International Organizations (Fisher)

International Organizations

Peter Fischer Dr. iur. (Vienna) and Dr. h.c. (Bratislava) Professor of International and European Law

Vienna/Bratislava 2012

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TABLE OF CONTENTS A.  Historic and Political Background ................................................................................. 3  1.  Substantive Needs ...................................................................................................... 3  a)  Case Study: The present fiscal crisis in the European Union and the legal instruments to cope with it (Rescue umbrella, firewalls)............................................... 4  b)  Countermeasures: EFSF/ESM-SixPact-TSCG ...................................................... 5  2.  From ad-hoc Conferences (“Congress System”) to International Organizations ...... 7  3.  Organizations based in Vienna................................................................................... 8  B.  International Organizations Defined .............................................................................. 9  C.  Non-Governmental Organizations (NGOs) ................................................................... 9  1.  NGOs Defined.......................................................................................................... 10  2.  NGOs and the UN .................................................................................................... 10  3.  Categories of NGOs ................................................................................................. 11  (a)  Profit making: Trans- or Multinational Enterprises or Corporations ................. 11  (1)  Background..................................................................................................... 11  (2)  Codes of Conduct ........................................................................................... 12  (3)  TNCs Defined................................................................................................. 12  (4)  Negative and positive aspects of TNCs .......................................................... 13  b)  Non-Profit Making NGOs.................................................................................... 14  (1)  Amnesty International .................................................................................... 14  (2)  Greenpeace International................................................................................ 15  c)  NGOs with and without international legal personality....................................... 16  D.  From NGOs to IGOs .................................................................................................... 17  E.  Intergovernmental Organizations (IGOs)..................................................................... 18  1.  IGOs Defined ........................................................................................................... 18  2.  Elements of the definition ........................................................................................ 18  a)  Association of States ............................................................................................ 18  b)  Treaty ................................................................................................................... 19  c)  Common aims in the course of history................................................................. 20  d)  Own special organs .............................................................................................. 20  (1)  The typical tripartite structure of IGOs .......................................................... 20  (2)  Exceptions to the tripartite structure............................................................... 22  3.  Categories of IGOs................................................................................................... 23  a)  Universal (global) and regional organizations ..................................................... 23  (1)  Universal organizations .................................................................................. 23  (2)  Regional (and sub-regional) IGOs.................................................................. 24  b)  Peace keeping and technical organizations .......................................................... 27  c)  General and special organizations........................................................................ 28  d)  Traditional and supranational organizations ........................................................ 28  e)  Political and non-political organizations.............................................................. 29  4.  Membership in international organizations.............................................................. 29  a)  Acquisition of membership .................................................................................. 29  b)  Termination of membership ................................................................................. 30  (1)  Withdrawal ..................................................................................................... 30  (2)  Expulsion ........................................................................................................ 31  c)  Categories of membership in IGOs...................................................................... 33 

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Decision-making and voting procedures.................................................................. 33  a)  The rule of unanimity ........................................................................................... 33  b)  Majority voting..................................................................................................... 34  c)  Equal and weighted votes..................................................................................... 34  6.  International Legal Personality of IGOs .................................................................. 35  7.  Financing of IGOs .................................................................................................... 36 

A. Historic and Political Background 1. Substantive Needs After the State, the international organization is the second most important actor on the international scene. According to a recent study by the Bertelsmann Foundation (Berlin) two of them possess even “world power status”, namely the United Nations (UN) and the European Union (EU). Such status is determined in that study based on the factors economic power, political influence, stability and also effective research and education. In the past, only States were the principal actors in international relations. However, during the second half of the 20th century leading statesmen, politicians, scholars and private individuals became aware that certain problems can only be resolved at a global (universal) or regional level beyond the limited range of national borders. These problems facing the international community of States include significant risks such as war, weapons of mass destruction, poverty and hunger, environmental damages, contagious diseases, terrorism, organized crime, etc. Furthermore, the removal of trade barriers became a crucial issue after the catastrophe of World War II. Protectionism was seen as one of the reasons for armed hostilities and/or war among States. Winston Churchill is said to have coined the slogan: “When goods do not cross borders, soldiers will”. The origins of the present European Union, namely the European Communities, were based on the theory that by removing all trade and other economic barriers a political union will be established which would make wars among their members politically, technically and legally impossible. So far, this “European dream” has come true. In general, the desire for peace had been the overall idea for international organizations, be it on an intergovernmental level (IGOs) or on a private, ie. nongovernmental level (NGOs). Thus military alliances among tribal communities, city states and later nation states were the first types of international organizations. During the 19th and the 20th century, which may be said to be the cradle of international organizations, many other aims – apart from peace and security – constituted the subject for organized international cooperation. These subjects or needs included gradually: ¾ Peace and security: UN 1945, NATO 1949, OSCE 1992; ¾ Trade [German Customs Union 1834; European Economic Community (EEC) 1957; European Free Trade Association (EFTA) 1960; International Standardization

4 Organization (ISO) 1 ; United Nations Conference on Trade and Development (UNCTAD); World Customs Organization (WCO) 2 ; World Trade Organization (WTO) 1995; North American Free Trade Agreement (NAFTA), European Economic Area (EEA) 1992, Asian-Pacific Economic Cooperation (APEC), etc]. ¾ Financial Matters [Bank for International Settlements (BIS); European Central Bank (ECB); European Bank for Reconstruction and Development (EBRD); Institute of International Finance; Inter-American Development Bank (IADB); International Monetary Fund (IMF); IMF Dissemination Standards Bulletin Board 3 ; World Bank (IBRD), etc. ]. The most important example is the present European fiscal crisis.

a) Case Study: The present fiscal crisis in the European Union and the legal instruments to cope with it (Rescue umbrella, firewalls) Origin: It had its roots in the exorbitant increase of public debts, in particular by Greece. The crisis is not such much a crisis of the Euro, which was introduced as a legal tender in 2002, but of that of those Members of the Euro area which, in violation of the principles governing the conduct of those States whose currency is the Euro, have accumulated enormous deficits and state debt. These so-called euro convergence criteria (also known as the Maastricht criteria) require that the annual government deficit to gross domestic product (GDP) must not exceed 3% and the ratio of gross government debt to GDP must not exceed 60%. In the early years after the introduction of the euro these Maastricht criteria had unfortunately been broken by Germany and France without consequences, although the Treaties provide sanctions for such misconduct. The Commission simply tolerated the behavior of the two major States of the Union. And this set a negative example for countries which obtained the acronym PIIGS: Portugal, Italy, Ireland, Greece and Spain, which were on the brink of default or bankruptcy. The euro (and some say, even the EU as a whole) was seriously jeopardized. 1

The International Organization for Standardization (French: Organisation internationale de normalisation, Russian: Международная организация по стандартизации, tr. Mezhdunarodnaya organizaciya po standartizacii), widely known as ISO, is an international standard-setting body composed of representatives from various national standards organizations. Founded on February 23, 1947, the organization promulgates worldwide proprietary industrial and commercial standards. It has its headquarters in Geneva, Switzerland. While ISO defines itself as a non-governmental organization, its ability to set standards that often become law, either through treaties or national standards, makes it more powerful than most non-governmental organizations.[ In practice, ISO acts as a consortium with strong links to governments. (wikipedia 15 August 2011). 2 The World Customs Organization (WCO) is an intergovernmental organization headquartered in Brussels, Belgium. With its worldwide membership, the WCO is recognized as the voice of the global customs community. It is particularly noted for its work in areas covering the development of international conventions, instruments, and tools on topics such as commodity classification, valuation, rules of origin, collection of customs revenue, supply chain security, international trade facilitation, customs enforcement activities, combating counterfeiting in support of Intellectual Property Rights (IPR), integrity promotion, and delivering sustainable capacity building to assist with customs reforms and modernization. The WCO maintains the international Harmonized System (HS) goods nomenclature, and administers the technical aspects of the World Trade Organization (WTO) Agreements on Customs Valuation and Rules of Origin. 3 The Dissemination Standards Bulletin Board (DSBB) is published and maintained by the International Monetary Fund as a service to its membership. It contains: (i) submissions of Fund members that subscribe to the Special Data Dissemination Standard (SDDS) of information (metadata) on data and data dissemination practices; (ii) submissions of Fund members that participate in the General Data Dissemination System (GDDS) on information (metadata) regarding practices on data production and dissemination and plans for improvement of these practices in place at the time of the original submissions or updates thereof; and (iii) hyperlinks to data sites not maintained by the Fund.

