International Organisations Law 11. An IO hardly exists if it is not able to create legal instruments. Assuming that the underlying concept of IOs.

University of Macerata2014-2015

Prof. Avv. Roberto Baratta, PhD

International Organisations Law11

An IO hardly exists if it is not able to create legal

instruments. Assuming that the underlying concept of IOs is that they are separate actors with respect to their members, it is consequential that IOs may be engaged in law-making activities.

However, even though one considers an IO as a mere aggregate of states, it is still conceivable to think that acts of a given O may be relevant in legal terms: e.g. preparation of draft treaties submitted for subsequent ratification to MS

What ultimately matters is the constituent instrument of the IOs: Does it, and to what extent, provide for some law-making activity? So it is the will of the States, built-in in the founding treaty of the O, that matters.

The Law-Making by IOs

Some acts have law-making nature (i.e. creation of general and

abstract rules): e.g. EU regulations (they are binding and directly applicable within the territory of the MS); some decisions of the UN GA which bind all MS

Administrative acts are meant to apply the law: e.g. EU decisions and SC decisions

Acts relating to the internal functioning of the O.: e.g. decisions concerning the budget of the O, or the elections or selection of officials

NON-binding acts - it is a large category of acts aimed at influencing behaviour but without creating law. Many IOs adopt recommendations, declarations, codes of conduct, guide-lines and so on. They are often used because if all decisions have to be taken unanimously, the O will be unworkable. States do no like majoritarian binding decisions either. So, non-binding acts taken at majority are a useful device

Soft-law is in between binding rules and non-binding rules. Soft-law acts are not law. Yet they cannot be deemed to be devoid of legal effects. It is an ambiguous concept and, according to some authors, the idea of soft-law is to be discarded

Different categories of law instruments

Some examples:ICAO (International Civil Aviation Authority) has the power to establish rules regulating aircrafts flying over the high seasWHO (World Health Organisation) enacts regulations on issues as the names to be used to describe diseases, or sanitary and quarantine regulationsIAEA (International Atomic Energy Agency) adopts safety standards on IAEA’s own operationsUN SC in recent years has started to legislate: see resolutions on terrorism and disarmament that are considered to go beyond merely applying existing Charter provisions and, instead, seem to lay down new rules. Critics of this evolution: how can the SC legislate given its lack of legitimacy? SC is not very representative of all international community.

IOS binding acts

Under UN Charter, the GA normative powers are rather limited According to Article 4, it has the final say about admission of

members Under Article 17, it approves the budget and decides on the

apportionment of expensesNevertheless, the GA adopts non-binding instruments, namely resolutions, that may be highly relevant – in South West Africa cases (1066), ICJ remarked flatly that whatever persuasive force resolutions may possess, this force operates on the political level (ICJ Reports, 6 para. 98)That does not mean that resolutions are deprived of legal effects:i) They may reflect a practice contributing to the interpretation

of the Charter. Thus, even though they are not authoritative acts per se (arguing from the fact that the Charter does not authorize the GA to make authoritative interpretation of the Charter), resolutions may reflect a practice of both the institutions and MS as regards the interpretation of the Charter

The UNGA normative powers

ii) GA resolutions can be considered as evidence of opinio juris, as the IC stated in the Nicaragua v USA case (para. 188), and confirmed in its Opinion on the legality of nuclear weapons (ICJ Reports, 1996, para. 170).iii) GA resolutions as instant customs. Inspired by the rapid acceptance on a few GA res. on outer space, Prof. Bin Cheng theorized the concept of ‘instant custom’. Voting in favour amounts to being actual behaviour revealing in essence state practice (diuturnitas) It is a contradiction in terms.Alternatively, resolutions of this kind: may embody agreement of states voting in favour and, thus, be

considered as agreement in simplified form may be explained around the notion of estoppel: states which voted

for something would be precluded from practising the opposite. Even estoppel doctrine may be debated: voting is not the same as making unilateral promises

Lauterpacht assumption: GA res are binding in the sense that MS must consider them in good faith; while the author admitted that that is an empty obligation (ICJ 1988, Transporter Armed action case: good faith in itself does not create legal obligations)

… GA powers

EU institutions have been mandated, under certain law-

making procedures, to create binding legislation both for individuals and MS

Two broad categories of acts: binding and non-binding acts. Moreover, EU institutions have created another range of acts not mentioned in the treaties (the so-called atypical acts)

