The Law Governing International Organizations

I. INTRODUCTION

There are no provision defining what an

‘international organization’ is in the positive

international law. Just as the case with every discipline

of law, to get the best, precise, universally accepted

definition requires tedious effort.1 An international

organization2 is a legal entity3 whose activities are

governed under a legal system. In its inception in the

middle of the 19th century, it was not a common knowledge

that the international organizations have their own laws;

in fact, the recognition to the fact that the

international organization have their own laws only arose

gradually4 during the following century, in the period of1 Syahmin A.K., Pokok-Pokok Hukum Organisasi Internasional (Principles of Law of International Organizations). Bandung: Binacipta. 1986. p. 32 International organization is often defined as an organization which was established under an international agreement or with otherinstruments under the international law with its own legal personality. Lisa Clarke, “Responsibility an International Organization under International Law for the Acts of Global Acts Public-Private Partnership”, Chicago Journal of International Law, Vol. 12 No. 1 (Summer 2011), p. 723 International organization, legal entity (such as corporations), natural entities and Non-Government Organizations are considered as Non-State Actors. On the other hand, states and international organizations have the international personal status. Anthony Aust, Handbook of International Law, (New York: Cambridge University Press, 2010), p. 134 In the contemporary history of international law, the doctrine of international personal status refers to the states as a single legalsubject, whereas the recognition to the personal status of a legal entity such as an international organization developed at a slower

1920s to the 1930s, which later became fully accepted in

1945. Nowadays it’s a common knowledge that the

international organizations employ their own laws

governing themselves distinct from those of governing

their member states. Cf. H. Mosler stated that the states

possess their own separate domestic spheres exclusively,

whereas the legal system of an international organization

was created from the member states and is limited only to

the functions of the international organizations

stipulated within the multilateral agreements between its

member states.

The legal system governing the activities of an

international organization covers the obligations brought

upon by the general provisions of international law, the

Articles of Association of the respective international

organization, and the international treaties.5 Each and

every international organization wields their own

regulations which act as their own laws. How an

international organization treats its own law truly

depends on the organization itself.6 The regulations the

rate. A. Claire Cutler, “Critical Reflection on the Westphalian Assumption of International Law and Organization: A Crisis of Legitimacy.” Review of International Studies, Vol. 27, p. 1355 Philipe Sands and Pierre Klein, Bowett’s Law of International Institution, (London: Sweet & Maxwell, 2011), p. 4416 Sri Setianingsih Suwardi, Pengantar Hukum Organisasi Internasional. (Introduction to the Law of International Organizations). Jakarta: Penerbit Universitas Indonesia, 2004. p. 183

international organizations have are limited to the scope

of the organizations and to the participating countries

within the organization. The regulations governing an

international organization are specifically the Articles

of Association of said international organization, the

related decisions and resolutions, and the international

organization practices.7

The sources of legal liabilities which act as the

parameter to determine whether the activities and acts

taken by an international organization is legal are

considered to be classified into two categories8. The

first one consists of the organizational rules and

regulations, which usually is also called as the internal

law of an international organization. The Vienna

Convention held in 1986 defined these internal laws as

the Articles of Association, the decisions and the

resolutions produced by an organization, and the

traditional, habitual practices of the international

organization. Naturally, the other category is called the

external laws of the international organization,

comprising of the regulations outside the organization

itself. These external laws is further derived into two

7 Christiane Ahlbrorn. “The Rules of International Organizations and the Law of International Responsibility”. Amsterdam Center for InternationalLaw. Vol. 2011-03, p. 58 Philipe Sands and Pierre Klein, loc. cit.

more categories, the international law regulations –

which covers the international treaties and international

customary laws9 – and the domestic laws of the state

where the international organization was established.

Every international organization requires internal

regulations which did not originate from the other legal

regulations. Thus, the internal regulations of an

international organization distinguish themselves from

the legal regulations; they depend on the Articles of

Association of the international organization, with more

independence from the other legal directives. The

internal regulations govern the relationship among the

organizations and among the member states; these laws

does not only govern the procedural matters, financial

regulations and the administrative issues, they also

govern the establishment of a new organ along with its

definition and activities10. Typically, a given

international organization holds numerous internal

regulations.11 During the 1970s in the United Nations9 The international customary law is the product of common, consistent practices of the states conforming to the legal obligation of opinion juris sive necessitates. George Norman and Joel P. Trachtman, “The Customary International Law Game”, The American Journal of International Law, Vol. 99. July 2005, p. 54410 D.W. Bowett, “The Impact of the U.N. Structure, Including That of the Specialized Agencies, on the Law of International Organization”,The American Journal of International Law, Vol. 64 No. 4. September 1970, p. 4811 Henry G. Schermers and Niels M. Blokker, International Institutional Law. Boston: Martinus Nijhoff. 2011. p. 755

alone a number of 40-50 resolutions which qualify as an

internal regulation are produced.

The internal regulations basically are limited to

regulate only the functions of the respective

organization. However, the effects of the internal

regulations of an international organization reach beyond

the organization itself. The international organizations

is entitled to transfer their rights to the others

through their internal regulations; based on this

argument, the boundary between the internal and the

external regulations becomes blurred.

