During the formative period of international organizations, attention was largelyFootnote 1 focused on their “internal” law, i.e. on their functions, powers and procedures under their constitutions and other rules. The assumption that international organizations do not have a common denominator encouraged such introspection. However — to misapply a famous quotation — no organization is an island, entire of itself. For their dealings with the outside world, whether in the sphere of public international law or in that of private law, the internal rules of organizations are relevant but not sufficient.Footnote 2
General legal rules supplementing the internal law of organizations outside its proper sphere of application are little developed. This causes relatively few major problems, largely because practical arrangements circumventing open legal issues can usually be found. Nevertheless, the absence of accepted rules creates a climate of legal uncertainty. Recourse to arrangements evading the legal issues prevents the development of practice and hence of custom. If the legal environment in which organizations operate is not exactly hostile, it is certainly not well adapted to them.
A. Public International Law
Three major groups of questions regarding the place of international organizations in public international law require some consideration: to what extent are the rules of general international law suitable for application to international organizations; to what extent have rules of international law been evolved which are responsive to specific problems posed by international organizations; and in what manner can international law be made applicable to international organizations?
1. The Suitability of General International Law for International Organizations
“International law is essentially a law between States and this remains true in spite of the appearance of various international organizations …”Footnote 3 Large areas of international law are patently inapplicable to international organizations, which have no territory, confer no nationality and do not exercise jurisdiction in the same sense as States.Footnote 4 Other rules, while not as clearly inapplicable, either lack relevance to international organizations or meet practical difficulties of implementation. For instance, while questions regarding the succession of one international organization to another have arisen,Footnote 5 the law of State succession has not been noticeably pertinent. The United Nations has referred to such matters as absence of authority to exercise criminal jurisdiction over members of armed forces or of administrative competence relating to territorial sovereignty, to explain its inability as an organization — as opposed to the ability of national military contingents placed at its disposal — to apply detailed aspects of the law of war.Footnote 6 And, while it appears to be established that international organizations may not only bring international claims but that such claims may be brought against them, the absence of territorial jurisdiction and of institutional arrangements pertaining thereto make key concepts of State responsibility — such as the exhaustion of local remedies — inapplicable.Footnote 7
Three main subjects are, prima facie, suitable for application to international organization: the law of State immunity; the law of diplomatic relations; and the law of treaties. It is no coincidence that the International Law Commission has been examining these subjects in that light. Yet the Commission has not found it easy to arrive at conclusions or to evolve agreed principles, whether paralleling or diverging from the law applicable to States. Answering, in 1970, the question why the Commission left open the application of many subjects to international organizations, one of its members at the time expressed the view that
the more one looks at the Vienna Convention on the Law of Treaties, the more difficult it will be found to apply its provisions automatically to treaties of organizations. The same is true of other branches of the law. It was not an easy task to take the Vienna Convention of 1961 on Diplomatic Relations and adapt it to the peculiar requirements of … Permanent Missions to international organizations …Footnote 8
Some of the specific difficulties will now be considered. In many cases, their potential solution is dependent not only on one or other concept of international organizations, but also on one or other explanation of the reasons for the rule binding on States.
(a) Immunity
Overwhelmingly, the status of international organizations is regulated by treaties, whether they be constitutions, treaties between States laying down general rules in the matter — such as the Conventions on the Privileges and Immunities of the United Nations and of the Specialized Agencies — or arrangements between particular organizations and countries in which their headquarters or other offices are established. Accordingly, the question whether international organizations enjoy immunity under customary international law has been marginal in the sense that it is liable to arise mainly where an organization is active in a non-Member State and no special arrangements have been concluded, or where treaty provisions are incomplete. There is some literature on the subject and there have been some court decisions favouring immunity in the absence of a treaty obligation;Footnote 9 such immunity has been variously justified on the ground of transfer of portions of State sovereignty or of State functions, or on the ground that an international body is by its nature, or the nature of its acts, not subject to national law.Footnote 10
Since there is little reliance on the law of State immunity, there is uncertainty regarding the applicability and suitability of certain of its concepts. Thus, it has widely been assumed that the age-old problem of the delimitation of immunity from jurisdiction — of acts iure imperii and acts iure gestionis — has little application to international organizations (except where, as in the case of the World Bank, such immunity is expressly limited by reference to the nature of the activities of the organization). The assumption rests on two specific bases: first, many of the relevant treatiesFootnote 11 provide for immunity from jurisdiction without any qualification; second, the fact that the capacity of international organizations is directly related to their public functions seems to imply that, as a matter of principle, the problem of acts iure gestionis should remain unimportant.Footnote 12 More generally, “absolute” immunity is justified by the vulnerability of international organizations which have no territory of their own and thus necessarily operate within the jurisdiction of other legal systems, and the law of which is relatively little developed. When the Government of Italy in 1952 communicated to the Secretary-General of the United Nations a ratification of the Convention on the Privileges and Immunities of the Specialized Agencies accompanied by the statement that immunity from jurisdiction would be accorded to the agencies “insofar as said immunity is accorded to foreign States in accordance with international law”, this was regarded by the agencies as a reservation and the instrument was, because of their objections, not accepted for deposit.
However, Italian Courts have always applied the distinction between acts iure imperii and acts iure gestionis to international organizations in the absence of treaty obligations relevant to the subject.Footnote 13 United States Courts have done so more recentlyFootnote 14 in a situation in which the only treaty providing for immunity from jurisdiction without qualification relates to the United Nations and national legislation (the International Organizations Immunities Act, 1945) specifically provides that international organizations enjoy the same immunity from suit and legal process as is enjoyed by foreign governments. In 1982, the Italian Court of Cassation went further: it applied the distinction to legal transactions by the F.A.O. in Italy, despite the fact that Section 16 of the headquarters agreement between that Organization and Italy provides for immunity from jurisdiction without qualification.Footnote 15 The Court eliminated the relevance of that provision to the case before it in part by holding that, in accordance with the rules usually applied to diplomatic immunity, it related only to the seat of the Organization. More generally, it affirmed that the extent of the immunity from legal process enjoyed by F.A.O. must be determined on the basis of the principles of international law developed in respect of the immunities enjoyed by foreign States.Footnote 16 It held a lease for offices to be a legal transaction iure gestionis on the ground that the “logistic” choice of accommodation is extraneous to the aims of the Organization and does not pertain to arrangements relating to the structure of the Organization. Both the F.A.O. CouncilFootnote 17 and the F.A.O. Conference have reacted by calling for the respect of the Organization’s immunity “from all forms of legal process”.Footnote 18 However, the representative of Italy to the 1983 Session of the Conference made it clear that the Court of Cassation would uphold its doctrine in any interpretation of internal law or treaty.Footnote 19 All parties seem resigned to concentrating on measures for immunity from execution. One may accordingly wonder whether other countries, including recent converts to limited immunity, will also move in that direction.
