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.

Responsibility of the WTO for Breach of an International Obligation under the Draft Articles on Responsibility of International Organizations

2013 ◽  
Vol 50 ◽  
pp. 197-242
Author(s):  
Noemi Gal-Or
Keyword(s):  
International Law ◽  
International Organizations ◽  
World Trade ◽  
International Organization ◽  
Legal Personality ◽  
International Obligation ◽  
The World ◽  
History Of ◽  
International Responsibility ◽  
International Legal Personality

SummaryThis article challenges the argument that the World Trade Organization (WTO) is devoid of executive or governing functions and, hence, immune from the regime set out in the International Law Commission’s 2011 Draft Articles on the Responsibility of International Organizations (RIO). A brief drafting history of the RIO, clarification of the terminology associated with matters of international responsibility, and two hypothetical examples illustrating the potential for WTO responsibility set the stage for the article’s main argument. The author examines the WTO’s nature by analyzing its constituent law, its sui generis mandate and functions, its international legal personality, and its own use of terminology in presenting itself to the world. Critical analysis of RIO Articles 64 (on lex specialis) and 10 (on the existence of a breach of an international obligation), and their application to the WTO, completes the argument. The author thus refutes both the notions that (1) the WTO is exclusively member driven and, hence, not an executive, governing organization but a sui generis entity and (2) the WTO is therefore unable to breach an international obligation and thus immune from the RIO regime. The article concludes that, while a breach by the WTO of an international obligation may be exceedingly rare, it nonetheless — as any international organization — comes within the ambit of the RIO regime. The WTO should therefore consider adjusting its internal rules accordingly.

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.

4. The actors in the international legal system

2021 ◽  
pp. 57-79
Author(s):  
Anders Henriksen
Keyword(s):  
International Law ◽  
International Society ◽  
International Organizations ◽  
Legal System ◽  
Legal Personality ◽  
System P ◽  
New States ◽  
International Legal System ◽  
State Succession ◽  
The Creation

International society is first and foremost a society of individual sovereign states. However, states are by no means the only relevant actors in international law. In fact, one of the consequences of the post-1945 expansion of international law into areas that had traditionally been of limited international interest has been the increasing legal importance of a variety of non-state actors, most notably international organizations and individuals. This chapter introduces the various actors in the international legal system that possess rights, powers and obligations in international law. It provides a thorough presentation of statehood and the criteria for the creation of new states, and briefly discusses the (limited) legal significance of recognition. It discusses the modes by which a state can acquire title to new territory; the issues of state succession and state extinction; and the legal personality of territorial entities other than states, international organizations, individuals and additional actors in the international legal system.

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

4. The actors in the international legal system

2017 ◽  
Author(s):  
Anders Henriksen
Keyword(s):  
International Law ◽  
International Society ◽  
International Organizations ◽  
Legal System ◽  
Legal Personality ◽  
System P ◽  
New States ◽  
International Legal System ◽  
State Succession ◽  
The Creation

International society is first and foremost a society of individual sovereign states. However, states are by no means the only relevant actors in international law. In fact, one of the consequences of the post-1945 expansion of international law into areas that had traditionally been of limited international interest has been the increasing legal importance of a variety of non-state actors, most notably international organizations and individuals. This chapter introduces the various actors in the international legal system that possess rights, powers, and obligations in international law. It provides a thorough presentation of statehood and the criteria for the creation of new states, and briefly discusses the (limited) legal significance of recognition. It discusses the modes by which a state can acquire title to new territory; the issues of state succession and state extinction; and the legal personality of territorial entities other than states, international organizations, individuals, and additional actors in the international legal system.

4. The actors in the international legal system

2019 ◽  
pp. 59-81
Author(s):  
Anders Henriksen
Keyword(s):  
International Law ◽  
International Society ◽  
International Organizations ◽  
Legal System ◽  
Legal Personality ◽  
System P ◽  
New States ◽  
International Legal System ◽  
State Succession ◽  
The Creation

International society is first and foremost a society of individual sovereign states. However, states are by no means the only relevant actors in international law. In fact, one of the consequences of the post-1945 expansion of international law into areas that had traditionally been of limited international interest has been the increasing legal importance of a variety of non-state actors, most notably international organizations and individuals. This chapter introduces the various actors in the international legal system that possess rights, powers and obligations in international law. It provides a thorough presentation of statehood and the criteria for the creation of new states, and briefly discusses the (limited) legal significance of recognition. It discusses the modes by which a state can acquire title to new territory; the issues of state succession and state extinction; and the legal personality of territorial entities other than states, international organizations, individuals and additional actors in the international legal system.

