Functionalism

Member States ◽

Institutional Rules ◽

Contractual Relationship ◽

The Law

Functionalism is conventionally considered the mainstream paradigm of the law of international organizations: organizations are agents of their member states by the means of a contractual relationship; the law created by international organizations is purely international law; the institutional veil is characterized by a crystallin transparency; the autonomy of the organization is minimal and only granted by a rigid conferral of competences and few implied powers; the conduct of member states acting in the institutional forum is relevant as a matter of international law. This chapter introduces the historical roots of this conceptualization and elaborates why under this perspective the rules of the organizations are purely international law. It describes the flaws of this theory, discussing the breach of institutional rules by the organization and the adoption of countermeasures against a wrongful act committed by a member state.

Constitutionalism

The Concept of an International Organization in International Law ◽

10.1093/oso/9780192895790.003.0003 ◽

2021 ◽

pp. 33-48

Author(s):

Lorenzo Gasbarri

Keyword(s):

Member State ◽

International Law ◽

Member States ◽

The Law

Constitutionalism emerged as a reaction to functionalism to rebut the international nature of the relation between organizations and member states: member states are organs of the organization when they act in the fulfilment of its purposes; the law created by international organizations is purely internal law; the institutional veil is characterized by an impermeable opacity; the autonomy of the organization is maximal; the conduct of a member state acting in the institutional forum is not relevant as a matter of international law. This chapter describes the historical roots of this conceptualization and posits why under this perspective the rules of the organizations are internal law of each particular organization. Afterwards, it describes the flaws of this theory discussing the problems arising in terms of the principle of lex specialis and concerning the attribution of conduct to an international organization.

Informalism

The Concept of an International Organization in International Law ◽

10.1093/oso/9780192895790.003.0004 ◽

2021 ◽

pp. 49-63

Author(s):

Lorenzo Gasbarri

Keyword(s):

Member State ◽

International Law ◽

Civil Service ◽

Administrative Law ◽

Legal Systems ◽

Member States ◽

Internal Relation ◽

The Law

Informalism comprises the theories that frame the law produced by international organizations in shades of normativity: member states and international organizations are integrated in heterarchical relationships primarily governed by politics; the law created by international organizations belongs to hybrid legal systems; the institutional veil is characterized by degrees of transparency depending on the internal relation of power; the conduct of a member state acting in the institutional forum is alternatively relevant or not relevant as a matter of international law, depending on the internal relation of power. This chapter describes the historical roots of this conceptualization and elaborates why under this perspective the rules of the organizations are considered as a matter of degrees of legality. Afterwards, it describes the flaws of this theory focusing on the law of the international civil service and on global administrative law.

Piercing the Corporate Veil: The Responsibility of Member states of an International Organization

International Organizations Law Review ◽

10.1163/157237411x633881 ◽

2011 ◽

Vol 8 (2) ◽

pp. 291-347 ◽

Cited By ~ 6

Author(s):

Odette Murray

Keyword(s):

Decision Making ◽

Member State ◽

International Law ◽

Good Faith ◽

Member States ◽

Draft Article ◽

Legal Limit ◽

Primary Rule

AbstractThis paper applies two manifestations of the principle of good faith – pacta sunt servanda and the doctrine of abuse of rights – to the complex relationship between member states and international organizations. The paper argues that these existing doctrines operate as a legal limit on the conduct of states when creating, controlling and functioning within international organizations. The paper begins by exploring an innovative provision in the International Law Commission's recently finalised Draft Articles on the Responsibility of International Organisations – Draft Article 61 – according to which a member state will bear international responsibility for the act of an international organization where the member state uses the organization to circumvent its own international obligations. Examining the development of Draft Article 61 and the jurisprudence upon which it is based, this paper argues that the principle which the Commission in fact seeks to articulate in Draft Article 61 is that of good faith in the performance of treaties. As such, being based on a primary rule of international law, this paper queries whether Draft Article 61 belongs in a set of secondary rules. The paper then considers the role of states in the decision-making organs of international organizations and argues that the widely held presumption against member state responsibility for participation in decision-making organs can and should be displaced in certain cases, in recognition of the various voting mechanisms in international organizations and the varied power which certain states may wield. The paper argues that the doctrine of abuse of rights operates as a fundamental legal limit on the exercise of a member state's voting discretion, and thereby forms a complementary primary obligation placed on states in the context of their participation in international organizations.