The question is all the more pertinent as the implementation of treaty obligations regarding the immunities of the staff of international organizations has tended to be influenced by the law applicable, between States, to diplomatic representatives. This is true, in particular as regards the grant of immunities to nationals. A number of countries have made express provision in or reservations to treaties on privileges and immunities of international organizations on this subject. In the case of the Convention on the Privileges and Immunities of the Specialized Agencies, ratifications subject to such reservations have not been registered and the countries concerned are not considered to be parties to the Convention. What is more significant, however, is that some countries treat their nationals differently from other staff members, in the absence of such provision or reservations, on the apparent assumption that this is legally permissible.Footnote 20 For instance, Section 21 of the Convention on the Privileges and Immunities of the Specialized Agencies provides that, in addition to the functional immunities to be extended to all officials, “the executive head of each specialized agency, including any official acting on his behalf during his absence from duty, shall be accorded in respect of himself, his spouse and minor children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law”. Section 15 of the United Kingdom Specialized Agencies of the United Nations (Immunities and Privileges) Order 1974, which gives effect to the Section in question, provides that it “shall not apply to any person who is a citizen of the United Kingdom and Colonies or a permanent resident of the United Kingdom”.Footnote 21 The executive head would thus be limited to functional immunities, on the lines of the treatment of nationals under the Vienna Convention on Diplomatic Relations. It is permissible to wonder whether this was the intention of the phrase “in accordance with international law” in the Specialized Agencies Convention and, more fundamentally, whether it is appropriate that the status of the executive head of an organization, the exclusively international character of whose functions is recognized by Member States in pursuance of the constitution of the organization, and who frequently represents it in international relations, should be made dependent on his nationality. The statement accompanying the Italian ratification of the Convention, to the effect that Section 21 would be applied to officials of Italian nationality “with the same restrictions as are applicable, in accordance with international law, to diplomatic envoys of Italian nationality” was regarded by the organizations concerned as a reservation which, together with the one mentioned above,Footnote 22 has to date prevented registration of the ratification.
In 1980, the Administrative Committee on Co-ordination (consisting of the executive heads of all the organizations of the United Nations family) submitted a statement to the Economic and Social CouncilFootnote 23 in which it expressed its concern that certain States were denying the privileges of Section 21 of the Specialized Agencies Convention to their nationals by reference to Article 38 of the Vienna Convention:
A.C.C. takes the view that the reference to international law in the relevant provisions of the Conventions on the Privileges and Immunities of the United Nations and the Specialized Agencies is meant to define the nature and extent of the additional privileges and immunities to be enjoyed, and not the persons to whom they apply. There is a fundamental difference between the status of diplomatic agents, as representatives of a State, … and the status of international officials, as servants of the international community as a whole … who must all be treated alike … irrespective of their nationality. Indeed, when it framed Section 19 of the United Nations Convention (after which Section 21 of the Specialized Agencies Convention is patterned), the General Assembly rejected a proposal that States should have the right to limit the immunity of their nationals.
While the number of cases involved is small, … A.C.C. feels that it involves an issue of principle, inasmuch as this practice introduces an element of discrimination on grounds of nationality, which is contrary to … the very concept of an independent international civil service …
(b) Diplomatic Relations
International organizations frequently establish offices the purpose of which is to pursue relations with particular countries or other organizations. It has gradually become apparent that such offices have similarities with diplomatic missions in inter-State relations; for instance, the resident representatives of the United Nations Development Programme have been seen as an embryo of a diplomatic service of the United Nations family, while certain missions of the European Communities have been described as “Embassies”.Footnote 24 The functions of such offices and representatives, while not identical to those of diplomatic missions, show analogies. There may have been some doubt as to whether the establishment of the office of an organization in a Member State requires the consent of that State, as the establishment of diplomatic relations would;Footnote 25 on the other hand, the assignment of particular officials to top relations posts is effectively subject to a form of “agrément”, while any member of the “mission” of an international organization may be declared persona non grata.
Overwhelmingly, the States with which relations are established will be Members of the organization concerned (or, as in the case of U.N.D.P., of one or more of a group of organizations co-operating within a programme). Exceptionally, the issue may arise for a non-Member State. Thus, in 1982, the Direction du droit international public of the Swiss Federal Department of Foreign Affairs was called upon to give an opinion on the question whether a regional organization had a right of legation in relation to a non-Member State.Footnote 26 It took the view that this was dependent on the express or implied powers of the organization in question. It found that, while there was nothing express in the constitution of the organization concerned, its aims and purposes required some activity on the territory of non-Member States and from this concluded that the organization’s active right of legation could not be denied. The establishment of relations with a particular country then required the latter’s agreement. Given the exceptional nature of the issue, which meant that there could not be said to be customary international law on the subject, the opinion advised that a grant of rights in Switzerland called for parliamentary approval because they represented “new obligations”.Footnote 27
More attention has been paid to the accreditation of missions by States to international organizations. Again — as is expressly stated in Article 5 of the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character — the possibility of establishing such missions is in theory made dependent on the rules of the organization concerned. Since this is a matter generally not dealt with in express rules, the law has in fact developed as a result of practice. It was perhaps to be expected that the establishment of a permanent mission by a Member State would not be subject to the consent of the organization; as indicated in the preamble to General Assembly Resolution 257(III)A, “the presence of … permanent missions serves … to keep the necessary liaison between the Member States and the Secretariat in periods between sessions of the different organs of the United Nations”.Footnote 28 The same was not necessarily true in relation to non-Member States. In connection with the preparation of the Vienna Convention, a number of countries, including the United Kingdom, expressed the view that the establishment of permanent observer missions by non-Member States should be subject to the consent of the organization.Footnote 29 However, practice has been more lax and notifications of the establishment of such missions have frequently been simply accepted.Footnote 30 This is reflected in the final text of Article 5 of the Vienna Convention which permits the establishment of permanent missions by Members and of permanent observer missions by non-Members on the same legal footing, without any apparent need for consent.
The question then arises whether the appointment of a particular person as permanent representative or observer is subject to the agrément of the organization and whether, conversely, the organization is in a position to declare a representative or observer persona non grata. When the matter of permanent missions was considered at the third session of the General Assembly there was a controversial suggestion that their “credentials” be considered by the Credentials Committee of the Assembly; however, the resolution finally adopted provides only for an annual report of the Secretary-General on the credentials of permanent representatives. Practice does not suggest that this is used to give formal approval to appointments and no such approval is envisaged by the Vienna Convention, which provides that the credentials of the head of mission “shall be transmitted to the organization”. As regards the converse problem, a legal opinion given to the Secretary-General of the United NationsFootnote 31 took the view that there would be warrant for intervention by the United Nations in case of activities by members of a mission which did not pertain to the proper functions of the mission. In such a case, it would be for the Secretary-General to make representations to the State concerned; if these did not achieve satisfactory results, the matter might be brought before the General Assembly. There is nothing on the subject in the Vienna Convention. While there have been some cases of involuntary departure of members of permanent missions, this has usually occurred at the initiative of and for reasons primarily of concern to the host State. It is accordingly difficult to affirm that organizations may, for reasons of their own, declare a member of a permanent mission persona non grata.
