The Concept of an International Organization in International Law

The Concept of an International Organization in International Law Lorenzo Gasbarri (lorenzo.gasbarri@unibocconi.it) This is a pre-copyedited, author-produced PDF of the Introduction of the Book published by Oxford University Press (Oxford Monographs in International Law). The version of record is available online at: https://global.oup.com/academic/product/the-concept-of-an-internationalorganization-in-international-law-9780192895790?cc=us&lang=en&# Table of Contents Table of Cases List of Abbreviations 1. Introduction 1.1 Conceptualizing versus Defining 1.2 Four Concepts of an International Organization 1.3 Terminology 1.4 Why it Matters 1.5 The Structure of the Book Part I. The Four Concepts of an International Organization 2. Functionalism 2.1 The Rules of International Organizations as International Law 2.2 The Limits of Functionalism 2.3 3. 2.2.1 The breach of institutional rules under functionalism 2.2.2 Countermeasures and sanctions under functionalism Concluding Remarks Constitutionalism 3.1 The Rules of International Organizations as Internal Law 3.2 The Limits of Constitutionalism 3.3 3.2.1 Lex specialis derogat legi generali 3.2.2 The attribution of conduct Concluding Remarks 4. Informalism 4.1 The Rules of International Organizations as Informal Law 4.2 The Limits of Informalism 4.3 5. Employment relationships 4.2.2 Global administrative law Concluding Remarks Exceptionalism 5.1 The Rules of International Organizations as ‘Exceptions’ 5.2 The Limits of Exceptionalism 5.3 6. 4.2.1 5.2.1 The exceptionalism of the EU 5.2.2 The exceptionalism of the OSCE Concluding Remarks Interim Conclusions 6.1 Al-Dulimi and the Competing Concepts of an International Organization 6.1.1 Admissibility ratione personae: attribution of conduct 6.1.2 Merits: coexistence or conflict of obligations? 6.1.2.1 The Chamber: equivalent protection and constitutionalism 6.1.2.2 The Grand Chamber: harmonic interpretation and functionalism 6.2 In the Following Pages Part II. International Organizations as Dual Entities 7. 8. A Venture into Legal Theory 7.1 The Concept of Legal System Applied to International Organizations 7.2 The Point of View and Hart’s Rule of Recognition 7.3 Santi Romano’s Institutionalism 7.4 The Dual Legal Character of International Organizations 7.5 The Definition of an International Organization in International Law 7.6 Concluding Remarks The Dual Legal Nature in Practice 8.1 Constitutive Instruments 8.2 General Principles 8.3 Customary Law 8.4 Institutional Practice 2 8.5 9. Secondary Norms 8.5.1 The Mandate 8.5.2 UN international territorial administration 8.5.3 UN Security Council anti-terrorism resolutions 8.5.4 EU secondary norms 8.5.5 ICAO regulations 8.6 Judicial Decisions 8.7 Treaties with Members and Non-members 8.8 Concluding Remarks The Law of Treaties 9.1 9.2 International Organizations in the Law of Treaties 9.1.1 The 1969 Vienna Convention 9.1.2 The 1986 Vienna Convention 9.1.3 L’Institut de Droit International The Capacity to Conclude Treaties on the Basis of International and Institutional Law 9.3 Member States are neither Parties nor Third Parties in the Treaty Concluded by the Organization 9.3.1 Effects of the dual legal nature in practice: IUU fishing and obligations binding EU member states 9.4 10. Concluding Remarks Validity and Ultra Vires Acts 10.1 The Either/Or Paradigm Applied by the PCIJ and the ICJ 10.1.1 Decisions adopting a functionalist perspective 10.1.2 Decisions adopting a constitutional perspective 10.2 The Dual Legal Character of Ultra Vires Acts 10.3 The Rules of the Organization as a Limit of Validity 10.3.1 Invalidity of the treaty caused by the violation of a rule of the organization 10.4 Customary International Law as a Limit of Validity 10.4.1 The validity of UN Security Council resolutions encroaching on human rights 10.5 11. Concluding Remarks International Responsibility 11.1 International Organizations in the Law of International Responsibility 11.1.1 L’Institut de Droit International 3 11.1.2 The International Law Commission 11.1.3 The International Law Association 11.2 Dual Attribution of Conduct and Shared Responsibility 11.2.1 The legal basis of dual attribution in the law of states’ responsibility 11.2.2 Applicability to international organizations and member states 11.2.2.1 Dual attribution via institutional links: article 4 ARSIWA and article 6 ARIO 11.2.2.2 Dual attribution via factual links: effective control (article 7 ARIO) 11.2.2.3 Exclusion of dual attribution because the organ is ‘place at the disposal’ (article 6 ARSIWA) or ‘fully seconded’ (commentary article 7 ARIO) 12. 11.3 The Effects of Dual Attribution 11.4 Concluding Remarks Conclusion Bibliography Index 4 1. Introduction The 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character was the first formal product of a historical process in which the law of international organizations achieved the dignity of a discrete area of international law. 1 Until the 1960s, only disparate studies of international organizations, focusing on specific issues relating to particular institutions, had appeared. No general classification was attempted. International organizations themselves were a fragmented phenomenon, ranging from administrative unions and international commissions to conferences where states debated international politics. It was only in the decade preceding the 1975 Vienna Convention that the law of international organizations became an autonomous field of study, relying on a comparative methodology to address common issues such as attribution of competences, legal personality, and immunities.2 With the