1. International Legal Institutions PDF

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INTERNATIONAL LEGAL INSTITUTIONS What are international institutions? The more commonly used term is ‘international organisation’ 

International Law Commission: ‘International organisation’ means an organisation established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organisations may include other entities as members in addition to States. -

International legal personality – entities with capacity to have obligations under international law (can sue and can be sued)

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Alternative definition ‘entities a) established by a treaty or other instruments governed by international law, and b) capable of generating through its organs an autonomous will distinct from the will of c) its members.

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International institutions both make international law and are governed by it. Yet, the decision-making process of international organisations is often ‘less a question of law than one of political judgment’

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Inter-governmental organisations -

Based on geographical location countries may form an ‘alliance’ to try and achieve something in that region

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Non-governmental organisations

Definition of International Law International law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and therefore, do commonly observe in their relations with each other, and which includes also: a. The rules of law relating to the functioning of international institutions or organisations, their relations with each other, and their relations with states and individuals; and b. Certain rules of law relating to individuals and non-states so far as the rights or duties of such individuals and non-state entities are the concern of the international community

Is international law really ‘law’?  Arguments against: no legislature, judiciary or executive responsible for creation, interpretation and enforcement of law 

Arguments for: States recognise it and observe it. There is substantial order in international relations and international and domestic courts apply international law

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Rosalyn Higgins suggests that international law is not just rules, but a “normative system”

State sovereignty and International Law

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Henkin’s How National Behave “almost all nations observe almost all principles of international law and almost all their obligations almost all of the time”

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If States are sovereign, why do they obey international law?

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International law operates within a horizontal structure but has weak enforcement mechanisms

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Some suggested reasons why states comply: -

Long-term advantages of compliance;

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Desire to maintain good reputation;

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Fear of negative public opinion within State/internationally;

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Fears retaliatory measures or reciprocity

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UN Security Council may take measures under Chapter VII of UN Charter to force State to comply or individuals may be prosecuted by International Criminal Court

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When is international law most relevant? Times of: cooperation, coexistence and conflict

What is a State?  Article 1 of Montevideo Convention on the Rights and Duties of States, 1933 “The state is commonly defined as a community which consists of a territory and population subject to an organised political authority” and “is characterised by sovereignty” 

Other factors include self-determination, recognition, territorial effectiveness, permanent population

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Development of State Sovereignty: -

Between 1648 Peace of Westphalia and 1815 Congress of Vienna considered as the period of formation of ‘classical’ international law

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The Treaties of Munster and Osnabruck ended Thirty Years’ War in Europe, known collectively as the Peace of Westphalia/ Treaty of Westphalia 1648

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The ‘Westphalian system’ refers to a system of independent states which are all equal with each other and which do not interfere in each other’s’ internal affairs

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Westphalian sovereignty – states would be governed by a sovereign and would be independent, not subject to interfere by other nation states

What does international law look like?  Hard law (legally binding): treaties/conventions/international agreements 

Soft law (recommendations): action plans/ communications/ guidelines

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UN General Assembly - Mostly Soft law

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UN Security Council – Mostly Hard law

International Law as a tool for cooperation  Practical use of international law: aids cooperation between states 

Not just conflict, but day to day arrangements, organisations and negotiations, particularly in shared spaced, such as maritime context

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Platform for the rule of law

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But – international law, requires adoptions and implementation of obligations in order to be successful in its goal

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Example: East Asia Summit

Theory of IOs - Hurd 1. Realism – states motivated by sense of own insecurity. Distinctive feature is definition of ‘power’ – military resources 2. Liberalism – focus on choices. IOs are a series of agreements/ contracts states enter, expecting to receive a gain. Bargains struck among self-interested states. 3. Constructivism – actors behave toward the world around them in wats that are shaped by ideas they hold about the world, generated by past interactions 4. Marxism – singular international system, which is inherently unequal. IOs therefore maintain the status quo

Hurd’s themes 

Obligations: What are the obligations that countries consent to when they join the organisation?

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Compliance: do States in practice comply with these obligations? Who decides?

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Enforcement: What powers of enforcement foes the organisation have?

Hurds three views on ontology: 

Actor – with international legal personality

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Forum – IOs are fora – meeting places where states discuss interest and problems of mutual concern

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Resource – political resources for states, using their laws/ decisions to support their own agenda

Tutorial Questions

Core Readings:

Ian Hurd, International Organizations: Politics, Law, Practice (Cambridge University Press, 2nd ed, 2014) 

Chapter 1: Introduction to international organizations

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Chapter 2: Theory, methods, and international organizations

Additional readings: Jan Klabbers, ‘Unity, diversity, accountability: the ambivalent concept of international organisation’ (2013) 14(1) Melbourne Journal of International Law 149