What, of course, most differentiates relations between States and organizations from inter-State relations is the necessary involvement of a third party, the State in which the organization has its headquarters. This involvement raises two questions, that of the extent of the privileges and immunities which the host State is bound to grant, and that of the manner of protecting the legitimate interests of the host State. It may well be that under general international law regarding State immunity a certain status for representatives of a State is assured even in the absence of a treaty. Similarly, it may be that general rules derived from the independence and sovereignty of States require respect for the interests of the host State. However, the application of general principles to new phenomena requires some definition. Many of the instruments concerning the privileges and immunities of organizations contain provisions on State representatives which were drafted mainly with temporary presence in the host State in mind. As regards universal organizations, the Vienna Convention on the Representation of States has sought to cover the ground comprehensively. It would appear, however, that the major host States consider privileges and immunities granted under the Convention to be defined too extensively,Footnote 32 and their powers to react to non-compliance with the obligations of missions to be circumscribed too severely;Footnote 33 not one of them has to date ratified the Convention. This suggests that there is as yet no international consensus on the details of the law governing the status of the representation of States in relation to international organizations.
(c) TreatiesFootnote 34
There are a number of theories regarding the basis of a treaty-making capacity of international organizations. The draft provision on the subject elaborated by the International Law Commission — “The capacity of an international organization to conclude treaties is governed by the relevant rules of that organization” — is stated in the Commentary to be a compromise, compatible both with the view that capacity derives from a principle of international law which can be modified only by express restrictive provisions of constituent instruments, and with the view that capacity is exclusively dependent on the rules of the organization concerned.Footnote 35 As has been pointed outFootnote 36 the main practical difference between these two approaches may be that, in the latter case and particularly where there are no express provisions,Footnote 37 there always remains room for argument whether the power exists. It would not seem that this is a major problem in relation to the other party with which a treaty may be concluded. Except for some discussion regarding the participation of the European Communities in certain multilateral Conventions,Footnote 38 challenge to the capacity of an international organization to enter into treaty relations with a State or another organization is a rarity.Footnote 39 At the same time a commitment of the organization is a constraint on the decision-making power of its organs and hence, indirectly, of its Members; there may also be liability for breach of the commitment. While, again, this has not so far given rise to particular difficulty, the fact that there are rarely express rules either on treaty-making capacity or on the organ exercising treaty-making powers leaves considerable room for internal controversy on the constitutionality of particular treaties.
Of perhaps more immediate practical relevance is the question which agreements concluded by international organizations with States or other organizations are in fact governed by international law. The problem is known also in inter-State relations: for instance, a number of States consider that so-called interdepartmental agreements are matters of private law. However, as regards international organizations there are at present no criteria for classifying agreements and there is apparently little practice of including express provisions clarifying the issue. In its comments on the definition of a treaty as “an international agreement governed by international law”, the International Law Commission recognizes the existence of the problem: while stating that the draft articles do not purport to provide criteria for determining whether an agreement between international organizations or between a State and an international organization is or is not governed by international law, since this depends essentially on the will of the parties, it does suggest that, where an agreement is concluded by an organization with recognized capacity to enter into agreements under international law and where that agreement is not by virtue of its purpose and terms of implementation made subject either to the national law of any State or to the rules of an organization, it may be assumed that the parties to the agreement intended it to be governed by general international law.Footnote 40
Once we are dealing with “treaties”, to what extent do the general rules of the law of treaties, as codified in the Vienna Convention of 1969 on the subject, apply? Again, there are two main approaches. One, which stresses the difference between States as primary and organizations as derivative subjects of international law, would wish the applicability of each rule to international organizations to be demonstrated. The other, exemplified by the United Kingdom,Footnote 41 establishes a presumption that once two entities having international capacity are validly in treaty relations with one another their rights as contracting partners are equal “and this presumption must stand unless there are clear reasons, in a particular set of circumstances, for drawing distinctions based upon the character and status of the parties”.
Four main issues remain highly controversial.Footnote 42 One is the question whether the internal law of organizations, and particularly their constitutional law, can be equated with the internal law of States. A State may invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties to invalidate its consent only if the violation was manifest and concerned a rule of internal law of fundamental importance. It may not invoke the provisions of its internal law as justification for its failure to perform a treaty at all. The International Law Commission finally opted for the application of parallel rules to organizations. However, a number of States and organizations continue to argue that, insofar as the internal law of an organization is itself a treaty, the position of an organization is entirely different. As regards the United Nations the issue is sharpened by Article 103 of the Charter which makes obligations thereunder prevail over other treaties.Footnote 43 It has also been suggested that there may be differences according to whether agreements are with Members or with non-Member States. An ancillary question to which the problem is of relevance is whether an organization may be considered, by reason of its conduct, to have acquiesced in the validity of a treaty, when the conduct was itself unconstitutional. Experience, as yet, provides no guidance.Footnote 44
A second issue concerns the power of organizations to make reservations to treaties and to object to or accept reservations made by others. One suspects that an inclination to treat organizations differently from States in this respect derives from the view that reservations have their basis in the sovereignty of States, although early proposals of the International Law Commission, which provided for different treatment, were more subtly justified. However that may be, the final draft articles would treat organizations differently only in respect of the tacit acceptance of reservations. A number of comments made on the final draft suggest that even this distinction is not necessary. Such little practice as there has been — relating mainly to the treatment by the specialized agencies, as rather particular partiesFootnote 45 to the Convention on the Privileges and Immunities of the Specialized Agencies, of reservations to that Convention — has involved both objections to substantive reservations and acceptance of procedural ones, without major challenge.
A third problem is that of the manner of creating rights and obligations for Member States through the conclusion of treaties by the organization. Draft article 36 bis, requiring the individual consent of Member States, appears to have been drafted primarily with the European Communities in mind. Its unsuitability in relation to universal organizations is suggested in a paper presented to the Sixth Committee of the General Assembly by the Administrative Committee on Co-ordination:
Thus, [the] draft article cannot be applied, inter alia, to headquarters and conference agreements that create both rights and obligations for States which are not parties to them and whose individual consent is neither sought nor given. Moreover, were it to be provided that, in the absence of constitutional provisions to that effect, States members of an international organization can be bound by a treaty concluded by that organization only by their unanimous consent, it should be borne in mind that neither the United Nations Charter nor the constitutions of the specialized and related agencies provide for a unanimity rule.Footnote 46
Some other, perhaps more fundamental, issues are involved in the controversy: for instance, to what extent do treaties of an organization create international rights and obligations directly between the other contracting parties and the Member States of the organization; and what relevance attaches to the manner in which and extent to which the Member States of an organization are liable for its obligations?Footnote 47
A final question is that of the scope of the commitment of international organizations. States bind themselves in respect of their entire territory unless a different intention appears from the treaty or is otherwise established. As regards organizations, the coverage of subsidiary and related bodies is at issue. It will be discussed in the next section.
By reference to the diversity of the present treaty practice of organizations and to the fact that law in the matter is comparatively recent and fragmentary and continues to evolve, as well as to the procedural difficulties (to be considered below) of making new rules applicable, the Administrative Committee on Co-ordination in the above-mentioned paper took the highly unusual step of suggesting to the General Assembly of the United Nations that it should not proceed in the immediate with the adoption of a formal convention on the subject; this would allow “the acquisition of relevant experience as well as the further development and gradual crystallization of this area of the law, which as yet does not appear ready for codification”.Footnote 48 The General Assembly, while deciding in principle on a plenipotentiary conference “to be convened not earlier than 1985”, continues to have the matter under advisement.Footnote *
2. Specific Problems posed by International Organizations
As indicated at the outset of this Chapter, rules of general international law are needed for specific problems of international organizations which cannot be answered by the internal law of organization alone. One of these is basic: what is an international organization? Another relates to the legal aspects of relations between organizations.
