International organizations

International organizations
International organization is a recent concept, they date from the 20th century, the terminology is typically "20th century", time is definitely imposed after the Second World War, before the term association of States was used instead.
International organizations were born out of a need for cooperation, it is no secret that with social developments, interdependencies are increasing, this is true in domestic society, but also in international society.
These common problems that require common action are first perceived in non-political areas. It is easier to agree on non-political areas than political areas.
That is why the beginning of international organizations was very modest, a very technical beginning. It is true that some thinkers had imagined, as Kant imagined, an international society with a League of Nations.
In reality, it was not through this great door that international organizations began to exist, but through the need to cooperate during the industrial revolution: on the one hand river commissions and on the other administrative unions; river commissions are cooperation between States bordering a river that crosses several territories.
If each state administers a portion of the river in complete autonomy, the overall result is often cacophonic and therefore everyone loses. It was relatively quickly concluded that a good way to administer is to manage in a common way.
The problem is not eminently political, but it is technical because it imposes itself with nature.
Administrative unions are mainly due to technical developments. For example, the telegraph when it was invented, there was a need for an international organization to manage frequencies, because if everyone within its national borders does as it pleases, communications will not arrive at their destination, hence even for the post office, if mail crosses borders, there must be a treaty that organizes all this and it is the treaty on universal postal services that regulates this; rather than having a myriad of unstable multilateral treaties, it is better to cooperate, the problem is "low level" from a political point of view.
Administrative unions were due to technical innovations, hence the need for agreement.
The 20th century saw the explosion of international organizations with the arrival of another type of international organizations, which are international organizations with a political vocation, as they deal with issues of war and peace, human rights and the environment.
These rather intensely political questions become fundamental questions that we only want to confront with a common answer.
Peacekeeping is a function that the entire international community must take together, special alliances are not factors of peace.
There are now political organizations whose prototype is the League of Nations that precedes the United Nations.
There is an explosion of international and intergovernmental organizations, there are now around 400 of them, whereas at the time of the League of Nations they were only about ten; probably we are now reaching a certain saturation point.
What has been the impact on international law of the birth of the organizations we are considering?[править|править код]
The impact is significant, because traditional international law is essentially based on the regulation of sovereignties between States so that States can coexist, international law organizes this coexistence without having many ambitions.
Modern international law is based on cooperation between States. To this international cooperation, the organizations have made an absolutely fundamental contribution.
Even if the United Nations General Assembly can only debate, it is very useful because it allows meetings. Even where nothing is decided, meeting brings a new dimension to international relations.
In very short terms, the essential basis of the law of cooperation, which is one of the roots of modern international law, is nourished by the international organizations that provide the necessary infrastructure for cooperation. On any issue, we must consult and cooperate as best we can. In any case, it is a basis for cooperation that we can no longer do without.
International organizations must be distinguished from other phenomena that are more or less similar to a conference, then an international body, then a non-governmental organization and finally a supranational organization, because all these terms have their own meaning and we conscientiously distinguish them.
Conference[править | править код]
It is distinguished from an international organization by the fact that the conference is not institutionalized, it has no permanent body, it is only a meeting.
The conference is purely temporary, it has a particular objective such as negotiating a treaty, it is a large "meeting" that can be recurrent. In the case of the 1982 Convention on the Law of the Sea, negotiations began in 1974.
When you have conferences that last, you get closer to the international organization, because there is a minimum of institutionalization. The conference is distinguished from the organization by the fact that it is temporary. An international organization can dissolve, but it is not in its program.
International body[править | править код]
The body is not an organization in the sense that there is no representation of Member States in the body. In an international organisation, we have Member States represented in an assembly, a body is a service body, experts are appointed. Thus the International Court of Justice is an international body, it is sometimes said because it is in Article 7 and repeated in Article 92 that the International Court of Justice and the Supreme Court. At the International Court of Justice, there are no representatives of the Member States,
Non-governmental organizations[править | править код]
There are a large number of non-governmental organizations, they may be lobbies, pressure groups, but non-governmental organizations have this particularity because they do not represent States, but they involve private persons in the legal sense, they are entities, foundations and sometimes in non-governmental organizations there may be participation with a State, the State is not represented in assemblies and therefore we do not have an international organization; sometimes we speak of international organizations as intergovernmental relations.
Non-governmental organizations are not subjects of international law with the exception of the International Committee of the Red Cross, which has a series of international powers that it can exercise as a subject of law, otherwise non-governmental organizations have a status in domestic law and are only relevant to international law in certain cases where they may have observer status or when granted the right to speak.
Supranational organizations[править | править код]
There is a distinction with international organizations, a supranational organization is always an international organization, but with a plus, it is a strengthened international organization.