It is also possible for the internal regulation to

bind the primary organ creating the internal regulation

itself. For example, the International Court of Justice

refuted the argument that the General Assembly does not

have the competency to create an organ embedded with the

authority to take decisions binding the General Assembly

itself. In other words, the court formed by the General

Assembly could draft a decision which will bind the

General Assembly itself.

The internal regulations also have the capacity to

bind the member states of the international organization.

The member states are an element of the international

organization as well as the partners of the international

organization; thus, if the member states act within their

capacity, the member states will be bound to the internal

regulations very much like the other elements within the

international organizations.12

II. ANALYSIS

A. The Internal Regulation of the International

Organizations

1. Articles of Association of the International

Organizations

The international organizations are collective

entities which were established through an international

agreement or other international actions, which also aim

for the general interests of their member states.13 The

international agreements or treaties laying the

foundation for an international organization are called

as an Articles of Association. The Articles of

Association of an international organization is an

international treaty between the states to create the

international organization. The term ‘Articles of

Association’, as a matter of fact, differs among various

international organizations, who use different

12 Ibid., p. 75913 Hugo J. Hahn, ”Continuity in the Law of International Organization. Part One: Continuity in the Practice of International Organizations”. Duke Law Journal, Vol. 1962 No. 3, p. 379

terminologies to refer to the Articles of Association.

For example, the term ‘Charter’ (used by the United

Nations); ‘Statute’ (used by the General Assembly and the

European Council); ‘Covenant’ (which is an out-dated term

used by the precursor to the UN, the League of Nations);

‘Convention’ (used by the ICAO and the IMO); ‘Articles of

Agreement’ (used by the IMF and the IBRD); and so far,

the seemingly most popular term ‘Constitution’ which is

also used to refer to the grundnorm of a state, is used

by the ILO, UNESCO, WHO, and FAO.14 On a worthy note, the

United Nations Charter is a treaty which was followed by

a wake of appraisal and high devoutness. Despite its

status as an international treaty, the UN Charter rose to

become the highest law under the Constitution of the

United States of America, in spite having to undergo

several processes of legislation by the Congress to be

implemented throughout the fifty states, just like any

other international treaty.15

The Articles of Association interweaves a pattern of

legal system of an international institution.16 Further

regulations developed from the organs existing in that

international institution. The authority of these organs

to take a decision is incurred from the Articles of14 Henry G. Schermers and Niels M. Blokker, op. cit. p. 18415 Miriam T Rooney, “International Organizations and International Law”. The International Lawyer, Vol. 6 No. 1, January 1972, p. 3116 Henry G. Schermers and Niels M. Blokker, op. cit., p. 1145

Association. Thus, there is no organ of an international

organization which can take a lawful decision either

beyond the organ’s scope of competence or against the

Articles of Association.

The understanding between the states which then forms

an international organization is usually called as an

Articles of Association, which does not have to be in the

form of a separate legal document.17 For example, the

Articles of Association of ICAO is a separate legal

document from the Chicago Convention of International

Civil Aviation; on the other hand, the League of Nations

Convention and the Articles of Association of ILO is a

part of the Agreement on an International Energy

Programme on November 18th, 1974. Much of these Articles

of Association conveys the mutual obligations of the

member parties.

There are four vital characteristics typically found

in the Articles of Association of an international

organization; to establish a legal entity, the limitation

to reserve, tacit renewal, and secession.18 First, the

Articles of Association of an international organization

establishes a legal entity. The Articles of Association

can be considered as distinctive, as it enjoys a special

role in the international law. On one hand, the Articles

17 Ibid., p. 72718 Ibid., p. 559

of Association is an international agreement, which on

hindsight would not be any different from other

international treaties. On the other hand, the Articles

of Association of an international organization does have

a distinction as it leads to the establishment of an

international organization. Due to that basis, several

scholars tend to consider the Articles of Association as

a separate status19. Unlike common international treaties,

the Articles of Association of an international

organization regulates the rights and obligations of the

states while also creating a new subject of international

law.20 This new subject of international law, taking the

form of an international organization, possess its own

organs and takes its own part in the international

relationship, to the point of being able to be a party to

an international treaty.

A reservation against the Articles of Association of

a particular international organization refers to the

condition where a state accepts a treaty under some

conditions such as that several parts of the treaty shall

not be applied to that state.21 Despite the reservation is

allowed in multilateral treaties, it is generally not

19 Jan Klabbers, An Introduction to International Institutional Law, New York: Cambridge University Press, 2002. p. 8220 Henry G. Schermers and Niels M. Blokker, op. cit., p. 72821 Mochtar Kusumaatmadja and Etty R. Agoes, Pengantar Hukum Internasional (Introduction to International Law), Bandung: Alumni, 2003., p. 134

allowed against an Articles of Association of an

international organization.22

Holding a reservation against an Articles of

Association of an international organization is not

desired because a member state will not only have to co-

operate with the other member states within the

international organization, but will also have to solve

several important issues together. Thus, the member

states would need a common regulation to bind them in

order to achieve the international organization’s goals.

