The Institutionalization of a Process

The Kimberley Process represents a new method of international cooperation between subjects of international law. It was named by its creators as a process, setting it apart from international organizations, and leading too to its consideration as informal international law-making or soft law. In this study we shall analyze the extent to which the Kimberley Process falls into these categories. Our main task, however, is to compare it to formal international organizations, with a view to establishing whether what really has been created is an institutionalization process that is like an international organization, but with a different name. To do this, we will analyze with reference to the Kimberley Process the various respective fields of international organizations, such as founding agreement, membership, structure, decision-making process and legal order.

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

International Organizations Law Review ◽

10.1163/157237307x223648 ◽

2007 ◽

Vol 4 (1) ◽

pp. 91-119 ◽

Cited By ~ 12

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.

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In/on applied legal research: Pragmatic limits to the impact of peripheral international legal scholarship via policy papers

Leiden Journal of International Law ◽

10.1017/s0922156521000315 ◽

2021 ◽

pp. 1-13

Author(s):

Arthur Roberto Capella Giannattasio ◽

Débora Roma Drezza ◽

Maria Beatriz Wehby

Keyword(s):

Decision Making ◽

International Law ◽

International Organizations ◽

International Organization ◽

Primary Sources ◽

Decision Making Process ◽

Legal Research ◽

Legal Scholarship ◽

Academic Communities ◽

The Impact

Abstract This article examines the limits that academics from peripheral countries might encounter while trying to influence the decision-making process inside an international organization. Although there are different mechanisms whereby academia might influence non-academic debates, we highlight here the use of policy papers, in order to examine and discuss the non-textual barriers which might be faced by those academics. After an analysis of primary sources this article presents some pragmatic limits in the use of policy papers and discusses the consequences of this condition for the legitimation of international organizations. As such, relevant international organizations still seem to be unresponsive to some initiatives in particular: closed to the spontaneous participation of academia; and not willing to call for contributions from academic communities. This is particularly relevant for contributions from peripheral academia and other non-state actors, who lack the capability to disturb the traditional ideational power exercised by core (Western) countries and by state-centric ideology in current international law.

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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 ◽

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.

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9. Law-Making Processes

Cassese's International Law ◽

10.1093/he/9780199231287.003.0009 ◽

2020 ◽

pp. 181-203

Author(s):

Paola Gaeta ◽

Jorge E. Viñuales ◽

Salvatore Zappalà

Keyword(s):

International Law ◽

International Organizations ◽

Soft Law ◽

The Icj ◽

General Principles Of Law ◽

Law Making

Custom and treaties constitute the two most important formal sources of international law, that are also envisaged in Article 38 of the ICJ Statute. In addition, Article 38 refers to general principles of law recognized in domestic systems. This chapter examines these three formal sources of international law as well as some others, in particular unilateral acts of States and binding decisions of international organizations. In addition, it discusses equity and soft law and examines some mechanisms of identification and development of international law, such as jurisprudence, doctrine, and codification.

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4. EU Law: Sources, Forms, and Law-Making

10.1093/he/9780192897961.003.0004 ◽

2021 ◽

pp. 94-140

Author(s):

Nigel Foster

Keyword(s):

Decision Making ◽

Legal System ◽

Legal Order ◽

Fundamental Rights ◽

Soft Law ◽

Eu Law ◽

The Rich ◽

Alternative Decision ◽

Law Making ◽

The Eu

This chapter takes an overall view of the EU legal order and examines its legal system, including the elements which are either different from or similar to member states’ legal systems. It begins by taking an overall view of the EU legal order, the different forms of EU law, and the various sources of law contributing to this legal order, in particular now the rich source of human and fundamental rights in the EU legal order. It considers the non-strictly legally binding rules known as ‘soft law’. It also looks at the ways or processes by which the binding laws are made and reviews alternative decision-making and law-making developments.

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EU Status In Other International Organizations

Oxford Principles Of European Union Law: The European Union Legal Order: Volume I ◽

10.1093/oso/9780199533770.003.0044 ◽

2018 ◽

Author(s):

Geert De Baere

Keyword(s):

Decision Making ◽

European Union ◽

International Law ◽

International Organizations ◽

International Organization ◽

The European Union ◽

Decision Making Processes ◽

The Eu ◽

Federal Structure

The present chapter considers the position of the European Union in other international organizations. It is based on the premise that the Union, while arguably also a federal or quasi-federal structure, is legally still itself an international organization. From the perspective of international law, that explains at least partly the complexities involved in an international organization such as the EU acquiring a status in—let alone membership of—another international organization. The term ‘status’ or ‘position’ is understood here as the influence the Union can exercise, either formally or informally, in decision-making processes in other international organizations. As an ever-increasing number of decisions having an impact on the Union’s policies originate in international organizations, its position in such fora matters.