Convention, different institutions were subjected for the first time to the same regulatory framework, in this case in the field of diplomatic law. The 1975 Vienna Convention evidenced of a new era in the study of a discrete phenomenon with common roots and common aims. At the same time, the story of the 1975 Vienna Convention is the story of a failure. The Convention represents the failure of the comparative methodology that sought to develop a general legal framework applicable to a large category of international organizations. Indeed, the comprehensive scope of the 1975 Vienna Convention is founded on the absence of any critical discussion of what international organizations are. Earlier debates on the structural differences among international organizations were downplayed in order to achieve the circumscribed aim of a technical instrument delineating the legal framework governing member states’ permanent missions. In the work that led to the 1975 Vienna Convention, the International Law Commission (ILC) adopted a model of reasoning, since applied in its other projects on international organizations, according to which the aim of a particular project, be it diplomatic relations, the law of treaties, or the law of international responsibility, is not to define what international organizations are, but to provide a set of rules applicable to the particular, limited circumstance on which the project focuses. For instance, the aim of the 1986 Vienna Convention is not to define from where the legal personality of international organizations comes; rather, the project presumes the existence 1 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character (opened for signature 14 March 1975, not yet in force) UN Doc A/CONF.67/16 (hereafter VCRS). 2 Jan Klabbers, ‘The Life and Times of the Law of International Organizations’ (2001) 70 NJIL 287. of such personality, since this enables the conclusion of treaties. 3 Similarly, the aim of the project on responsibility is not to determine whether the law produced by international organizations is international law; rather, the project starts from the premise of the existence of an international obligation.4 In short, the few legal instruments that should identify a comprehensive legal framework applicable to international organizations are based on a lack of theoretical analysis of what international organizations are. This is one of the reasons why the law of international organizations does not meet the expectations of a world in which these institutions have a preeminent role. Several ILC Special Rapporteurs attempted in fact to stimulate debate on how to conceptualise international organizations, but they never succeeded in achieving consensus. As early as in 1958, while discussing the codification of the law of treaties, the United Nations General Assembly (UNGA) Sixth Committee invited the Commission to redouble its efforts on the law of international organizations and to begin studying on the vast topic of the ‘Relations between States and International Organizations’. 5 Abdullah El-Erian was appointed as Special Rapporteur and he submitted his first report in 1963.6 El-Erian began by conducting a study of the evolution of the definitions of an international organization, identifying three ‘categories’ of definitions. The first category sought to integrate international organizations into the classical paradigm of the international law of its time. Anzilotti and his theory of international organizations as collective organs of their member states was the paradigmatic example. 7 According to this conceptualization, international organizations were not independent entities but merely represented the collective will of their member states. Under the same rubric, El-Erian identified another definition, provided by Kelsen: An organized international community is constituted by a treaty which institutes special organs of the international community for the pursuance of the purposes for which the community has been established. This community is an ‘international’ community; it has not the character of a State . . . [it] is an international organization. In contradistinction to a federal State, it is a confederation of States.8 The second category was obscurely defined by El-Erian as any definition that ‘project[s] our present understanding of the phenomenon retrospectively to cover certain earlier experiences, thus 3 See Chapter 9. See Chapter 11. 5 Relations Between States and International Organizations, UNGA Res 1289 (XIII) (5 December 1958). 6 ILC, ‘First report on relations between States and inter-governmental organizations by Abdullah El-Erian’ (1963) UN Doc A/CN.4/161 and Add.1 (hereafter El-Erian, ‘First Report’) 164. 7 Dionisio Anzilotti, Cours de Droit International (Gilbert Gidel ed, Receuil Sirey 1929) 283. 8 Hans Kelsen, Principles of International Law (Rinehart & Co 1952) 172; Jochen von Bernstorff, ‘Autorité oblige: The Rise and Fall of Hans Kelsen’s Legal Concept of International Institutions’ (2020) 31 EJIL 497. 4 6 explaining the past by the present’. 9 He cited the work of Stanley Hoffman, who defined international organizations as ‘toutes les formes de la coopération entre les états, tentant à faire régner par leur association un certain ordre dans le milieu international, crées par leur volonté et fonctionnant dans un milieu dont les états sont les personnes juridiques majeures.’ 10 Between the lines, this definition sought to combine the existence of a separate order with its derivation from international law. The third category of definitions was based on an attempt to isolate and emphasize certain elements considered essential for defining an international organization. 