Course Syllabus
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LAW AND FUNCTIONING OF INTERNATIONAL INSTITUTIONS
Professor David Small
This course is intended to familiarize you with a phenomenon that has transformed
international relations and international law or norm making - the growth of modern
international organizations, with the institutional law and functioning of these
organizations and with some of the controversies emerging about them. We will have
the benefit of several guest experts with extensive experience in the field.
The intent is to keep lecturing to a minimum and have productive class discussions. The
quality of the discussions depends on your participation. The items “for reflection” at
various points in the syllabus are for you to think about before class. (They are not the
only matters that will be discussed.)
There will be one exam, take home and open book, at the end of the course. Attendance
and contribution to class discussion will be a factor in final grading, counting for 30% if
that would raise the student's grade and 10% if it would lower that grade.
Students may opt to write a “risk-free” paper of approximately 1750 to 3500 words in
length, not counting bibliography (i.e., approximately 7 to 14 double spaced pages if
done with 1 inch margins and 12 point Times New Roman font). It will be graded and,
before the final exam, the student will have the option of having the paper given the
same weight as the final exam — or not taken into account at all. Students are welcome
to discuss a proposed paper with me, preferably by week 6, and must turn it in by
November 21.
THE REQUIRED BOOKS:
Malcolm N. Shaw, International Law, Seventh Edition (2014)(paperback);
Philippe Sands and Pierre Klein, Bowett’s Law of International Institutions, Sixth Edition
(2009)(paperback)
RECOMMENDED:
It is important to understand the traditional view of the sources of international
law. Students who have not had a general course on international law or could benefit
from review of the basics are encouraged to read:
Thomas Buergenthal and Sean D. Murphy, Public International Law in a Nutshell, in
particular Chapter 1, Application and Relevance of International Law, and Chapter 2,
Sources of International Law – Available in the Library.
A valuable and readable overview of the development of international law may be
found in Shaw's International Law, Chapter 1 "The nature and development of
international law" and Chapter 2, International law today".
COURSE OUTLINE
Week 1 - August 29
Origins of the modern system of international organizations (IOs)
Readings:
•
Sands and Klein: Chapter 1, General Introduction, paragraphs 1-001 through 1-033
(pp. 1-18).
•
From the Congress of Vienna to Present-Day International Organisations, B Reinalda,
UN Chronicle . Vol. LI No. 3 2014.https://unchronicle.un.org/article/congress-viennapresent-day-international-organizations
•
Sands and Klein: Table of Contents Part I: Overview of Existing International
Institutions, pp. ix-xi. You may also quickly glance through the text of Part I, Overview
of Existing International Institutions, not for detail, but just to get a sense of the
range of contemporary international organizations. Specific optional readings in Part I
will be set out for week 2.
•
Why States Act through Formal International Organizations, Abbot and Snidal, pp. 15, 9-28 http://0www.jstor.org.gull.georgetown.edu/stable/pdf/174551.pdf?_=1471713718938
For reflection:
What is a public international organization?
International organizations now operate in virtually every area of international concern.
Based on your general knowledge, how have either or both of Abbot and Snidal’s two
basic “functions” of international organizations, centralization and independence, made a
positive contribution in some area of concern to you?
The dominant legal theory of public international organizations is functionalism. From the
origins and early development of international organizations, and whatever else you
know of them, what would you think “functionalism” in this context means?
Week 2 - September 12
From the League of Nations to the UN, its Specialized Agencies and beyond
1. Comparison of the League of Nations Covenant and the Charter of the United
Nations
Readings:
•
Read to compare:
o
the Covenant of the League of
Nations, http://avalon.law.yale.edu/20th_century/leagcov.asp
o
•
the UN Charter: http://www.un.org/en/documents/charter/;
Sands and Klein: Chapter 2, The United Nations, paragraphs 2-001 through 2-008
(pp. 21-25), 2-046, 2-065 through 2-068.
For reflection:
What aspirations do the Covenant and Charter have in common?
Would you consider the United Nations a simple update of the League of Nations with
more universal membership? What significant differences do you see?
