University of Macerata
2014-2015
Prof. Avv. Roberto Baratta, PhD
International Organisations Law
3
Why do States create IOs?
Realist doctrine is based on self-interest: According to
Klabbers, it is hard to believe that states will do anything for a
reason which cannot in one way or another be traced back to
self-interest.
Functional approach is based on the idea of cooperation Sometimes, it has been advocated by specialists of
international relations that cooperation is based on the
premise of enlightened self-interest: if cooperation makes the
cake grow bigger, then an equal share of the cake as before
will nonetheless result in a bigger piece.
Still, both are perspectives of self-interest, even if one argues
that participation to IOs is due to the fact that the cost of
staying out may be too high (Klabbers opines indeed that this
might help to explain why many EU MS have joined the EU
and others are keen to join)
Is there a convincing theory concerning
the legal nature of IOs?
a) Viewing IOs as would-be states - its
premiss is the concept of state, the
federal model being an attraction
namely. However, this model has been
dispelled in the Reparation for injuries
case (1949, ICJ Reports 179) where the
ICJ held that the UN was not the same
as a State, let alone a superstate
b) Viewing IOs as to their relations to the participating MS.
Amerasinghe approach: MS as if they are third parties; MS have
created a distinct legal entity with respect to themselves, and have
herewith limited their individual liability for any actions the org. might
take.
In the Reparation for injuries Opinion (1949, ICJ Reports 178-179),
replying to the issue as to whether the UN had the capacity to bring
an international claim, the ICJ considered the actual wording of the
Charter, as well as its practice, and held:
- the UN was intended to exercise and enjoy, and in fact it is
exercising and enjoying, functions and rights which can only be
explained on the basis of the possession of a large measure of
international personality and the capacity to operate upon an
international plane,
- though that is not the same thing as saying that an IO is a State
- it just means that it is a subject of international law, it is capable of
possessing international rights and duties, and that it has the capacity
to maintain its rights by bringing international claims
As a result, UN is distinct legal entity with regard to its members
- The ICJ underlying idea is that IOs should have inherent right
to bring claim under international law. In other words, the
functional necessity theory, according to which an IO can
reasonably claim such rights and privileges as would enable
them to function effectively. The legal positions of IOs are
geared to their functional requirements (this theory is often
applied as regards the inviolability principle of diplomatic
personnel)
- Some try to discard this theory for several grounds: namely
because MS are generally keen to keep their creation in check;
and it is in itself rather empty, deserving more theoretical
elaboration. IO are rather the result of the fundamental tension
between the organisation and its members. This theory argues
that in some respects IO and its members may well be
indistinguishable from each other for:
a) MS are always behind the organisation
b) it is not always possible to tell whether an act is undertaken
by an organisation or by its MS as a group