter. The Court sustained its interpretation of Article 4 by considering the manner in which the organs concerned "have consistently inter- preted the text" in their practice (Competence of the General dssem- bly for the Admission of a State to the United Nations, I.C. J . Reports 1950, PP- 8-91. The text of Article 17 is in part as follows: "1. The General Assembly shall consider and approve the budget of the Organization. 2. The expenses of the Organization shali be borne by the Members as apportioned by the General Assembly." Although the Court will examine Article 17 in itself and in its relation to the rest of the Charter, it should be noted that a t least three separate questions might arise in the interpretation of para- graph 2 of this Article. One question is that of identifying what are "the expenses of the Organization"; a second question might I O 91