11 Different authors relied on different fundamental elements, but in general they considered the purpose, the conventional basis, the permanent character, the possession of organs separate from those of member states, and the possession of legal personality. Under this heading El-Erian quoted several authors, focusing in particular on the work of the ILC on the law of treaties.12 The broad understanding of the topic led El-Erian to formulate an impressive agenda for the future work of the Commission. In his preliminary intentions, this is the mandate he received: I. First group—the general principles of international personality, which would include: 1. Definition of the concept of the international personality of international organizations; 2. Legal capacity; 3. Treaty-making capacity; 4. Capacity to espouse international claims. II. Second group—international immunities and privileges, which would include: 1. Privileges and immunities of international organizations; 2. Related questions of the institution of legation in respect to international organizations; 3. Diplomatic conferences. III. Third group—special questions: 1. The law of treaties in respect to international organizations; 2. Responsibility of international organizations; 3. Succession between international organizations.13 However, the Commission drastically narrowed down the scope of the project and prioritized diplomatic law in its application to relations between states and inter-governmental organizations.14 In his second report of 1967, the Special Rapporteur concluded that his discussion of ‘general principles of juridical personality of international organizations’ generated great controversy within El-Erian, ‘First Report’ (n 6) 164. Stanley Hoffmann, Organisations internationales et pouvoirs politiques des Etats (Armand Colin 1954) 12. 11 El-Erian, ‘First Report’ (n 6) 166. 12 See Chapter 9. 13 El-Erian, ‘First Report’ (n 6) 184. 14 ILC, ‘Relations between States and inter-governmental organizations: suggested list of questions as basis of discussion for the definition of the scope and mode of treatement: working paper prepared by Mr. Abdullah El-Erian, Special Rapporteur—contained in A/5809, para. 41’ (1964) UN Doc A/CN.4/L.104. 9 10 7 the Commission.15 In his third report of 1968, he proposed defining an international organization as ‘an association of States established by treaty, possessing a constitution and common organs, and having a legal personality distinct from that of the member States’.16 As already mentioned, the Commission rejected the need to define international organizations and it refused to include this definition. It ‘thought, however, that such an elaborate definition was not necessary for the time being since it was not dealing at the present stage of its work with the status of the international organizations themselves, but only with the legal position of representatives of States to the organizations’.17 Eventually, the Commission dealt with the topic of diplomatic law by avoiding any theoretical issue and focusing on practical questions concerning the permanent missions of member states. The contemporary work of the ILC on the law of treaties showed that there was disagreement between scholars on fundamental issues such as the nature of legal personality, the capacity to develop an internal order, and the nature of the law produced by international organizations.18 The 1986 Vienna Convention on the Law of Treaties proved unsuccessful in solving the dilemma of the transparent institutional veil, which makes organizations neither self-contained in the way that states are, nor perfectly open to international law as are the conferences of the parties to a treaty.19 At the historical moment when international organizations were proliferating, their normative foundation had already started to to manifest its pittfalls. The comparatist method revealed itself to be sufficient to provide a description of common features, but completely inadequate to solve the fundamental legal dilemmas which characterize the law of international organizations. Consequently, agreement was only to be found in general provisions, too general to be useful. Lawyers lacked an agreed definition of international organizations, except for the brief ‘international organizations are intergovernmental organizations’.20 In sum, the international legal framework of international organizations remains limited to a set of rules that do not have a clear object of application. Scholarship and practice do not share a common understanding of international organizations and different approaches are confusingly assembled. In short, we do not know what international organizations are. In particular, the 1975 ILC, ‘Second report on relations between States and inter-governmental organizations by Abdullah El-Erian’ (1967) UN Doc A/CN.4/195 and Add.1, 137. 16 ILC, ‘Third report on relations between States and inter-governmental organizations by Abdullah El-Erian’ (1968) UN Doc A/CN.4/203 and Add.1-5, 124. 17 ILC, ‘Report of the Commission on the Work of its 20th Session’ (27 May–2 August 1968) UN Doc A/7209/REV.1, 196. See also, ILC, ‘Sixth report on relations between States and inter-governmental organizations by Abdullah El-Erian’ (1971) UN Doc A/CN.4/241 and Add.1-6, 17, para 43. 18 See Chapter 9. 19 Catherine Brölmann, The Institutional Veil in Public International Law: International Organisations and the Law of Treaties (Hart 2007) 11. 20 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 2(i). 