(a) The Definition of Public International Organizations
Two inter-related issues arise in international law: which corporate bodies operating in the international sphere may be regarded as public international organizations; and which such bodies have international legal personality, i.e. the capacity to exercise rights and assume obligations under international law. Internal law is unhelpful in the sense that, while many constitutions of such bodies provide for their legal personality, those that make it clear that international personality is intended can be counted on the fingers of one hand. Practice is confused and the fact that the matter is examined and conclusions are arrived at for widely different purposes makes generalizations difficult.
It is generally considered that in order to be regarded as an international organization and to have some personality in international law a body must be established by a treaty between States and States must be Members.Footnote 49 Practice may be making a number of inroads into that position.
Thus, the participation of existing international organizations in agreements establishing new international bodies is beginning to be accepted. In its Opinion 1/76 concerning the Draft Agreement Establishing a European Fund for the Laying-up of Inland Waterway VesselsFootnote 50 the Court of Justice of the European Communities affirmed that the European Economic Community had the capacity, in an area in which it assumed authority over external relations for the realization of one of the objectives of the Community, to co-operate with a third State in setting up a public international body and to give such body appropriate decision-making powers.Footnote 51 Another example, of interest because of the affirmation that the body created does indeed have capacity in the sphere of international law, is that of the establishment of the U.N. Demographic Centre in Bucharest. The 1974 Agreement between the United Nations and Romania establishing the Centre specifies in Article I, Section 5, that the Centre has “legal personality distinct from that of the parties and shall not be considered as a body of the United Nations or of the Government”.Footnote 52 The legal personality referred to could have been intended to be limited to the sphere of private law, particularly as a final sentence of the section provides that the Government shall publish statutory orders concerning the legal status of the Centre. The Director of the Centre accordingly sought guidance. In an opinion of March 1975 the United Nations Office of Legal Affairs took the view that
considering that both Parties to the Agreement are themselves international entities, and since there is no indication to the contrary, the normal interpretation of Section 5 is that the Parties intended to confer international legal personality on the Centre … the exact attributes of the Centre’s international legal personality would be defined by, or derive from, the terms and purposes of the Agreement, and it is this personality which, in turn, the Romanian Government would recognize and the acts of which it would regulate for the purposes of Romanian internal law in the regulations referred to in the last sentence of Section 5.Footnote 53
Also, there are suggestions that international agreement to establish international persons need not take the form of a treaty, or indeed be concluded at the governmental level. There are examples of international organizations being established by conferences, without formal treaty.Footnote 54 The World Tourism Organization came into being as a result of government acceptances of a statute elaborated in 1970 by its non-governmental predecessor, the International Union of Official Travel Organizations.Footnote 55 The Nordic Council, established by parallel parliamentary decisions and composed of parliamentarians, is regarded by many — though not by all — as an international organization.Footnote 56 Most provocative is a 1971 United Nations legal opinion on the establishment of a clearing union by the central banks of a number of Asian countries: after referring to Latin American and African precedents and remarking on the inappropriateness of making an agreement regarding such a union subject to the law of a particular country, the opinion suggests that
[t]he principle that an international legal person can be created by virtue of a treaty is, after all, nothing more than a rule of customary international law, and it may well be that a new customary rule of international law is emerging under which such a legal person could also be created by an agreement concluded solely by autonomous public entities, such an agreement being governed by international law pursuant to another new customary rule …Footnote 57
Whatever may be the merits of that suggestion the question of the status of bodies set up by and composed of public entities is posed in other contexts as well; it has arisen, for instance, as regards INTERPOL and as regards certain organizations composed in whole or in part of social security institutions.Footnote 58 The question is related to the effect, in international law, of so-called inter-departmental agreements. There is now perhaps a certain flexibility of approach to such forms of public international co-operation.Footnote 59
A second element generally referred to in order to determine whether a body is an international organization and has international personality is that of possessing organs and powers which are its own, as distinct from those of Member States. The problem here, in practice, is to decide where the border between legal dependence and independence lies.
The matter has been of particular importance in recent years in Switzerland because of the adoption of constitutional provisions making accession to or participation in the work of an international organization subject to referendum. Thus it was concluded in 1979 that accession to the International Whaling Convention of 1946 was not subject to referendum because the International Whaling Commission was a body common to the States Parties to the Convention, which expressed their collective will, and not a separate legal entity.Footnote 60 The fineness of the distinctions involved and the circular nature of relevant arguments are, however, best illustrated by an opinion on the legal personality of G.A.T.T.Footnote 61 It notes the institutional development of G.A.T.T. which, at the outset no more than a treaty, acquired organs after the projected International Trade Organization failed to come into being. It notes further that some authors consider that, by virtue of this development, G.A.T.T. has become a true international organization. Nevertheless, it concludes that G.A.T.T., although in fact an international organization because it has organs and a Secretariat, is not an organization in law because it has no personality distinct from the Member States and no independent legal will.
If a “primary” international organization is not necessarily recognizable at sight, more difficult questions are raised by the status of certain “subsidiary” bodies established by majority decision of the organs of existing international organizations. A very substantial number of subsidiary organs has been created by various international organizations and indeed by existing subsidiary bodies.Footnote 62 Their nature, size and permanence varies greatly. The ones of more direct interest in the present context are those given “autonomy” or certain forms of legal capacity which leave ambiguous the legal sphere in which the capacity is to be exercised.