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Countermeasures: EFSF/ESM-SixPact-TSCG

1. Three major steps had now been taken: First, The European Financial Stability Facility (EFSF) and its successor institution, the European Stability Mechanism (ESM), which is a special purpose vehicle financed by members of the euro area to address the European sovereign debt crisis. EFSF was agreed by the 17 euro area Member States of the European Union on 9 May 2010, with the objective of preserving financial stability in Europe by providing financial assistance to euro area Member States in economic difficulty. The Facility's headquarters were in Luxembourg City. Treasury management services and administrative support are provided to the Facility by the European Investment Bank through a service level contract. Originally, the EFSF was authorized to borrow up to €440 billion, guaranteed by the EU Member States. In the meantime, this facility, commonly called the Euro rescue umbrella, was increased. While EFSF was a provisional measure, ESM has replaced it as a permanent institution, which entered into force on 1 October 2012, following the removal of legal obstacles by the German Constitutional Court (Bundesverfassungsgericht) on 12 September 2012. ESM was concluded on 2 February 2012 as a permanent institution to increase the effectiveness of its forerunner financial institution EFSF and “to prevent the risk of financial contagion”. In other words, ESM’s aim is also to avoid the spread of the Greek disasters to Spain and/or Italy. The total capital subscription amounts to 700 billion euro (700 000 000 000!). Austria’s contribution is 2.7% and its capital subscription some 19 billion €, Germany’s 27% or 190 billion €. Slovakia’s contribution is 0.8% and its subscription 5.7 billion €. After the announcement of the German Court’s judgment on 12 September 2012 the financial markets reacted positively and the value of the euro increased to 1.31 against the US $. (ratio in July: 1 against 1.21). 2. The second instrument is the EU economic governance “six pact”, in force since 13th December 2011, which consists of five regulations and one directive and contains detailed provisions on deficit and public debt and the application of financial sanctions to euro area Member States that do not take adequate action. It reinforces the Stability and Growth Pact (SGP) which had been adopted long ago in the Treaty of Amsterdam of 1997. 3. The Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (“TSCG”) which is open to all EU Member States, is the third instrument functioning as a firewall against deficit sinners and speculators. The Fiscal Compact, as it is commonly called, is an intergovernmental treaty that was signed on 2 March 2012 by all Member States of the European Union (EU), except the Czech Republic and the United Kingdom. The treaty will enter into force on 1 January 2013, provided that twelve contracting Parties whose currency is the euro have deposited their instrument of ratification, or on the first day of the month following the deposit of the twelfth instrument of ratification by a Contracting Party whose currency is the euro, whichever is the earlier. Once in force the Fiscal Compact obliges ratifying Member States to enact laws requiring national budgets to be in balance or in surplus within the treaty's definition. These laws must provide for a self-correcting mechanism to prevent their breach. The treaty defines a balanced budget in a rather strict manner as one which has a general budget deficit less than 3% of GDP and a structural deficit of less than either 0.5% or 1%, depending on a countries debt-toGDP ratio. If the ratio is less than 60 percent, then 1% structural deficit would be allowed. If the structural deficit for the annual account or budget is found to exceed those limits, the

6 country will have to correct the issue within the timeline, nature and targeted size deemed necessary by the European Commission. The 0.5% or 1 % is medium-term objective. When the ratio of their government debt to gross domestic product exceeds the 60% reference value, the Contracting Parties shall reduce it at an average rate of one twentieth per year (i.e. 5%) as a benchmark (Article 4 TSCG). The treaty contains the obligation to transpose this “Balanced Budget Rule” into national legal systems through binding and permanent provisions, “preferably constitutional”. Such compliance with its budgetary and other requirements is placed under the jurisdiction of the European Court of Justice. This contrasts with the EU Treaties which specifically exclude this jurisdiction. If ratified, any ratifying State may bring enforcement proceedings against any other ratifying State before the Court of Justice of the European Union, if they fail to fulfill their obligations under the Fiscal Compact. A state found in breach of its obligations can ultimately be fined up to 0.1% of its GDP. Relationship between ESM and TSCG: The granting of financial assistance under ESM is conditional, as of March 2013, on the ratification of the TSCG by the ESM Member concerned and on its transposition into national law. Both instruments are considerable steps towards a Fiscal Union in which under certain circumstances sovereign budgetary rights of the EU Member States are conferred upon EU institutions (Commission and Court). .-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. Further reasons for establishing international organizations: ¾ Environment [Friends of the Earth International; Global Environment Facility 4 ; The Rainforest Site; Trade and Environment Database; United Nations Environment Programme; World Meteorological Organization (WMO); World Wildlife Fund (WWF) etc.]. ¾ Human rights, Protection of [Amnesty International, Ethical Trade Initiative (ETI); European Court of Human Rights; International Labour Organisation (ILO); UN High Commissioner for Human Rights, etc.]. ¾ Health [World Health Organization (WHO), etc.] ¾ Sustainable economic development [Global Futures Foundation; Group of 77; International Development Research Centre; International Institute for Environment and Development; International Institute for Sustainable Development (IISD); United Nations Development Programme (UNDP), etc.]. ¾ Emergency/disaster relief [International Committee of the Red Cross or Red Crescent (ICRC)].

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The Global Environment Facility (GEF) unites 182 member governments — in partnership with international institutions, nongovernmental organizations, and the private sector — to address global environmental issues. An independent financial organization, the GEF provides grants to developing countries and countries with economies in transition for projects related to biodiversity, climate change, international waters, land degradation, the ozone layer, and persistent organic pollutants. These projects benefit the global environment, linking local, national, and global environmental challenges and promoting sustainable livelihoods.(wikipedia 15 August 2011). Established in 1991, the GEF is today the largest funder of projects to improve the global environment.

7 ¾ Commodities [Organization of the Petroleum Exporting Countries (OPEC)]; International Primary Aluminum Institute (IPAI), etc. ]. These were the primary factors decisive for the setting up of international organizations. As Derrek Bowett has said, “the development of international organizations has been, in the main, a response to the evident need arising from international intercourse”. 5

2. From ad-hoc Conferences (“Congress System”) to International Organizations This need was first met by international conferences, which, however, proved to be unsatisfactory in the long run, in particular for the following reasons and issues: ¾ Political difficulties on the question which nation should be empowered to summon a particular conference; ¾ Where should such a conference meet? ¾ Which languages should be used for multilateral negotiations? ¾ For each new problem a new conference had to be convened; ¾ Membership, namely participation in the conference, was decided by the party convening the conference; ¾ Decision-making was based on the principle of unanimity, ie. each participating State had a veto-power; etc. ¾ Being a political body, a conference could hardly resolve legal questions. Nevertheless, history has shown that such State Conferences not only could establish relatively long lasting periods of peace but could also resolve technical problems. Examples were the Peace of Westphalia 1648, ending the Thirty-Years War between the Empire, its States on the one hand, and France and Sweden on the other. It came about at the Conferences of Münster and Osnabrück and established a European order until the Napoleonic Wars at the end of the 18th century. The two peace treaties also provided rules for the exercise of religion. The Congress of Vienna 1815 was another decisive precursor of international organizations. After the Napoleonic wars it had established the “Concert of Europe” between Austria, Prussia, Russia, France and England as a quasi-institutionalized system of congresses and conferences. The Vienna Act of Congress of 1815 did not only re-draw the map of Europe but also set up rules regarding the free navigation on the Rhine and the Danube, the prohibition of slave-trade, the ranks of diplomats and, last but not least, established an international organization of German States, the Deutsche Bund (German Confederation). The political order of Europe collapsed with World War I, in spite of the two Hague Peace Conferences 1899 and 1907, which drew up rules for the peaceful settlement of international disputes, and on the law of warfare and neutrality. These rules are to a great extent still in force. Such an ad-hoc congress or conference system proved to be inadequate to meet urgent international challenges. Thus during the 19th century modest attempts can be found to establish institutionalized bodies in which on a permanent basis international issues could be 5

The Law of International Institutions, 4th ed. (London 1982), p.1

8 debated and resolved. The first example of this kind is the International Telegraph Union of 1865 which was established with a permanent bureau in Berne, Switzerland. It admitted representatives of private telegraph companies but without the right to vote. In 1932 it became the present International Telecommunication Union (ITU) and is the oldest universal intergovernmental organization (IGO) which still exists. It was followed in 1864 by the Universal Postal Union (UPU) which is the second oldest universal international organization and also has its headquarters in the capital city of Switzerland, Berne. The UPU established that there should be a uniform flat rate to mail a letter anywhere in the world, that postal authorities should give equal treatment to foreign and domestic mail and that each country should retain all money it has collected for international postage. These two organizations are not only the most prominent precursors of modern international organizations but also marked the beginning of the transition from the congress or conference system to the system of international organizations as institutionalized fora and permanent bodies in international relations. An anachronistic relict of the ad-hoc conference system is the CSCE, now OSCE (see the following chapter).

