Principles of the Institutional Law of International Organizations Cambridge Studies in International and Comparative Law _ www.bit.ly/taiho123

examination of the law.A brief history of international organizations is followed by chapters on, amongst others, interpretation, membership and representation, international and nationa

examination of the law.

A brief history of international organizations is followed by

chapters on, amongst others, interpretation, membership and

representation, international and national personality, judicialorgans, the doctrine of ultra vires, liability of members to thirdparties, employment relations, dissolution and succession, andamendment Important principles are extracted and discussed, andthe practice of different organizations examined

c h i t t h a r a n j a n f e l i x a m e r a s i n g h e was formerly Judge at the

UN Tribunal in New York, and of the Commonwealth SecretariatTribunal in London He was also Professor of Law and later HonoraryProfessor of Law at the University of Ceylon, Colombo He was

Director of the Secretariat and Registrar at the World Bank Tribunal

in Washington, and is currently a member of the Institut de DroitInternational He has advised governments on international law andhas written extensively on the subject He is a Doctor of Law of the

University of Cambridge His publications include State Responsibility for Injuries to Aliens (1967), Studies in International Law (1969), The Law of the International Civil Service (two volumes, 2nd edition, 1994), Documents on International Administrative Tribunals (1989), Case Law of The World Bank Administrative Tribunal (three volumes, 1989, 1993 and 1997), Local Remedies in International Law (2nd edition, 2004), and a treatise entitled Jurisdiction of International Tribunals (2002).

This series (established in 1946 by Professors Gutteridge, Hersch Lauterpachtand McNair) is a forum for studies of high quality in the fields of public andprivate international law and comparative law Although these are distinctlegal sub-disciplines, developments since 1946 confirm their interrelationship.Comparative law is increasingly used as a tool in the making of law at

national, regional and international levels Private international law is

increasingly affected by international conventions, and the issues faced byclassical conflicts rules are increasingly dealt with by substantive

harmonization of law under international auspices Mixed internationalarbitrations, especially those involving state economic activity, raise mixedquestions of public and private international law In many fields (such as theprotection of human rights and democratic standards, investment guarantees,and international criminal law) international and national systems interact.National constitutional arrangements relating to ‘foreign affairs’ and to theimplementation of international norms are a focus of attention

Professor Sir Robert Jennings edited the series from 1981 Following hisretirement as General Editor, an editorial board has been created and

Cambridge University Press has recommitted itself to the series, affirming itsbroad scope

The Board welcomes works of a theoretical or interdisciplinary character,and those focusing on new approaches to international or comparative law orconflicts of law Studies of particular institutions or problems are equallywelcome, as are translations of the best work published in other languages

General Editors James Crawford

Whewell Professor of International Law, University of Cambridge

David Johnston

Regius Professor of Civil Law, University of Cambridge Editorial Board Professor Hilary Charlesworth University of Adelaide

Mr John Collier Trinity Hall, Cambridge

Professor Lori Damrosch Columbia University Law School

Professor John Dugard Director, Research Centre for International Law, University of Cambridge

Professor Mary-Ann Glendon Harvard Law School

Professor Christopher Greenwood London School of Economics

Professor Hein K¨otz Max-Planck-Institut, Hamburg

Dr Vaughan Lowe Corpus Christi College, Cambridge

Professor D M McRae University of Ottawa

Professor Onuma Yasuaki University of Tokyo Advisory Committee Professor D W Bowett QC

Judge Rosalyn Higgins QCProfessor Sir Robert Jennings QCProfessor J A Jolowicz QCProfessor Eli Lauterpacht QCProfessor Kurt LipsteinJudge Stephen Schwebel

international organizations

Second Revised Edition

by

C F Amerasinghe, PhD, LLD (Cantab.)