15 8 Vienna Convention started a process of crystallization of what I will define in this book as a ‘false dichotomy’, under which organizations are either perceived from a state-centric perspective or an organization-centric perspective. The aim of the following pages is to analyse different conceptualizations, to assess the existence of a general regulatory framework, and to provide a definition of the concept of an international organization in international law. 1.1 Conceptualizing versus Defining International organizations are usually defined on the basis of certain characteristics they should possess. For instance, the ILC stressed their intergovernmental nature in the context of the law of treaties and the possession of separate legal personality for their international responsibility. 21 Virally considered the relevance of five elements, including the ‘inter-State basis, their voluntaristic basis, their possession of a permanent system of organs, their autonomy and their cooperative function’.22 Schermers and Blokker preferred to rely on three fundamental elements and defined international organizations as ‘forms of cooperation (1) founded on an international agreement; (2) having at least one organ with a will of its own; and (3) established under international law’. 23 Other scholars have proposed different variations of the same theme, which have been aptly described by Alvarez in International Organizations as Law-Makers, in which he concludes that ‘[e]laborate definitions of IOs raise more problems than they are worth’. 24 Indeed, defining international organizations on the basis of descriptive elements is a limited approach which does not solve the problems raised in this book. Similarly to the approach described above adopted by Special Rapporteur El-Erian, the term ‘concept’ is employed in this book differently from ‘definition’. Scholars do not agree on the essential elements because they start from different premise on what international organizations are. The aim of this book is to identify the legal conceptualizations under which international organizations are perceived. For instance, I will not focus on whether legal personality is a fundamental element, but on the consequences of the different conceptualizations under which legal personality is conferred by member states or is inherent to the creation of an organization. I will compare the idea that international organizations are created by states and endowed with essential elements to perform specific tasks with the attempt to consider them as autonomous subjects that do not derive from acts of states but from the inherent possession of elements that are required to achieve ‘organizationhood’.25 21 See Chapters 9 and 11. Michel Virally, ‘Definition and Classification of International Organizations: a Legal Approach’ in George AbiSaab (ed), The Concept of International Organizations (UNESCO 1981) 50. 23 Henry G Schermers and Niels M Blokker, Institutional Law: Unity within Diversity (Nijhoff 2011) para 33. 24 José E Alvarez, International Organizations as Law-makers (OUP 2005) 4. 25 On the relevance of this approach, also see Jan Klabbers and Guy Fiti Sinclair, ‘On Theorizing International Organizations Law: Editors’ Introduction’ (2020) 31 EJIL 489. 22 9 I do not intend to build a constraining framework to delineate the boundaries of a social phenomenon. The aim of this book is not to define international organizations and describe their essential characteristics, but to identify the concept of an international organization in international law. Even if I do not exclusively focus on defining international organizations as a sum of structural elements, as article 2(a) of the Articles on the Responsibility of International Organizations (ARIO)26 does, there are two starting points that delimit my research. First, the book is limited to institutions that are created on the basis of a norm of international law. I will later describe the implication of this premise, but for the moment it is useful to stress that I do not focus on other non-state actors such as non-governmental organizations and multinational corporations. However, I do focus on controversial entities, such as organizations that are arguably based on parallel acts of domestic laws or on political and not legal agreements. Second, and more importantly, I contend that the absence of an agreed concept of an international organization is due to the nature of their legal system. The complexity that arises in applying the concept of a legal system to international organizations is the reason for the lack of clarity in the relationship between organizations and their member states, which remains the unresolved problem of the institutional architecture of international organizations. 27 This book seeks to define international organizations on the basis of the legal nature of the legal systems they develop. In particular, I give fundamental importance to the nature of the law produced by international organizations in order to distinguish four main conceptualizations. 1.2 Four Concepts of an International Organization General regulatory instruments such as the 1975 Vienna Convention and the 2011 project on international responsibility contain clauses that give relevance to the particular rules that govern each organization. The notion of ‘rules of international organizations’ appeared for the first time in article 1(34) of the 1975 Vienna Convention, which defines them as meaning ‘in particular, the constituent instruments, relevant decisions and resolutions, and established practice of the Organization’.28 This definition emerged during the conference negotiations on the 1975 Vienna Convention and was not included in the draft articles prepared by the ILC. 29 The Commission could not agree on the nature of these rules, which in some respects are international law and in others are ILC, ‘Draft articles on the responsibility of international organizations, with commentaries’ (2011) UN Doc A/66/10 (hereafter ARIO). 