For example, the Art. 20 (3) of the Vienna Convention on

International Treaties stated that when an international

treaty is the Articles of Association of an international

organization, unless regulated otherwise, any reservation

shall require the authorization from an authoritative

body of that international organization.23

Most Articles of Association of an international

organization do not regulate what body should possess the

capacity and competence to determine whether a state is

allowed to hold a reservation or not. Thus, the body to

assess the reservations is usually the one with the

authority to determine the admission of a state which has

submitted request to join the international

22 Sri Setianingsih Suwardi, op. cit., p. 18523 Jan Klabbers, op. cit., p. 87

organization24. In the end of the day, the body with the

capacity to determine whether a reservation is allowed is

the plenary organ, or the judicial body who has been

granted the authority to undertake interpretation.25

However sometimes the states hold a reservation even

if such thing is expressly forbidden, such as is the case

when Switzerland and Luxembourg joined the League of

Nations, who held reservation against the Covenant of the

League of Nations to protect their respective status as

neutral countries26. In that case, the Assembly of the

League of Nation recognize Switzerland’s particular

conditions by considering the Art. 435 of the Treaty of

Versailles.27

Secession of a member state from a certain

international treaty only if the treaty allowed for such

secession, if the other member states agree, and if the

right for secede is implicitly allowed by the

international treaty28.

Another characteristic of an Article of Association

of an international organization is the tacit renewal,

which is mainly because of the need of an international

organization to adapt to the changes observed in the

24 Philipe Sands and Pierre Klein, op. cit., p. 44425 Ibid., p. 44526 Ibid., p. 44427 Article 435 of the Peace Treaty of Versailles 28 Vienna Convention on the Law of Treaties (1969) Article 56

society. Typically, an Articles of Association of an

international organization has already stipulated

provisions for later amendments of the Articles of

Association itself. The international organizations have

the body or organ specifically authorized to amend the

Articles of Association.29

In the United Nations, any amendment or change to the

UN Charter should be undertaken through a session held by

the General Assembly of the United Nations proposed by a

two-third of the members of the General Assembly and the

votes of the nine members of the Security Council30. Then,

the changes proposed should be agreed by two-thirds of

the session audience and will only be implemented through

ratification process conforming to the constitutional

process by two-thirds of the members of the United

Nations including at least five members of the permanent

members of the Security Council.31 In the United Nations’

Food and Agriculture Organization (FAO), the amendment of

the Articles of Association only requires the conference

to consider the amendment of the Articles of Association

after being backed by the majority vote of two thirds of

29 Sri Setianingsih Suwardi, op. cit., p. 18530 Article 109 (1) of the Charter of the United Nations31 Ibid., Article 109 (2)

the members which represents more than a half of the

total members of the FAO32.

The United Nations has shown a remarkable capacity

for development within the limits of the existing

Charter. There is no reason to believe that the

possibilities of further development have been

exhausted.33 However, while a good case can be made for

amendment of the Charter of the United Nations

provisions, related to such matters as composition and

voting procedure of the Security Council and the powers

and voting procedure of the General Assembly, it is hard

to see how much such amendments are to be consummated in

the conditions of international relations.

There are three principles integral to the

ratification of the members for an amendment to the

Articles of Association before the amendment could take

place; they are the principle of consent, the legislative

principle, and the combination of both principles. The

principle of consent is the main requirement for a

unanimity34, which is also the oldest principle adhered by

the international community.35 This is reflected in the

Article 94 paragraph (a) of the Convention of the ICAO32 Article 20 of the Constitution of the United Nations Food and Agriculture Organization33 Leland M. Goodrich, The United Nations. New York: Thomas Y. Crowell Company, 1959., p. 32834 Philipe Sands and Pierre Klein, op. cit., p. 45235 Ibid.,

which states that any amendment should be approved by

two-thirds vote in the Assembly; which then should be

ratified by at least two-thirds of the total members. To

reach a unanimous decision however, ideally there should

not be opposing member states among the voting states.36

The legislative principle is the principle laying the

way for a majority-driven decision-taking process. In

this principle a majority vote is required to determine

which amendment will bind the minority members. The

League of Nations once applied this type of principle.

After going through the approval and ratification process

by the member states including all permanent members of

the United Nations, the amendment then will be applied to

all member states.

The two aforementioned principles is combined to deal

with the specifics of an amendment; as an amendment to an

Article of Association of an international organization

is then categorized into minor and major amendment, each

will require different principle and approach. A minor

amendment only requires the legislative principle,

whereas a major amendment will also require the principle

of consent.37 For example, the Art. 20 of the FAO

regulates that related to an amendment which does not

36 Sumaryo Suryokusumo. Pengantar Hukum Organisasi Internasional (Introduction tothe Law of International Organizations). Jakarta: Tatanusa, 2007., p. 8437 Sri Setianingsih Suwardi, op. cit., p. 188

convey a new obligation to the member states could be

implemented through a ratification from two-thirds of the

conference audience. This is not the case if related to

an amendment which give rise to a new obligation of the

member states, which will require approval of two-thirds

of the conference audience and the ratification of two-

third of the member states and will only bind the

ratifying member states.

A refusal of a member state to approve an amendment

could be happening in the case where the consent

principle is applied but the ratification of this

amendment is denied, or if the legislative principle is

implemented and a member state refused to conform to the

interests of the majority members.38 To solve this

problem, an agreement in a good faith could be created

through political persuasions to oppose the legal

authority which could expel the opposing member state

from that international organization.39

In several extraordinary situations, several bodies

can be granted a special authority to implement

principles or regulations other than what have been

stipulated under the Articles of Association of the

international organization. The authority cannot be

defined as an amendment as it does not affect the

38 Philipe Sands and Pierre Klein, op. cit., p. 45439 Ibid.,

Articles of Association, however some variations of the

original Articles of Association of the international

organization may still be permitted. Another persistent

issue is the interpretation of the contents of the

Articles of Association. An Articles of Association, like

any other multilateral, could cause conflict related to

the interpretation. Because of that, the Articles of

Association may grant the authority of interpretation to

both the non-judicial bodies and the judicial bodies or

even the combination of both.

