University of Macerata Prof. Avv. Roberto Baratta, PhD University of Macerata Prof. Avv. Roberto Baratta, PhD International Organisations Law I International Organisations Law I

INTRODUCTION the focus of this course: on institutional law of international organisations, rather than on their substantive law, i.e. general rules and principles that govern the way they are organised

the purpose being, to provide for some certainty to legal issues concerning general topics, though critical legal theory say that the law of international organisations (hereinafter, IO) is somehow immature: there is no convincing theory about the international legal personality of IOs; similarly, it is argued that no clear ground has been submitted to justify the theory of implied powers. So, it is assumed, in numerous points the law lacks certainty there is no convincing theory about the international legal personality of IOs; similarly, it is argued that no clear ground has been submitted to justify the theory of implied powers. So, it is assumed, in numerous points the law lacks certainty Within IO there usually is a tension between sovereignty of Member States (hereinafter, MS) on whose consent the IO is founded, and community interest that overrides those of individual States. Since the tension between these two poles is unsolvable, uncertainty is unavoidable Within IO there usually is a tension between sovereignty of Member States (hereinafter, MS) on whose consent the IO is founded, and community interest that overrides those of individual States. Since the tension between these two poles is unsolvable, uncertainty is unavoidable**** However, even critical legal theorists do not dramatise that clash. They admit that there is often some forms of compromise available in practice between sovereignty of MS and common interest However, even critical legal theorists do not dramatise that clash. They admit that there is often some forms of compromise available in practice between sovereignty of MS and common interest

What is an international organisation? Why Do States cooperate? Legal theorists often say that an IO is a social creation, a social construct. IOs do not exist in nature. IOs rest upon an intentional act of their founding members Indeed, it is usually created by States to meet in common their ends. An IO is a form of cooperation between States in order to pursue common goals (assuming that they cannot be or would be better achieved all together, by its members as individual States instead). In that sense one may argue that IO are functional entities Many policy challenges today require growing international cooperation To a more or less extent, any form of international cooperation implies a transfer (or loans) of States sovereignty. States believe that this is more than compensated for by the power that flows from being part of a group of countries that operates in concert. This means that sovereignty is not lost, rather is enhanced. In other words, international cooperation is perceived not as a zero sum game, but a positive sum game for everyone

To exist in legal terms an IO must fulfil a requirement: it must possess an organ capable to express an autonomous will, i.e. a will which is distinct from the will of its members. That is a necessary feature of any IO to exist. Otherwise, it would indistinguishable from other forms of cooperations, such as international conferences and so forth However, this is not an unproblematic concept. Critics hold that IO are legal fictions: indeed an IO is little more than the tool in the hand of the member states (Klabbers) This opinion goes too far. International personality of IOs is a fact under the modern int. law. They are no legal fiction. How to explain otherwise the conclusion of int. agreements by IOs themselves, i.e. agreements which are effective only for the IOs themselves? Moreover,, quite illustrative is Article 216(2) TFEU: int. treaties concluded by the EU are binding for its MS. Such a provision would be meaningless, if as a general rule only States were subjects of int. law

What is an IO? IOs are founded on a constituent treaty, ie a founding international agreement usually concluded by States. Thus, by definition IOs are governed by international law If the activity of an entity is deemed to be regulated by domestic law, than that entity it is not an IO, but a non governmental organisation (NGO), e.g. Greenpeace or Amnesty International Thus, an IO is a creation of States, though sometimes memberships is accorded to other Ios – e.g. EU is a member of the FAO (Food and Agriculture Organisation) and is a founding member of the WTO (World Trade Organisation) An IO is created by means of an international treaty. G7, G8, G20 as examples of occasional diplomacies or unstructured intergovernmental conferences So, another feature is that IOs must have a minimum of permanent structures and organs capable of expressing an autonomous will