3. Organizations based in Vienna Due to its geographical situation and its status as a permanently neutral State in times of the cold war, Austria hosts a number of international organizations which are all based in its capital city Vienna. These are the ¾ International Atomic Energy Agency (IAEA), since 1957, deals with nonproliferation of nuclear weapons and promotes the safe, secure and peaceful use of nuclear science and technology. ¾ Organization for the Petroleum Exporting Countries (OPEC), since 1965 (established in 1960 and moved in 1965 from Geneva to Vienna), is concerned with a fair income of the producer countries and a steady supply of oil of the consumer countries. ¾ United Nations Industrial Development Organization (UNIDO), since 1967, has responsibility for promoting sustainable industrialization throughout the developing world. And the ¾ United Nations (UN) itself has set up its third headquarters in 1979 in Vienna (after New York and Geneva) where a number of offices and commissions are located, such as the United Nations Office on Drugs and Crime (UNODC) with two main components: fighting drugs and curbing international crime; the United Nations Commission on International Trade Law (UNCITRAL) with the aim to harmonize and unify the law of international trade and to promote trade as a means of increasing growth and improving living standards; the United Nations Office for Outer Space Affairs (UNOOSA) which is responsible for promoting international cooperation in the peaceful uses of outer space; and the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO) providing for a total ban of any nuclear weapon test explosion in any environment, but unfortunately, the treaty has not yet entered into force. Thus the Preparatory Commission has been set up. The ¾ Organization for Security and Cooperation in Europe (OSCE) has, in 1990, developed from the CSCE (Conference for Security and Cooperation in Europe based

9 on the Helsinki-Declaration of 1975), which consisted of a process of irregular multilateral negotiations without any headquarters or permanent secretariat. In 1992 the OSCE Council decided to create a secretariat in Vienna, which already housed the Conflict Prevention Centre (CPC), the Forum for Security Cooperation (FSC) and the only permanent political body of the OSCE, consisting of accredited ambassadors to the Austrian capital, namely the Permanent Committee, which in 1994 became the Permanent Council. This Council meets every Thursday in the Hofburg in Vienna.

B. International Organizations Defined

Entities such as the International Association of Chess (IAC) and the UN do not seem to have much in common; the same applies to an enterprise commercially operating on a worldwide basis, such as the EXXON Corporation, and the Committee of the Red Cross or the International Olympic Committee (IOC). Therefore, the phenomenon “International Organization” requires a wide definition in order to cover its differing structures and activities on the international scene. Thus in the widest sense an International organization is a union or association of States, or of enterprises or of other national entities set up across national boundaries. Examples are Of States:

Of enterprises:

the United Nations Organization (UN); the European Union (EU); EU and Croatia (Association); Transnational Corporations (TNCs); Examples include The Coca-Cola Company, Sony, Nintendo, McDonalds, Toyota, etc.

Of other national entities:

Greenpeace, Interpol, Amnesty International; International Olympic Committee, World Organization of the Scout Movement, International Committee of the Red Cross, Médecins Sans Frontières, Oxfam, etc. The last two categories are (international) non-governmental organizations (NGOs), profitand non-profit-making, while the first category includes international intergovernmental organizations (IGOs). Around 30,000 such organizations are active in about 300 countries and territories all over the world. The “Yearbook of International Organizations”, published periodically in Brussels, Belgium, offers further information on theses organizations. In addition, most of them have also their individual website ((http://www.un.org/; http://www.upu.int/; http://www.icrc.org/; http://www.amnesty.org/; http://www.greenpeace.org/; http://www.oxfam.org/; etc.).

C. Non-Governmental Organizations (NGOs)

10 As indicated above, one has to distinguish between non-governmental and intergovernmental organizations (NGOs and IGOs).

1. NGOs Defined NGOs exceed by far the numbers of IGOs and thus must first be taken into consideration. An official attempt to define NGOs was made by ECOSOC Res. 1296 (XLIV) in June 1968 as follows: “A NGO is any international organization which is not established by intergovernmental agreement including an organization which accepts members designated by government authorities, provided that such membership does not interfere with the free expression of views of the organization”. This definition reveals the difficulties in describing the various forms and structures in which private persons, associations, enterprises establish instruments for cooperation across national boundaries. According to the UN`s view, it can only be achieved by way of a negative approach: entities which are NOT established by an international act, ie. by a treaty, are NGOs, while those which are based on an international agreement are IGOs.

2. NGOs and the UN Being itself an IGO why does the UN take care of NGOs? Article 71 UN Charter specifically provides for “suitable arrangements” between the UN Economic and Social Council (ECOSOC) and NGOs. It reads as follows: “The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations with matters within its competence…”. By virtue of this provision the Council has established three categories in which NGOs, on their application, may be placed, namely in General consultative status; it includes organizations which have a basic interest in most of the activities of the Council [for instance CARE International, Caritas Internationalis; Femmes Afrique solidarité; Global 2000; Greenpeace International (it “graduated” from special consultative status to general consultative status!); International Chamber of Commerce (ICC) in Paris; International Confederation of Free Trade Unions; International Organization for Standardization; International Trade Union Confederation; Médecins sans frontières (international); Oxfam International; Socialist International; World Blind Union; World Muslim Congress; World Organization of the Scout Movement ;World Wide Fund for Nature International, etc.] 139 NGOs possess general consultative status; the second category (formerly B) refers to a Special consultative status which includes organizations with a special competence in some of the aspects of the Council’s work (for instance, Aboriginal and Torres Strait Islander Commission; Action internationale pour la paix et le développement dans la région des Grands Lacs; Adalah: Legal Center for Arab Minority Rights in Israel; Advisory Committee for the Protection of the Sea; AIDS Action; Aland Islands Peace Institute; American Society

11 of International Law; Amnesty International; Austrian Federal Economic Chamber; Crime Stoppers International; European Law Students Association; International Air Transport Association; International Centre for the Legal Protection of Human Rights; International Driving Tests Committee; International Lesbian and Gay Association — Europe; International Police Association, etc.), and the third category refers to the Roster. This category includes organizations which, by means of ad hoc consultation, are able to make a significant contribution to the work of the Council. There are 1,025 NGOs placed on the Roster (for instance National Rifle Association of America; Institute for Legislative Action; Soap and Detergent Association; SOS Women, etc.). There are at present 3,400 NGOs possessing consultative status in the UN. All three categories may send observers to public meetings. Organizations in the first two categories may submit written statements for circulations to the members of the Council, while organizations merely on the roster may be invited to do so. The consultative status can also be suspended. This presently applies to 78 NGOs.

3. Categories of NGOs (a) Profit making: Trans- or Multinational Enterprises or Corporations

(1) Background In the early seventies of the last century, large business enterprises became subject of UN concern. “Giant corporations”, as they were called, were able to influence political affairs and sometimes even posed a threat to international peace and security. The most prominent example was the IT&T Case where the US telephone and telegraph company, operating since the thirties in Chile, was capable to exercise political control over its “host” country. At the United Nations Conference on Trade and Development (UNCTAD) in 1972 it was accused of infringing the sovereignty of a State by assisting to overthrow the leftwing government of President Salvador Allende who, in fact, was assassinated during the coup and the brutal dictator Pinochet assumed power in Chile for several years. This “scandal“ caused the UN to draw its attention to this new phenomenon in international relations. Hearings with representatives of large corporations were held before the UN bodies in New York and Geneva, but also before the US Senate. As a result, the UN General Assembly in 1974 decided to set up a Commission to deal with the international activities of such corporations. Thus the “UN Commission on Transnational Corporations” (UNCTC) was established as a sub-body of ECOSOC with the aim “to study the role of such enterprises and their impact on international relations”. ECOSOC Resolution 1994/1 integrated the UNCTC into the institutional machinery of UNCTAD, based in Geneva. It should be renamed the Commission on International Investment and Transnational Corporations (CIITC). This change reflects the more positive approach towards TNCs which were regarded as indispensable for the economic development of developing countries. In particular, foreign investments contributed considerably to the economic growth of former Communist countries in Central and Eastern

12 Europe, but also in threshold countries in the Far East, such as Malaysia, Thailand, Singapore, South Korea, Taiwan and, last but not least, the Peoples Republic of China. A so-called Global Compact has been established as the official association linking the UN and large TNCs.

(2) Codes of Conduct The UNCTC has formulated a Draft Code of Conduct for TNCs which, however has not been adopted. No agreement could be reached on the question of expropriation/nationalization of foreign property. While the Western countries demanded therein that such acts shall be accompanied by prompt, adequate and effective compensation (the so-called Hull formula), the third world countries and former Communist countries rejected his formula as constituting a “neo-colonialist postulate”. A more successful attempt was made by the UN Sub-Commission on the Promotion and Protection of Human Rights which has approved Res. 2003/16 on 13 August 2003. Under the title “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights” it stipulates that even though States have the primary responsibility to promote, secure the fulfillment of, respect, ensure respect of and protect human rights, transnational corporations and other business enterprises as organs of society are also responsible for promoting and securing human rights set forth in the Universal Declaration of Human Right of 1948. This resolution refers to a declaration of the International Labour Organization (ILO), based in Geneva and composed of representatives from governments, employer organizations and national trade unions, representing employees and workers. This “Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy” was adopted by the Governing Body of the International Labour Office in 1977 and was amended 2000 and 2006. Both documents as well as the abortive Draft Code of the UNCTC reveal the negative and positive aspects of the activities of TNCs. Such transparency may have caused many TNCs to change their policies in relation to host countries and consumers. Consequently, the general attitude towards such corporations has also changed in a positive sense.

(3) TNCs Defined Res. 2003/16 defines TNCs as follows: The term “transnational corporation refers to an economic entity operating in more than one country or a cluster of economic entities operating in two or more countries – whatever their legal form, whether in their home country or country of activity”. Thus a TNC requires at least two countries – the home and the host country – to which its activities extend. The legal form (corporation, company, etc.) does not matter nor does its activity (production, service facility, trade, etc.).