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Economics of International Organizations

10.1093/oxfordhb/9780199684250.013.037 ◽

2017 ◽

Author(s):

Joel P. Trachtman

Keyword(s):

Decision Making ◽

Transaction Costs ◽

International Law ◽

International Organizations ◽

Subject Matter ◽

International Organization ◽

Legal Rules ◽

The Core ◽

Core Questions ◽

The Relationship

The essence of an international organization is the delegation of decision-making authority from individual states to the organization, representing the collectivity of member states. In simple terms, international organizations are to international law as firms are to contracts: states form international organizations in order to reduce the transaction costs associated with cooperation, as compared to the entry into international legal rules without organizations. The core questions are the same: why are these institutions formed, what powers do they have, and how are they exercised? This chapter analyzes the reasons for the creation of international organizations, as well as the reasons why particular structures of international organizations are utilized. It assesses the relationship among assignment of subject matter authority, legislative capacity, adjudicative capacity, enforcement capacity, and membership. It examines how these features correspond to particular contexts of international cooperation.

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On the Way to an Anthroparchic Community of Law. The European Union as the Subject of Global Law

Polish Review of International and European Law ◽

10.21697/priel.2016.5.2.03 ◽

2018 ◽

Vol 5 (2) ◽

pp. 73

Author(s):

Radosław Kołatek

Keyword(s):

European Union ◽

International Law ◽

Political Representation ◽

Legal Order ◽

Fundamental Rights ◽

International Organization ◽

The European Union ◽

Intergovernmental Organization ◽

Law Making ◽

The Eu

According to I. Pernice, the European Union has to be distinguished from an international organization for four reasons at least.First, there is no international organization where citizens have their own political representation and participate in the decision-making process. Second, direct legal action against individuals by directly applicable legislation does not happen. Third, the question of protection of fundamental rights against such ‘international’ power is not an issue. Last but not least, ‘no international organization provides for legal remedies of individuals against measures of that organization since there is no action having direct effect to the individual’. Therefore the author believes that the EU is an organization of citizens albeit having an appearance of an organization between states.Nevertheless one needs to remember that the European Union was founded as an intergovernmental organization by the European states on the principles of international law. That is why it has to be treated as a legal entity comprising the category of international organizations.Inasmuch as the role of individuals in the EU law-making process has been strengthened, their position was rather poor at the beginning of the European integration process. A direct right for individuals to submit a proposal for a legal act to the Commission is a great novelty not seen until now. Strengthening methods of democratic law-making by involving the European Parliament as well as national assemblies in the ordinary legislative procedure is again a fresh start. It is much the same with the system of judicial remedies differentiating the EU legal order from the horizontality of classical public international law.International law as a source of legitimacy for the European Union has always been and is still valid. Nonetheless the history of EU integration demonstrates the continuous evolution of that legal system. Therefore it is increasingly more difficult for lawyers to describe precisely what type of international organization and juridical entity this phenomenon is. It is all the more intricate while seeking a definition in the world of classical international law.An unravelling comes with Rafael Domingo’s theory as the European Union fulfils Domingo’s conditions to become an anthroparchic community of law. It happens through its legal order and participation of non-state actors in the law-making process. In such a case one can believe this juridical entity is also a subject in global law.European integration in the perspective of international law has been being widely analysed so one can easily find some critical papers in this field. This subject has also been examined by political scientists. ‘A sui generis political entity’ as a term defining the European Union is well established in the theory of international relations. Les hommes politiques go even further in their descriptions naming the European Union an unidentified political object (UPO) or the first non-imperial empire. Regrettably these terms cause more confusion than explanation.Despite the fact how descriptions assigned to the European Union are creative and diverse, agreement on what is the actual shape that the EU is taking is by no means easy. The size and functioning of the EU has been shaped and reshaped over the course of history. However the goal of an emerging ‘ever closer union’ is still in search of the paths of real and not ideal accomplishment. In fact, most institutional innovations bear some relation to past experience and borrow from it.

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4. EU Law: Sources, Forms, and Law-making

Foster on EU Law ◽

10.1093/he/9780198794608.003.0004 ◽

2017 ◽

Author(s):

Nigel Foster

Keyword(s):

Decision Making ◽

Legal System ◽

Legal Order ◽

Fundamental Rights ◽

Soft Law ◽

Eu Law ◽

The Rich ◽

Alternative Decision ◽

Law Making ◽

The Eu

This chapter examines the EU’s legal system. It begins by taking an overall view of the EU legal order, the different forms of EU law, and the various sources of law contributing to this legal order, in particular now the rich source of human and fundamental rights in the EU legal order. It considers the non-strictly legally binding rules known as ‘soft law’. It also looks at the ways or processes by which the binding laws are made and reviews alternative decision-making and law-making developments.

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