However, the United Nations does not have any special

clause regulating the dispute resolution pertaining to

the interpretations to the Charter of the United Nations.

The lack of clause allows the International Court of

Justice (ICJ) to determine the legality of its bodies’

action and its own jurisdiction. The ICJ stated that they

will adhere to the rules of general principles and

regulations usually used to interpret the international

treaties in interpreting the United Nations Charter, on

the basis that the Carter itself is still basically a

multilateral treaty despite its special characteristics.

2. Decisions and Resolutions of International

Organizations

Regardless of the rules contained in the articles of

association of an international organization, now there

are rules of international organizations that include the

actions undertaken by relevant organs.40 As mentioned

previously, the articles of association of an

international organization gives authority to the organs

to adopt an agreement that will give effect to the object

and purpose of the organization.41 These rules may be

regulatory normative and procedural. These rules also

exist that are binding rules, such as the Security

Council resolutions, or regulations, directives, and

decisions of the European Communities and the rules are

not binding as a resolution of the UN General Assembly.42

Actions of international organizations that applied

to the organs of an international organization would by

itself be the rules that apply in the internal rules

governing international organizations. The shape of the

actions of international organizations that will create a

rule is a decision and resolution of an international

organization.43 The term "resolution" that is used in40 C Wilfred Jenks, “Due Process of Law in International Organization”, International Organization Journal Vol.19 No.2 (Spring, 1965), pg. 16841 Alfred Fischer. “The Jurisdiction over International Organizations: Analytical Perspective on Typical Encounter”. Vol. 2 (1992), pg. 10142 Ibid, pg. 10243 Roney Gustav. “Comprehending International Law”, Orlando: Rodgers Publisher., pg 89.

practice in the United Nations has a general sense,

including the terms recommendations and decisions. The

court, on the one hand, accept the term 'decision' as a

binding resolution and a 'recommendation' as a non-

binding resolution. Recommendations are often used to

describe a non-binding advice given by an international

organization or also often called 'opinion' and 'advice'.

A binding resolution when it has the capacity to create

an obligation. For example, the UN Security Council

passed a resolution that Syria may not use, develop,

produce, let alone have the, store, or retain chemical

weapons, or transfer, directly or indirectly, chemical

weapons to other countries or non-state actors.44

For example, the strength of a decision issued by the

General Assembly is limited to issues related to the

internal legal order of the UN. The binding force of the

decision of the General Assembly limited to

organizational problems, but may also include, ratione

personae, the entire UN environment. Although the

resolution issued by the General Assembly recommended as

a rule, especially related to external relations with the

member states, the Court has recognized the binding force

of a decision of the General Assembly relating to the

44 Dapo Akande, “The Competence of International Organizations and the Advisory Jurisdiction of the International Court of Justice”, European Journal of International Law, Vol 9, pg. 437

admission of new member states, voting, or the division

of the budget, and in general have confirm that the Court

of thinking about the power to make a decision.45

Associated with the recommendation, basically, all

international organizations basically have the authority

to issue a recommendation. The frequency of each

organization in the issuing recommendation depends on the

expansion of their authority to issue binding decisions.

Recommendations are usually given to members with the

possibility to be given also to other organs in the

organization or in other organizations. For example, the

ECOSOC and the General Assembly usually provide

recommendations to the specialized agency.46

All international organizations basically have the

authority to issue a recommendation. The frequency of

each organization in the issuing recommendation depends

on the expansion of their authority to issue binding

decisions.47 Recommendations are usually given to members

with the possibility to be given also to other organs in

the organization or in other organizations. For example,

45 Marco Divac Obert, “The Legal Effect of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ”, The European Journal of International Law, Vol.16 (2006), pg. 88046 Henry G. Schermers and Niels Blokker, Op.Cit., pg. 67847 Henry G. Schermers and Niels Blokker. Loc.Cit

the ECOSOC and the General Assembly usually provide

recommendations to the specialized agency.

One of the things that can strengthen the presence of

a recommendation is constitutional provisions. The state

will not implement the recommendations drawn on the basis

of ultra vires. For example, external decision UNGA

cannot bind member states since the assembly does not

have the authority to do so (not given attribution by the

UN charter or written in other sources such as treaty or

customary law).

In certain cases, the constitution of the

organization requires members to express their attitude

towards the recommendations received. FAO and UNESCO

requires members to provide a report on the organization

of the impact of the recommendations given to them. Such

an obligation is given to trigger the implementation of

the recommendations.

Before World War II, the word "resolution" was

normally used in the sense of a binding decision made by

an international organization or an international

conference. Usually, organizations and conferences took

their decisions unanimously, so that a resolution could

be seen as a simplified form of inter-state agreement.48

48 Rudolf L Bindscelder., 1983, “Encyclopedia of Public InternationalLaw”. Amsterdam: North Holland., pg. 159.

Gradually, however, the notion has lost this character.