Binding acts: i) Regulations – normative instruments par excellence : binding in their entirety (in principle MS are even prevented to perform any transformation operation) ; direct applicable (they enter within the domestic legal orders without further ado); ii) Directives – binding as far as the result is concerned, and leave MS the choice as to how to achieve that result; legal obligation to implement them within the domestic order; iii) Decisions – may be regarded, by and large, as administrative acts (e.g. Commission decisions regarding antitrust or merger and acquisitions) – are binding; but do not create abstract and general rules for the citizens. They can even be addressed to MS

EU law instruments: an overview

Non-binding acts (recommendations and opinions) - Grimaldi ruling (1989)

Atypical acts (action progamms; guidelines; codes of conduct; resolutions) Focusing on their content, ECJ has often found that some legal effects may be derived from these acts

Inter-institutional agreements (Article 295 TFEU): an IIA involving the Council may bind MS individually and jointly? The relevance of the duty of loyal cooperation

ECJ has held that there an hierarchy between different sources of law, and above all the need to respect primary law in the sense that EU institutions may not infringe the treaties: such acts would be tantamount to an amendment which has no legal effect (Defrenne v Sabena case, 1976)

CFSP acts

…EU law instruments

Another means to create law for Os is sponsoring the

conclusion of treaties between MS The UN system: International Law Commission is

responsible for the codification and progressive development of international law. It has been the breeding ground for a number of important conventions, such as the 1969 Vienna Convention on the Law of Treaties. Likewise, the Council of Europe: a number of treaties, including the ECHR, have been concluded within the framework of this O

The standard technique: drafting a treaty which will than become binding upon those who ratify it.A second technique - opting-out procedures adopted by the WHO: MS have a certain period of time to make it known that they do not accept a certain convention.Third technique – the convention applies provisionally, awaiting the decision of MS either to opt-in or to opt-out

Law creation through conventions

In this perspective, IOs enact almost executive powers.

The clearest example is the EU Commission: among its prerogatives is the facility to enact a ‘decision’ that shall be binding in its entirety upon its addressee. Similarly, the Commission has far-reaching powers in the field of competition law (whether companies violated EU rules on anti-trust; and in the field or merger and acquisition; and whether MS infringed state-aids rules; it is again the Commission which decides on anti-dumping duties against foreign exporters)UNSC: it has the power to take binding decisions under Chapter VII of the Charter – this power is laid down in Article 25, holding that MS ‘agree to accept and carry out the decisions of the SC in accordance with the present Charter’ – The SC power does not include law-making, being it rather limited to making decisions. There is a fine line between them. So, if the SC justifies its activity in terms of preserving peace, it is unlikely that is acting ultra vires.

IOs having the task of applying the law of the constituent treaty

A theoretical analysis – three theories of law-making: what is

the legal foundation of law-making?i) Treaty analogy: since the States participate in the law-making

procedure through their representatives, law-making act are binding. Law-making acts as analogous to treaties. – This theory is discarded because does not explain the binding nature of majority decisions

ii) Delegation of power: if MS delegates some law-making powers to a particular O, the related acts are binding for them

This theory is confirmed by national Constitutions: e.g. Article 92 of the Danish Constitution states that powers may be transferred to IOs; likewise, Article 23 German Basic Law as regards EU; and Article 11 Italian Constitution (“L'Italia ripudia la guerra come strumento di offesa alla libertà degli altri popoli e come mezzo di risoluzione delle controversie internazionali; consente, in condizioni di parità con gli altri Stati, alle limitazioni di sovranità necessarie ad un ordinamento che assicuri la pace e la giustizia fra le Nazioni; promuove e favorisce le organizzazioni internazionali rivolte a tale scopo”).

Theories of law-making

- MS give the O the power to adopt binding acts; they accept these acts as binding. So the power derives from the will of the MS the consent of MS is deemed decisive

- How to reconcile this theory with the fact that IOs may develop customary international law? In the Nicaragua case (1986), the ECJ held GA resolutions can be evidence of opinio juris. However, the ICJ considered the will of the MS expressed within the GA. So, again what matters is the consent of MS

iii) IOs as international legislators. IOs adopts binding acts in the interests of mankind – according to some authors, the UN GA is compared to an international parliament

Is there a convincing theoretical explanation of law-making?

Delegation of powers