Safeguarding the Organizational Acquis: The EU's External Practice

International Organizations Law Review ◽

10.1163/157237307x223620 ◽

2007 ◽

Vol 4 (1) ◽

pp. 57-89

Author(s):

Jan Klabbers

Keyword(s):

International Law ◽

Legal Order ◽

Member States ◽

The Law

AbstractTreaty conflict is one of the more significant practical issues in international law these days, in particular as the law of treaties is unable to solve the most difficult emanations. With international organizations, there is the added consideration that the organization may wish to preserve its internal legal order. The present paper investigates the practice of the EC/EU plus its member states, trying to chart the techniques used by them in order to solve or prevent treaty conflicts. It presents a taxonomy of this practice as well as an interpretation.

Identities of States in International Organizations

International Organizations Law Review ◽

10.1163/15723747-01202002 ◽

2015 ◽

Vol 12 (2) ◽

pp. 293-318 ◽

Cited By ~ 3

Author(s):

Ramses A. Wessel ◽

Ige F. Dekker

Keyword(s):

Member State ◽

Crucial Role ◽

General Introduction ◽

Member States ◽

International Responsibility ◽

The Law ◽

Further Development

In academic debates on the responsibility of international organizations and their member States the different identities of States play a crucial role. However, apart from the difficulty to clearly separate ‘State’ and ‘member State’ identities, it is even more complex to distinguish between the different roles ‘member States’ may have in the framework of international organizations. As a general introduction to this special forum, this essay aims to clarify the different identities and roles States may have in relation to international organizations, especially in the context of the responsibility of international organizations. As the subsequent contributions reveal, the law on the international responsibility of international organizations takes account of the possible responsibility of their members. By mapping the different identities States may have in different settings, this contribution argues that such differentiations may be crucial for the further development of adequate international rules on the responsibility of international organizations and their members.

Conclusion

The Concept of an International Organization in International Law ◽

10.1093/oso/9780192895790.003.0012 ◽

2021 ◽

pp. 208-210

Author(s):

Lorenzo Gasbarri

Keyword(s):

International Law ◽

Legal Framework ◽

Legal Systems ◽

Member States ◽

Legal Nature ◽

International Responsibility ◽

The Law

This chapter summarizes the main findings of the book. The concept of an international organization is defined by looking at the nature of the legal systems they develop. The notion of ‘dual legal nature’ describes how organizations create particular legal systems that derive from international law. This peculiar condition affects the law they produce, which is international and internal at the same time. The effects of the dual legal nature are discussed by analysing international responsibility, the law of treaties, and the validity of organizations’ acts. This conceptualization allows the development of a common legal framework applicable to all international organizations, despite their differences in terms of powers, membership, size, and other descriptive features. In particular, the most valuable consequence of this conceptualization is to rebut a frequent argumentative motif, under which organizations are either perceived as vehicles for member states’ interests or as autonomous entities.

THE EUROPEAN COURT OF HUMAN RIGHTS’ APPROACH TO THE RESPONSIBILITY OF MEMBER STATES IN CONNECTION WITH ACTS OF INTERNATIONAL ORGANIZATIONS

International and Comparative Law Quarterly ◽

10.1017/s0020589311000467 ◽

2011 ◽

Vol 60 (4) ◽

pp. 997-1016 ◽

Cited By ~ 12

Author(s):

Cedric Ryngaert

Keyword(s):

