The Position of Member States in (Autonomous) Institutional Decision-Making

2014 ◽  
Vol 11 (1) ◽  
pp. 53-82 ◽  
Author(s):  
Ana Sofia Barros ◽  
Cedric Ryngaert
Keyword(s):  
Decision Making ◽  
International Organizations ◽  
Institutional Context ◽  
The State ◽  
Institutional Setting ◽  
Member States ◽  
Legal Personality ◽  
State Participation ◽  
The Veil ◽  
International Legal Personality

The international legal personality and autonomy of international organizations constitute the main vantage point from which responsibility issues in an institutional context are addressed in legal scholarship. In such an exercise, what is often missed is an explanation of how both concepts impact upon the understanding of the position of member States vis-à-vis the organization, and in particular the legal relevance of State participation in the activities of the latter. This paper discusses the relationship between international organizations and their members through the lens of decision-making processes. Looking beyond the veil of an organization’s decisions, it confronts institutional autonomy with the prominent role assumed by member States in the processes of the formation of institutional will, with a view to asserting the legal significance of the latter for responsibility purposes. To that end, this paper first discusses member States’ participation in international organizations, and possible responsibility as a result of such participation, by reference to wrongful conduct perpetrated by the international organization. Subsequently, it concentrates on member States’ responsibility for their own conduct performed in an institutional setting. Based on the premise that member State voting behaviour may be qualified as an act of the State, the paper goes on to show that State participation could entail legal consequences in its own right, provided that international norms binding upon the State dictate particular courses of action in an institutional context.

Abuse of the Legal Personality of International Organizations and the Responsibility of Member States

2007 ◽  
Vol 4 (1) ◽  
pp. 91-119 ◽  
Author(s):  
Jean d'Aspremont
Keyword(s):  
Decision Making ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Decision Making Process ◽  
Member States ◽  
Legal Personality ◽  
International Obligations ◽  
International Legal Personality

AbstractIt is classically contended that when an international organization endowed with international legal personality commits an international wrongful act, the organization is to be held exclusively responsible even though the act would have constituted a violation of its member states' obligations if committed by them. This Article intends to depart from such a rigid interpretation of the responsibility of international organization and makes the argument that when member states abuse the international legal personality of an international organization through the exercise of an excessive control over the decision-making process of the organization, they must be held, together with the organization, responsible for violations of international law by the organization provided that such a wrongful act would also constitute a breach of the member states' international obligations if committed by them. It is posited here that, in this situation, member states can no longer hide behind the screen of the international legal personality of the organization. Failing to take the extent of control exercised by member states over the decision-making process of an international organization into account boils down to ignoring that autonomy is one of the constitutive elements of the legal personality of an international organization, which can bolster the contemporary move away from international institutionalism.

The Legal Nature of International Organizations

1980 ◽  
Vol 49 (1-2) ◽  
pp. 14-30
Author(s):  
Reinhold Reuterswärd
Keyword(s):  
International Law ◽  
International Organizations ◽  
Member States ◽  
Legal Personality ◽  
Legal Nature ◽  
Differences Of Opinion ◽  
Scientific Fact ◽  
Contemporary Writers ◽  
International Legal Personality

AbstractAmong contemporary writers on international law it is a widely held view that international organizations are new kind of subjects of international law besides the States, i.e., have an international legal personality distinct from that of their member States. Many writers, indeed, treat this as something almost self-evident and beyond dispute. Actually, however, the international legal personality of international organizations remains a theoretical thesis rather than a scientific fact. Although this thesis seems to be supported by most writers, there are considerable differences of opinion among theorists as regards both the basis of that international personality and its meaning. Furthermore, some important aspects of the matter have been given little attention by most writers. It would seem, therefore, that the problem is far from solved. Some writers differ from the majority and deny that international organizations have international legal personality. They have, I submit, convincingly shown that there are strong reasons to question the validity of the generally accepted doctrine.1 The purpose of the present paper is to set forth some of the facts which support the view of this minority and which deserve more attention than has so far been given to them.

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

2011 ◽  
Vol 60 (4) ◽  
pp. 997-1016 ◽  
Author(s):  
Cedric Ryngaert
Keyword(s):  
Member State ◽  
International Law ◽  
International Organizations ◽  
General Rule ◽  
International Organization ◽  
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

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

2011 ◽  
Vol 8 (2) ◽  
pp. 291-347 ◽  
Author(s):  
Odette Murray
Keyword(s):  
Decision Making ◽  
Member State ◽  
International Law ◽  
International Organizations ◽  
Good Faith ◽  
International Organization ◽  
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.

scholarly journals The relationship between the sovereignty of member states and the supernationality of international organizations

2020 ◽  
pp. 349-353
Author(s):  
Olga Shpakovych ◽  
Sofia Penkovska
Keyword(s):  
International Organizations ◽  
The State ◽  
International Organization ◽  
State Sovereignty ◽  
Member States ◽  
The Relationship ◽  
Theoretical Results ◽  
The Eu

