7 International Organizations, Individuals, and Corporations PDF

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Summary

What is an International Organization for the Purposes of International Law? ● International Law Commission outlined IOs are generally: ○ Created by states ○ Created by treaty ○ Possess a distinct will (separate from that of the members) Example: UN ● Created in the aftermath of WW2 for peace and se...

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What is an International Organization for the Purposes of International Law? ● International Law Commission outlined IOs are generally: ○ Created by states ○ Created by treaty ○ Possess a distinct will (separate from that of the members) Example: UN ● Created in the aftermath of WW2 for peace and security ● Organs most readily associated with the UN → General Assembly and the Security Council ○ GA - parliamentary body → all members of the UN are represented and debate/discussions ○ SC - executive body → prompt and effective action, bind member states through its decisions Legal Personality of IOs ● Reparation for Injuries Suffered in the Service of the UN ○ Chief UN Truce Negotiator was killed in Jerusalem, city was then in Israeli possession ○ UN GA sought the advice of the ICJ, Israel was admitted to the UN shortly after this opinion ○ “UN is exercising and enjoying functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane” ○ Court has come to the conclusion that the UN is an “international person… a subject of international law and capable of possessing international rights and duties and that it has capacity to maintain its rights by bringing international claims” ■ Claim against a State to obtain reparation in respect of the damage caused by the injury of an agent of the UN in the course of the performance of his duties ○ Agent should rest assured that he is protected by the Organization ■ Organization does not represent the agent, but is asserting its own right to secure respect for undertakings entered into towards the Organization ○ Organization has the capacity to claim adequate reparation, that in assessing the reparation it is authorized to include the damage suffered by the victim or by persons entitled through him ○ HOWEVER: Israel (defendant) was not a member state, therefore does the Organization lack the capacity to bring an international claim? ■ On this point, the Court held that as the Organization represented the vast majority of the members of the international community, it had the power to possess objective international personality ● This case: Chief UN Truce Negotiator was Swedish, issues regarding diplomatic protection and the unbiased nature of his position ○ No rule which assigns priority to the State or to the Organization to bring an international claim → cooperation to find a practical solution ● Different approaches: ○ Will theory - what the founders want is determinative ○ Objective theory - meets certain requirements, then it exists ○ Operate on the basis of presumptive personality - as soon as an organization performs acts which can be explained on the basis of international legal personality (ex. Entering treaties) it is presumed to be in possession of it Power of IOs ● Conferred by the members states (extent, nature, content of these powers is dependent on the governing treaty) → distinguishes a collective entity from its members ● Apparent that there is scope for the powers of IOs to go beyond what has been expressly conferred by the Member States (implied powers supported by case law in the ICJ) → nonetheless, this creates a gap for uncertainty

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Certain Expenses of the UN ○ Art 17 Para 2 of the UN Charter → Organization expenses will be apportioned by the GA on its members ○ GA requested advice on whether expenditures in relation to UN operations in Congo and the Middle East was included in the meaning of the UN Charter “‘When the organisation takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the organisation” ○ The Court pointed out that under Article 17, paragraph 2, of the Charter, the “expenses of the Organization” are the amounts paid out to defray the costs of carrying out the purposes of the Organization Applicability of International Law to IOs ● ICJ → IOs are subject to international law and bound by any obligations under the general rules of international law or agreements to which they are parties - Interpretation of the Agreement between WHO and Egypt ○ Organization rather than the member states are responsible for any breaches ● Important exception to IOs not being permitted to become parties to human rights instruments → European Convention for the Protection of Human Rights and Fundamental Freedoms → way has been paved for the EU’s accession to this convention (potential, though not realized yet) ○ All parties to the EU are already party to this convention ○ Difference: individual could bring a claim against the EU before the ECtHR ■ ECtHR could make decisions on EU laws (jeopardizes EU as an autonomous legal system) IOs and International Law Making ● GA resolutions can be evidence of state practice and opinio juris ● Practice of the Organization can contribute to the formation of customary international law (VCLT) ● Resolutions can be binding obligations for members (UNSC)

Individuals in International Law ● McCorquodale: individuals cannot be ‘objects’ → suggests that individuals are controlled by individual law instead of being active in its formation/application/interpretation ● Higgins: notion of ‘participants’ in the international legal system reflects the fact that many non-State actors such as individuals engage in international activity (Reparations) ○ ‘Participants’ → relative flexible context-sensitive way of conceptualizing international legal personality (relative to the particular area of legal system in question) Rights of Individuals ● Danzig opinion ○ Cited as recognizing that individuals could hold international law rights and obligations directly under international law which may be enforced in international tribunals ■ Treaty-based mechanisms with complaint procedures ● International human rights law → seen as constituting customary international law ○ Places a limit on State sovereignty by creating international obligations for States on matters that are essentially internal ● International humanitarian law/law of armed conflict/law of war ○ Right to be treated as a non-combatant or a prisoner of war ● International consular law

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When placed under arrest abroad, right for individuals to consult their national State’s embassy/consulate Obligations of Individuals ● Certain breaches of international law can involve the responsibility of the individual ● Individual responsibility for international crimes (ex. Genocide, war crimes etc.) is imposed by international law ● International institutions in which the obligations of individuals can be enforced → ICC, etc. Individual Claims ● Standing to bring international claims ○ Through diplomatic protection by an individual’s State of nationality ○ Individuals may have standing through instruments signed by their State of nationality ● Individual rights under international human rights law ○ Mechanism to allow individuals to claim against a State (ECHR, ACHR - American) ■ Procedural capacity, exhaustion of domestic remedies, jurisdiction, etc. ● European integration ○ Rights conferred on individuals under EU law → ECJ Individuals and the Development of International Law ● NGOs ○ Not corporations, but organizations that are part of ‘international civil society’ and have a crucial effect on the negotiation, conclusion, and implementation of treaties ■ Ex. Red Cross and the development of international humanitarian law ○ Provide resources and information, policy guidance and evidence to States and international organizations that can influence international decision making ● International legal scholars/jurists ○ Significant influence on the system → participate as special rapporteurs, commissioners on behalf of the UN (but in their individual capacity), or appointed to the International Law Commission Examples of Group Based Rights (ie ‘Groups’ of Individuals) Self-Determination ● Significant potential in terms of a re-orientation of international law away from a state centric focus towards the interests and voices of the people that constitute a state → unrealized potential Indigenous Rights ● UN Declaration on the Rights of Indigenous Peoples → rights and separate status with input by indigenous participants directly instead of through their government ○ Note that Australia, Canada, New Zealand, and the US all voted against this Corporations ● International investment law allows corporations to bring claims before investment tribunals against the responsible States ○ Treaty has been signed where the national State allows its individuals (corporations) such standing ● International trade bodies ○ WTO propels States to protect their individuals and corporations by having recourse to its dispute-settlement procedures ○ In practice, it is usually two corporations (or a corporation against a State) battling it out UN Guiding Principles

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UN’s Guiding Principles on Business and Human Rights → conceptualization of corporations in international law remains largely state-linked Three pillars: ○ State duty to protect human rights against violations by third parties (including corporations) ○ Corporate responsibility to respect human rights → due diligence ○ Greater access to effective remedies (both judicial and non-judicial) for victims of corporate-related human rights abuses

Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion ICJ Reports 1996, p. 66, (esp. pp. 74 – 81, and 84)...