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São PauloCambridge University Press

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Preface page xiii

Pervasiveness of international organizations 6

Personality at a non-international level 69Attribution of international personality 77

vii

The consequences of international personality 92

7 Acts of non-judicial organs: the doctrine of ultra vires 193The problem and relevance of final adjudication 199

The content of the doctrine of ultra vires 208

Qualities of judicial organs flowing from the nature of

History of the concept of ‘fundamental principles’ 227

Staff regulations, staff rules and written sources 286

Other sources 292

The nature of control over administrative

Privileges and immunities of organizations 320

12 Responsibility to and of international organizations 384

Law governing relations between international

Responsibility to international organizations 390

The right to bring claims at international law 394Responsibility of international organizations 399

13 The liability of member states vis-à-vis third parties 407

The governing law and problems with the forum 408The importance of the organization’s having personality 412

Transactions on the international plane 414The position at the non-international level 417

The consequences of an effective amendment 457

Interpretation and amendment 460

(1) Disputes between states and organizations or

(vi) Interpretation, rectification and review 502

(3) Settlement of disputes involving private parties,

states or organizations at the national level 504(4) Disputes between member states before international

This book was designed in 1996, at the time the first edition was lished, to meet a perceived need for a work of both an academic and

pub-practical character, specifically on the institutional, as contrasted with

the functional or operational, law of international organizations Whilethere was and is some literature on the subject, it did not and does nothave an adequate academic orientation or was not or is not sufficientlyspecialized in the institutional field

The first edition required updating, revision and addition of a much

needed Chapter 8 on judicial organs of international organizations,

con-sequent upon the attention being paid and emphasis being given inthe life of international organizations to international administrativecourts, particularly, and also to the two ad hoc international criminaltribunals as organs of organizations, in that they are established andfinanced by organizations

The fact that the first edition sold out and is out of print was also

a consideration for doing a second edition at this point in time Someuseful suggestions made by reviewers of the first edition have been takeninto account for this second edition Generally the book speaks for itself.One of the important characteristics of the book is that it identifies anddiscusses principles, where they exist, while acknowledging in otherareas that practices could differ

I was in no small measure encouraged to undertake this second tion by the positive reviews given to the original book, not to men-tion the fact that the first edition was well received and acclaimed

edi-in academia and among professional edi-international lawyers and admedi-in-istrators It should undoubtedly continue to be of use and inter-est alike to academics, practitioners and students both graduate andundergraduate

admin-xiii

I should like to express my gratitude to my friends, Laura and EmilyCrow, who assiduously and with ardour typed the new chapter 8 andthe expanded chapter 16.

C F AmerasingheMaryland

U.S.A

November 2003

AD Annual Digest of Public International Law

Cases (now ILR)

ADBAT Asian Development Bank Administrative

TribunalAdelaide LR Adelaide Law Review

AFDI Annuaire Français de droit internationalAIDI Annuaire de l’Institut de droit international

AOI Arab Organization for IndustrializationASDI Annuaire Suisse de droite internationalASEAN Association of South East Asian NationsASIL American Society of International Law

in AfricaBDARO Basic Documents on African Regional

Organizations (L Sohn (ed.))

Brooklyn JIL Brooklyn Journal of International LawBYIL British Yearbook of International Law

CAFRAD African Training and Research Centre in

Administration for Development

xv

California Western ILJ California Western International Law

Journal

ResearchCGIAR Consultative Group for International

Agricultural ResearchChicago JIL Chicago Journal of International Law

CIEPS International Center for Registration

of Serials

ExportacionesCIPEC Intergovernmental Council for Coffee

Exporting Countries

Communities

Administrative Matters (IBRD)

Col JTL Columbia Journal of Transnational LawCOMECON Council for Mutual Economic AssistanceCommodity Fund Common Fund for Commodities

Cornell ILJ Cornell International Law Journal

TribunalCYIL Canadian Yearbook of International Law

Development

ECOWAS Economic Community of Western African

States

Development Organization

Eurocontrol European Organization for the Safety of

Air Navigation

Fordham ILJ Fordham International Law Journal

Ga JCIL Georgia Journal of Comparative and

International LawGAOR Official Records of the General AssemblyGATT General Agreement on Tariffs and Trade