27 Jan Klabbers, An Introduction to International Organizations Law (3rd edn, CUP 2015) 2. 28 VCRS (n 1) art 1(34). 29 ILC, ‘Draft articles on the representation of States in their relations with international organizations’ (1971) UN Doc A/26/10. However, a similar definition was included in para 5 of the commentary to art 3. 26 10 laws internal to each institution. The decision to avoid controversial questions introduced the definition of ‘rules of international organizations’ into the vocabulary of the ILC with no controversial debate and some years prior to its work on the law of treaties. However, this comprehensive definition which includes every normative act of international organizations was neither based on scholarship nor practice. Before the 1975 Vienna Conference, scholarship had identified the rules of international organizations, moving from employment relationships to internal administrative regulations, but there was not a comprehensive framework. 30 Contemporary scholarship often lacks a historical perspective and applies a comprehensive definition of the law of international organizations to analyse the work of authors who only had a specific category in mind.31 The 1975 Vienna Convention employs the definition of rules of international organizations in a general clause and in many specific provisions. In general, article 3 states that ‘The application of the present articles is without prejudice to any relevant rules of the Organization or to any relevant rules of procedure of the conference.’ 32 Then, the rules are used to give relevance to the lex specialis provided by each organization in terms of establishment of permanent missions (article 5) and issue of credentials (article 10). In sum, ‘the rules of international organizations’ are employed as a saving clause, under which the general regulatory framework applicable to every international organization is relevant only if there are no specific rules applicable to the circumstance. The lex specialis principle is a well-established feature of international law, enshrined in several instruments, such as the ILC project on international responsibility. 33 However, in the context of international organizations, it is not triggered only by the regime under which the organization acts, for instance after concluding a headquarter agreement which includes specific rules that derogate from the 1975 Vienna Convention. The rules that constitute organizations themselves can derogate from international law, establishing normative systems that are peculiar to each institution. Consequently, I believe that in order to analyse the concept of an international organization in international law, it is relevant to start by categorizing how the lex specialis established by institutional rules has been defined. In particular, the ILC identified four theories on the nature of the law produced by international organizations. 34 First, it identified a mainstreaming approach Suzanne Basdevant, Les fonctionnaires internationaux (Sirey 1931); Andrea Rapisardi-Mirabelli, ‘La Théorie Générale des Unions Internationales’ (1925) 7 RCADI 345. 31 For instance, see ARIO (n 26) commentary to art 10. 32 VCRS (n 1) 287. 33 ILC, ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ (2001) UN Doc A/56/10, art 64: ‘These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.’ 34 ARIO (n 26) commentary to art 10. 30 11 which considers that the rules of treaty-based organizations are part of international law. 35 Secondly, it recognized that this theory is contested by those scholars who argue that the internal law of the organization, once it has come into existence, does not form part of international law. 36 Thirdly, it contended that another view is that international organizations that have achieved a high degree of integration are a special case.37 Finally, it considered the possibility of a distinction according to the source and subject matter of the rules, and excluded, for instance, certain administrative regulations from the domain of international law. 38 The commentary to article 10 of ARIO stressed that the violation of a rule of an organization generates international responsibility only if this rule is part of international law. This book is based on the hypothesis that these four theories on the nature of the rules reflect the absence of an agreed concept of an international organization and the existence of four conceptualizations that have emerged in literature and practice. First, organizations have been perceived as functional entities. According to this theory, the relationship between member states and the organization is governed by international law as established in the constitutive treaty. 