What is more important is that integration, which is more advanced, and the fundamental key from a legal point of view is that the supranational organisation has the power to take decisions and regulations that are directly applicable in the law of the Member States. A decision is directly applicable, there is no screen between supranational organisations and state law. That is why supranational organisations are integration organisations, they are inevitably federations of states, the European Union is an organisation of this type unlike the United Nations. Sometimes it is a mistake to think that they are by mentioning Chapter VII with the Security Council, which can take binding decisions, but the decisions are not directly applicable in the Member States, the Member States must receive them in national law.
With regard to sanctions since Resolution 1267 and 1273, if we look at this type of regime, we have acts of execution by Member States that challenge the measures of execution of such a treaty contrary to other resolutions. It has happened that Security Council decisions have not been implemented as in the case of Libya in the 1980s because there was this power not to be obliged to implement.
What is the definition of an international organization?[править|править код]
There are four elements each necessary to have an organization, they are four cumulative elements, the last one rather in modern law and not in the law of 1945.
1) The international organization is always based on a treaty
The United Nations from a legal point of view is based on the Charter of the United Nations. There is no organization to date that is not treaty-based.
2) The international organization is an association of States
This is the interstate element, the members of the organization are States, this does not mean that organizations cannot open up to other entities.
It is possible that, depending on their status, a particular entity may be a member, but the essential thing is that the organization is an organization of States, the other entities may be national liberation movements. These States are always represented in an assembly, in all international organizations there is a plenary body.
Chapter II of the Charter in Articles 3 and 4 deals with members. Each time it is a question of States. In the United Nations, they are only States, the process of creating a State can be gradual in some cases.
3) The international organization has its own organizational structure
From the point of view of its organs, the organization has its own existence, it is organized, which distinguishes it from a conference of States. In an international organization, certain tasks are delegated, which gives it an organizational structure.
4) the legal personality
It is now considered that an international organization has its own legal personality, is subject to international law and has rights and duties under international law.
An international organization could not be liable if it was not subject to law.
Without legal personality, one cannot commit an unlawful act.
If the United Nations did not have legal personality, what happens and what is the consequence in terms of liability? If an organization X has no personality and an unlawful act is committed against a member or a third State?[править|править код]
The organization cannot as such respond as it does not have legal personality and has not been able to act legally.
What happens if the third State has suffered damage and wants compensation?
From a legal point of view, everyone should be prosecuted.
First, no international organization possesses sovereignty, sovereignty is the prerogative of States only, this means that an organization always has only the competences that are attributed to it or that are willing to be attributed to it, in particular through subsequent practice; in other words, the organization is not in a position to improve its own effectiveness, it can only act within the framework of the powers that have been attributed to it.
When measuring the effectiveness of an international organization, the range of its competencies must be taken into account. Powers are almost never given to him to be formidable. We are aware that the States seized the system early on with possible measures to block the Security Council.
Effectiveness must always be measured by the range of competences and the absence of sovereignty.
The second related remark is that there is always a tension between the institutional and the State level in the law of international organizations; once created, an international organization will always seek efficiency, there will always be a tendency for the organization to integrate new skills and that through subsequent practice it assumes powers.
Member States do not want the organisation to have too many powers and will always insist on limiting the organisation's competences and interpret them strictly.
If we look at the major issues of international organizations, it is always a competition between these two circles, extending the competence of organizations and the concern of States to keep control over organizations. The organization must do what we want it to do and not become a superstate that sometimes goes as far as caricature; the League of Nations did not have a flag, we did not want it to have one to differentiate itself from the States, but we invented a flag of the League of Nations from scratch.
Either the organisation passes and the Member States resign themselves and accept, or the Member States oppose.
The legal personality of international organizations[править | править код]
In law, this term refers to the ability of a given entity to have legal rights and obligations, in other words, the question that arises is whether an international organization can be attributed rights and duties in its own name.
Can a particular organization, for example the United Nations, conclude an international treaty with another entity, State or international organization, yes or no?[править|править код]
Answering this question first implies answering the question of whether the organization has legal personality, because if it has legal personality and concludes a treaty with an entity that has legal personality, otherwise not.
We see that the question is not completely irrelevant, because depending on the response to give the autonomy of action of the international organization is increasing, without legal personality the organization remains under the control of States, it can only make a simple and vulgar conference, with the personality the organization it equips itself with a force for action and can make relevant acts.
Until now, the answer given to the question of personality has essentially been the will of the Member States, i.e. it has been stated that an organisation will have legal personality only if the Member States have wanted to give it, the organisation is a creation of the Member States, they can give it any legal clothing they wish, they can be perfectly satisfied with a conference.
In determining the will of the Member States there is a legal nuance, sometimes the will is very tangible and clear, sometimes the will is determined through a slightly more articulated legal reasoning so that this will does not appear as clearly as in the first case mentioned.