Member State ◽

International Law ◽

General Rule ◽

Member States ◽

Legal Personality ◽

European Court ◽

Droit International ◽

International Legal Personality

It is generally considered that an international organization (‘IO’) has an international legal personality which is distinct from that of its Member States, as a result of which the IO itself, rather than the Member States, is to be held responsible for the IO's internationally wrongful acts.1 It appears to be an accepted principle that Member States cannot generally be held liable for the acts of IOs by virtue of their membership of an IO alone. This view can be found in a 1996 resolution of the Institut de Droit International, which provides that ‘there is no general rule of international law whereby States members are, due solely to their membership, liable, concurrently or subsidiarily, for the obligations of an international organization of which they are members.’2 This is echoed in the International Law Commission's (‘ILC’) Commentary to article 62 of the Draft Articles on the Responsibility of International Organizations (‘ILC DARIO’): ‘It is clear that … membership does not as such entail for member States international responsibility when the organization commits an internationally wrongful act’.3 The ILC holds the view that only in the case of an intervening act by a Member State that influences the commission of a wrongful act by the IO (aid and assistance, direction and control, coercion, avoidance of compliance, acceptance) could the Member State be held responsible.4

Sources of the Law of Immunity of International Organizations

10.1093/oso/9780190611231.003.0008 ◽

2018 ◽

Author(s):

Edward Chukwuemeke Okeke

Keyword(s):

International Law ◽

Member States ◽

Customary International Law ◽

National Legislation ◽

Bilateral Agreements ◽

Treaty Law ◽

The Law ◽

The Relationship

Because international law is central to the determination of the jurisdictional immunity of international organizations, this chapter examines the sources of the immunity of international organizations, which is mainly treaty law. The basic text or constituent instrument by which member States establish international organizations usually provides for the organizations’ privileges and immunities. Provisions on privileges and immunities are also found in national legislation, and bilateral agreements, such as headquarters agreements or establishment agreements. The chapter also examines whether the immunity of international organizations is governed by customary international law in addition to treaty law. It further examines the interrelationship between treaty and customary international law, and the relationship between international law and national law with respect to jurisdictional immunity.

WHERE THE LAW BECOMES IRRELEVANT: CONSULAR ASSISTANCE AND THE EUROPEAN UNION

International and Comparative Law Quarterly ◽

10.1017/s0020589311000455 ◽

2011 ◽

Vol 60 (4) ◽

pp. 965-995 ◽

Cited By ~ 6

Author(s):

Annemarieke Vermeer-Künzli

Keyword(s):

European Union ◽

Member State ◽

International Law ◽

The European Union ◽

Member States ◽

Eu Member States ◽

The Law ◽

The Eu

AbstractIn recent years, the European Union (‘eu’) has taken a number of initiatives with a view to co-ordinating consular assistance in third countries. Not only have EU citizens an entitlement to consular assistance by any EU Member State in the absence of a representation of their own, but EU Member States themselves are encouraged to co-operate by means of the Lead State Concept and other forms of co-operation. While this may seem relatively unproblematic from the perspective of the EU, it is very difficult to reconcile with general international law. The various EU agreements in this area have no application to third States: some do not have legally binding form and even those that do only apply to the parties to the treaties, ie EU Member States. This article will present the situation, analyse its complexities and offer some reflections on the global application and desirability of the regime created by the EU.

«Soft law» in the law of the Eurasian Ec onomic Union: place and possibility of challenging

RUSSIAN JUSTICE ◽

10.37399/issn2072-909x.2020.1.35-42 ◽

2020 ◽

Vol 9 ◽

pp. 35-42

Author(s):

P.P. Myslivsky ◽

◽

I.N. Shchurova

Keyword(s):

International Law ◽

Soft Law ◽

Binding Force ◽

Eurasian Economic Union ◽

Economic Commission ◽

Economic Union ◽

The Law

In international law, there are sources that do not formally have binding force, but may indicate the emergence of the opinio juris of states, as well as emerging practice. The Eurasian Economic Union also issues acts that are not formally binding: they are adopted by the Eurasian Economic Commission in the form of recommendations. In addition, the Union takes into account the recommendatory acts of other international organizations. At present, the practice of the EAEU Court indicates that this body takes into account “soft law” in the course of argumentation, but proceeds from the impossibility of challenging acts that are recommendations of the EEC. The authors give ways to establish the possibility of challenging the EEC recommendations in the EAEU Court.