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
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
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
, ‘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.
have stressed and stretched two distinct but related areas of international law: the right of self-defence, and the rules of international humanitarian law. I conclude by arguing that even a disproportionately powerful state is constrained, in its ability to change international law, by the actions of other countries and public opinion – both at home and abroad.
There are two principal sourcesofinternationallaw. ‘Customary international law’ is an informal, unwritten body of rules deriving from a combination of ‘state practice’ and opinio juris . State
generations from the scourge of war
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small
to establish conditions under which justice and respect for the obligations arising from treaties and other sourcesofinternationallaw can be maintained
to promote social progress and better standards of life in larger freedom.
The Charter was signed in San Francisco in June 1945 by fifty states. The signatories promised to be bound