International Organizations’ Obligations under Human Rights and International Humanitarian Law

2017 ◽  
Author(s):  
Carla Ferstman
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Personality ◽  
Peremptory Norms ◽  
International Legal Personality

The chapter considers in what circumstances international organizations have international legal personality and what results from such personality. It also considers whether international legal personality gives rise to rights and obligations and which ones. Central to this analysis, the chapter studies whether an international organization may have human rights and international humanitarian law obligations and whether these derive from its international legal personality, its constituent agreement, as a result of the functions of the organization, or some combination thereof. The chapter concludes that international organizations have obligations to comply with peremptory norms and accepted general principles of international law (which include elements of human rights and international law) that apply to all subjects under international law. There are also additional obligations which apply in particular contexts, and are aligned with organizations’ purposes and their capacities to act and react in any given situation.

(Dis)solving the Chronological Paradox in Customary International Law: A Hartian Approach

2008 ◽  
Vol 21 (1) ◽  
pp. 129-148 ◽  
Author(s):  
David Lefkowitz
Keyword(s):  
International Law ◽  
Legal System ◽  
Resolution Function ◽  
Customary International Law ◽  
International Legal System ◽  
The Creation ◽  
The Law ◽  
Normative Standard

As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is law. What makes the customary rule law is adherence by officials in the international legal system to a rule of recognition that treats custom as a source of valid law. Confusion over this distinction arises because in the international legal system the same agents whose beliefs give rise to a customary rule are the legal officials whose adherence to the rule of recognition leads them to deem that rule legally valid. The proposed solution to the chronological paradox employs H.L.A. Hart’s analysis of the concepts of law and a legal system, and in particular, the idea of a rule of recognition. Yet Hart famously denies the existence of a rule of recognition for international law. Hart’s denial rests on a failure to distinguish between the ontological and authoritative resolution functions of a rule of recognition, however. Once such a distinction is drawn, it can be argued that customary international law rests on a rule of recognition that serves the ontological function of making customary norms legal, though not the authoritative resolution function of settling disputes over the alleged legality of particular norms.

Liability of international organizations

1988 ◽  
Vol 1 (1) ◽  
pp. 3-14 ◽  
Author(s):  
Henry G. Schermers
Keyword(s):  
International Law ◽  
International Organizations ◽  
Point Of View ◽  
International Organization ◽  
Theoretical Point ◽  
Governmental Organizations ◽  
Legal Questions ◽  
Legal Literature ◽  
Financial Obligations

When in 1985 the International Tin Council was unable to meet its financial obligations, various legal questions arose. It appears that the question of liability of international organizations has, up till now, not been adequately addressed. The article written by Professor Henry G. Schemers is a first attempt in legal literature to examine the liability of international organizations from a theoretical point of view. The author concludes that the principle that everybody is liable for his debts does not apply to international governmental organizations. The liability of governments is, in the eyes of the author, not limited when they perform some of their tasks through an international organization, unless there is an express provision to this effect. However, in general international law is insufficiently developed with respect to the payment of debts of international organizations.

5 Obligations of International Organizations, 5.2 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt , Advisory Opinion, [1980] ICJ Rep 73

2016 ◽  
Author(s):  
Brölmann Catherine
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Advisory Opinion ◽  
Customary International Law ◽  
Legal Obligations ◽  
The Icj ◽  
Legal Character ◽  
First Time ◽  
The Relationship

The 1980 WHO Advisory Opinion elaborates on the general legal obligations (grounded in the duty of co-operation and good faith) that are part of the relationship between an international organization and its host state. In this opinion the ICJ possibly for the first time articulated this relationship as a set of mutual obligations between legal equals. The opinion moreover enunciates the sources of international legal obligations binding upon international organizations (IOs): the treaties they conclude (uncontroversial); I customary international law; their constitutions. The Court uses the proverbial reassurance of UN member states in saying that the WHO is not a ‘super-state’. Finally, in accepting jurisdiction the Court explicitly separated the legal character of the question from the political considerations motivated by that question.

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