39 Second, organizations have been perceived as constitutional entities under which the relationship between member states and the organizations is governed by the internal law developed on the basis of a constitution.40 Third, organizations cannot be analysed under one legal framework only, because part of the law they produce is governed by their internal legal system while the rest is governed by international law.41 Fourth, organizations cannot be analysed under one legal framework only, because some organizations possess an internal legal system, while other remain functional entities.42 There are several advantages to identifying different conceptualizations on the basis of how the nature of the law produced by international organizations is perceived. The most important is the immediate normative relevance, under which functionalism is clearly defined as a theory that considers the rules as purely international law, while constitutionalism is based on their purely 35 Under this theory, the ILC quoted Matteo Decleva, Il diritto interno delle unioni internazionali (Cedam 1962); Giorgio Balladore Pallieri, ‘Le droit interne des organisations internationales’ (1967) 127 RCADI 1; Alain Pellet and Patrick Daillier, Droit international public (7th edn, LGDJ 2002) 576–77 36 Under this theory the ILC quoted Lazar Focsaneanu, ‘Le droit interne de l’Organisation des Nations Unies’ (1957) 3 AFDI 315; Philippe Cahier, ‘Le droit interne des organisations internationales’ (1963) 67 RGDIP 563; Julio A Barberis, ‘Nouvelles questions concernant la personalité juridique internationale’ (1983) 179 RCADI 147; Christiane Ahlborn, ‘The Rules of International Organizations and the Law of International Responsibility’ (2011) 8 IOLR 397; Rudolf Bernhardt, ‘Qualifikation und Anwendungsbereich des internen Rechts internationaler Organisationen’ (1973) 12 Berichte der Deutschen Gesellschaft für Völkerrecht 7 37 The ILC mentioned the European Community as a paradigmatic example, and quoted Case 6/64 Flaminio Costa v ENEL [1964] ECR 585. 38 The ILC did not cite scholarship nor case law for the last theory. 39 See Chapter 2. 40 See Chapter 3. 41 See Chapter 4. 42 See Chapter 5. 12 internal nature. Similarly, the absence of a clear legal system which could distinguish between international and internal law is based on those theories that focus on the informal quality of institutional law-making. Finally, the idea that each organization developed differently from the other led to the development of ‘exceptional’ institutions which contest the possibility of identifying a general framework. As is the case for any classificatory attempt, there are differences within the same category, which are often due to the use of the same terminology to refer to wide concepts. However, the normative relevance of my approach is that it seeks to reduce incongruences within categories even when different terminology is employed. One of the main theses of this book is that the four alternatives introduced above are nothing more than false dichotomies. The following pages will rebut limited perspectives in order to define international organizations as dual entities. 43 The notion of ‘dual legal character’ describes how international organizations create particular legal systems that derive from international law. This peculiar condition affects the law they produce, which is international and internal at the same time. The effect of the dual nature is discussed by analysing the law of treaties, the legal validity of the rules, and international responsibility.44 1.3 Terminology The employment of terms such as functionalism, constitutionalism, exceptionalism, and informalism is rather difficult. Some of them already have their connotation in international law, while others are employed here for the first time, or have never been used for the purposes to which I have put them. For instance, a recent book by Fernando Lusa Bordin employs the terms ‘treaty conception’ and ‘subject conception’ to refer to what I will call here functionalism and constitutionalism.45 I use these terms similarly to Anne Peters,46 even if I add the fundamental normative statement under which different conceptualizations affect the nature of the law produced by international organizations. I understand that there are no clear-cut definitions and that criticisms can be directed at every attempt at classification, especially in highly fragmented fields such as the law of international organizations. However, I would like to preliminarily point out that the conceptualizations I sketched above will be clarified in the next chapters. One of the main purposes of this book is to show how it is possible to agree on a unified conceptualization of an international organization. In In Chapter 7. This argument was already sketched in Lorenzo Gasbarri, ‘The Dual Legality of the Rules of International Organizations’ (2017) 14 IOLR 87 44 Respectively in Chapters 9, 10, 11. 45 Fernando Lusa Bordin, The Analogy between States and International Organizations (CUP 2018) 53 46 Anne Peters, ‘International Organizations and International Law’ in Jacob Katz Cogan, Ian Hurd, and Ian Johnstone (eds), The Oxford Handbook of International Organizations (OUP 2017) 34. 43 13 sum, I will stress how the normative differences between the various conceptualizations, essentially based on the different ideas on the nature of the law produced by international organizations, are straw man arguments employed for specific argumentative purposes. Indeed, the four conceptualizations are not mutually exclusive. I will present several examples in which they coexist to reach specific outcomes. In fact, an organization acting within one specific regime and under fixed cisrcumstances can simultaneously be characterized as a constitutional, a functional, an informal and an exceptional entity. 