LawHague Recueil Recueil de Cours of the Hague Academy

of International LawHarv ILJ Harvard International Law Journal

IACHR Inter-American Commission on Human

RightsIACtHR Inter-American Court of Human Rights

IBRD International Bank for Reconstruction

and Development

NavigationICAO International Civil Aviation Organization

Migration

Quarterly

ICRC International Committee of the Red CrossICRISAT International Crops Research Institute for

the Semi-Arid TropicsICSID International Centre for the Settlement of

Investment DisputesICTR International Criminal Tribunal for RwandaICTY International Criminal Tribunal for the

former Yugoslavia

IFAD International Fund for Agricultural

Development

IIA International Institute of Agriculture

IIIC International Institute of Intellectual

Co-operation

IJIL Indian Journal of International Law

IMCO Intergovernmental Maritime Consultative

Organization

INMARSAT International Maritime Satellite

OrganizationINRO International Natural Rubber OrganizationInt Org International Organization

INTELSAT International Telecommunications Satellite

OrganizationInter pol International Police Organization

IOM International Organization for Migration

Standardization

ITLOS International Tribunal for the Law of

the Sea

JCLIL Journal of Comparative Legislation and

International Law

LNT Administrative Tribunal of the League of

Nations

Michigan JIL Michigan Journal of International Law

MIGA Multilateral Insurance Guaranty Agency

Nederlands TIR Nederlands Tijdschrift voor International

Recht

Nordic JIL Nordic Journal of International Law

International LawNYUJILP New York University Journal of

International Law and PolicyOAPEC Organization of Arab Petroleum Exporting

Countries

malagacheOCTI Central Office for International Railway

TransportOECD Organization for Economic Co-operation

and Development

Co-operationOIHP Office International d’Hygiène Publique

OJ Eur Comm Official Journal of the European

Communities

CountriesOZfR Osterreichische Zeitschrift f¨¨ ur RechtOZOR Ostèrreische Zeitschrift f¨¨ ur ¨Offentliches

Recht

PCIJ Permanent Court of International Justice

Polish YIL Polish Yearbook of International Law

RBDI Revue Belge de droit international

RDIDC Revue de droit international et droit

comparéRDILC Revue de droit international et legislation

comparéeREDI Revista Espa˜nola de Derecho InternacionalRGDIP Revue générale de droit international publicRGSt Reichgerichtentscheidungen im StrassachenRHDI Revue Hellénique de droit international

SAYBIL South African Yearbook of International

Law

Soviet YBIL Soviet Yearbook of International Law

StJIL Stanford Journal of International Law

UNCIO United Nations Conference on International

OrganizationsUNCLOS UN Convention on the Law of the SeaUNCTAD United Nations Conference on Trade and

Development

UNECLA United Nations Economic Commission for

Latin America

UNESCO United Nations Educational, Scientific and

Cultural OrganizationUNFICYP United Nations Forces in Cyprus

UNGA UN General Assembly

RefugeesUNICEF United Nations International Children’s

Emergency FundUNIDO United Nations International Development

Organization

UNRRA United Nations Relief and Rehabilitation

AgencyUNRWA United Nations Relief and Works Agency

Vanderbilt JIL Vanderbilt Journal of International LawVienna Convention Vienna Convention on the Law of Treaties,

1969

VJIL Virginia Journal of International Law

WIPO World Intellectual Property Organization

YBILC Yearbook of the International Law

CommissionZAORV Zeitschrift f¨ur Ausländisches ¨Offentliches

Recht und V¨olkerrecht

A v UNECLA page 325

Applicability of Article VI, Section 22 of the Convention on

Privileges and Immunities of the United Nations Case 343 4, 348Application for Review of Judgment No 158 of the United

Application for Review of Judgment No 273 of the United

Arab Monetary Fund v Hashim and Others (No 3) 70, 73 4, 76, 88,

91 2, 399, 411, 505

xxiii

Arab Monetary Fund Case: see Arab Monetary Fund v.

