University of Macerata 2014-2015 Prof. Avv. Roberto Baratta, PhD International Organisations Law 3

Why do States create IOs? Realist doctrine is based on self-interest: According to Klabbers, it is hard to believe that states will do anything for a reason which cannot in one way or another be traced back to self-interest. Functional approach is based on the idea of cooperation - Sometimes, it has been advocated by specialists of international relations that cooperation is based on the premise of enlightened self-interest: if cooperation makes the cake grow bigger, then an equal share of the cake as before will nonetheless result in a bigger piece. Ios serve some purpose (Utilitarianism as a ground to justify creation of IOs) Still, both are perspectives of self-interest, even if one argues that participation to IOs is due to the fact that the cost of staying out may be too high (Klabbers opines indeed that this might help to explain why many EU MS have joined the EU and others are keen to join)

Is there a convincing theory concerning the legal nature of IOs? a) Viewing IOs as would-be states - its premiss is the concept of state, the federal model being an attraction namely. However, this model has been dispelled in the Reparation for injuries case (1949, ICJ Reports 179) where the ICJ held that the UN was not the same as a State, let alone a superstate

b) Viewing IOs as to their relations to the participating MS b) Viewing IOs as to their relations to the participating MS. Amerasinghe approach: MS as if they are third parties; MS have created a distinct legal entity with respect to themselves, and have herewith limited their individual liability for any actions the org. might take. In the Reparation for injuries Opinion (1949, ICJ Reports 178-179), replying to the issue as to whether the UN had the capacity to bring an international claim, the ICJ considered the actual wording of the Charter, as well as its practice, and held: - the UN was intended to exercise and enjoy, and in fact it is exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane, - though that is not the same thing as saying that an IO is a State - it just means that it is a subject of international law, it is capable of possessing international rights and duties, and that it has the capacity to maintain its rights by bringing international claims As a result, UN is distinct legal entity with regard to its members

- The ICJ underlying idea is that IOs should have inherent right to bring claim under international law. In other words, the functional necessity theory, according to which an IO can reasonably claim such rights and privileges as would enable them to function effectively. The legal positions of IOs are geared to their functional requirements (this theory is often applied as regards the inviolability principle of diplomatic personnel) - Some try to discard this theory for several grounds: namely because MS are generally keen to keep their creation in check; and it is in itself rather empty, deserving more theoretical elaboration. IO are rather the result of the fundamental tension between the organisation and its members. This theory argues that in some respects IO and its members may well be indistinguishable from each other for: a) MS are always behind the organisation b) it is not always possible to tell whether an act is undertaken by an organisation or by its MS as a group But, if that were true how could you explain the well-settled international case law?