1.4 Why it Matters The legal framework that applies to the actions of international organizations is critically dependent on the four conceptualizations. It is not unusual to find cases that lead to the adoption of a concept of an international organization that better suits the argumentative interest of the circumstance. International organizations are indiscriminately perceived as: agents of member states (functionalism) when the criticism is against state sovereignty and its limits in globalization; autonomous powerful entities (constitutionalism) when the criticism is against the lack of democratic legitimacy; administrative entities (informalism) when the criticism is against the lack of transparency; ‘supranational’ or ‘soft law’ institutions (exceptionalism) when the criticism is either against or in favour of integration. The list could go on, and it evidences the urgent need for an innovative analysis that debates the virtues and flaws of different approaches. Though this book is essentially theoretical, several examples will describe the outstanding implications that derive from the application of one or another concept of an international organization for international responsibility, the law of treaties, and validity of ultra vires acts. For introductive purposes, it is useful to present some situations in which the different conceptualizations play a fundamental role: United Nations (UN) sanctions, International Criminal Court (ICC) arrest warrants, and World Health Organization (WHO) regulations. The validity of UN sanctions depends on at least two subjects: the organization issuing the sanction and the entity that transposes the sanction in its own order. The different points of view adopted by each subject affect the legality of sanctions. In the 2005 and the 2008 judgments in the Kadi case, the European Court of Justice (ECJ) adopted an internal EU perspective and looked at Security Council resolutions as international law. It did not take into consideration the internal UN perspective, according to which resolutions may well be internal UN law. Concerning the human rights obligations of international organizations in their activities across legal systems, to adopt an internal perspective means to apply its own system of reference without taking into consideration the point of view of the system that created the rule. This happened in 2005, when the ECJ relied on a functionalist conceptualization of its legal system to claim that the international obligations 14 concluded before the establishment of the communities prevailed over the European Community legal system. Indeed, the functional quality of the EC legal system is implied when the Court used treaty law to defuse the conflict between UN and EC obligations, explicitly stating that UN obligations ‘clearly prevail over every other obligation of domestic law or of international treaty law including, for those of them that are members of the Council of Europe, their obligations under the ECHR and, for those that are also members of the Community, their obligations under the EC Treaty’.47 Conversely, in 2008, the constitutional (and thus closed character) of the EC legal system prevailed over the UN legal system. Indeed, the constitutional quality of the EC legal system is implied when the Court stated that ‘the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement’. 48 Despite the different outcomes, in both cases the judges did not pose the question of the UN perspective. Hypothetically, from the internal UN perspective, EU law could be considered as international law and the primacy of UN obligations enshrined in article 103 would prevail.49 It can be contended that, eventually, the relationship between legal systems is heterarchical and dominated by the most powerful legal system that imposes its relative perspective.50 Another relevant example concerns the attribution of conduct in the context of international responsibility. The Appeal Chamber of the International Criminal Court (ICC) recently rendered its judgment on the Al-Bashir case, which was based on what I will soon define as a constitutional conceptualization of the ICC. The concept of an international organization as a constitutional entity is particularly relevant to an argument made by the ICC Prosecutor before the Appeal Chamber. On 14 August 2018, the ICC Office of the Prosecutor elaborated a novel theory to corroborate the existence of an obligation binding ICC member states to arrest the sitting Sudanese President. 51 In paragraph 11, it claimed that a request to execute an ICC arrest warrant does not amount to a request to exercise state jurisdiction: ‘the requested State is nothing more than the Court’s agent in executing the Court’s arrest warrant—and, consequently, the enforcement jurisdiction being exercised is that of the Court, and not that of the requested State’. From the Jordanian point of view, the underlying 47 Case T-315/01 Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities [2005] ECR II 3649, para 181. 48 Joined Cases C-402-05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I 6351, para 316. 49 UN Charter, article 103: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ 50 Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (OUP 2010) 370 51 ICC, ‘Prosecution Response to the Observations of the African Union and the League of Arab States (the Prosecutor v Omar Hassan Ahmad Al Bashir)’ (2018) ICC-02/05-01/09. 