International organisations are a central component of modern international society. This book provides a concise account of the principles and norms of international law applicable to the intergovernmental organisation (IGO). It defines and explains inter-governmentalism and the role of law in its regulation. The book presents case studies that show how the law works within an institutional order dominated by politics. After a note on the key relationship between the IGO and its member states, it examines the basic relationship between the UN and states in terms of membership through admissions, withdrawal, expulsion, suspension, and representation. The debate about the extent of the doctrine of legal powers is addressed through case studies. Institutional lawmaking in the modern era is discussed with particular focus on at the impact of General Assembly Resolutions on outer space and the Health Regulations of the World Health Organization. Non-forcible measures adopted by the UN and similar IGOs in terms of their legality (constitutionality and conformity to international law), legitimacy and effectiveness, is covered next. The different military responses undertaken by IGOs, ranging from observation and peacekeeping, to peace enforcement and war-fighting, are discussed in terms of legality and practice. The book also considers the idea of a Responsibility to Protect and the development of secondary rules of international law to cover the wrongful acts and omissions of IGOs. It ends with a note on how the primary and secondary rules of international law are upheld in different forms and mechanisms of accountability, including courts.
will be whether IGOs, in exercising their autonomous competence, have the potential to produce laws in their own right, irrespective of whether their output then feeds into the traditional sourcesofinternationallaw – treaties, custom or general principles. If resolutions adopted by IGOs, matching certain legislative criteria, can be laws per se, it is unnecessary to wait to see if they are accepted in practice so as to become custom, but rather practice should be examined in order to evaluate the impact of those laws on the internal legal orders of organisations
contrast to legalists, interventionists
argue that human rights are first and foremost protected by political and military action by great powers and that legal institutions should play a secondary
role. This idea is closely linked to the interventionist view on the sourcesofinternationallaw. For them, established customary law represents the basic
The interventionist discourse
point of reference for the negotiations of the Rome Statute. This implies that
the entity to which the codification of legal rules refers is the international society of states rather than
peacekeeping (including a discussion of the Expenses opinion); the legality of IGOs’ concerns over the continued possession of nuclear weapons by a limited number of states (including a discussion of the Nuclear Weapons opinions); and the legislative powers of the Security Council (focusing on Resolution 1373 of 2001).
Chapter 6: Institutional lawmaking: a new sourceofinternationallaw?
Although there are controversies about the UN Security Council making binding general international law, this should not disguise the fact that the UN General Assembly has been
humanity a more practical, or stateof-play, concept – one for the political and legal environment
as it stands. It is nevertheless the moral and philosophical
grounding of the idea that will be my principal concern in the
pages that follow.
There is a justification for this approach in what are
generally given as being the sourcesofinternationallaw itself.
Alfred von Verdross, ‘Forbidden Treaties in International Law’,
American Journal of International Law 31 (1937), 571–7, at p. 576.
00 Crimes Against Humanity i-xiv
customary practice, Positivist scholars contend that no other source exists for international law except consent. 25
Positivism reflects the orthodox approach to international law and also IGOs, namely that both are formed on the basis of states’ consent and neither undermines the principle of sovereign equality. This means, for instance, that IGOs would not be able to impose laws on a state without its consent. The traditional sourcesofinternationallaw, treaties and custom, reflect this view, in that a treaty cannot bind a state without its consent and a custom
implicit for strategic reasons. Yet one implicit
hint at basic differences concerns the question of what sourceofinternationallaw either discourse privileges, with sovereigntists emphasizing treaty law and
interventionists stressing customary law. Though both types of law in practice
complement each other and are interwoven, theoretically, they are based on
different ideas of how international law emerges: treaty law rests upon explicit
state consent, whereas customary law refers to the collectivity of states and is
almost unaffected by the disapproval of a single
prevailing among civilized
peoples, by the laws of humanity, and by the demands of
Some authorities hold that a consequence of the Martens
Clause was to add the said ‘laws of humanity’ to the
recognized sourcesofinternationallaw. Antonio Cassese has
challenged this understanding of its significance, however.
The clause was formulated, he argues, as a diplomatic move
to break a deadlock at the 1899 Hague Peace Conference,
and it cannot be treated as having raised either the laws of
humanity or the dictates of public conscience to the status of
the one hand, Kennedy’s argument about how the legacy of Christianity
was generally seen as peaceful, moderating the calamities of and even
preventing war, would not – as a historical claim – have disturbed later
scholars. Interpreting all other sourcesofinternationallaw as having
been influenced and positively furthered by Christianity – for example,
Roman law, the spread of commerce, the general progress of civilisation – was an assumption that, although often implicit, seemed to stick. 30
On the other hand, later scholars would have distanced themselves from
, ‘Recommendations and the Traditional SourcesofInternationalLaw’ (1997) 20 German Yearbook of International Law 103 at 118.
43 Article 25 UN Charter 1945.
44 Ibid. Articles 41 and 42.
45 Ibid. Articles 36(1) and 39.
46 Articles 36 and 65 ICJ Statute 1945.
47 Crawford (2014) n. 9 at 461.
48 W.B. Gwynn, The Meaning of the Separation of Powers (Nijhoff 1965) 1.
49 Ibid. 101.
50 Articles 60, 63, 64 UN Charter 1945.
51 T.M. Franck, ‘The Bona Fides of Power: The Security Council and Threats to the Peace’ (1993) 240 Hague Recueil 190.