The two cases mentioned, clearly formulated will, which must be implicitly identified, are two techniques to determine whether States wished to establish a legal personality for the organization.
On the one hand, there is the determination of legal personality according to a subjective reason and the determination of personality according to an objective reason.
The subjective determination is quite simple, we look in the constituent treaty of the organization to see whether the member States have expressly granted the personality to the organization in this or that provision.
Of course, it is also possible to search in other constituent texts or even in the preparatory work, if States have reflected on the issue and taken a position on it without writing an express provision, it would be necessary to check all the texts and the preparatory work, because depending on the case indications may be contained therein.
There are a number of more modern organizations than the United Nations in which there are this type of provision, such as, for example, article 281 of the Elysée Treaty, which stipulated on the legal personality of communities. Objective reasoning is another way to determine whether an organization has legal personality, this objective way is based on implication, so it is an implicit legal personality.
When do we use objective argumentation?[править|править код]
Basically, when there is nothing from the point of view of subjective reasoning, if the Member States have made it clear that they have given the organisation a legal personality, it is not necessary to go any further, otherwise the question arises as to whether organisation X, Y, Z has legal personality, because in practice the question can be raised.
The United Nations Charter does not contain any provision expressly stating that the organization has international legal personality, there is none, there are also no other texts that could enlighten it.
From the very first years, the United Nations sent a special envoy, a United Nations agent on mission, Count Bernadotte of the Swedish Royal Family, to Palestine, who was murdered.
The question was whether the United Nations could make a claim for compensation, can the United Nations make a claim because its agent was murdered?
To submit a claim for compensation for damage is to submit this claim in its own name on behalf of the United Nations, and not on behalf of the Member States, which presupposes that the organization has legal personality.
This is a situation where it is necessary to determine whether the United Nations has a legal personality, because on the basis of this it could be decided whether or not the claim can be presented.
The question as explained was raised in the previous context and was referred to the International Court of Justice in the advisory opinion on compensation for damage suffered in the service of the United Nations in 1949.
The Court's reasoning remains to date the most complete reasoning in terms of legal personality.
The Court notes that there is no basis for the Charter, but a whole other series of provisions presupposes the existence of a legal personality.
These other provisions enshrine the competences of the United Nations, in other words these provisions allow, sometimes ask the United Nations as an organization to make certain international legal acts, but to make these international legal acts, it must be assumed that the organization has a legal personality, because if it did not have it it it could not make these acts.
If we have a provision such as Article 43, it says that the United Nations, through the Security Council, enters into agreements with Member States to submit military contingents to carry out military coercive action within the meaning of Article 42.
Concluding agreements that are treaties in this case, the organization concludes agreements with member States, if an organization is given the competence to conclude treaties, it is clearly because implicitly it is given a legal personality, because in the absence of a legal personality, the organization could not conclude under article 43.
We return to the will of the Member States, the reasoning is very simple, the Court may say that, although the Member States wanted the organisation to conclude agreements, they implicitly wanted it to have legal personality, because they cannot ask for something from it without giving it the means to do so; it cannot want the agreement without the condition that makes the agreement possible, namely legal personality.
The two most famous sentences of this Court's opinion can be found on page 179 of the 1949 Reports; in the Court's view, "the organization was intended to exercise functions and enjoy rights - and it has done so - that can only be explained if the Organization has a high degree of international personality and the capacity to act internationally (....) it must be recognized that its Members, by assigning it certain functions, with the duties and responsibilities that accompany them, have given it the necessary competence to enable it to carry out its functions effectively".
The legal personality appears here as a filigree of functions and competences.
The Court says "has a large measure of international personality," this suggests that one may have more or less international legal personality and that therefore the question of legal personality may be gradual.
By this gradual formula, the Court has made it clear that the United Nations has a legal personality based on its competences, but the organisation does not have the same degree of personality as the Member States because the organisation is not sovereign.
The question is sometimes between function and competence, and on the other hand the effect of legal personality.
Powers: competences of international organisations[править | править код]
There is a terminological uncertainty in the title, powers and competences of international organisations, there is a uncertainty between powers and competences; some authors make differences between powers and competences, there may be differences between the two depending on the context. We can take these two terms as equivalents. In English, we use the word "power".
What it is about is the functions performed by an international organization, the organization is always created in order to facilitate international cooperation in a field between member States.
It is necessary to determine how, generally speaking, the powers of an international organization are determined? what are these powers granted, how are they determined? what are its limits and how are they granted? They are general, as they apply to each organization.
There are three fundamental principles on the powers of international organizations, they are alternative in the sense that each of them can form the basis for power, a capacity for action.
While each of these principles is alternative in the sense that they underpin the power of action, each has its own specificity and each pulls in its own direction.

1.