2. Overview of the UN and its relationship to the Specialized Agencies
Readings:
•
Sands and Klein: Chapter 2, The United Nations: paragraphs 2-001 through 2-009, 2012 through 2-017, 2-023 through 2-029, 2-033 through 2-039, 2-069 through 2-083,
2-093 through 2-119
•
You may find it helpful to read the UN Website: About the UN http://www.un.org/en/about-un/
•
To get an idea of how some organizations currently view their functions and
priorities, please read the brief self-description on their web-sites of at least six of the
UN Specialized Agencies or other organizations described in Part I of Sands and
Klein. For example:
http://www.itu.int/en/about/Pages/overview.aspx
do/en/
http://www.who.int/about/what-we-
http://www.imo.org/en/About/Pages/Default.aspx
http://www.fao.org/about/w
hat-we-do/en/
http://www.worldbank.org/en/about/what-we-
do/brief/ibrd
http://www2.unwto.org/content/who-we-are-0
•
Optional -- for short descriptions of the functions of the various specialized agencies,
you can read Sands and Klein: Chapter 3, UN Specialized Agencies, paragraphs 3-001
through 3-019, 3-023, 3-027, 3-030, 3-031, 3-033, 3-034, 3-041, 3-042, 3-045,
1stsentence of 3-046, 3-048, 3-051, 3-053, 3-055, 3-056, 3-060, 3-062, 3-067, 3-069, 3071, 3-073 and 3-075, as well as the conclusion: paragraph 3-077.
3. The Legal Personality of International Organizations and its consequences
Readings:
•
Sands and Klein, Chapter 15, paragraphs 15-001 through 15-031 (pp 474-489).
•
ICJ Advisory Opinion, Reparation for Injuries suffered in the Service of the United
Nations, pp 6(bottom)-18 http://www.icj-cij.org/docket/files/4/1835.pdf; Dissenting
opinion of Judge Krylov. http://www.icj-cij.org/docket/files/4/1847.pdf
•
Vienna Convention on the Law of Treaties, Articles 34-38.
•
IMF Articles of Agreement; Article IX, section 2 (IBRD Article VII, Section 2 is
identical);
•
ICSID Convention, Article 18
For reflection:
If the attribution of legal personality flows from the functions accorded an international
organization in the treaty creating it, and a treaty creates neither rights nor obligations
for a non-party to it without its consent (see Article 34 of the Vienna Convention on the
Law of Treaties), how can the organization be entitled to assert a claim against a nonmember?
Is this advisory opinion an example of the Court making new international law?
The ICJ suggests that a treaty creates “objective” international legal personality when the
vast majority of states are party. Why should this not also occur when a smaller group
of states are?
What are the main consequences of international legal personality?
Week 3 - September 19
The IO Treaty 1. Its Interpretation and Application;
Reading:
•
Sands and Klein, paragraphs 14-010, 14-020 through 14-023
•
Vienna Convention on the Law of Treaties, Articles 5, 31 and 32
•
Competence of the ILO to Regulate the Conditions of Labour of Persons Employed in
the Agricultural Sector, PCIJ Advisory Opinion,, pp. 23 (penultimate paragraph) and
25 http://www.icjcij.org/pcij/serie_B/B_02/Competence_OIT_Agriculture_Avis_consultatif.pdf
•
Competence of the ILO to Examine Proposals for the Organization and Development
of Methods of Agricultural Production, PCIJ Advisory Opinion, p. 55 (last three
paragraphs) and p. 57,1st sentence of 1st full paragraph). http://www.icjcij.org/pcij/serie_B/B_03/Competence_OIT_Agriculture_Avis_consultatif_1.pdf
•
Reparation for Injuries suffered in the Service of the United Nations, ICJ Advisory
Opinion, pp 12 (last paragraph), 13 (last paragraph) through 14 (first full
paragraph). http://www.icj-cij.org/docket/files/4/1835.pdf;
•
Effect of Awards of Compensation Made by the United Nations Administrative
Tribunal ICJ Advisory Opinion, pp. 13 (middle) through 14 http://www.icjcij.org/docket/files/21/2123.pdf
•
Certain Expenses of the United Nations (Article 17, Paragraph 2 of the Charter) ICJ
Advisory Opinion, p. 168, 1st two full paragraphshttp://www.icjcij.org/docket/files/49/5259.pdf
•
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ
Advisory Opinion, paragraphs 19-22 http://www.icj-cij.org/docket/files/53/5595.pdf
•
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, ICJ Advisory Opinion, paragraphs 24-28http://www.icjcij.org/docket/files/131/1671.pdf
•
Legality of the Use By a State of Nuclear Weapons, ICJ Advisory Opinion,
paragraphs18 through 21
http://www.icj-cij.org/docket/files/93/7407.pdf
For Consideration:
Is the ordinary meaning of the language as controlling in a treaty that is the constitution
of a functioning organization as it is in other kinds of treaties, bilateral or multilateral,
that establish sets of mutual obligations?