Hashim and Others (No 3)

AS v Iran-US Claims Tribunal 72 3, 85 6, 100, 326, 345

AS Case: see AS v Iran-US Claims Tribunal

Assessment of Aliens for War Taxation Case 231

Award in Westland Helicopters Arbitration: see also

Barreneche v CIPE/General Secretariat of the OAS 325

Barrios v CIPE/General Secretariat of the OAS 325

Cohen v Presiding Judge Pedro C Navarro et al. 325

Competence of the ILO to Regulate Agricultural

Competence of the ILO to Regulate Conditions

of Labour in Agriculture Case 45, 50, 56 7, 77

Corfu Channel Case (Preliminary Objection) 162, 176 7

Danvin 289

De Bruyn v European Parliamentary Assembly 325

de Merode 222, 279, 280, 282 3, 284, 285, 286 7, 288 9, 290, 291,

301 2, 307, 308, 311 13

Decisions Nos 174 80 (NATO Appeals Board) 287

Decisions Nos 218 27 (NATO Appeals Board) 290

Duberg, etc (ILOAT Judgments Nos 17 19 and 21) 278, 298

ESOC Official Immunity Case 342, 345

European Commission on the Danube Case 45, 47, 48, 50 1, 58, 68,

77 8, 98, 206

Exchange of Greek and Turkish Population Case 68, 77Expenses Case 25, 27, 38 9, 42 4, 47, 49, 50, 51, 53, 54, 56, 57, 94,

96, 97, 145 6, 162, 164 5, 167, 168, 171, 184, 186,202 6, 210 14, 362, 365 74, 376 8, 379, 431

Heltzel v Air Traffic Services Agency 325

Howrani: see Howrani and Four Others

Howrani and Four Others 104, 278, 286, 288, 305

International Institute of Agriculture v Profili 272, 323 4, 345

International Refugee Organization v Republic of SS

International Tin Council v Amalgamet Inc. 70, 71, 76, 84, 88, 328,

345, 348, 399, 505

Italian Government v The High Authority 47 8

ITC v Amalgamet: see International Tin Council v Amalgamet

Inc

ITC Case (CA): see Maclaine Watson & Co Ltd v Department of

Trade and Industry

ITC Case (HL): see J H Rayner Ltd v Department of Trade

and Industry

J H Rayner Ltd v Department of

Trade and Industry 32, 73, 74, 84, 409 10, 418 20, 429, 432 5, 440

Juan Ysmael and Co Inc v Indonesia Government 333Judgments of the ILO Administrative Tribunal Case 278, 290, 293, 298

Kennedy’s Claim (USA v Mexico) 385

Klarsfeld v French German Office for Youth 323

Maclaine Watson & Co Ltd v Department of

Trade and Industry 409, 410, 411, 417 20, 429, 432 5, 436, 443 4

Maclaine Watson & Co Ltd v ITC (No 2) 332, 341

Mayras: see Mayras etc (LNT Judgments Nos 24 36)

Mayras etc (LNT Judgments Nos 24 36) 289, 472, 500, 503

Mazzanti v HAFSE and Ministry of Defence 72, 324, 408

Middleton etc (UNAT Judgments Nos 20 7) 308

Mininni v The Bari Institute of the International Centre

for Advanced Mediterranean Agronomic Studies 324, 327 8

Netherlands Government v The High Authority 48

Nissan v AG: see Nissan v Attorney-General

Nomination of the Netherlands Workers’ Delegate Case 45

Nuclear Tests Case (New Zealand v France) 181

PAHO v Montgomery County, Maryland, County Council

People of the State of New York v Coumatos 342Personal Work of Employers Case 46 7, 48, 50, 77, 98

Petroleum Development (Trucial Coast) Ltd and the Sheikh of

Railway Traffic between Lithuania and Poland Case 182

Rayner (JH) (Mincing Lane) Ltd v Department of Trade and

Industry: see J H Rayner Ltd v Department of Trade and

Republic italienne, Ministère italien des transports et chemins

de fer de l’Etat italien v Beta Holding SA et Autorité de

Shearson Lehman Brothers Inc and Another v.