13 The Tripartite Declaration in its version of 2006 does not consider it necessary to define multinational enterprises but just states: “To serve its purpose this Declaration does not require a precise legal definition of multinational enterprises”. A mere description suffices, as follows. “Multinational enterprises include enterprises, whether they are of public, mixed or private ownership, which own or control production, distribution, services or other facilities outside the country in which they are based”. This definition refers also to the question of ownership. State owned enterprises fall also under that definition. This was previously denied by the Communist countries, in particular by the Soviet Union, which maintained that since they are under State control, no so-called corporate misconduct can occur in the international activities of such corporations or companies. Any code of conduct therefore, would not apply to them.

(4) Negative and positive aspects of TNCs The UN Commission on International Investment and Transnational Corporations (CIITC), formerly UNCTC has studied the role of TNC throughout the last four decades and has identified their negative and positive impact on national relations, which were published in countless documents. They can be boiled down to the following items: (a) Negative aspects

¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾

Interference with internal affairs and non-compliance with national laws; Corrupt practices, Non-compliance with national economic plans; Transfer pricing (intra-corporate transactions at artificial prices to avoid taxes); Restrictive business practices (monopolies, cartels, concerted actions, etc.); Infringing human rights (exploitation of labour, etc.); Damage to the environment; Damage to the consumers; Exploitation of natural resources.

The following actions were, inter alia, suggested by the UN Commission to resolve these problems: ¾ ¾ ¾ ¾ ¾ ¾ ¾

Consultations; Strict anti-trust laws; Joint-venture structure through which some sort of control can be exercised; Penalties and fines; Strict environmental laws; Strict consumer protection laws; Periodic revisions of eg. oil concession agreements by the UN Commission, etc.

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The most severe sanction would be the expropriation/nationalization of the foreign investor. Furthermore, TNCs shall be subject to periodic monitoring and verification by United Nations. (b) Positive aspects

Host States often benefit considerably from foreign investments (Far East: South Korea, Taiwan, China, Singapore, Thailand, Malaysia, etc; Central and Eastern Europe: Poland, Slovakia, Hungary, Slovenia, Croatia, etc.). In general, the positive aspects outweigh the negative sides of TNCs activities. They can be summarized as follows: “More efficient utilization of capital, technology and labour” were the results of the “Tripartite Declaration” of ILO. ¾ ¾ ¾ ¾ ¾ ¾

Job creating effects; Transfer of technology; Positive impact on the balance of payments; Increase of the host State’s income through taxes, Increase of the standard of living; General improvement of international relations, better climate (peace building factor!).

b) Non-Profit Making NGOs The vast majority of NGOs are non-profit making. There exist an estimated number of 40,000 which operate internationally. Two examples are to be discussed here:

(1) Amnesty International Amnesty International (AI) was founded in 1961 in London following a publication of Peter Benenson's (a British lawyer’s) article "The Forgotten Prisoners" in The Observer 28 May 1961. Its mission was (and still is) "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated." Benenson’s original intention was to launch an appeal in Britain with the aim of obtaining amnesty for prisoners of conscience, as he called them, all over the world. His aim was to mobilize public opinion, quickly and widely, in defense of these individuals, who have been arrested for their convictions, the color of their skins, their ethnic origin or their faith – provided that they have not themselves used force or advocated violence. AI was originally a British organization, but in 1963 an international secretariat was established. So-called sections were set up in many countries. Leading Amnesty International

15 key figureheads were Seán MacBride and Martin Ennals. While continuing to work for prisoners of conscience, Amnesty International’s purview widened to include "fair trial" and opposition to long detention without trial (Universal Declaration of Human Rights UDHR Article 9), and especially to the torture of prisoners (UDHR Article 5). Amnesty International believed that the reasons underlying torture of prisoners, by governments, were either to obtain information or to quell opposition by the use of terror, or both. Also of concern was the export of more sophisticated torture methods, equipment and teaching by the superpowers to "client states". The organization was awarded the 1977 Nobel Peace Prize for its "campaign against torture"; and the United Nations Prize in the Field of Human Rights in 1978. There are six key areas which Amnesty deals with: • • • • • •

Women's, children's, minorities' and indigenous rights Ending torture Abolition of the death penalty Rights of refugees Rights of prisoners of conscience Protection of human dignity.

Criticism. By 1980 Amnesty International was drawing more criticism from governments. The USSR alleged that Amnesty International conducted espionage, the Moroccan government denounced it as a defender of lawbreakers, and the Argentine government banned Amnesty International’s 1983 annual report. Nevertheless, in the field of international human rights organizations (of which there were 300 in 1996), Amnesty has the longest history and broadest name recognition, and "is believed by many to set standards for the movement as a whole." AI celebrated its 50th anniversary in July 2011.

(2) Greenpeace International Another prominent non-profit making (I) NGO is Greenpeace International. Greenpeace has offices in over 40 countries and its international coordinating body is located in Amsterdam, Netherlands. Greenpeace states its goal is to "ensure the ability of the Earth to nurture life in all its diversity" and focuses its work on worldwide issues such as global warming, deforestation, over fishing, commercial whaling and anti-nuclear issues. Greenpeace uses direct action, lobbying and research to achieve its goals. The global organization does not accept funding from governments, corporations or political parties, relying on more than 2.8 million individual supporters and foundation grants. History. In 1971, motivated by their vision of a green and peaceful world, a small team of activists set sail from Vancouver, Canada, in an old fishing boat named Phyllis Cormack, which was renamed Greenpeace for the protest against nuclear tests. The founders of the organization were Irving Stowe, Jim Bohlen and Paul Cote, a law student and peace activist. These activists believed a few individuals could make a difference. Their mission was to

16 “bear witness” to US underground nuclear testing at Amchitka, tiny island off the West Coast of Alaska, which is one of the world’s most earthquake-prone regions. In the fall of 1971 the ship sailed towards Amchitka and faced the U.S. coast guard ship Confidence. Even though the crew of the Confidence personally supported the cause of Greenpeace the activists were forced to turn back by the coast guard. Because of this and the increasingly bad weather the crew decided to return to Canada only to find out that the news about their journey and the support from the crew of the Confidence had generated widespread compassion for their protest. After this Greenpeace tried to navigate to the test site with other vessels, until the U.S. detonated the bomb. The nuclear test gained widespread criticism and the U.S. decided not to continue with their test plans at Amchitka. After the nuclear tests at Amchitka were over, Greenpeace moved its focus to the French atmospheric nuclear weapons testing at the Moruroa Atoll in French Polynesia. Following violent clashes with French authorities (Rainbow warrior affair in Auckland) the French government discontinued its nuclear test in this region. The French government had to pay a large sum of compensation both to the New Zealand government and to the family of the person killed by the sinking of the Greenpeace vessel rainbow warrior. Greenpeace regards itself as an independent global campaigning organization that acts to change attitudes and behavior, to protect and conserve the environment and to promote peace by: • • • • • •

Catalyzing an energy revolution to address the number one threat facing our planet: climate change. Defending our oceans by challenging wasteful and destructive fishing, and creating a global network of marine reserves. Protecting the world’s remaining ancient forests which are depended on by many animals, plants and people. Working for disarmament and peace by reducing dependence on finite resources and calling for the elimination of all nuclear weapons. Creating a toxin free future with safer alternatives to hazardous chemicals in today's products and manufacturing. Campaigning for sustainable agriculture by encouraging socially and ecologically responsible farming practices.

(Official website Greenpeace International).

c) NGOs with and without international legal personality The vast majority of NGO’s are private organizations which are established under some national law and do not possess a formal international legal status. In exceptional cases, however, NGOs do possess such qualification. This applies to the International Committee of the Red Cross (Red Crescent) which is granted that status by the Geneva Conventions of 1949 and 1977. Some TNCs may also be granted a restricted international legal personality.

17

D. From NGOs to IGOs NGOs were occasionally forerunners of IGOs. An example can be traced back to the Middle Ages in Europe. The private Association of Hanseatic Merchants, established around the year 1000 A.D, was transformed around 1350 A.D. into the League of Hanseatic Cities or Hanseatic League comprising temporarily not less than 200 cities in Western, Northern and Eastern Europe with Lübeck on the Baltic Sea as the leading power. Members included the cities of Hamburg, Bremen, Wismar, Stralsund, Rostock, Brügge (Bruges), Cologne, Visby, etc. Prior to the establishment of a trading alliance between City States it was a Kaufmannsbund (association of merchants) which became a Städtebund (League of City States) for the protection of the merchant guilds. Its main body was the Diet of Lübeck (Hansetag), which could enact binding decisions, including the declaration of Hanse wars. It can in modern terms be called an IGO, which has replaced the previous association of hanseatic merchants, in modern terms an NGO. The legacy of the Hanse is remembered today in several names, for example the German airline Lufthansa, the Hanseatic cities of Hamburg, Bremen, Lübeck, Stralsund etc. or the Hanze University in Groningen, Netherlands. Another historic example is the Taxis Postal Enterprise which was set up in 1505 by a concession granted by Philip (le Belle), Governor of the Austrian Netherlands, to the Italian business man Francis of Taxis. He was often called the “inventor of the posts” because he and his successors were able not only to establish a well-functioning postal system covering most of Western, Southern and Central Europe, but also could prove that such a service enterprise can be a successful profit-making undertaking. The, what was later called, Princely Thurn & Taxis Postal Enterprise, functioned until the year 1867, when it was expropriated by the Kingdom of Prussia following its victory over Austria. The need for international postal communication caused the Community of States to set up the Universal Postal Union (UPU), which, in fact was established in 1874 in Berne, Switzerland. Today it is the second oldest IGO which still exists. A more recent example for a private organization (NGO) to be succeeded by a public organization, an IGO, is the International Association of the Legal Protection of Workers, founded in 1900 in Basle, Switzerland, by a group of scholars and administrators which undertook the study and publication of national labour legislation. In the course of the peace settlement following World War I the present International Labour Organization (ILO) was established in 1919 by Part III of the Versailles Treaty. So it is true what D. Bowett gas said: “Private activity led and State activity followed”. The most recent example of this kind is furnished by the International Criminal Police Organization (ICPO-INTERPOL). It is the world’s largest international police organization, with 188 member countries. Created in 1923 in Vienna, it facilitates crossborder police co-operation, and supports and assists all organizations, authorities and services whose mission is to prevent or combat international crime. INTERPOL aims to facilitate international police co-operation even where diplomatic relations do not exist between particular countries. Action is taken within the limits of existing laws in different countries and in the spirit of the Universal Declaration of Human Rights.