Nowadays, resolutions are no longer seen as acts of

governments united in an international organization, but

rather as acts of the organizations themselves. And as

international organizations usually have no power to take

binding decisions, the notion "resolution" gradually lost

association with the idea of binding force.

3. Established Practice of the Organizations

Secondary law of an international organization may

consist of customary law, in the form of rules resulting

from the practice of international organizations, which

naturally refers to the international treaty law.

Associated with the practice that occurs in international

organizations, there are two important terms that

'Established Practice' and 'Subsequent Practice'. The

term was first used for a practice based on the common

law and the secondary rules of the organization itself.

Whereas 'Subsequent Practice' is a term used to practices

carried out on the basis of contractual and related

attachment to the concern of the organization to an

agreement.

The term 'established practice' first appeared in the

Vienna Conference of the International Treaty on the

amendments proposed by the British delegation to the

article 4 of the Vienna Convention related to the rules

that govern international organizations.49 'Established

practice' is a practice that became the implementation of

the decisions and resolutions of an international

organization. Practices that occur, can be equated with

the common law which is derived from the internal

organization and also applied in the organization.50

Today, it is widely accepted, the practice of

international organizations can also be a part of the

order rules of an international organization. As a

result, the articles of association of an international

organization, which is also an international treaty, will

often evolve and change away from the original, so that

it can lead to different interpretations and give rise to

disputes.51

49 Christiane Ahlborn, Op. Cit., pg. 1950 Christopher Peters, “Subsequent Practice and Established Practice of International Organizations: Two Sides of the Same Coin”, Goettingen Journal of International Law, Vol. 3 (2011) 2, 617-642, pg. 61951 Henry G. Schermers and Niels M. Blokker, Op. Cit., pg. 840

Various international court has considered the

'established practice' of international organizations as

an important parameter in assessing whether legal action

undertaken by the internal organization was created in

accordance with the procedures set out in the articles of

association, which then must be interpreted.52

B. General International Law

As a subject of international law, an international

organization is the subject of the rule of international

law itself, as contained in the advisory opinion of the

ICJ, namely:

"International organizations are subjects of

international law were bound with everything required of

them under the general rules of international law, their

constitution, or international agreements that they are

also involved in it."53

Thus, an international organization based instruments

owned, may be involved in a relationship arising from the

agreement, both with members and non-members as well as

with other international organizations. Agreements

involving international organizations as parties, both52 Christiane Ahlborn., Op. Cit., pg. 2053 Philipe Sands dan Pierre Klein, Op. Cit., pg. 456

agreements with other organizations, countries, both

bilaterally and multilaterally, has become commonplace.

This then raises the question of whether international

organizations have the authority to make an international

treaty or not. The answer to this question refers to the

constitution or other rules of the organization itself is

set so or not.54 Then, article 6 of the Vienna Convention

on the Law of Treaties also governs the capacity of an

international organization to be involved in the

agreement which reads, "The capacity of an international

organization to conclude treaties is governed by the

rules of that organization".

Article 6 of the Vienna Convention is on contrary to

the opinion of Kelsen says that every international

organization should have the authority to make an

international agreement.

According to Kelsen, in essence, the possibility of

an international organization made an agreement is

determined from the needs of the organization itself, is

needed to support the effective running of the

organization. For UN member states, if making an

54 Vienna Convention on Law of Treaty for State and International Organization 1986 (VCLTSIO) Article 6

agreement with an international organization, it must be

registered with the Secretariat and published.55

Along with the development of increasingly complex

international organizations in terms of structure and

function, the scope of the agreement that they can be

involved even more diverse. For example, European

Community participated in the various covenant which

makes it a member of FAO, WTO, and the UNCLOS in 1982 and

the International Sea-bed Authority. Such agreement,

governed by general contract law that would give birth to

the rights and obligations of the parties are bound,

including international organizations. Universal

Declaration and international treaties in general,

mentioning that there is a standard of setting the

relationship between the subject of international law.

Concretely, an international organization as a subject of

international law committed to the principle of common

law that was introduced by the member states which are

also known in their national legal systems. This legal

principle also become the standard of communities that

exist in the world. These principles include the

principle of proportionality, legitimate expectation, and

equality before the law.

55 Charter of the United Nation and Statue of The International Courtof Justice, article 102

It can’t be said, an international organization is

not bound by any rules. In fact, even if an international

organization does not take part in the agreement, for

example in the agreement on human rights, if the rules

contained in the agreement reflects customary

international law, the international organizations can

also be attached. In addition to that, United Nations

Secretary General issued an official bulletin stating

that the fundamental rules and principles of

international humanitarian law applicable to the actions

that are binding under the command and control of the

UN.56

1. General Law Principle

The principle of the general law, as a source of law

in itself, of great importance for the growth and

development of international law as a system of positive

law. However, the idea of a general law principle is

still much debate as to some things are still not clear,

or blurred.57

The principle of the general law, as a principle of

law recognized by civilized nations, is the underlying

56 UNSG’s Bulletin on the Observance by UN forces of International Humanitarian Law, August 6, 1999.57 Dr. Jordan DACI, “Legal Principles, Legal Values, and Legal Norms:Are they same or different?”, Academicus-International Scientific Journal, pg. 109

principle of modern legal system (law of Western

countries are mostly based on the principles and

institutions of Roman law).58 Some of the principles of

the general law has become part of international law and

has obtained status as a definite norms of international

law as a whole.