Some subsidiary bodies, for instance of the United Nations,Footnote 63 conclude agreements with governments and with other international organizations. This poses the question of the parties to the agreement, in other words, whether the subsidiary alone or the parent organization is bound by and responsible for the due performance of the agreement. The question has theoretical significance because of the light a treaty-making power may shed on the international personality of the body concerned.Footnote 64 It has practical implications, particularly when it is recalled that a frequent purpose of the establishment of subsidiary bodies is to separate their finances, largely based on voluntary contributions, from those of the parent organization. The Special Rapporteur of the International Law Commission, on the subject of treaties between States and International Organizations, P. Reuter, found ten years agoFootnote 65 that there was uncertainty both as to the legal status of subsidiary bodies and regarding the identification of the party to an agreement concluded by a subsidiary body; he was not certain whether it was useful or expedient to seek definition with a view to the greater security for other parties. In 1982, when finalizing articles on that subject, the Commission found itself in the same dilemma:
It would be useful to make it clear that, unless there is a properly established indication to the contrary, when an international organization binds itself by treaty, it also binds [all the entities, subsidiary organs, connected organs and related bodies which come within the orbit of that international organization and are incorporated in it to a greater or lesser extent]. Conversely, a treaty concluded on behalf of a subsidiary organ should bind the entire organization as well. However … [t]his is an area in which notions, vocabulary and the practice of international organizations are not settled, and it seemed wisest to leave aside a subject which [it] is too early to codify.Footnote 66
The question of the legal nature of subsidiary bodies also arises in connection with their ability to rely on arrangements for the privileges and immunities of the parent organization. There have been instances of the affirmation, in this connection, of the legal independence of certain bodies. For instance, in a legal analysis of U.N.R.W.A. a former legal adviser of that body cites two decisions of Egyptian courts affirming that it had juridical personality. In the first (Husseini v. U.N.R.W.A. Representative, 1957) a Court in Gaza reasoned that, as the Agency and not the United Nations had entered into international agreements with the Egyptian Government relating to the Gaza strip, U.N.R.W.A. “had a juridical personality independent from that of the United Nations” and held that the Convention on the Privileges and Immunities of the United Nations therefore did not extend to it. In the second (Jirjis v. U.N.R.W.A. Representative, 1961), a Cairo court accepted that the Agency enjoyed the benefit of the Convention — as had, in the meantime, been expressly affirmed by the General Assembly in Resolution 1456(XIV) of 1959 — but reaffirmed that it possessed a separate juridical personality and was competent to enter into agreements on the international plane.Footnote 67 Another example concerns a subsidiary body of the International Labour Organization, the Centre for Advanced Technical and Vocational Training. A provision of the Statute of the Centre confers on it legal personality and such legal capacity as is necessary for the fulfilment of its purposes.Footnote 68 The intention was apparently essentially to enable the Centre to deal with private law matters in a manner which would limit the liability for obligations undertaken by it to its own funds and assets; its capacity to do so at its offices in Turin was ensured under an agreement between the I.L.O. and Italy. Nevertheless, when the Centre in 1972 wished to open an office in London the Protocol Department of the Foreign and Commonwealth Office took — and maintained — the view that the provision gave the Centre an international legal personality distinct from that of the International Labour Organization and that, accordingly, it could not rely on the Convention on the Privileges and Immunities of the Specialized Agencies.Footnote 69
Perhaps examples such as the foregoing are primarily the expression of a sentiment that, in establishing subsidiary bodies, international organizations may be having their cake and eating it too. On the one hand, such bodies may have extensive autonomy and relieve the parent organization of responsibility for their actions; on the other, for such purposes as privileges and immunities,Footnote 70 or coverage by the Second Protocol to the Universal Copyright Convention,Footnote 71 they seek to have the benefit of belonging to the parent organization. At the same time, the apparent readiness to consider that bodies established by an organ of an international organizationFootnote 72 and frequently having no “membership” can be independent persons in international law, opens new vistas. It may well be that the considerable problems which have been created in national law by the growth of groups of companies are being paralleled, in the sphere of international law, by the hiving off of certain functions of international organizations to subsidiaries.
(b) Inter-Organization Relations
Inter-State relations are based on the principle of respect for the independence and sovereignty of each State. Some comparable principle may be needed in inter-organization relations. What is at issue here is not the co-ordination of their activities which may overlap but the protection of their legal structures and institutions. A few examples may serve to illustrate the nature of the problem.
A number of organizations are empowered to set standards in their field of specialization. The manner in which they do so, and the obligations of Member States in relation to standards so set, are in many of these cases laid down in the constitution of the organization concerned. Where the standards take the form of international conventions, ratification then may create obligations, not only as between ratifying States, but also in relation to the organization.Footnote 73 Certain legal consequences flow from this position. For instance, the I.L.O., where the matter is of particular importance because employers and workers as well as governments have a role in the adoption and in the implementation of international labour conventions, submitted to the Vienna Conference on the Law of Treaties that one of the rules of the Organization, diverging from the general law of treaties, was that an inter-se agreement between States varying the terms of ratified international labour conventions was not permissible.Footnote 74 What then of standards adopted in other international organizations?
The question arose in 1978 with the adoption, under the auspices of I.M.C.O., of a Convention on Standards of Training, Certification and Watchkeeping for Seafarers. Article V of the Convention was drafted to provide that all prior treaties and conventions relating to standards of training, certification and watchkeeping for seafarers which were in force between parties to the new Convention would continue to have effect in respect of seafarers to whom the new Convention did not apply and matters for which it had not expressly provided. Concern was expressed by a tripartite I.L.O. delegation to the I.M.C.O. Conference seeing that there were I.L.O. Conventions which were applicable to seafarers to whom the new Convention applied and which dealt with matters provided for therein. This did not lead to a modification of the provision since the Conference declared itself satisfied that there was no conflict between the new and prior Conventions. The question of principle, namely whether the adoption of a convention elsewhere could in itself deprive I.L.O. standards of their effect, remained. It was considered in the I.L.O. Governing Body in November 1978. While some government members took the view that no body other than the International Labour Conference could amend international labour standards or deprive them of effect, others were uncertain of the respective authority of the Conference and of plenipotentiary conferences in a different framework.Footnote 75 Finally, the Governing Body was content to note that in this case the new Convention did not impair the effect of I.L.O. standards.Footnote 76
Similar problems are posed by the Convention on the Elimination of All Forms of Discrimination against Women, adopted by the U.N. General Assembly in December 1979. As submitted by the Commission on the Status of Women, the draft convention provided that it would not affect existing conventions adopted under the auspices of the specialized agencies (only) to the extent that they provided for more extensive rights for women. Both I.L.O. and U.N.E.S.C.O. submitted memoranda on the subject.Footnote 77 After lengthy discussion, the General Assembly adopted a provision which was believed to be a compromise but in fact continues to pose the issue. Article 23 of the Convention provides that “[n]othing in this Convention shall affect any provisions that are more conducive to the achievement of equality between men and women which may be contained … in any other international convention, treaty or agreement in force for [a State Party]”. In this case, the practical consequences of the provision are unforeseeable.
Another legal problem of inter-organization relations, of importance within the United Nations family of organizations, is that of harmonizing United Nations — and particularly General Assembly — positionsFootnote 78 on certain political issues with the constitutional law of specialized agencies.