15 reason for Prosecutor’s argument is that if states are considered as agents, or proxy, they are not breaching their customary obligations when implementing an arrest warrant issued against a current head of state of a non-member state.52 The idea that states can be agents of the ICC was extensively discussed during the hearings before the Appeal Chamber. The Office of the Prosecutor expanded on the nature of ICC jurisdiction, relying on the legal basis of the arrest warrant, which is not considered as an instrument of national law or international law, but of ICC law. The Prosecutor contended that ‘this Court is not the jurisdiction of another State; it is supra-national both institutionally and in its application of relevant norms’.53 Professor Roger O’Keefe, amicus curiae, replied contending that ‘[t]o say that in surrendering the official to the ICC the requested State is acting as the ICC’s agent or jurisdictional proxy is, with respect, legally meaningless. It is also, I would point out, an inaccurate metaphor since it is the States Parties which have conferred jurisdiction on the Court, not the other way around.’54 Indeed, from a purely functionalist perspective, it is meaningless to say that member states are agents of the ICC, because they do maintain their international obligations as sovereign subjects. He rightly asked ‘how can the arrest of a person by a State Party’s own police and surrender proceedings against that person by a State Party’s own courts not amount to the exercise by that State Party of its [own] criminal jurisdiction?’55 The only possible reply is that if one sustains the argument that the relation between the member states and the organization is governed by the internal (and not international) law of the organization, the ICC and its member states are a single self-contained entity for a third party. Lastly, another relevant example concerns the application of the lex specialis argument. International Health Regulations (IHR) are a peculiar source of law arising from articles 21 and 22 of the World Health Organization Constitution with a rare binding force in order to tackle a sanitary crisis.56 The WHO Assembly adopts them with simple majority and they come into force for all member states after due notice and with the possibility of opting out within a short period. 57 The Health Regulations can be framed as international or internal instruments merely depending on the perspective. This ambiguity has relevant consequences because if the Health Regulations are purely internal law, their implementation by member states can be submitted to the dispute settlement mechanism envisaged in article 56 IHR but not to the general rules of the responsibility of ICC, ‘The Hashemite Kingdom of Jordan’s submissions following the hearing of 10, 11, 12, 13 and 14 September 2018 (the Prosecutor v Omar Hassan Ahmad Al Bashir)’ (2018) ICC-02/05-Dl/09, 4, 5. 53 ICC, Appeals Chamber, Transcript, ‘The Prosecutor v Omar Hassan Ahmad Al Bashir’ (10 September 2018) ICC02/05-01/09-T-4-ENG, 72. 54 Ibid (11 September 2018) ICC-02/05-01/09-T-5-ENG, 4. 55 Ibid (18 September 2018) ICC-02/05-01/09-T-8-ENG, 52. 56 David P Fidler, ‘From International Sanitary Conventions to Global Health Security: The New International Health Regulations’ (2005) 4 CJIL 325; Benton J Heath, ‘SARS, the “Swine Flu” Crisis and Emergency Procedures in the WHO’ in Sabino Cassese and others (eds), Global Administrative Law: The Casebook (IRPA 2012) I.B.10. 57 Bruce Plotkin, ‘Human Rights and other Provisions in the Revised International Health Regulations (2005)’ (2007) 121 Public Health 840. 52 16 international organizations. The legal counsel of the WHO has affirmed that internal rules allow the development of a ‘customized internal legal order that could avoid legal controversies about rather minor issues’.58 However, the WHO stated that the obligations arising directly from its constituent instrument are necessarily international obligations, only excluding staff regulations. 59 The legal issue is exemplified in the term ‘customized’, used by the WHO legal counsel. He stressed that the internal life of an organization cannot always generate international disputes, because it would irremediably impair the functioning of the organization. However, ‘customization’ means that an organization would be free to determine which legal issues are worthy to put in the international sphere and which legal issues should be maintained within institutional boundaries. 1.5 The Structure of the Book The book is divided into two parts. The first part contains five chapters, which discuss the origins and the main characteristics of each of the four concepts of an international organization briefly described above, and wrap up the arguments describing how they interacts with issues of international responsibility. In these chapters, I will focus on the limits of adopting only one perspective on the capacity of international organizations to create legal systems. The existence of analytical fallacies in the use of limited perspectives will be proved on the basis of examples taken from different legal scenarios. For instance, under functionalism I will discuss the capacity of international organizations to adopt countermeasures, while, under exceptionalism I will discuss EU external relations. The choice of the topic aims to ensure a sufficient level of variety and to allow me to make my argument as efficiently as possible. In the second part of the book, I will first delve into a theoretical discussion on the capacity of international organizations to develop legal systems and on what I call the dual legal character of the law they produce. Afterwards, I will apply the theoretical insights to describe the normative category of the rules of international organizations, describing constitutive instruments, general principles, customary law, subsequent practice, secondary norms, judicial decisions, and treaties both with members and third parties. The second part will move to confront the dual nature of international organizations in the context of the law of treaties, the validity of acts, and international responsibility. 58 Gian Luca Burci and Clemens A Feinäugle, ‘The ILC’s Articles Seen from a WHO Perspective’ in Maurizio Ragazzi (ed), Responsibility of International Organizations (Brill 2013) 186 59 ILC, ‘Comments and Observations Received from International Organizations’ (2006) UN Doc A/CN.4/568, 4. 17