The article presents the result of theoretical and practical study of the relationship between state sovereignty and supranationalityof international organizations. In particular, it is determined that the phenomenon of supranationality of international organizations isderived from state sovereignty and acts as its external law. It has been shown that, in view of this, supranationality is limited becauseit arises through the exercise of sovereignty by states, and, accordingly, is limited by the amount of state sovereignty exercised by states.The relevant mechanism has also been studied on the example of the functioning of the European Union.Regarding the theoretical results, the following should be noted. First, it was proved that despite the different approaches of scho -lars to the understanding of supranationality, definitions of this concept and the separation of its features (properties), in each case,supranationality is a direct realization of state sovereignty. At the same time, the realization of state sovereignty in relation to such pro -perties of international organizations as supranational is primary, and supranationality in this case is derivative. In addition, the phenomenonof supranationality of international organizations due to the fact that it is derived is limited, because supranationality arisesthrough the exercise of sovereignty by states, and, accordingly, is limited by the amount of state sovereignty exercised by states. Thatis why when analyzing the relationship between the supranationality of international organizations and state sovereignty, one cannotconsider the priority of one of the two, because supranationality is in essence a manifestation of state sovereignty.Regarding the practical results, the author considers it appropriate to emphasize that both the regional international organization –the EU was studied, and, at the same time, it was proved that all theoretical provisions were reflected in practice, in particular, envisagedfunctions, goals and the tasks of the studied international organizations are limited in scope by the manifestation of sovereignty shownby states, similar to the regulations issued by organizations. Another indication that the state can exercise its sovereignty in any case isthat there is an effective and transparent procedure for leaving these organizations

5. Personality, statehood, and recognition

2019 ◽  
pp. 58-71
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
Human Rights ◽  
Multinational Corporations ◽  
International Organizations ◽  
Foreign Relations ◽  
Legal Personality ◽  
Government Capacity ◽  
State Actors ◽  
Territory Government ◽  
International Legal Personality

This chapter examines the meaning of international legal personality and the range of actors that possess such personality, namely States, international organizations, individuals, multinational corporations, and several other non-State actors. Given the centrality of States, the criteria for statehood are analysed, and both traditional and contemporary criteria are discussed. Article 1 of the 1933 Montevideo Convention is used for assessment of whether an entity satisfies these criteria which include: permanent population, a defined territory, government, capacity to enter into foreign relations, and the relevance of human rights. Competing theories regarding the role of recognition by third States as an element of statehood are also considered. Equally, the rights and duties of non-State actors are analysed in terms of capacity conferred upon them under international law.

International Organizations and the Creation of Customary International Law

2020 ◽  
Vol 31 (1) ◽  
pp. 201-233
Author(s):  
Kristina Daugirdas
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Direct Role ◽  
Customary International Law ◽  
Legal Personality ◽  
Legal Questions ◽  
International Legal System ◽  
The Creation ◽  
International Legal Personality

Abstract This article argues that international organizations ‘as such’ can contribute directly to the creation of customary international law for three independent reasons. First, the states establishing an international organization may subjectively intend for that organization to be able to contribute to the creation of at least some kinds of customary international law. Second, that capacity may be an implied power of the organization. Third, that capacity may be a byproduct of other features or authorities of the international organization – specifically, the combination of international legal personality and the capacity to operate on the international plane. Affirming international organizations’ direct role in making customary international law will not dramatically change the content of customary international law or the processes by which rules of customary international law are ascertained. But recognizing that role is significant because it will reinforce other conclusions about how international organizations fit into the international legal system, including that customary international law binds international organizations. Such recognition may also shift the way lawyers within international organizations carry out their work by affecting the sources they consult when answering legal questions, the materials they make publicly available and the kinds of expertise that are understood to be necessary to discharge their responsibilities. Finally, affirming international organizations’ role in creating customary international law may make international organizations more willing to comply with those rules.

Liability to Third Parties of Member States of International Organizations: Practice, Principle and Judicial Precedent

1991 ◽  
Vol 85 (2) ◽  
pp. 259-280 ◽  
Author(s):  
C. F. Amerasinghe
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Agreements ◽  
Third Parties ◽  
International Level ◽  
Member States ◽  
Legal Personality ◽  
Municipal Law ◽  
Legal Consequences

One of the principal issues of interest to international lawyers in the International Tin Council cases decided by the English courts was whether member states of the International Tin Council (ITC) were secondarily or concurrently liable to third parties for the debts of the organization. This issue may arise when two or more states form an organization with legal personality that can perform functions with legal consequences. In the course of performing these functions, such an organization may incur liabilities to third parties. These third parties may be states, other organizations, individuals or legal persons. The states may be member states of the organization itself or other states, and the individuals and legal persons may be nationals of member states or not. The liabilities may emanate from transactions, such as international agreements between states and the organization, that take place at the international level and may be governed by international law; or they may stem from transactions governed by municipal law, whether between the organization and states, individuals or legal persons. Such liabilities may be contractual, quasi-contractual or delictual.

scholarly journals INTERNATIONAL ORGANIZATIONS: ISSUES OF FUNDING OF THEIR ACTIVITY

2016 ◽  
pp. 0-0
Author(s):  
Анатолий Капустин ◽  
Anatoliy Kapustin
Keyword(s):  
United Nations ◽  
International Organizations ◽  
International Organization ◽  
Budget Process ◽  
International Court Of Justice ◽  
Legal Personality ◽  
Court Of Justice ◽  
International Court ◽  
International Rights ◽  
International Legal Personality

A few very important features of financial law of international organizations were consider in present article. The author puts forward an idea that funding of international organizations activities is an important element of the international legal personality of international organizations, because it allows them to ensure the necessary independence while executing their international rights and obligations and the exercise of their assigned functions. The main categories of financial law of international organizations were examined in article: the concept and types of incomes and expenses, the concept of budget process of the international organization in accordance with two ways of funding of international organizations settled in the XX century. Special attention was paid to the analysis of the obligations of Member States of an international organization to contribute to the organization’s budget. For these purposes, the analysis of the positions of judges of the International Court of Justice and the opinions of scientists on this issue in the context of the proceedings on certain expenses of the United Nations. The author has come to conclusion about necessity of the further study of the problems of the financial law of international organizations.

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