One example relates to United Nations “invitations” that all assistance be denied to certain countries — in the 1960s Portugal, over a longer period South Africa. In 1967, there was lengthy correspondence between the United Nations and the International Bank for Reconstruction and Development, after the General Assembly requested the Secretary-General to consult with the Bank “in order to obtain compliance” with such resolutions.Footnote 79 A memorandum of the U.N. Legal Counsel analysed the Bank’s Articles of Agreement and concluded that a “reasonable” interpretation of their terms permitted compliance with the resolutions. A memorandum of the General Counsel of the Bank contested the interpretation, while pointing out that competence to decide questions of interpretation lay with the Executive Directors of the Bank. The two memoranda also reflect conflicting views of the position of specialized agencies: the U.N. Legal Counsel found it “incongruous” that loans be granted by a U.N. family organization to countries the international conduct of which had been condemned virtually unanimously through the United Nations; the General Counsel of the Bank considered this to be “no more than a reflection of the technical and functional character of the Bank” the Members of which had not deemed it appropriate to give it a larger function in the international community. Finally, the Executive Directors by a majority endorsed the position of the Bank’s General Counsel.Footnote 80
Some specialized agencies have similarly found it difficult to give effect to General Assembly resolutions calling on them to grant full membership to Namibia. For instance, when the International Labour Conference considered an application of the U.N. Council for Namibia for membership in the I.L.O., in June 1978, the Legal Adviser concluded that Namibia could not be admitted, for two main reasons: membership under the Constitution was open to States and Namibia had not yet attained statehood within the meaning given to the term in international law; and the Constitution placed obligations on Members of the Organization which could be satisfied only by independent States.Footnote 81 In reply the representatives of the Council for Namibia submitted a working paper in which the I.L.O. Constitution was interpreted to imply that in any question concerning the admission of new Members, the I.L.O. must take into consideration and follow the decisions of the United Nations.Footnote 82 An author favourable to the admission of Namibia has commented that “this position … would seem to subject the I.L.O. to decisions taken by another organization, the U.N., even to the extent of overriding the I.L.O.’s own Constitution”.Footnote 83 Namibia was finally admitted under a compromise which is a masterpiece of legal fiction: the Conference considered that compliance with the terms of the Constitution was prevented only by the illegal occupation of Namibia, and affirmed that the rights of the Namibian people could not be frustrated by illegal actions.Footnote 84
Questions of inter-organization relations of rather a different nature and of greater complexity are posed by the assumption, by the European Communities, of the external relations functions of their Members in matters falling within Community competence. Where these Members participate in other international organizations, their ability to give effect to their rights and obligations in such organizations may be affected. The literature on the subjectFootnote 85 and some relevant decisions of the Court of Justice of the CommunitiesFootnote 86 have addressed the matter primarily from the point of view of the internal law of the Communities. However, here also there may be a need for harmonizing the requirements of two legal orders.Footnote 87 Efforts with a view to such harmonization have been made, in particular by the Communities and the I.L.O.Footnote 88 The main problems concern international labour conventions and the application of the provisions of the I.L.O. Constitution relating thereto. For instance, under the Constitution, Member States of the I.L.O. are required to submit newly adopted Conventions to the authority competent to legislate or otherwise implement the instrument. It has been accepted that where a Community organ has the power to legislate on the subject-matter of a particular Convention, submission to that organ may satisfy the constitutional obligation, but a number of ancillary problems remain: should there be submission to national parliaments as well;Footnote 89 how can Member States ensure that, as expected under I.L.O. constitutional practice, submission is accompanied or rapidly followed by a statement as to the action to be taken; how can national employers’ and workers’ organizations be consulted on and advised of proposals for action? Again, because so many relevant requirements derive directly from the Constitution, ratification of international labour Conventions is open only to Member States of the I.L.O. Where, under Community law, the European Economic Community as such has the power to conclude treaties on a particular subject, there would have to be some form of delegation: either the Member States might advise the I.L.O. that they, as Members, will be bound by a ratification communicated by the Community, or the competent organ of the Community might delegate its power to ratify to the Member States. The choice is one of Community law and has not yet been made; the problem is particularly difficult in cases of “mixed competence”. An even more difficult question is whether there would be consistency with obligations in relation to the I.L.O. if individual Member States were debarred from ratifying Conventions whenever one or more other Members of the Communities were unable or unwilling to comply with their standards. Finally, there are liable to be problems concerning the answerability of individual Member States for non-compliance with a ratified Convention where such non-compliance results from Community legislation. On all these issues each organization needs to avoid seeking to give “priority” to its law. Both need to bear in mind the importance of not allowing procedural difficulties to prejudice the effect of the substantive work of either.
3. Means of Applying International Law to International Organizations
There is no reason why rules of international law which are generally recognized as applicable between States and which are not by their nature unsuitable for international organizations should not be automatically binding on the latter.Footnote 90 Such a conclusion has been justified on the ground that States bound by rules of international law should not be able to evade them collectively. Alternatively, if international organizations are seen as legal entities distinct from their Members; the applicability of the relevant rules can be explained as a necessary implication of legal capacity and activity in the international legal order.Footnote 91 However that may be, it does not appear to have been suggested by any organization that it is free to accept or not to accept legal rules meeting the double test.
A rather different question is that of the relationship between international law and the internal law of organizations. It bears some similarity to the question of the relationship between international law and municipal law, and has been examined by reference to analogous concepts in relation to the European Communities, the internal law of which bears much greater resemblance to the legal order of a State than that of any other international organization.Footnote 92 However, as in the case of certain aspects of the law of treaties discussed earlier, the fact that a key element of the internal law of most organizations is itself an international treaty may call for a different hierarchy of legal norms, and possibly a distinction between the priority given to ius cogens and to other rules of international law. Even as regards the Communities such questions have not yet been fully explored in practice.Footnote 93
At the same time if, as has been suggested above, it is not certain to what extent, and with what possible modifications, rules of international law generally recognized as applicable between States may be suitable for international organizations, the most important issue is how a statement of appropriate rules, whether intended to be declaratory of existing law or to represent its progressive development, or both, may be given effect in relation to international organizations.
International organizations appear to be reluctant to admit that they can be bound by a treaty to the terms of which they have not, in one form or another, given their consent. The Court of Justice of the European Communities has been prepared to accept as “guidelines” or “general principles of law” international treaties in which the Member States, but not the Communities, have participated;Footnote 94 this is, of course, much easier in an organization with ten Members than in one with 150 or more. The Secretary-General of the United Nations, in performing depositary functions, has had to face the fact that, as regards the treatment of reservations, the terms of the Vienna Convention on the Law of Treaties do not correspond fully to decisions on the subject taken by the General Assembly in 1952 and 1957: in 1975 and again in 1976 he made it clear that he did not believe himself to have the authority to adjust his practice to the Vienna Convention in the absence of new instructions from the General Assembly.Footnote 95 Similarly, while the I.L.O. has felt at least morally bound in its staff practices to take account of international labour standards adopted by the Organization and widely ratified by Member States, other organizations have often taken the view that these standards are not binding on organizations. Thus a U.N. legal opinion of 1973, concerning the legal status of a trade union seeking to represent U.N. staff in Geneva, stated that the Freedom of Association and Protection of the Right to Organize Convention, 1948 (ratified by nearly two-thirds of the membership of the Organization)
is of course only applicable to those States that ratified it and not to any inter-governmental organizations they may belong to. If States feel obliged to bring the provisions or the principles of such treaties to bear on an international organization, they can do so by means of appropriate resolutions in the organization.Footnote 96
In its statement on the draft articles on treaties between States and international organizations, submitted to the General Assembly in October 1983, the Administrative Committee on Co-ordination affirmed that it was essential “that no international organization be bound without its explicit consent by a convention incorporating the draft articles”.Footnote 97
Conversely, a number of States are reluctant to accept the participation of international organizations as parties on an equal footing with States in “law-making” multilateral conventions. Their argument of principle is that only States, as the original subjects of international law, are in a position in every respect to establish international law; organizations possess such capacity only in their respective fields of activity and within limits established by their rules.Footnote 98 Such participation would in any case raise some practical difficulties. One relates to the great number of international organizations: if the subject matter is of general concern would all be able to participate or only some;Footnote 99 and, if the latter, what would be the value, if any, of the convention in relation to those not participating? Another is that in this context the likelihood of controversy over the treaty-making capacity of particular organizations is greater than in that of bilateral or even multilateral arrangements in pursuance of their normal activities. Also, to what extent and in what manner would acceptance of the convention by international organizations be taken into account for the purpose of its entry into force? Finally, the diversity of practice of international organizations is liable to raise in acute form the problem of reservations to “codifying” treaties.
What then are the possible alternatives?