Discussion Questions: 1. A range of terms are used in literature pertaining to international legal institutions, including ‘international organisation’, ‘international governmental organisation’, ‘intergovernmental organisation’, ‘international non-governmental organisation’. Please discuss these terms and the differences between them and offer some examples. International organisation: 

Most IOs are not equipped with a legal body that has the authority to make authoritative judgements in disputes over compliance

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Given only very weak instruments of enforcement and rely on tools in order to induce compliance

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When governments join international organisations, they promise to accept whatever rules or obligations are included in these treaties

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Three terms are used interchangeably

International governmental organisation: 

Treaty

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Legal personality

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Member states

Intergovernmental organisation: 

Each organisation has its own purpose

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Inter – between States

International non-governmental organisation:

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Independence and no influence from governments

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Can be non for profit and for profit - Can receive funding or rely heavily on fundraising

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E.g. Green Peace, Amnesty international, Red Cross, Human rights focussed NGOs, world vision.

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An international non-governmental organization extends the concept of a non-governmental organization to an international scope. NGOs are independent of governments and can be seen as two types, advocacy NGOs, which aim to influence governments with a specific goal, and operational NGOs, which provide services.

2. Hurd writes that IOs are ‘usually given only very weak instruments of enforcement’, why is this? This is to ensure that States do actually commit to be a member of IOs. If the IOs were given to much power of enforcement, States wouldn’t join as too much of their own power would be compromised. Instead, States are urged/ persuaded to adopt the recommendations handed down by the IOs. If IOs were given too much power of enforcement, their prominence in society would be much less then what it currently is, as less States would be willing to join and therefore comply with their recommendations. IOs only exist because States create them and is therefore ultimately subordinate to the States. This plays into the concept of sovereignty (states don’t want to be interfered with).

3. Where can we find state obligations in relation to any given IO? Give some examples. When governments join international organisations, they promise to accept whatever rules or obligations are included in these treaties. The UN Charter gives the Security Council authority to create new legal obligations on UN Members (arts. 25, 39, 49). Indirect obligations – resolutions GA = non-binding Security council – binding

4. What are Hurd’s three views on the ontology of IOs? Can you illustrate how these might apply to one or more IOs? a. Actor (legal personhood). Being recognized as an actor requires some kind of social recognition plus some kind of capacity for action. b. Forum – e.g. UN sponsored conferences about the environment i.e. Rio 1993. The UN facilitates large meetings without being a formal participant themselves. c. Resource: States use the statements, decisions, and other outputs of international organizations as materials to support their own positions, and many international disputes include competing interpretations of these materials. States will use IOs to pursue their goals. E.g. IMF. 

Can serve as legitimation for the states – ‘we are doing this because the IO is making us’

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Scapegoating

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Security Council Resolution 242 – Israel (as described in the plain text) were to withdraw from the Palestinian territory and yet argued that they could negotiate a withdraw in due time using the wording of the resource.

5. Of the theories of IOs in the reading and lecture, which is most persuasive to you? Realism: States are motivated by a sense of their own insecurity to continually look for ways to increase their power. (power is measured in tangible means i.e. military resources) 

For realists, power is understood in terms of material, military resources such as tanks and bombs, and in the contribution of these to the power or security of a country.

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Pursuit of military dominance by states in an effort to reduce their intrinsic sense of insecurity in relation to other countries.

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“that great powers will develop and mobilize military capabilities to constrain the most powerful among them”

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Realists are intrigued by the actions of the Great Powers

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International organizations are important in the realist perspective to the extent that they have implications for Great Powers’ pursuit of material, military advantage over rivals.

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Normative view - international organizations should not be allowed to interfere with the military pursuit of great powers.

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Power = military capabilities

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Relative gain

Liberalism: Choices that gain mutual advantage (maximising choices) 

Liberalism suggests that IOs can be seen as a series of agreements which states enter into expecting to receive a gain.

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see international organizations in terms of the costs and benefits that they offer various actors.

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Advantage in their participation

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Contractualism – International organisations nothing more than contracts made between states.

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Regime theory – How rules affect the choices of the State

Constructivism: ally vs enemy 

We either see a State as an ally or an enemy and depending on which way they are viewed, influences the decisions/choices of the state.

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E.g. North Korea making Nuclear weapons vs the UK – America had a problem with North Korea doing it but not the UK

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Choices are generated by past interactions

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Social constructs – everything can be shaped by ideas

Marxism: premise that international politics and international economics are one singular system, and that this system is inherently unequal. 

This order involves the unequal distribution of power among actors in society in which rich States have a privileged position on the world stage.

Postcolonial and feminist critique

Out of all of these theories – constructivism resonates the most with me. It seems like politics isn’t always as easy as placing titles such as ally vs enemy however it can be seen that politics vary along this spectrum. With every decision, whether or not countries are allies or enemies come to play and seems to be the most relevant out of the theories when it comes to international law and politics....