Many of rules of the general law principle is applied

as a source of law.59 The principle of the general law

regarded as different independent sources with

international customs, which is used as the source when

this principle has not been practiced by countries and

not regulated by international treaty.60 Basic rules and

the decisions of international organizations establish a

legal system that is very fundamental. Basic statutes can

be found in the constitution of an organization, while

the secondary rules of the organization itself can be

found on the decisions issued. Whether we realize it or

not, more specific rules detailed, derived from the

general principle which is also known by the legal

systems of member states.61 For example, the Council of

the European Parliament adopted the rules of the national58 Statute of The International Court of Justice, article 38 (1)59 Malcolm N. Shaw, International Law, (New York: Cambridge University Press, 2008), pg. 9860 Gregory J Kerwin, “The Role of United Nations General Assembly Resolutions in Determining Principles of International Law in UnitedStates Courts” ,Duke Law Journal , Vol 1983:876, pg. 2661 Mochtar Kusumaatmadja dan Etty R. Agoes, Op. Cit., hal. 148

parliament which is also known by those who took part in

this organ.

As development occurs, many of the general law

principle that has been codified into an agreement,

therefore, the principle of general law may be cited as

the 'second source' of the law governing an international

organization.62 In this case, the general legal principles

become an additional source as filler emptiness of the

rule of law-related international organizations if it is

not stipulated in the constitution or organizational

decision itself.63

ICJ in the early formation, applying the general

principles of national law. For example, in the

application of the theory of implied powers.64 At a

regional organization, also there is a section that

refers to the general law principle known by other

countries, but did not become an important principle in

that country. In practice, it can take a sample of the

ICJ which refers to the general principles recognized by

the legal system of member countries with the aim to fill

a void in the internal rules of the organization. The62 Lee Peoples, “Research Guide to Customs, General Principles & the Teachings of Highly Qualified Publicists”, the OCU Law Library series of Research Guides and Pathfinders. Pg. 1063 Henry G. Schermers and Niels M. Blokker, Op. Cit., hal. 83464 See S. Rosenne, The Law and Practice of the International Court 1920-2005, Volume III Procedure (2006), at 1548

same thing applied to the administrative courts often

apply the general law principle of administrative dispute

resolution into its jurisdiction.

The principle of general law is not static, but

evolve with the values and beliefs that exist in society.

The changes are reflected in national laws and judgments

of national courts, as well as in the decision of an

international organization in which it indirectly give

effect to the contents of a legally binding international

organizations.65 Examples of general legal principles

include good faith, and judicial impartiality.

2. International Customary Law

In international law, not all international customs

can be used as a source of law.66 A habit, will be able to

become law if it meets the elements of the material and

psychological elements that these habits should be

general and can be accepted as law by the community at

large.67 Habits of international community, played an

65 Henry G. Schermers and Niels M. Blokker, Loc. Cit66 Krzysztof Skubiszewski, “Forms of Participation of International Organizations in the Lawmaking Processes”, International Organization, Vol.18 No. 4 (Autumn, 1964), pg. 79167 Mochtar Kusumaatmadja dan Etty R. Agoes, Op. Cit., pg. 144

important role as a source of dynamic international law

when there is a change in the international community at

that point is not reached by agreement, court decisions,

as well as legal expert opinion.68 Habits internationally

as a practice that developed out of the constitution and

other written law, confirmed by the opinion of Lon

Fuller; a Legal Philosopher who said that: “A branch of

constitutional law, largely and properly developed

outside the framework of our written constitution. It is

constitutional law in that it involves the allocation

among various institutions..... Of legal power that is,

the authority to enact rules and to reach decisions that

will be regarded as properly binding on those affected by

them.”69

International organizations, as well as other

subjects of international law, may bound by customary law

that has been relatively going under rapid development.

This development can be seen from the resolutions issued

by the organization that broadly describes an

international customs. The application of customary law

68 Ivan S. Kerno, “International Law and International Organization: Prospects for the Future”, Proceedings of the American Society of International Law at Its Annual Meeting Published, Vol.46 (April 24-26, 1952), pg. 1369 Bruce L. Benson, Customary, “Law with Private Means of Resolving Disputes and Dispensing Justice: A Description of a Modern System ofLaw and Order without State Coercion”, The Journal of Libertarian Studies, Vol. IX. No. 2, pg. 26

is very much reflected in the realm of procedural, when

for long periods of time an issue to be addressed in a

certain way, then the expectation that emerges is of

similar cases in the future must also be addressed in the

same way.