One possible approach is that of some Conventions on Privileges and Immunities. The United Nations Convention was “adopted”, and that applicable to the specialized agencies “accepted” by the representative organs of the organization, prior to being opened to ratification or accession by States.Footnote 100 They speak expressly of being “in force” as between the organizations and ratifying or acceding States, and there is no doubt that the organizations consider themselves to be bound by their terms, without being parties thereto in the same sense as States. However, again, the great number of international organizations makes it more difficult to envisage this procedure in respect of a subject which is of interest to all of them, and the problem of “reservations” remains.Footnote 101
Another possibility is a “third party” approach: the convention would be open to ratification and accession by States only but, on the assumption that it would create both rights and obligations for international organizations, these would be invited to consent thereto. This is essentially the approach of the Convention on the Representation of States in their relations with International Organizations of a Universal Character: while Articles 86-9 make signature, ratification and accession a matter for States, Article 90 provides that “[a]fter the entry into force of the present Convention, the competent organ of an international organization of a universal character may adopt a decision to implement the relevant provisions of the Convention”; furthermore, under Article 2, the Convention only applies to representation in relation to a particular organization “when it has been accepted by the host State and the organization has completed the procedure envisaged by Article 90”. The Convention may be a bad precedent in that it has not so far attracted the ratifications of host States and it may be both difficult and pointless for an organization to set in motion the Article 90 procedure unless there is some assurance of concurrent action by the host State. In any case it again applies only to a limited number of organizations and its approach cannot as readily be transposed to a convention concerning all organizations.Footnote 102
In view of considerations such as the foregoing, the Administrative Committee on Co-ordination, in its submissions to the General Assembly in 1982 and 1983 on the subject of treaties between States and international organizations, explored a “soft law” alternative, namely the adoption of the draft articles by, and with the authority of, the United Nations not as a convention but as
a standard of reference for action destined to harden into customary law. As regards the organizations of the United Nations system — that is, the major universal organizations — such adoption could be accompanied by a formal recommendation, which would be required, under the various relationship agreements, to be submitted to the competent organs of each organization … As regards other organizations, it would be the responsibility of States Members both of the United Nations and of those organizations to take the necessary steps so that due account is taken of the standard of reference …Footnote 103
An analogous suggestion had already been submitted in comments on the first draft of the articles; however, the International Law Commission preferred to recommend that the draft articles be given the form of a general convention.Footnote 104 This was also the decision of the General Assembly, in 1982, in Resolution 37/112. As of now, that decision stands but all its practical implications remain to be decided.
B. Private International Law
Most international organizations differ from States in that their own legal order does not include rules regarding private law transactions.Footnote 105 A problem of choice of law accordingly arises for all such transactions of the organization. Moreover, the organization may be called upon to deal with legal situations in respect of which there exists a conflict of laws, without being able to draw upon rules reflecting a public policy of its own.
1. Transactions of the Organization
The determination of the proper law to govern various transactions of international organizations is a large subject on which there exists substantial literature.Footnote 106 Recently, a comprehensive review of doctrine and practice regarding the contracts concluded by international organizations with private persons — by far the largest segment of their private law transactions — was undertaken by the Institute of International Law.Footnote 107 It is accordingly not proposed here to go over the same ground. Suffice it to say that the Institute survey found that there were no clear trends in practice and that, doctrinally, any answer to the question of the law applicable to the contracts of international organizations could not be divorced from wider controversies concerning such issues as the possible “internationalization” of certain private law transactions, the conclusion of contracts sans loi, and the choice of law by international (arbitral) tribunals.
There are, nevertheless, a number of issues of particular relevance to international organizations.
The first relates to the connection, if any, between immunity from jurisdiction and applicable law.Footnote 108 In principle,Footnote 109 international organizations enjoy immunity everywhere. Moreover, as indicated earlier, for many of themFootnote 110 that immunity has been wider than that of States may be because no distinction has been made between acts iure imperii and acts iure gestionis. This means that States are not in a position to enforce their law against an international organization. But does it also mean that no municipal law can apply to international organizations unless it has been expressly chosen or incorporated by them? The arguments for immunity from jurisdiction — in particular the need to protect organizations from abusive, restrictive and divergent decisions of courts of different countries — do not justify the inapplicability of municipal law. Texts on immunities do not specify such inapplicability. On the other hand, some organizations firmly believe in the inapplicability of municipal law, at least in relation to contracts.Footnote 111 For instance, “in no case does the United Nations consider the law of any national system to be binding upon it either in the execution of contracts or in dispute settlements arising therefrom”, while apparently accepting “from a practical point of view” to give attention to ensuring that contracts are in general compliance with the law of the place of conclusion, the law of the place of performance, and the national law of the private parties with which the contract is concluded.Footnote 112 The Rapporteur of the Institute took a more pragmatic stand: “On ne saurait … exclure a priori qu’un droit étatique puisse être considéré comme régissant un contrat silencieux sur la loi applicable …”Footnote 113 In other words, it is conceivable that an arbitral or administrative tribunal seized of a contract to which an international organization is a party and which does not specify the law to be applied might find a municipal system of law to be the proper law of the contract. When it would do so in practice may be related to the nature of the contract. To take two extreme examples, the application of municipal law is more likely to a contract for the purchase of pencils for the headquarters of the organization from a company in the same country than to an arrangement under which an organization subcontracts a part of the performance of its obligations under a technical co-operation agreement with a government. However, not all contracts can be as readily classified.
The question of the possible applicability of national legal systems may be of importance also in relation to imperative provisions claiming to override the proper law, whether expressly chosen or not. It is often assumed that international organizations are entirely free to choose the law applicable to their private law transactions. F. SeyerstedFootnote 114 specifically asserted that all statutory restrictions on such freedom were barred by the immunity of the organizations. On the other hand, C.W. JenksFootnote 115 considered that such restrictions were applicable, in principle, but believed them to be of little practical importance because organizations were expressly exempted from some (e.g. fiscal legislation) and because others had little relevance to the organizations’ transactions. In the twenty years since he wrote legislative provisions regarded as imperative have mushroomed, and the practical importance of the matter may no longer be so negligible. For instance, restrictions on technology transfer may have relevance to purchases of an organization for technical co-operation.Footnote 116 Assuming that their applicability is not precluded as a matter of principle, there would be a choice of law problem: the imperative provisions of which legal system could claim to be applied. Traditionally, the mandatory law of the forum alone was applied to the detriment of the law applicable under normal conflict rules; where jurisdiction is given to international administrative or arbitral tribunals, there is no forum in the sense of that practice.Footnote 117 However, it is beginning to be accepted that the imperative provisions of the law which would be applicable in the absence of express choice may fall to be applied despite such choice, and that even those of a third State with an overriding interest may be given effect or at least taken into account (with a similar practical result).Footnote 118 It could even be argued that, while one national legal system owes little consideration to the public policy of another as reflected in imperative provisions, international organizations might be expected to respect the relevant concerns of their Member States. The subject merits further reflection.
Widely, it is the assumption of organizations that the application and interpretation of their contractual obligations will be decided by reference to “general principles of law”, irrespective of whether this has been expressly specified or not. Such confidence may not be altogether justified.
First, one reason for not making express provision in contracts for the applicability of general principles of law is that the other party may hesitate to agree.Footnote 119 Insofar as arbitral tribunals, in particular, will seek to determine the common intention of the parties, the road to the application of such principles — unless the parties subsequently agree on reference to them specifically for the point in dispute — may not be direct. Moreover, the situation regarding, on the one hand, contracts between States and private parties and, on the other, contracts between organizations and private parties, is very different. It is not uncommon to find recourse to general principles of law in or in respect of international contracts between States and private parties, and particularly investment contracts. They are intended to serve as a protection for the private party against the use by the State of its own legal order to the private party’s detriment.Footnote 120 In contracts between international organizations and private parties the shoe is, as it were, on the other foot: it is the organizations which desire the recourse to general principles of law, not so much for the protection of their interests as to emphasize their distance from national legal systems. While, therefore, the status of the organizations may be an argument for the non-application of a national system of law, considerations of justice and equity will not weigh heavily in favour of such a course.