In this connection, consider:
•
Article 27(3) of the UN Charter and the actual practice of the Security Council in
adopting resolutions despite the abstention by or absence of a SC Permanent
Member;
•
Article 12 of the UN Charter and current practice of the UNGA in adopting
resolutions on matters still on the active agenda of the Security Council;
•
The changing meaning of Article 2(7) of the UN Charter, which was originally
understood to preclude UN consideration of a Member country’s treatment of its
own citizens, as a matter essentially within its domestic jurisdiction;
•
The fact that the UN has administered a number of territories despite the absence of
any provision in its Charter mentioning such a power.
Compare how the PCIJ and the ICJ have treated the question of an international
organization having powers or functions not expressly provided for in its founding treaty
or necessary to give them practical effect.
2. Reservations and Amendment.
Readings:
•
Sands and Klein, paragraphs 14-005 through 14-009 and 14-024 through 14-033
•
Convention on the OECD, Article
20(1)
http://www.oecd.org/general/conventionontheorganisationforeconomicco-
operationanddevelopment.htm
•
OECD Financial Regulations 2 and
5(1)
https://www.oecd.org/legal/OECD_Financial_Regulations_EN.pdf
For Consideration:
Do the terms of an IO’s founding treaty constrain the Members from acting contrary to
those terms, if no member objects? If they do so act, is that an “interpretation”, a de
facto amendment, or something else?
Given the UN precedents, could OECD members have simply agreed unanimously to
adopt two year budgets instead of the mechanism they put in its Financial Regulations 2
and 5 to get around the terms of Article 20(1)?
Week 4 - September 26
1. Privileges and Immunities
2. Liability and Responsibility
Week 5 - October 3
The IO Secretariat
1. Role and Conduct of the Secretariat
2. IO Staff Law (Int'l Administrative Law and Resolution of Staff Disputes
Week 6 - October 11 (Tuesday)
Guest expert: Thomas Johnson, Former US State Department Attorney, Diplomat, US
Marine Reserve Colonel
1. International Organizations as Lawmakers
2. The use of rules, strategies and tactics by government participants in IO meetings
and conferences
Reading:
•
Shaw, pp. 51-63.
•
Sands and Klein, paragraphs 2-012 through 2-015; Chapter 11, “Legislative” or
Normative Function, paragraphs 11-001 through 11-051.
•
Alvarez, Jose, Governing the World: International Organizations as
Lawmakers, http://www.law.nyu.edu/sites/default/files/ECM_PRO_065319.pdf (Also
filed on CANVAS
Please Note: This is a very important article for the course.