18 INTERPOL’s constitution prohibits ‘any intervention or activities of a political, military, religious or racial character.’ Its General Secretariat is now based in Lyon, France. The US Lawyer K. Noble was elected Secretary General of INTERPOL in 2000 and is still in office (2011). INTERPOL President is Khoo Boon Hui from Singapore (since 2008). In 1969 INTERPOL had received consultative status as an NGO by the UN and two years later, in 1971, it was recognized as IGO by the UN. At INTERPOL’s 75th General Assembly in 2006 it was decided to establish the world’s first international anti-corruption academy aimed at tackling the problem of corruption within public services world wide. On 17 July 2007 an Agreement between the Republic of Austria and IPCO-INTERPOL was signed regarding the seat of the Interpol Anti-Corruption Academy in Austria, which is located in Laxenburg, the former Imperial residence south of Vienna.

E. Intergovernmental Organizations (IGOs) They constitute the second most important actor on the international scene, after the State.

1. IGOs Defined According to a generally accepted view IGOs may be defined as follows: “The term (public) international organization denotes an association of States established by and based upon a treaty, which pursues common aims and which has its own special organs to fulfill particular functions within the organization”.

2. Elements of the definition a) Association of States States are the principle actors on the international scene. They have the power to enter into associations with other States if they think fit. Statehood is, in general, not only the prerequisite for the establishment of an IGO, but also for membership. It depends on the three elements independent government, population and territory. If one of these elements is unclear or disputed, membership in an IGO can remove any doubt. Thus UN membership, which is open to all „peace loving States“, according to Article 4 UN Charter, can remove any doubt about statehood. This question was raised when Croatia became UN member on 22 May 1992 while Yugoslavia still claimed Croatia to be part of the Yugoslav Federation. Thus admission to the UN implies recognition of statehood. A special problem is the position of the Republic of China (Taiwan). This entity disposes over all three elements of a State but membership in international organizations is denied to it by

19 Communist China (People’s Republic of China) and its followers. Under the name “Chinese Taipei” Taiwan is full member of the World Trade Organization (WTO) since 2002 and possesses observer status since 2009 in the annual World Health Assembly, the principal body of the WHO. Northern Cyprus and Palestine are not States. Palestine, however, possesses observer status in the UN, but has submitted an application for UN membership on 23 September 2011 to the Secretary General Ban Ki Moon. Observers participate in the work of IGOs, but in contrast to members they do not possess voting rights. Failed States are entities which are unable to maintain a minimum of law and order on a specific territory. They are, nonetheless, tolerated as members in IGOs in order to avoid a destabilization of the region. Lebanon used to be an example. Today Somalia is the most prominent example of that kind. In exceptional cases also non-State entities may set up an IGO or become a subsequent member of it. Thus the Holy See (Vatican) is member of the International Atomic Energy Agency (IAEA) and the European Union (EU) is member of WTO. Also the World Bank (BANK) is member of its independent sub-organization ICSID (International Center for Settlement of Investment Disputes), established in 1965.

b) Treaty A treaty is a formal written instrument between States (and other subjects of International law). An official definition is contained in Article 2 of the Vienna Convention on the Law of Treaties, signed at Vienna on 23 May 1969. It reads: “A treaty is an international agreement concluded between States in written form and governed by International law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”. In contrast to ordinary treaties a treaty establishing an IGO creates a new entity whose organs, in turn, may enact new legal acts, e.g. by way of resolutions, decisions, recommendations, etc. The influence of the member States in the decision making process depends upon the degree of integration a particular IGO possesses. Thus the permanent members of the UN Security Council have full control over its resolutions, while an individual member State in the EU can be overruled in the Council. Due to this peculiarity the constituent instrument (treaty) of an IGO bears special names, such as Charter, Constitution, Covenant, Pact, etc. The term “”treaty”, however is still in use. Examples are “Treaty on European Union”, “Treaty on the Functioning of the European Union”, “North Atlantic Treaty Organization, etc. In exceptional cases IGOs can be established by instruments or acts other that treaties: Thus the Organization of Petroleum Exporting Countries (OPEC), based in Vienna, Austria, was set up in 1960 by Resolutions adopted at the Baghdad Conference, in which the founding members Iraq, Iran, Kuwait, Saudi Arabia and Venezuela participated. These Resolutions were later notified to the UN Secretary General under the name “OPEC-Statute”, who published them according to Article 102 UN Charter in the United National Treaty Series (UNTS), as if the constituted a treaty. It is not quite clear why no formal treaty had been signed and ratified by the five founding members. One reason might have been that national Parliaments of any of the “signatory States” might have refused to give its approval for ratification. OPEC would then have never come into existence.

20 Another example is ICPO-INTERPOL, which was established in 1923. 1969 INTERPOL received consultative status as an NGO by the UN and two years later, in 1971, it was recognized as an IGO by the UN. In 1972 a (bilateral) headquarters agreement was concluded with France. Since 1954 INTERPOL possesses a “Constitution”, but no formal treaty between the 188 member States had ever been concluded. In general, treaties establishing IGOs are of multilateral character. In rare cases also bilateral organization may be set up. This applies to free trade areas, such as between the EU and Palestine, the EU and Israel, or to the customs union between the EU and Turkey.

c) Common aims in the course of history The common aims of an IGO can be manifold. The original idea of an IGO was to maintain or to restore peace and security. Thus the desire for peace gave the original impetus for establishing a union of City States, of tribal units, etc. in the form of defensive (and sometimes also offensive) alliances. The first alliances can be traced back to the antiquity. Examples were the symmachia of the Greek City States (Athens, Sparta, etc.) against the Persian invaders around 400 B.C. Further down in history we find alliances against the Turkish invader between the Habsburg Empire, the Imperial States and Poland in 1683, between England, Austria, Prussia and Russia against the French expansion under the Emperor Napoleon at the turn of the 18th and 19th century; later the alliances of the Allied and Associated Powers during World War I and the alliance against Nazi Germany. Italy and Japan by the “United Nations” during World War II. The last two mentioned alliances gave rise to the creation of the first universal organization of peace, namely the League of Nations in 1919 and the United Nations Organization in 1945. During the 19th and the 20th century the need for improved trade and for other fields, such as telecommunication, air transport, health, fight against hunger, was decisive for the establishment of other types of organizations, and commonly called administrative or technical organizations.

d) Own special organs The possession of at least one organ, such as a secretariat or a panel to settle disputes among its members, for the fulfillment of its function, is the minimum prerequisite for an IGO qualification. Nevertheless, the typical structure of an IGO consists of three organs.