By making the international custom as a source of

law, which applied also to the ICJ; reflected in article

38 of its statute that mentions that international

customs which is evidence of a general practice

implemented and accepted as law to be one of the

considerations in the court in deciding the case.70

However, the international habit can not entirely be used

as the sole source of law, because not all the things

contained in the international practice; for example in

determining the limits of privileges and immunities

apparent from an organization, international custom does

not give a clear picture of it.71

70 Art 38 of ICJ Statute: “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a generalpractice accepted as law;....”71 Aaron I. Young, “Deconstructing International Organization Immunity”, Georgetown Journal of International Law , Vol. 44, pg. 311

3. Secondary Legislation of this legislation consists

of72 :

Regulation

Directly be applied and binding to the member states,

legal entities, and other subjects. Example:

Rules of the Commission (EU) No. 207/2012 dated March

9, 2012 regarding the instructions on the use of

electronic medical devices

Directives

Binding and must be complied, but each member can

pick the appropriate means and methods for applying these

directives in the country (national implementation)

Example: Council Direction 2011/96 / EU on 30

November 2011 regarding the application of the tax system

parent company applied differently by each member state

Decisions

Binding on members who are parties referred to in the

decision. The decision may be given special to member

states, agreement, or individual

72 Types of secondary legislation & acts http://nyulaw.libguides.com/content.php?pid=311182&sid=2613446, access on 2 march 2015 on 10.30 am

Other International Organizations

The question that then arises is whether an

international organization may be bound by more than one

agreement and whether there is a common law arising out

of an international organization that has been recognized

by all other international organizations. This question

arises when the UN General Assembly attempted to end

colonial rule belongs to Portugal and South Africa on

whether the UN acts can affect the World Bank. The same

issue has also emerged between the UN Security Council

Resolution and the European Community73. Thus, the

situation when an organization has an institutional

relationship, should be distinguished from the situation

when the organization is not connected institutionally.

Examples of the first case74, when the EC became a

member of FAO. By becoming a member of FAO, the EC will

be bound by the obligations that exist on general

instruments and mandatory acts of FAO itself. With a

period of relatively short membership, an organization

will often be involved in the agreement that gave rise to

the relationship between cooperating organizations.

Obligations set is not detailed, but the cooperative

relationship will impact each other.

73 Paul tyler, international organization, page 173 74 Ibid, page 178

Most organizations are in fact not formally

connected, and not engage in independent reciprocal

relationship. This allows a country to become a member of

not only one International organization75. In this

context, it is difficult to imagine that the EC can

ignore the rules in UNGA Acts or the Security Council

because, the EC may also be associated with other

organizations that are directly related to the UN and to

adhere to the rules of UNGA Acts. The same thing can be

seen in the administrative judicial practice openly

refers to the practice and jurisprudence of other

organizations

Contractual & Non Contractual liabilities with

National Law

In practice, international organizations are also

associated with national law of one or more countries. It

is based on the location of an international organization

within the limits of a particular country. This

relationship can also arise because of the activities of

international organizations related to the exclusive

competence of a government within its territorial which

is generally understood as essential in sovereignty76.

75 Philipe Sands dan Pierre Klein, Op. Cit., page 461

76 Paul tyler, Op.Cit, page 217

Contractual relationship of international

organization with the other party may be bound by a

national law governing the contract. Most international

organizations use national laws to regulate most of their

contract. An example is Article 288 EC (European

Community), which provides that a community or

organization does not have the authority or special

immunity to develop a legal relation to contracts

involving the community or organization itself

Contractual arrangements are governed by the national

law in accordance with international law, including

regulations concerning choice of law in the contract for

the case before the national courts. The aim is also to

legal certainty in the contract.

This practice applies equally to the organization

with universal membership and regional organization77. For

examples, most of the UPU and WHO contracts governed by

Swiss law78, while the ICAO contracts governed by Quebec

law. Another example is a contract governed by the law of

OAS Columbia for contracts performed in the position,

while the contract is done in the area of the other

members shall be governed by the local laws in force in

77 Trevor C. Hartley, The Foundations of European Union Law, (UK, Oxford University Press, 2010), Page 44578 Bernard Hanotiau, Complex Arbitrations: Multiparty, Multicontract, Multi-issue and Class Actions, (The Hague, Kluwer Law International, 2005), Page. 40

the region. The same applies to the organization of the

EC, the Council of Europe, the OECD, the IBRD and the

IMF. For other organizations, the practice is to rely on

contractual arrangements are governed by the terms of the

contract itself. Contract on gas, water, electricity used

by the organization, and also regarding the lease subject

to the national laws of the countries that provide such

facilities. National law also regulates employment

contracts for local workers and insurance contracts.

Then, in accordance with the principle of lex rei sitae,

national law can also be applied to contracts concerning

immovable goods.

In conjunction with Immovable property owned or

leased by an organization79, for example headquarters

building, the analogy of the law of disputes, which shows

the general application of the lex site. Because of the

proprietary property of UN in New York and Geneva are

from New York Law and Swiss law, so between international

organizations and national law of the country where the

organization is related to the question which law is used

when an international organization violated contractual

and non-contractual obligation80.

79 D.W Bowett, The Law of the International Organization ( Hukum Organisasi Internasional ), Sinar Grafika. 1992 Page 46080 A. Sam Muller, International Organizations and their Host States, (Netherlands,Kluwer Academic Publishers, 1995), page. 21

For other contracts that governed by the national law

may also be based on the technical execution of the

object. included in this contract is the loan agreement,

for example, IBRD and IMF contract governed by the

national law of the country in which the loan was

granted, the national law of the country where the bank

is co-operating with the organization, or the national

law of New York. The same thing applies to the contract

between the ITC, British banks or other foreign banks,

and exchange dealers in the London Metal Exchange are

governed by English law or the law of New York. The

existence of a legal option usually leads to the

applicability of national laws of a country which then

bind the international organization81.

