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.
This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. The book makes it clear that the law of international organisations is dominated by the united nations (UN). It defines and explains inter-governmentalism and the role of law in its regulation. The book presents a number of case studies that shows how the law works within an institutional order dominated by politics. The case studies highlight the debates that surround even the most basic legal issues; the furore surrounding the membership application of Palestine to join the UN, or the UN's claim to immunity in Haiti where it has been responsible for a catastrophic outbreak of cholera. The book also shows that law plays a significant role in curbing excesses and the abuse of power, as well as facilitating the channelling of power to achieve those purposes.
This chapter defines and explains an inter-governmental organisation (IGO) and argues that the United Nations (UN) is paradigmatic of this genre. A contrast is made with other forms of organisation, particularly the supranational integration organisation. The chapter also defines the law of international organisations as the law governing, applicable to, and produced by, such organisations, and explains how this is best studied through a focus on the UN and related IGOs. It explores how law and politics work within the UN and helps the reader to understand how to identify and apply the law, and to critically evaluate the strengths and weaknesses of the law. The chapter concludes with a case study drawn from the practice of the Security Council involving the exercise of the veto to distinguish when practice is a valid interpretation or development of the law, and when it is a breach.
This chapter explores the key relationship between the inter-governmental organisation (IGO) and its member states. It examines the basic relationship between the United Nations (UN) and states in terms of membership through admissions, withdrawal, expulsion, suspension, and representation. The chapter provides case studies, including the pursuit of Palestinian membership and the consequences of the break-up of states for membership, showing how the rules on membership are at the same time rudimentary and difficult to adhere to. It shows that membership of an IGO no longer guarantees full sovereign equality of member states, and that with qualified majority voting and weighted voting, sovereign equality becomes more and more qualified. The chapter also explores how the obligation to pay, when combined with a scale of assessments that requires powerful states to pay more, produces considerable tensions within the UN and other IGOs, sometimes in the form of a refusal to pay.
This chapter discusses what makes the constituent treaty of the United Nations (UN) and similar inter-governmental organisations different from many other treaties so that it is appropriate to use the term constitution in relation to such treaties, although the legitimacy and strength of such constitutions varies. In a minimal sense, the UN Charter constitutes, or establishes, an organisation with organs possessing legal powers and members with rights and duties, justifying the use of the term 'constitution'. The chapter also discusses the constitutional features of the UN Charter, including the debates surrounding the so-called 'supremacy clause' of the UN Charter contained in Article 103. It presents two case studies featuring judicial decisions on the primacy of UN obligations by the International Court of Justice in the Lockerbie cases of 1992 and 1998, and the European Court of Human Rights in the Al-Jedda case of 2011, to illustrate the controversies surrounding constitutionalism.
This chapter addresses the legal construction that helps to answer the question of how the UN and inter-governmental organisations (IGOs) are separate and autonomous i.e. independent of member states, when member states have created IGOs and sit and vote in their organs. It reminds the reader about the possibility of creation of separate, abstract legal entities, such as clubs, societies, corporations, and states. In international law there needs to be an assessment of whether IGOs are legal subjects of the international legal order, thereby having international legal personality, separate from the states. The chapter presents the International Court's advisory opinion in the Reparations case, which was in favour of the UN possessing international legal personality, with the concomitant right to bring claims against states.
The possession of international legal personality explains how the UN and similar inter-governmental organisations have extensive powers separate from those rights of states. The UN Security Council has the power to impose sanctions on a state or an individual, thereby creating binding duties for all states; no state, no matter how powerful, has that legal right. This chapter addresses the debate about the extent of the doctrine of legal powers through three case studies. The case studies include the legality of peacekeeping undertaken by the UN (including a discussion of the Expenses opinion) and the competence of the WHO and UN in relation to the possession or use of nuclear weapons by states (including a discussion of the Nuclear Weapons opinions). They also include the legislative powers of the Security Council (focusing on its counter-terrorism decision in Resolution 1373 of 2001).
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 hugely influential in shaping international law since 1948. This chapter explores institutional lawmaking in the modern era, looking in detail at the impact of General Assembly Resolutions on outer space in the 1960s and the WHO's Health Regulations. Both the General Assembly Resolutions and the WHO's Health Regulations are shown to be international laws in their own right and that they are paradigmatic of UN lawmaking more generally. The chapter examines whether inter-governmental organisations, in exercising their autonomous competence, have the potential to produce laws in their own right, irrespective of whether their output feeds into the traditional sources, such as treaties, custom or general principles, of international law.
This chapter examines non-forcible measures adopted by the UN and similar inter-governmental organisations in terms of their legality (constitutionality and conformity to international law), legitimacy and effectiveness. It focuses on the Article 41 of the UN Charter, a provision that empowers the Security Council to adopt sanctions against states, although it has further developed this power to promulgate targeted sanctions against individuals and other non-state actors (NSAs). The chapter analyses the impact of general sanctions against states, such as Southern Rhodesia, Iraq, Serbia and Libya, especially their impact on the human rights of the population. It discusses the applicability of human rights norms to the UN. The Security Council has favoured targeted sanctions against individual leaders, regime elites and NSAs, such as terrorists held responsible for threats to peace but these have raised human rights concerns, and have led to litigation before various national, regional and international courts and bodies.
Forcible sanctions, involving the use of force organised or authorised by the UN, regional or defence organisations, raise issues of compatibility with the rules governing the use of force in international relations, which are found in the UN Charter and customary law. This chapter considers the role of inter-governmental organisations (IGOs) in implementing and upholding those rules, necessitating an analysis of Article 2 and Chapters VII and VIII of the UN Charter, and the constituent treaties of security organisations. It discusses different military responses undertaken by IGOs, ranging from observation and peacekeeping, to peace enforcement and war-fighting, in terms of legality and practice. The chapter also considers whether there is an emerging duty upon the UN (and possibly other IGOs) to take action in response to the commission of core international crimes, embodied in the idea of a Responsibility to Protect and practiced in Libya in 2011.