Riassunto Capitolo 3 Klabbers, Sintesi del corso di Diritto Internazionale

Scarica Riassunto Capitolo 3 Klabbers e più Sintesi del corso in PDF di Diritto Internazionale solo su Docsity! J. KLABBERS - CHAPTER 3 - THE LEGAL POSITION OF INTERNATIONAL ORGANIZATIONS INTRODUCTION IOs = subject of int’| law = capable of independently bearing rights and obligations under int'l law. In the past (late 19°"/early 20!" century) only states were considered subjects to int'l law until 2" half of the 20°" century. ICJ recognition of the various subjects of int'| law in the Reparation for Injuries. - Subjects were different in nature (which depends on the needs of the community) and extent of their rights. - Rights enjoyed are different for every subject and may vary when subjects are grouped together. O Ex. Notall individuals or IOs (even though recognized in int’ law) are granted the same rights - Issue stems from idea of” subject” and “int’| legal personality” O Theycan be perceived as the same, but they're not identical = Subjectto int’l law: legitimate subject of int’| legal research and reflection (aka subject of academic analysis) = (legal) Personality: a status conferred by the legal system LEGAL PERSONALITY UNDER DOMESTIC LAW Each legal system is free to develop own requirements for entities to become legal personality > requirements vary from legal system to another however, these legal personalities can be recognized in different states. Possible connection b/w domestic and int’| legal personality (1 half of 20°" century: domestic systems looked at international law to determine the legal personality of an entity) > currently, many IOs' constituent treaties include provisions regarding their personality in the domestic legal realm. - Ex. Art.104 UN Charter: the UN possesses the largest degree of personality as recognized in domestic law. - Ex. Art 335 TFEU (like above) This is based on the pacta tertiis maxim (Art. 34, 1969 Vienna Convention): states cannot create rights/obligations for 3"! parties without their consent. *Arab Monetary Fund vs Hashim and others case The domestic legal personality of an IO may also extend to its organs and subsidiary bodies. - Ex. UN's Office of Legal Affairs, 1990, told the UNDP it had the authority to conclude contractual arrangements (authority flowing from the Charter’s provision on personality in Art. 104). INTERNATIONAL LEGAL PERSONALITY Int’l legal personality of IOs sparked doctrinal debates -> two contending theories. 1. Will theory - Reparation for Injuries began with the est. of the state of Israel 3 unrest in the Middle East + UN sends mediator (Swedish Count F. Bernadotte) 3 Bernadotte dies + UN needed ability to hold someone legally accountable > the Court grants the UN with ability to do so. a. Possible because Charter didn't contain anything on its ability to pursue legal action and Israel wasn't yet a member state. b. Based on will theory (what members of the org. want to do) - many issues with will theory: few constituent treaties provide explicit IOs legal personality, 1Os legal personality might become an empty concept 2. Objective theory: legal personality of an IO follows same patterns as states = when an entity begins to exist as a subject of law, it possesses int’| legal personality (for states = statehood; for 1Os = organization-hood) - in this case the will of the founders does not decide on personality as a separate matter. What are then the requirements of int’l law with respect to organization-hood? 3 Seyersted'’s main criterion: the org. must possess a distinct will (issue regarding how that will be defined within the org.) - but what if the will of an org. is to be an int’! legal personality? Practice provides more solutions to the issues raised before and by the theoretical frameworks. Solution = “presumptive personality” - as soon as an organization performs acts which can only be explained based on int’| legal personality, such an org. will be presumed to possess int’l legal personality. THE POWERS OF ORGANIZATIONS Close connection b/w personality of an org. and its powers. - Org. cannot work without powers - The scope of powers of the org is deemed to determine the extent of its personality Based on functionalist theory: org. exists to exercise specific functions, and it needs powers to do so. Org. can only work based on its legal powers > org. acts within its legal powers. - Ex. OECD cannot enter a military pact because it's outside of its legal powers. Where do IOs derive their powers from? - 1° attempt at determining it occurred in the 1* half of the 20°" century (ex. 1922 - Int’| Labor Organization - scope of powers depend upon the conditions stated in the treaty of the org. itself), but merely focused on the interpretation of the scope of power because at the time there was no full understanding of the particular nature of IOs.