(1) The typical tripartite structure of IGOs IGOs possess organs of representation and of non-representation. In the former member States are represented through delegations sent by the member States, while the latter consists of persons acting independently of member States. They are either international civil servants or, in the case of judicial bodies (Courts, Administrative Tribunals, etc.), independent judges, arbitrators etc. Organs of representation are either Large organs of representation, commonly called Assembly, General Assembly, Congress, Conference, General Conference, Council of Ministers, General Council. All members are

21 represented therein; they meet once a year or once in two years. Large organs decide, inter alia, upon the general policy, budget, admission of new members and upon the statutes of their civil servants; or Small organs of representation, in which only a limited number of members are represented. They are called Board or Council. This organ has to prepare and pursue the policy of the large organ and must execute its decisions. It meets more frequently or even permanently, such as the Security Council of the United Nations. Such an organ is sometimes entrusted with special tasks (UNSC: maintenance of peace and security; assignment and utilization of radio frequencies: ITU Frequency Registration Board, etc.). The ICAO Council makes the rules for civil air transport over the high seas for all ICAO members. The composition of this organ is sometimes partly or fully determined in the Charter. The IMO Board, for instance, consists of six States with the largest interests in international maritime trade. The third organ is the administrative body, the Secretariat. It is headed by a Secretary General (UN), Director-General (IAEA, WHO) or President (BANK, IMF). He or she is the highest ranking civil servant of the Organization. He (she) and his (her) international staff are to observe strict impartiality and loyalty solely vis-à-vis the Organization. They must not receive or follow any instruction by their home States. Any international civil servant must take an oath to that extent when taking up its international office. A deplorable negative example is furnished by the most recent WHO-Taiwan Case of 2011. In May 2011 it was revealed that the Director-General of the World Health Organization (WHO) in Geneva, Dr Margaret Chan, circulated in May 2010 to all delegation of the Member States a (confidential) internal document in which WHO referred to Taiwan as “being a province of China”. A protest was launched by the “European Conservatives and Reformist Group”, a fraction of the European Parliament, led by Dr. Charles Tannock. In its letter, dated 14 June 2011, he stated on behalf of the “European Parliament-Taiwan Friendship Group” , which reads as follows: “… We are dismayed at the recent revelation that the World Health Organization refers in its internal documents to Taiwan as being a province of China. No United Nations specialized agency has the right unilaterally to decide on the status in international law of any given country or territory. As you will well know, UN agencies and their staff are required to remain impartial and not to take instructions from or show favor to any national government. We wish to remind you that neither UN General Assembly Resolution 2758 nor World Health Assembly Resolution 25.1 make any reference to Taiwan’s status in international law or its status vis-à-vis the Peples Republic of China. The WHO’s explicit reference to Taiwan as a province of China has no basis in international law. It is therefore hard to avoid the conclusion that the People’s Republic of China has deliberately sought to compromise the independence and impartiality of the WHO for its own political purpose.

22 As Director-General of WHO, you are responsible for the internal policy of referring to Taiwan as a province of China. You are also citizen of, and were nominated for your post by, the People’s Republic of China. WHO’s continued insistence or referring to Taiwan as a province of China therefore not only undermines the organization’s credibility but risks calling into question your personal impartiality and integrity. We believe the WHO’s position on Taiwan is politically and morally flawed. We urge you to change WHO’s internal procedures to refer to Taiwan as “Chinese Taipei”, the accepted nomenclature that Taiwan uses in other international organizations and structures. Finally, we believe that Taiwan, with its excellent healthcare sector and world-class doctors, has much to contribute to the WHO…. We look forward to your response. Yours sincerely, Dr. Charles Tannock MEP ECR Group Chairman European Parliament-Taiwan Friendship Group”. Similarly, the U.S. Senator Sherrod Brown sent a letter of protest earlier in July 2011 to Director-General Dr Margaret Chan, saying, “By implying that the WHO may declare Taiwan a ‘province of China,’ WHO is going beyond its mandate as the world global health authority and is in violation of U.S. policy. This puts in jeopardy WHO’s status as an apolitical organization that aims to cure the sick and prevent the spread of illness”. In a response letter dated 4 July 2011 Director-General Chan under reference to World Health Assembly Resolution 25.1 reiterated her position that Taiwan "is not a separate entity but a part of China".

(2) Exceptions to the tripartite structure Some IGOs have more; some have less than three organs. Important organizations, politically and/or economically, require more organs. Thus the UN possesses six principal organs: Secretariat, General Assembly, Security Council, Trusteeship Council, Economic and Social Council and the International Court of Justice (ICJ). The same applies to the World Trade Organization (WTO) which has the Ministerial Conference, the General Council, the Trade Policy Review Body (TPRB), the Dispute Settlement Body (DSB), the Appellate Body, the GATT Council, GATS Council, TRIPS Council, etc. Examples for IGOs which possess less than three organs are Free Trade Areas. A FTA is officially defined (by Article XXIV para 8b GATT) as “a group of two or more customs territories in which the duties and other restrictive regulations of commerce.. are eliminated on substantially all the trade between the constituent territories in products originating in such territories”. A prominent example is the North American Free Trade Agreement (NAFTA) which possesses only a Secretariat, composed of three sections: Canadian in Ottawa, US in

23 Washington and Mexican in Mexico City. These sections are responsible for the administration of the dispute settlement procedures. FTAs are “primitive” organizations. Some writers even maintain that they are no IGOs at all but just “agreements”. Other examples are the Association Agreements between the European Union and third countries (Croatia, etc.) They possess only an “Association Council” to implement the agreements and to settle disputes.

3. Categories of IGOs IGOs may be subdivided into the following categories:

a) Universal (global) and regional organizations This distinction reflects a long standing and still ongoing theoretical dispute between two schools of thought. While the Universalists (globalists) maintain that world peace can better be guaranteed by global organizations whose members consist of disinterested parties in a given dispute, the Regionalists criticize their lack of local knowledge on matters referring to a particular region. Both theories have their merits. Political reality reflects both theories.

(1) Universal organizations are designed to be open to all States on a worldwide basis. It was the predominant model in particular during and after World War II. The most prominent example is the UN which now encompasses also its “family members”. These are organizations of limited competence which are linked by treaty with the UNECOSOC in order to coordinate their work and to avoid unnecessary overlapping. They are called UN Specialized Agencies. They comprise organizations prior to the existence of the UN as well as organizations created afterwards. Four universal IGOs were in existence before WW II: ITU (1865), UPU (1874), World Meteorological Organization (WMO 1878) and ILO (1919). During the war the Food and Agricultural Organization (FAO) was set up in 1943 in Rome to fight hunger. The world’s economic system was then based on the two universal financial organizations IMF and BANK 1944) and the trade institution “General Agreement on Tariffs and Trade” (GATT 1948, at present WTO since 1995). The International Civil Aviation Organization (ICAO) was established by the Chicago Convention of September 1944. It has its headquarters in Montreal, Canada. Further Specialized Agencies are the United Nations Educational, Scientific and Cultural Organization (UNESCO), set up in 1945 in Paris, whose purpose is to contribute to peace and security by promoting collaboration among the nations through education, science and culture; the WHO (1946) to fight diseases; the Intergovernmental Maritime Consultative Organization (IMCO 1957), whose purpose is to adopt the highest possible standards in matters of maritime safety and efficiency in navigation; the World Intellectual Property Organization (WIPO), established in 1967, whose purpose is to promote the protection of intellectual property throughout the world; the International Fund for Agricultural Development (IFAD 1974, Rome), whose essential task is to mobilize the agricultural production of food throughout the world, by financing agricultural development; and the UN Industrial Development Organization (UNIDO) whose aim is the promotion of industrial development in developing countries (set up in Vienna in 1979); the purpose of the International Atomic Energy Agency (IAEA 1957, also based in Vienna) is the peaceful use of nuclear energy. Strictly speaking it is not a Specialized Agency linked to ECOSOC but is responsible to the UN General Assembly.

24 These are the most important universal (global) IGOs. They are generally concerned with matters affecting all countries, irrespective of their geographical location. Hence it follows that theoretically such IGOs should be open to all States in the world. This conclusion, however, does not always meet the political reality. Thus for political reasons Taiwan is refused to join the UN, being, however, a member of WTO.

(2) Regional (and sub-regional) IGOs (a) General Aspects

On the other hand, regional IGOs extend their activities in a specific geographical region. Almost every region in the world has established its organization. Apart from the British Empire the Pan-American Union, established in 1908, became the first formal regional organization. In contrast to the former, it was based on a formal treaty and its members enjoyed, at least in theory, full sovereignty and independence. It was in 1948 to become the “Organization of American States” (OAS). The Pan-American Union was the model for Count Coudenhove-Kalergi’s vision of a “Pan-European Union” as conceived in 1923 in Vienna. It laid the ground for the still existing Pan-European Movement which has organized a great number of “Pan-European Congresses” before and after World War II. This movement has influenced a number of the so-called “European Architects”, such as the French Foreign Minister Aristide Briand, Winston Churchill, Robert Schuman, Jean Monnet, Konrad Adenauer, Paul Henri Spaak, Jacques Delors, etc. and even the US President Harry S. Truman and his Secretary of State George C. Marshall. A “regionalization” of (Western) Europe was also in the interests of the US during the Cold War. The (b) Relationship between universal (global) organizations and regional organizations

is expressed in Article 52 para. 1 of the UN Charter which provides: “Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations”. The concern here is to avoid a conflict between the respective security systems of the United Nations and the “regional arrangements”. According to Article 53 UN Charter the Security Council is empowered (“where appropriate”) to utilize such regional arrangements or agencies for enforcement action under its authority. This provision serves as a legal basis for the NATO peacekeeping operations since 1999 in Kosovo (“K-FOR”). In any case, UN law has prevalence over regional arrangements law.

25 (c) Relationship between the European Union as the most important regional organization and the UN.