South West Africa Cases (Preliminary Objections) 43, 182South West Africa Cases (Second Phase) 162, 476

Studio-Karten GmbH v Deutsches Komite der UNICEF v V 200

UN Works Agency v Finanzlandesdirektion f¨ur Wien

United Nations Expenses Case: see Expenses Case

United States Diplomatic and Consular Staff in Tehran Case 230

Voting Procedure Case 152 4, 162, 167, 174, 177 8, 179, 180, 184, 197

Westchester County on Complaint of Donnely v Ranollo 341 2

Westland Helicopters Ltd v AOI: see Westland Helicopters Case

Westland Helicopters Ltd v AOI (Partial Award) 425, 440WHO Agreement Case 92, 94, 96 7, 178, 179, 391, 400

History of international organizations

Bilateral and even multilateral relations between states have a long tory, but the establishment of public international organizations func-tioning as institutions is essentially a development of the late nineteenthcentury.1Consular relations designed to protect interests in commerce,and diplomatic relations concerned with representation of states, gofar back in history: the former to the times of the ancient Greeks andRomans; the latter to a somewhat later period, taking its modern shape

his-in the fifteenth century It is his-in these his-institutions that the orighis-ins ofthe more complex institutions which started evolving in the early nine-teenth century can be found When bilateral relationships based on theexistence of diplomatic embassies or missions were found to be inad-equate to meet more complex situations arising from problems con-cerning not just two but many states, a means had to be found for

1For histories see, e.g., Leonard, International Organisation (1951), chapter 2; Mangone, A

Short History of International Organizations (1954), particularly chapter 3; Eagleton, International Government (1956); Monaco, Lezioni di Organnizzazione Internazionale (1965),

chapter 1; El-Erian, ‘First Report to the ILC in Relations between States and

Inter-Governmental Organizations’, 2 YBILC (1963) at pp 162ff.; Sands and Klein (eds.),

Bowett’s Law of International Institutions (2001) pp 1ff See also, on the rise of the UN and

other organizations, Lachs, ‘Quelques réflexions sur la communauté internationale’, in

Bardonnet, Combacau, Dupuy and Weil (eds.), Le Droit international au service de la paix, de

la justice et du développement: Mélanges Michel Virally (1991) at pp 352ff., Pescatore, 1 Cours d’Institutions Internationales (1978) Developments before the Second World War have

been dealt with in Ghadbane, ‘L’évolution historique, fonctionelle de l’organisation internationale et les institutions internationales à la lumière des idées idéales et

réalistes jusqu’à la deuxième guerre’, 31 Revue Algérienne des Sciences Juridiques,

Economiques et Politiques (1993) pp 287 342 (in Arabic) For the establishment of the LN

and its significance in terms of the history of international organization, see Kennedy,

‘The Move to Institutions’, 8 Cardozo Law Review (1986 7) p 841.

1

representation in the same forum of the interests of all the states

con-cerned This was the international conference It was the ad hoc

tempo-rary conference convened for a specific purpose and terminating onceagreement was reached on the subject matter and a treaty was adoptedthat evolved ultimately into permanent international organizations withorgans that function on a permanent basis and meet periodically.The Peace of Westphalia of 1648 was the result of such a conference

as was the settlement in 1815 through the Congress of Vienna and theTreaty of Versailles in 1919 There were other conferences such as theCongress of Berlin of 1871 and the Hague Conferences of 1899 and 1907which concerned other matters than peace Conferences were convened

to solve problems on a multilateral basis The result of the conferencewould generally be a formal treaty or convention or, where such anagreement was not desirable or obtainable, a memorandum or minutes

of the conference

The system of ad hoc conferences was limited both in its reach and

its quality.2The principal features of concern were that (i) for each newproblem a conference had to be convened afresh (on the initiative of thestate or states concerned), which generally meant delay and complexity

in dealing with the problem; (ii) the conferences were used as platformsfor rendering state policy rather than as fora for discussion and resolu-tion, as, for example, are the organs of the UN now, and were the organs

of the LN, with the result that flexibility was often lost, though times negotiated deals were not absent; (iii) there was also no principle

some-of state membership which involved responsibilities and obligations inaddition to the important right to be represented, because the confer-ences were held on the invitation of a state or states which sponsoredthe conference; (iv) most importantly, the principle of equality was at

the heart of the ad hoc conference system which meant that

substan-tive decisions, especially, of whatever kind, were subject to the rule of

unanimity and were not taken on the basis of some majority; (v) the ad

hoc conference came to be associated with, and used as being

appropri-ate for, political issues but not generally for legal questions; and (vi) inany event the conference proved inadequate for the solution of polit-ical problems They were even more inadequate for the regulation ofrelations between the peoples of the different countries which were theresult of their common interests Thus, in the nineteenth century, theredeveloped associations, international in character, among groups other