Second, there are many different ideas as to what is meant by recourse to “general principles of law”. In contracts between States and private parties such recourse is often supplementary to the application of the national legal system(s) of one or both of the parties and consists in turning towards a wider and more representative range of such systems both to fill gaps and, occasionally, as a corrective. Since, in the case of international organizations, one of the aims is to underline their status as international persons it may well be that the sense given by them to the phrase is that of Article 38(l)(c) of the Statute of the International Court of Justice. Contracts would then in principle be made subject to public international law — always assuming that this is possible in relations with private partiesFootnote 121 — and international law, since it is poor in established relevant rules, would be supplemented by general principles drawn from municipal law.Footnote 122 More dubiously, particularly where the contracts in question do not relate to anything which could be regarded as falling under a lex mercatoria, the general principles of law drawn from municipal systems might be regarded as a distinct legal order. In any of these eventualities it is far from clear what “distillation” of municipal law may be regarded as a general principle of law. At the same time, the greater the extent to which general principles are relied upon the more relevant that question becomes. The Swiss Government has recently taken the view that a rule, even though uniformly laid down by different countries, must, in order to become a general principle of the law of nations, be applied “de manière particulièrement marquée au cours d’une longue période et avoir un caractère éminemment représentatif”.Footnote 123 The principle would certainly have to be reasonably widely accepted; recent arbitrations have shown that on some important issues there is no convergence of major legal systems.Footnote 124 The main example of regular judicial recourse to general principles drawn from municipal law in the framework of an international organization — that of the Court of Justice of the European CommunitiesFootnote 125 — is too atypical to serve as a guide; the Communities have a limited number of Members, with much common culture, and a legal order which is more akin to that of a State than that of any other international organization. Even there the extent to which principles known only to some Members can be used is an issue. Elsewhere experience is very limited.
All this is not to say that general principles of law should not be used as a source; great international lawyers have spoken of their role in legal progress.Footnote 126 However, some heed should be paid to warnings from other authoritative voices. Sir Robert Jennings has expressed his concern
about the continuing tendency of some to regard Article 38(1)(c) as a blank cheque to go delving among selected municipal laws … The large approach to general principles may even have brought about harm. It has encouraged people to argue from quite general principles, divorced from the rules that give them meaning: rules that qualify, that temper and restrict …
Sir Hersch Lauterpacht, dealing with general principles of law in connection with judicial legislation,Footnote 127 advised caution and restraint for the protection of that still tender plant, international adjudication.
2. Conflict Situations
There are several subject areas in which an international organization may be faced with conflicting indications as to the rights of others which it must recognize in its own activities. For instance, questions of applicable law may arise where material protected by copyright is drawn upon in connection with the preparation and use of teaching materials for technical co-operation activities: are the rights of the author (and their limits, in relation to certain types of use) defined by the law of the country of publication of the original material, by the law of the country in which the organization has its headquarters or by the law of the country to which the technical co-operation is being given? In most cases practical problems can be avoided by following the rule most beneficial to the other party or most familiar to him (such as, in the case of copyright material, that of the country of publication). However, in one area no ready escape from conflict situations is possible, namely that of the personal status and family situation of staff members in relation to entitlement to various forms of family benefit and in particular to pensions.
What is primarily at issue is the recognition of divorces and of (second) marriages,Footnote 128 without any internal rules regarding such questions as jurisdiction in matters of divorce, the relevance of the fact that the country of origin of the staff member does not provide for divorce, or the conditions of validity of marriages in form and substance.
One possible approach is to be guided by the law of the country of origin of the staff member. This appears to be the policy of the United Nations. A memorandum of September 1979 states expressly that “[i]t is United Nations policy to determine the marital status for United Nations administrative purposes by reference to the law of the home country of the staff member concerned”.Footnote 129 In that case the finding was that the divorce at issue was not valid under the law of the country where it had been obtained, and a reference to the home country was thus hardly necessary. Similarly, a memorandum of January 1976Footnote 130 tested a Mexican divorce and remarriage against the staff member’s “personal legal status” under the laws of his home country; at the same time, it found that they would not have been valid, not only under those laws but also under the laws of the matrimonial residence prior to the divorce, of the country of nationality of the two women concerned, of the place of the first marriage “and indeed in most jurisdictions”.Footnote 131 Much more difficult questions arise where, say, the country of origin of the staff member does not provide for divorce but he is divorced and remarried in the country of his habitual residence.Footnote 132 Giving automatic priority to the law of the country of origin in such case may ignore facts recognized “in most jurisdictions” and produce hardship which cannot be justified entirely by the fact that, by retaining home leave and repatriation rights, the staff member does not officially sever his ties with his country of origin. Moreover, there are cases in which the position of the law of the country of origin is itself far from self-evident.
An alternative possibility is to accept any formal legal document issued by an authority competent for the purpose in the country of issue, or to do so at least unless or until the validity of such a document has been denied by the judgment of a court of the staff member’s nationality or domicile, as the case may be. Such an approach — followed by a number of organizations — can be justified, on the one hand, by the respect owed by the organization to the legal institutions of all its Members and, on the other, by the lack of competence of the organization to review the acts of these institutions and their recognition, or otherwise, elsewhere. As an administrative arrangement, for such purposes as family allowances or travel, it probably corresponds to the current facts of the staff member’s family situation and provides a practical solution. However, it would not seem to be a legal solution that could be applied by an administrative tribunal called upon to adjudicate on two conflicting claims to a pension; the priority it gives to the latest legal act may go to a system of law which has no reasonable connection with the staff member’s personal status.
One question which arises is to what extent international treaties — which are not binding on the organizations or open to accession by them — can serve as guides for their action in the matter. There are now Hague Conventions both on the recognition of divorces (1970) and on the recognition of the validity of marriages (1978). They are not yet widely ratified and hence cannot yet be said to rally an international consensus or to represent general principles of conflict law; in these circumstances, is it open to an organization, as its own policy, to refuse to accept evidence of a divorce, for instance, on the ground that the conditions of Article 2 of the Convention on the recognition of divorces were not satisfied? Also, the texts in effect leave key issues open. For instance, Article 7 of the Convention on the recognition of divorces gives contracting States the possibility of refusing to recognize a divorce when, at the time it was obtained, both the parties were nationals of States which did not provide for divorce and of no other State; is it within the competence of an international organization to decide to refuse recognition in such a case? Since the action of the organization may affect persons which are in no direct relationship to it, it is not as free as it would be in a matter falling wholly within its internal law to draw upon other legal sources.
In effect, there is not at present any generally valid solution to problems of family law as seen from an international “forum”. Recourse will accordingly be had to more or less satisfactory practical solutions. The most cynical — in that it gives everyone something and deprives everyone of something — is to use rules designed for polygamous marriages and regard as such anyone with a claim under some system of law to be a spouse. There may even be cases in which the result is socially justifiable.