This principle of “loyalty towards the UN” is underlined by the following provisions of the Treaty on European Union (Lisbon Treaty, TEU) of 13 December 2007: Article 3 para 5 TEU provides: “In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.” Article 21 para. 1 and para 2 TEU provide: “The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law. “The Union ..shall preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter…”. Articles 42 para 1 and 7 TEU provide: “The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States. “If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter”. (d) Regional Organizations in Europe

D.W. Bowett states: “The European scene has been remarkable for the growth and development of international institutions in the post-World War II era; indeed, it has been in Europe, the traditional centre of nationalism and State sovereignty, that experiments in cooperation have been set afoot which involve restrictions on national sovereignty seen

26 nowhere else in the world.” Reasons for this remarkable development are (or were), inter alia: ¾ Increased inter-relationships caused the need for institutionalized co-operation; ¾ Rapid economic reconstruction required concerted actions; ¾ Ideological appeal of “European Unity”, a kind of “United States of Europe”, as Winston Churchill has put it in 1946; ¾ Fear of Soviet (and subsequently Russian) aggression; ¾ The concept that Europe should speak “with one voice” in order to be recognized as a political as well as economic power on a world-wide level; ¾ Removal of trade barriers is to the mutual benefit of all members in an organization, Community and, finally, Union. The free flow of goods, persons, services and capital leads to economic growth and to rising standards of living. Before this background the following organizations were set up in Europe: ¾ ¾ ¾ ¾ ¾ ¾

The Council of Europe (1949); The European Atomic Energy Community (EURATOM 1957); The European Free Trade Association (EFTA 1960); The European Economic Area (EEA 1992); The European Union (EU 1992 in the Lisbon version of 2007) and The Organization for Security and Cooperation in Europe (OSCE 1992).

A special case is the North Atlantic Treaty Organization (NATO 1949): here the notion “regional” encompasses a political rather than a geographical notion. The same applies to the Organization for Economic Co-operation and Development (OECD 1960, formerly Organization for European Economic Cooperation; OEEC 1948). Both organizations include also non-European States, such as the US, Canada, etc. (e) Regional and sub-regional Organizations in the Americas

The Organization of American States (OAS), established by the Charter of Bogota in 1948, is designed to form an inter-American collective security system, but also deals with economic matters; in 1962 it approved the “Cuba-blockade”; The North American Free Trade Agreement (NAFTA) was set up by the US, Canada and Mexico in 1994 and forms the worlds largest free trade area; The Andean Pact (Pacto Andino) was set up as a sub-regional organization of the Latin American Free Trade Association (LAFTA, established in 1969, replaced by the Latin American Integration Association in 1980 – LAIA) by the Cartagena Agreement of 26 May 1969 between Bolivia, Colombia, Chile, Ecuador and Peru. Venezuela acceded later. This organization was designed to move towards closer integration. It is modelled after the European Communities, possessing, inter alia, a “Junta” (Board) with competences similar to those of the European Commission. The Commission is the supreme body and is comprised

27 of a plenipotentiary representative from the Government of each of the Member Countries. It can be compared with the Council of the European Union. Its headquarters are in Lima, Peru; Mercosur or Mercosul (Mercado Común del Sur, Southern Common Market) is a customs union between Brazil, Argentina, Uruguay and Paraguay, founded in 1991 by the Treaty of Asunción, amended in 1994 by the Treaty of Ouro Preto. Its purpose is to promote free trade and the free movement of goods, persons and capital. (f) Regional Organizations in Africa including the Middle East

The original Organization of African Unity (OAU) of 1963 was replaced in 2002 by the present African Union (AU) which is also modelled after the European Union and comprises 53 member States; The Arab League is a political organization of comprehensive aims. It was established in 1944 and comprises practically all Arab countries, such as Egypt, Libya, Sudan, Morocco, Tunisia, Bahrain, Qatar, Oman, Egypt, Mauritania, United Arab Emirates, etc. (g) Regional Organizations in Asia

The Association of South East Asian Nations (ASEAN) was established by the Declaration of 8 August 1967 between Indonesia, Thailand, Malaysia, Singapore and the Philippines; its aims are both political and economic; The Asia-Pacific Economic Cooperation (APEC) was established in 1089 in Canberra, Australia and comprises a group of 21 Pacific Rim countries who meet with the purpose of improving economic and political ties; among its members we find Russia, China, the US, Canada, but also Taiwan (since 1991) under the name of “Chinese Taipei”. All ASEAN countries are also members of APEC.

b) Peace keeping and technical organizations While the former are primarily concerned with the maintenance of peace, the latter deal with administrative matters, such as postal and telecommunication, air transport, trade, health, economic aid to developing countries, etc. A strict distinction can, however, not be made because technical organizations have also a peace keeping function. “When goods do not cross borders, soldiers will“. The best example has been in the past the European Coal and Steel Community (ECSC), established in 1951 and terminated in 2002, which was designed to make wars between Germany and France once and forever impossible. Nevertheless, the distinction is still upheld. A typical peacekeeping organization is NATO, while the UN Specialized Agencies are technical organizations. IAEA is a peacekeeping organization (“peaceful use of nuclear energy”). The UN is hybrid: emphasis is laid on the peacekeeping function based on the system of collective security and on the principle of peaceful settlement of international disputes (Articles 2 para. 3 and 33 UN Charter). On the other hand, ECOSOC (Economic and Social Council) is concerned with matters such as

28 economic development of Third World countries, TNCs, human rights, etc. which are – if at all – only indirectly related to the maintenance of peace and security.

c) General and special organizations This distinction is made according to the ability of State to fulfil the aims and objectives of a particular IGO. While general organizations are fulfilling tasks which any State can fulfil and which are of concern for any State, special organizations are dealing with matters reserved to a limited number of States. Most organizations are of general character (UN, Specialized Agencies, etc.). Special organizations are the exceptions. Examples are the Organization for Petroleum Exporting Countries (OPEC), in which membership requires a minimum amount of oil export. Thus Indonesia had to withdraw its membership from OPEC in 2008 after it became a net importer of oil. Other examples are furnished by organizations which are linked to a particular geographical situation, such as River Commissions (Danube Commission, Rhine Commission, etc.). Therefore, special IGOs are also called “closed organizations”.

d) Traditional and supranational organizations In legal theory a distinction is to be made between • Traditional (international) organizations, and • Supranational (international) organizations. A traditional international organization is a union of States established by a multilateral agreement under international law, which has its own autonomous organs to pursue the common interests of the community of its members. The following four elements can therefore be identified: (a) a treaty between (b) States; (c) common interests; and (d) autonomous organs. These four elements are also the framework of a supranational organization, which, however, possesses a number of additional elements and peculiarities, which are alien to its traditional ancestor. By establishing the European Coal and Steel Community (ECSC) in 1951 these additional elements have been introduced into the world of international organizations. They can be summarized as follows:

1. The power to bind Member States by legal acts rendered by a majority vote; 2. The exercise of such a power by an institution which is not composed of representatives of Member States but of independent persons (e.g. the European Commission and the Courts); 3. The power to enact laws (e.g. regulations, directives) which „penetrate“ the shield or cover of national law and thus require no further acts (transformation) in order to be binding in the respective national legal system, and their supremacy over the latter; 4. The binding force of such laws also upon individuals conferring upon them (direct) rights and imposing (direct) obligations; and

29 5. The compulsory jurisdiction of the European Courts.

e) Political and non-political organizations Occasionally a distinction is made between political and non-political organizations. While the former deal with questions related to the maintenance of peace and to the peaceful settlement of international disputes, the latter are concerned with technical matters. This distinction is questionable mainly for the reason that every IGO consists of sovereign States which pursue political aims. Any intergovernmental organization, even a purely technical one, may maintain or change the power relationship between States. The WHOTaiwan Case of 2011 is the most recent example for this phenomenon, where a technical organization had been misused for improper political purposes. In addition, membership in any IGO, be it technical or peace-keeping, can have important political implications, particular in cases of secessions. Thus the admission of Croatia or Slovenia to the Universal Postal Union or to WHO in the nineties of the last century marked an act of recognition: the central government in Belgrade could no longer object to the statehood of the former constituent subdivisions (Republics) of Yugoslavia, because only States can be admitted to these UN Specialized Agencies.

4. Membership in international organizations “Members are the core of international organizations” (H.G.Schermers). This not only means that no organization can exist without members but also that any IGO has rules for the acquisition (and sometime also termination) of membership. These rules are contained in the basic treaty (charter, etc.).

a) Acquisition of membership The States which conclude the basic treaty are the original members of the organization. They lay down the conditions for the admission of new members which have to undergo a specific procedure “of admission”. There are no “open” IGOs. States admitted on the grounds of such a procedure are widely called “other” members. The prerequisite to become such another member” are to be divided into procedural and substantive conditions which have to be fulfilled by the respective candidate. Examples: The United Nations. Article 4 UN Charter provides: 1. “Membership in the United Nations is open to all…peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the organization, are able and willing to carry out these obligations.

30 2. The admission on any such state to membership in the United Nations will be affected by a decision of the General Assembly upon the recommendation of the Security Council”. Following the judgment of the ICJ in the Corfu Channel Case of 1949 (United Kingdom v. Albania) Albania had been declared being not a “peace-loving” State. The European Union. Article 49 TEU provides: “Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account. The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements”. Article 2 TEU provides: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”.

b) Termination of membership Membership in an IGO can be terminated either voluntarily or non-voluntarily: in the first case it is called “withdrawal”, in the second “expulsion”.