Topics:
Multilateral Treaty Making and follow up and role of NGO’s in these areas
•
Two OECD examples: Multilateral Agreement on Investment (failed), Anti-Bribery
Convention (success)
•
UN Anti-Corruption Convention
•
Refugee Convention and Protocol (Conclusions of the UNHCR Executive Committee)
•
Transparency International, UNCAC Coalition
International Law Commission – Reports, Draft Treaties and Commentaries
Legal effects of UN “regime” type treaties for non-parties: VCLT, UNCLOS
Legal Norms through non-binding instruments. Examples:
•
American Declaration of the Rights and Duties of Man
•
Universal Declaration of Human Rights
•
UN Declaration on the Elimination of All Forms of Intolerance based on Religion or
Belief
•
UN Declaration on Outer Space
•
Un Declaration on Friendly Relations
Law making by some UN Specialized Agencies
Guest expert: Thomas Johnson, Former US State Department Attorney, Diplomat, US
Marine Reserve Colonel (Military Law Expert)
Reading:
•
Sands and Klein, paragraphs 2-009 through 2-015.
Examples:
•
ILO Standards
•
ICAO SARPS
•
IMO Standards
•
FAO/WHO Codex Alimentarious
•
WIPO Treaties
2. The use of rules, strategies and tactics by government participants in IO meetings
and conferences
Week 7 - October 17
1. The UN and the Development of International Peace and Security Law
•
Shaw: Chapter 20 - International Law and the use of force by States pp. 811-846
•
Sands and Klein: Chapter 2, The General Assembly, paragraphs 2-017 through 2-023
(pp. 29-33); Security Council, paragraphs 2-0030 through 2-064pp. 36-52
•
Compare the Covenant of the League and the UN Charter in relation to the
maintenance and restoration of international peace and security.
For Reflection:
Consider the conflict between Israel and Palestine. How does the UN Charter and the
international law of the post world war II provide guidance as to the legitimacy of
policies and outcomes and how does that compare with the guidance that would have
been provided under the Covenant of the League and pre-war international law?
Week 8 – October 24
The Security Council - Maintaining International Peace and Security
Advancing an International Agenda through an NGO
Guest Expert: Mona Ali (Former Senior Legal Officer, UN Office of Legal Counsel,
Currently a Legal Adviser to Independent Diplomat, and NGO.
Fuller biographical
statement available at http://independentdiplomat.org/about-us/staff/mona-khalil/
Week 9 – October 31
Human Rights and Humanitarian Law
Guest expert: Thomas Johnson, Former US State Department Attorney, Diplomat, US
Marine Reserve Colonel (Humanitarian Law Expert)
Sands and Klein, paragraphs 13-066 through 13- 073
Week 10 – November 7
The Environment
Week 11 – November 14
The International Financial Institutions (IFI’s) and WTO\
Guest Expert: Zoe Kolovou, Lead Counsel Africa Practice Group, Legal Vice-Presidency,
World Bank
Week 12 – November 21
International Tribunals and Quasi-Judicial Bodies
Reading:
Sands and Klein – Chapter 13 – paragraphs 13-001 through 13-005, 13-008 through 13040, 13-042 through 13-059, 13-061, 16-062, 13-074 through 13-077, 13-079-13-081
(first sentence) through 13-114, 13-142 through 13-156, 13-161-162.
David Small - Comment - Oil Platforms Case: jurisdiction through the - closed - eye of
the
needle:http://0web.b.ebscohost.com.gull.georgetown.edu.proxy.library.georgetown.edu/eh
ost/pdfviewer/pdfviewer?sid=10ea46f3-5bee-4d24-99d4afa0ab06f9e2%40sessionmgr103&vid=7&hid=116
The Comment is also a file on
CANVAS.
PLEASE NOTE: The first fifteen minutes of this session will be devoted to your
completing the confidential on-line course evaluation - for which you will need to bring
your laptops to class.
Week 13 – November 28
General Review and Working as an IO Lawyer
View video: "Adapting to Change - the Role of International Organizations" on ASIL
Annual Meeting Website, under 2015 meeting heading. www.asil.org/resources/2015annual-meeting
The final class session will be an opportunity to raise questions and review some of the
principal ideas themes and before the take home exam. If time permits, it will also be an
opportunity for some “reminiscences' of the former OECD General Counsel — how the
OECD Directorate for Legal Affairs functioned, the various roles of OECD
lawyers, recruiting staff lawyers. General discussion of student interest in working for an
IO.