2See Sands and Klein (eds.), note 1 pp 3ff.

than governments There followed similar developments among ments which were, however, at that time rather in the administrativethan in the political field.

govern-In the western hemisphere, there were somewhat different but icant developments The pan-American system resorted to conferences

signif-at a regional level, beginning in 1826, though they did not yield gible results till the Washington Conference of 1885 These conferenceshad a periodic character after that and culminated in the formation

tan-of the OAS They contributed to the techniques tan-of international zations in several ways:3 (i) the conferences were not convened at theinitiative of any one State, but the time and place of each were decided

organi-by the previous one; (ii) the agenda of each conference was prepared

by the governing body of the standing administrative organ, the American Union (established in 1912); (iii) a greater possibility existed

Pan-to undertake preparaPan-tory work before each conference than in the case

of ad hoc conferences; and (iv) the periodic character of the conferences

made possible the development of more elaborate and formal proceduralarrangements

By contrast the non-governmental unions or associations sprang fromthe realization by non-governmental bodies, consisting of both privateindividuals and corporate associations, that their interests had an inter-national character which required that those interests be promoted inco-operation with similar bodies in other countries through perma-nent international associations Perhaps the first conference of a pri-vate nature which led to the establishment of an association was theone which formulated the World Anti-Slavery Convention of 1840 Sincethen there have been a plethora of private associations or unions estab-lished, including the International Committee of the Red Cross (1863),the International Law Association (1873), the Inter-Parliamentary Union(1889) and the International Chamber of Commerce (1919), to mentiononly a few Because of the proliferation of these private unions, in 1910the Union of International Associations was formed to co-ordinate theiractivities, among other things These private unions (which will not bethe subject of this study, as will be seen) anticipated and antedated thedevelopment of the public unions Their appearance suggests that thegrowth of the international organization was the result of a universalhuman need

3See Venacke, International Organization (1934) p 153.

The public international union which appeared also in the teenth century, especially in its second half, is more important forthe development of the modern international organization The publicunions which sprang up at that time were international administrativeunions agencies which had a certain permanency and dealt with non-political technical activities These were also associations of governments

nine-or administrations as contrasted with private bodies The Congress ofVienna had proclaimed the principle of freedom of navigation whichled to the appearance of many river commissions.4 A good example

of these was the Rhine Commission which was invested with able powers, including both legislative and political powers There werecommissions for other rivers, such as the Danube, Elbe and Po Numer-ous other administrative unions in many fields appeared pursuant toneeds as they arose The Universal Telegraphic Union was established in

consider-1865 with an administration as its central organ The Universal PostalUnion was established in 1874 There were other unions which sprang

up such as the International Union of Railway Freight Transportation(1890), the International Bureau of Industrial Property (1883), the Inter-national Bureau of Literary Property (1886) and the International Office

of Public Health (1907)

Such unions generally had periodical conferences or meetings ofthe representatives of member states, decisions being taken usually byunanimous vote, and a permanent secretariat (bureau) which performedthe administrative tasks One of the principal contributions of theunions to the concept of the international organization was the institu-tional element which was secured through a standing organ, the bureau,and provided the stepping stone from the technique of the conference

to that of the organization In some cases, there were permanent erative or legislative organs as well (e.g., the UPU and the InternationalTelegraphic Union) The trend towards the permanence of associationwas very marked

delib-There were departures from the unanimity rule which were an tant phenomenon, particularly when linked with legislative powers, as

impor-in the case of the Rhimpor-ine Commission The distimpor-inction made between the

convention, embodying general rules, and the règlements, which

imple-mented those rules in a detailed manner, was important, particularly

because the règlements could be amended by a much simpler process.

4See Chamberlain, The Regime of International Rivers, Danube and Rhine (1923).