Besides the contract, the national law may also apply

to matters relating to the action that damages the third

parties82. The classic example of this, the car traffic

accident that involve an international organization. It

is based on the general principle that an international

organization would be responsible for losses incurred due

to the organization's activities that occurred in the

81 Wilhelm Wengler, “The Significance of the Principle of Equality inthe Conflict of Laws” (1963), Duke University, Page. 846 82 Jean d’ Aspremont, “The Exercise of Powers by International Organizations Under the Control of Member States” (2005), Global Law Books, Page. 5

selected case83: Quellmehl and Maizegritz, the EC is

responsible for the legal act if the act was clearly

detrimental to people or a group and such losses exceed

the economic risks inherent in the activities of the

organization to a specific area.

The other arrangements would be involve an unlawful

act, the impact of the loss is clear, and there should be

a clear relationship between the organization works with

the result of international organizations responsible for

violations of both contractual obligations and non-

contractual84. The arrangements set out in Article 22 of

Annex III of UNCLOS and Article 288 (2) EC.

Accountability of non-contractual also be stated in the

agreement between the organization and the country. An

example of this is the agreement between the Netherlands

and ESRO in the formation and implementation of the

European Centre of Space Technology. Can also be seen in

Article 215 (2) EC and Article 188 (2) Euratom.85 However,

the principle of accountability can also be applied even

without any provision in an agreement or regulation. One83 H. G. Schermers, “Liability of International Organizations”, (1988) 1 Leiden Journal of International Law, page 3

84 Alberto Alemanno, “Private Parties and WTO Dispute Settlement System”, (2004) Cornell Law School Inter-University Graduate Student Conference Papers page 585 Christian R. Pitschas, “International Responsibility of Public International Organizations and Their Member States” (1994), LLM Theses and Essays, Page 21

example is the United Nations principle of a priori to be

responsible for loss of property caused by UNEF.

Because most international organizations do not adopt

rules regarding non-contractual liability, in practice

the national law of the country where the loss was

occurred would be apply. This practice can also be

attributed to the principle of lex loci delicti commisi. In the

case of Stairways, arbitral charge arbitrators to

determine the accountability of non-contractual of the UN

for losses suffered by third parties in the course of the

work of the UN operation in the Congo, by aircraft

chartered by the United Nations of a company.

Furthermore, it is determined that the applicable law is

the law of the Belgian Congo. The same thing applies to

bureau of Legal Affairs of the UNRWA which responsible

for losses suffered by refugees in Lebanon by Lebanese

law.

Application of the principle of lex loci delicti as the

basis of non-contractual liability is also recognized by

the expert86. Associated with territorial jurisdiction,

the lex loci delicti commissi will arrange losses claimed

responsibility for an international organization. This

principle is considered as a form of the International

86 Mann, “International Coporations and National Law” (1967), BYIL, page 164

Organization to respect the national laws applicable in

the country where the organization located. However, it

may be possible to create a conflict between national

laws with the internal law of the organization.

Non-contractual accountability of international

organizations often leads to problems related to immunity

of the International Organization itself.87 In the

Cumaraswamy case. National law prohibits the publication

of the information on the specific case, on the other

hand, as a consequence of its obligations, the

International Organization should publish such

information. In these circumstances, the International

Organization should claim immunity before the court of

the state. The invalidity of national law in this case is

based on the consideration that the actions are intended

for continuous functioning of the organization itself. In

certain circumstances, the principle of lex loci may not be

enforced. Sometimes, to determine the liability of an

International Organization, the general principles of law

is more suitable to be applied rather than the national

law.

III. CONCLUSION87 Mohammed Bedjaoui, International Law: Achievements and Prospects, (Paris, Martinus Nijhoff Publishers, 1991), page. 72

The law governing the international organizations

generally derived into two: the internal regulations and

the external element in the form of international law88,

the former of which consists of the Articles of

Association of the international organization, the

decisions and resolutions produced by the international

organization, and the established, traditional practices

of said international organization. These components

establishes the grounds for the international

organization to operate and behave.

On the other hand, the international organizations

are also influenced by external elements, particularly

the international law (both the general law principles

and the principles of international customary law). The

so-called international law governing the international

organizations is in turn influenced by the national law

of each states and the relationship among them. The

influence of the interaction of municipal laws will,

more-or-less, force the international organizations to

operate under, and conforming to, the current legal,

political, and social condition of the international

environment of the period in which the international

organization exists. Naturally, this means that any

change in the global legal, social and political

88 Philipe Sands and Pierre Klein, op. cit., p. 554

temperature will eventually be reflected on the laws that

govern the international organizations; thus, the

international organizations will expectedly adapt to the

changes.

The current achievement of peace and prosperity is

the vital concern of the international and regional

organizations on what extent is international

organization carrying out its grave responsibilities

today. The resolution of this problem requires a review

and an analysis of the international organizations, the

principles which determine their functions, the pressures

which tend to govern their activities, and the criterion

of their performance.89 By doing so will contribute to

laying the foundations for a real world community capable

of developing institutions appropriate to its needs and

expressing its unity.90

89 Stephen S. Goodspeed, The Nature and Function of International Organization. New York: Oxford University Press, 1959., p. 600.90 Leland M. Goodrich, op. cit., p. 330

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