(1) Withdrawal Withdrawal may be based on a constitutional provision. When withdrawal becomes effective, most rights and obligations of membership will cease. It is, however, not quite clear whether

31 prior binding decisions taken by the organization will remain applicable to the former member. Since the Treaty of Lisbon withdrawal from the EU is possible. Article 50 TEU provides: “1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. 4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union. 5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.” Until now, no Member State has indicated its intention to withdraw from the EU. The only precedent is furnished by the withdrawal of Greenland from the European Community in 1981, in spite of the absence of a constitutional provision to that extent. The problem was resolved by a special treaty concluded between the EC, Denmark and the then ten Member States (“Greenland Agreement”). Most organizations, such as the UN, do not permit members to withdraw. Nevertheless, Indonesia withdrew in 1965, even though such withdrawal was not based on the UN Charter. After 20 months Indonesia revoked her withdrawal. In the eighties the US withdrew form UNIDO and from UNESCO, but did not (yet) rejoin. In these cases the organizations accepted the withdrawal.

(2) Expulsion Expulsion is the compulsory cessation of membership. Many IGOs provide for expulsion of members which do not fulfill their obligations. Expulsion may be the final means of sanction in order to persuade a member to observe the rules of the organization. Thus Article 6 UN Charter contemplates expulsion under the same procedural prerequisites as admission (recommendation by the UNSC and two thirds majority in the GA) for “persistent violation of the principles of the Charter”. The Lisbon Treaty does not provide for expulsion of EU Member States. The only sanction contained in the Treaty refers to suspension of membership rights.

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Article 2 TEU provides (EU values) “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”. The “sanction” Article is Article 7 TEU which provides: “1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure. The Council shall regularly verify that the grounds on which such a determination was made continue to apply. 2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations. 3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons. The obligations of the Member State in question under this Treaty shall in any case continue to be binding on that State. 4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed. 5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354 of the Treaty on the Functioning of the European Union.” Membership can also be terminated by disappearance of the member or dissolution of the organization. Examples: 1990: Unification of Germany, disappearance of the German Democratic Republic. 1991: dissolution of Yugoslavia (SC Resolution: “Yugoslavia has ceased to exist”).

33 1992: Dissolution of the Union of Soviet Socialist Republics, USSR; Russia becomes successor State 1990: Dissolution of the Warsaw Treaty Organization (“Warsaw Pact”).

c) Categories of membership in IGOs One has to distinguish between ¾ Full members which possess all rights in IGOs, and ¾ Associate members, which possess only limited rights in IGOs; their rights and obligations are less than those of full members. Associate members may have the right to sit in the various meetings of the different organs and have a right to speak, but are barred to vote. Thus the US had such status in the Organization for European Economic Cooperation (OEEC) between 1948 and 1960. Both the UN and the EU do not expressly provide for associate membership. Only full membership is possible in these organizations. However, a de facto associate membership is granted in the UN to national liberation movements, such as PLO (Palestine). The same applies to non-autonomous territories which may participate in some UN organs without voting. In the Economic Commission for Africa, some non-African States, as well as Namibia before (full) membership, were associated members. The EU (and previously the European Community) provides for the conclusion of association agreements on the basis of Article 217 Treaty on the Functioning of the European Union (TFEU, ex Article 310 EC Treaty) which reads as follows: “The Union may conclude with one or more third countries or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure.” Such agreements do not grant any rights to participate in the EU itself, but rather create new separate institutions comprised by the Union and its member States on the one hand and the associate State or States on the other. Candidate countries are linked to the Union by such association agreements which, in this case, are designed to prepare for EU membership.

5. Decision-making and voting procedures In general, decisions are taken in IGOs by way of voting. One has to distinguish between the rule of unanimity and majority voting.

a) The rule of unanimity It was originally the only principle in the decision-making in IGO. The voting procedure in the League of Nations was based on this rule (Article 5 LoN Covenant). It follows from the

34 doctrine of the equality and sovereignty of States; no State can be bound by a decision without its consent. In the UN Charter the principle of modified unanimity is adopted in the Security Council. This means that unanimity only among certain States is required. Thus Article 27 para. 3 UN Charter reads: “Decisions of the Security Council …shall be made by an affirmative vote of nine Members including the concurrent votes of the permanent Members..”. This rule of unanimity proved to be open for misuse. States for political reasons would cast a veto and, by doing this, would paralyze the decision making procedure of the organization. The UN Charter appears a fairly radical break with tradition up to 1945. It introduced the majority vote into global (universal) organizations, for there the majority vote became the rule and only in respect of permanent Members, as seen above, does unanimity remain as a kind of defensive mechanism which is seen operating in the veto. D. Bowett speaks here of the “decline of the rule of unanimity”. In the EU unanimity was originally required for all Council decision in the Communities. It was not before the entry into force of the Treaty of Lisbon on 1 December 2009 that this rule was practically entirely replaced by the majority rule.

b) Majority voting Majority voting became the general rule both in universal organizations and in the EU. Here we have to distinguish between ¾ Simple majority: more than 50% of members present and voting; ¾ absolute majority: more than 50% of the members represented in a particular organ or institution; and ¾ qualified majority: two third, three quarter etc. majority; Example: Article 49 TEU (admission of new members) requires the European Parliament to act “by a majority of its component members”. All other decisions are taken by simple majority. The Council of the European Union acts principally by qualified majority voting (QMV).

c) Equal and weighted votes In IGOs the principle of “one State, one vote” prevails. However, some organizations allocate to its members different voting powers, according to size, population, amount of shares in those organizations, etc. Examples. BANK, IMF, Council of the EU (up to 2014/2017).

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6. International Legal Personality of IGOs It concerns the question as to whether an IGO is subject under international rather than national law of some member State. An International legal person is an entity whose conduct is governed directly by international law. This is a question of positive law and depends upon its constituent treaty. Such a legal personality is, however, only rarely conferred upon expressly by the founding member States. Or, in other words, the constituent instrument is silent on this question. The founding States usually wish to avoid any implication that the future organization becomes a “super-State”. This applies both to the UN as well as to the EU. In drafting the UN Charter, the 50 “founding fathers” at the San Francisco Conference in 1945 apparently had the intention to avoid any implication that the UN was a “super-State”. A “somewhat timid compromise” (D. Bowett) was adopted recognising in Article 104 that “the Organisation shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and fulfilment of its purposes”. The provisions on privileges and immunities in Article 105 UN Charter also speak only of a grant “in the territory of each of its Members”. These two provisions raise the question as to whether the Organization only had legal personality under municipal law, or also to some degree, under international law. Legal personality under municipal law includes the capacity to own and dispose of property, to litigate and to enter into contracts under municipal law (employment, services, etc.). Legal personality under international law goes further: It generally includes the treatymaking power, the capacity to bring international claims, etc., but also responsibility in international law. The duty to make reparations for internationally wrongful acts is the correlative duty to the right to claim reparations. The answer to that question to the nature and extent of the UN’s legal personality was authoritatively given by the ICJ in the Advisory Opinion on Reparations for Injuries suffered in the Services of the United Nations (Reparation for Injuries or Bernadotte Case 1949). The Court stated that such personality was “indispensable” to achieve the purposes and principles of the Charter, and that the functions and rights of the Organization can only be explained on the basis of the possession of a large measure of international personality. The Court held: “That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is a “super-State,” whatever that expression may mean… What it does mean is that it is 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”.

36 The indicia of international personality are ¾ The obligations of the Members towards the organization, such as annual contributions, and ¾ The legal capacity and privileges provided for in Articles 104 and 105 UN Charter. The Court also went on to stress that other powers (such as to bring an international claim) not specifically granted in the constituent treaty could be implied from the very fact of personality. The rights and duties of an international organization depend upon its purposes and functions as “specified or implied in its constituent documents.” Thus the theory of “implied powers” was born which subsequently has influenced decisively the law of international organizations. As far as the EU is concerned, such an international personality can similarly be deduced from the pre-Lisbon Treaties which are silent on this issue. As it had been the case with the UN, the EU member States were concerned of a “European super-State” (PM Margaret Thatcher) and of possible “United States of Europe”. Indicia for such a pre-Lisbon international legal personality of the EU were the rules on citizenship of the Union, on acquisition of membership, on the common foreign and security policy (CFSP), and on the treaty-making power (Article 24 TEU). And last but not least, the EU – and not only the European Communities – constituted for more than ten years a political reality on the international scene. Following the entry into force of the Lisbon Treaty on 1 December 2009 the issue has been resolved in favour of an express legal personality. Thus Article 47 TEU laconically says: “The Union shall have legal personality”.

7. Financing of IGOs The general rule is that the financial needs of the organization must be met by member States’ contributions. The costs are shared among the member States in accordance with a set formula which may be laid down in the constituent treaty or determined from time to time by the relevant organ (e.g. Assemble, Conference, General Conference, etc.). For the most part, contributions are calculated by reference to national income, frequently with an upper limit (e.g. UN), so that no State has to bear an excessive burden or can exercise too much influence on the organization. Certain organizations also finance themselves through loans (interests), such as BANK and IMF. The European Union (previously Communities) have broken new ground by introducing export and import duties (common external tariff-CET) and a share of national value-added-tax revenues as sources of income. Other sources of financing IGOs are gifts as voluntary contributions and incomes from the sale of souvenirs or stamps in their own shops.