University of Macerata 2014-2015 Prof. Avv. Roberto Baratta, PhD International Organisations Law 6

Applying the law of treaties to IOs Since the constituent instruments of IOs are treaties, the 1969 Vienna Convention on the Law of Treaties (VCLT) applies to them. However, it sometimes set forth special rules as to IOs - namely Article 5 (the relevant rules of IOs may depart from the general law of treaties) and Article 20(3) (the IO organs may have a role to play in testing the compatibility of reservations made by states when acceding to a given constituent instrument) Specific problems arise as regards the membership of IO: accession to IO is not a unilateral act since it often implies a revision of the constituent treaty, such as the participation of the new member to the organs of the O etc. Again, the admission procedure may depend upon the unanimous approval of some organ of the O (for instance, accession to the EU requires unanimous approval by the Council and EP)

Reservations to treaties establishing IOs The VCLT provides for general provisions which are applicable whenever the treaty sets no special rule. Thus, - if the treaty provides that no reservation is permissible, or that only specific reservations are possible, then that very treaty regime prevails - if no regime is provided for, the VCLT formulates the vague ‘object and purpose test’. Generally speaking, the compatibility assessment is made by treaty parties individually As regards IOs, Article 20(3) VCLT set out “When a treaty is a constituent instrument of an international organisation and unless it otherwise provides, a reservation requires the acceptance of the competence organ of that organisation”. The ILC explained this provision by focusing on the need to preserve the integrity of the constituent instrument: it is up to the members of the O, acting through its competent organ, to determine how far any relaxation of the integrity of the instrument is acceptable ECHR practice: in 1983 Temeltasch case, and the 1988 Belilos ruling the organs of that O claimed their own authorities to consider the issue of compatibility

The need to accede to IOs treaties while injecting some forms of flexibility may be pursued by their members through the tools of declarative interpretations (see the case of the Organisation for the Prohibitions of Chemical Weapons) or opting-out clauses (see EU). Declarative interpretations are in particular utilised where the making of reservations is prohibited. Legal evaluation of this practice Within the EU reservations are prohibited too. However, other forms of flexibility is provided for, such as opting-out regimes (for instance, as to UK and Denmark concerning the monetary Union)

Treaty amendments and revisions Need to adapt the constituent instrument when the circumstances change The EU treaties - Article 48 is based on unanimity. So it implies a veto power to each of its members - high degree of rigidity (the highest the number, the most difficult revision is) Other treaties provide that amendments shall become effective when approved by a two-thirds majority of all members, e.g. - Article XXXIII of the Charter of the Organisation of American States; - the UN Charter, Article 108: approval by two-thirds of the GA and ratification by two-thirds of MS including the permanent members of the SC; the latter enjoy a veto power) - other IO treaties (ICAO or FAO) allows MS that amendments will not bind them. As a result, different members are bound by different versions of the constituent document (differentiation or fragmentation of the treaty regime)

Is it possible to bypass formal amendment procedures, and instead legislate to reach the same result or engage in a certain practice that was unforeseen in the constituent document? The UN practice that engaged in peace-keeping activities without the Charter having referred to the term The NATO practice: it has changed its activities since the end of the Cold War by means of summit declarations and new strategic concepts Obvious criticism: the O lacks the competence to engage in activities not provided for in the constituent treaties The EU does not expose to that criticism - case (1976) Defrenne v Sabena 43/75: the ECJ, while noting that a MS resolution “was ineffective to make any valid modification of the time-limit fixed by the Treaty”, clearly held that “the Treaty can only be modified by means of the amendment procedure carried out in accordance with Article 236”.

Withdrawal and termination A right to withdrawal from the UN? The Charter provides no provision probably because it was assumed that it would be redundant rather then contrary to customary law. So that right is based on customary law, or on the rebus sic stantibus doctrine, or on being it inherent from the sovereignty of states If the constituent instrument does not set special rules, some guidance can be found in Article 56 VCLT. This provision lays down a general rule and two exceptions: as a general rule if a treaty contains no withdrawal provision, there is no right to withdraw; however, first exception, a right of withdrawal can be established from the intention of the parties; second exception, a right of withdrawal may be implied in the nature of the agreement (e.g. treaties of alliances)

A right of withdrawal is provided for in the EU treaty - Article 50 TEU - it lies upon the conclusion of an agreement between the MS and the EU. It is concluded by the Council, after obtaining the consent of the EP. However, the EU treaties cease to apply after the entry into force of that agreement or two years after the notification of the MS intention to withdraw ICJ 1980 Opinion concerning the headquarters of the WHO’s regional office in Alexandria (due to tensions in the Middle East states pushed WHO to move elsewhere regional office in Egypt) - Article 56 VCLT is of little help when it comes to treaties conclude with IOs. Given the unclear normative framework of the relevant agreements, the ICJ merely held that negotiations in good faith between the WHO and Egypt were called for. It ensues that Article 56 is not a hard and fast rule, since it may provide a useful indication to the parties

Interpretation Article 31 VCLT lays down the general rules: treaty are interpreted in good faith, according to the ordinary meaning of its wordings (textualism), in their context (systematic approach) and in the light of its object and purpose (teleological approach) The context includes the subsequent practice between the parties As complementary tools of interpretation, VCLT allows parties to resort to a more historical approach in the case the general rules leads to absurd or unreasonable result or leaves the meaning of a term ambiguous or obscure It is often argued that some treaties require a more goal-oriented mode of interpretation, e.g. human rights treaties and IOs constituent instruments The most clear example is the ECJ case-law: the EU is to be regarded as a new and unique legal order; direct effect; primacy etc clear

According to K., to be justified the teleological interpretation presupposes an agreement between the participants MS on the precise goals of the O being achieved. General rules are more balanced since they show at best the intention of the parties (to put it clear, direct effect, primacy and so forth would have been clearly stated in the EU treaties, if the EU MS wished so to do) ICJ case-law does not refer to teleological interpretation in 1960 IMCO Maritime Safety Committee case, embracing an ‘ordinary meaning’ approach to interpretation instead Sato’s conclusion (in Evolving Constitution book): where the text of a treaty is sufficiently clear, interpretative bodies do not usually look further. It is doubtful whether there is a special rule regarding the interpretation of IOs instruments based on teleological approach

As to the power to interpret the IOs treaties, the general principle is that each organ is responsible for interpreting the constituent documents. Thus, the balance of power shifts away from MS to organs In 1962 Certain Expenses case, the ICJ held that ‘each organ must, in the first place at least, determine its own jurisdiction’ As to the EU, the balance tilts in favour of the ECJ as consequence of Article 19 TEU. In 1995 Bosman ruling C-415/93, ECJ affirmed that the other institutions do no have the power to render an authoritative interpretation of the treaties. Or rather their interpretations remain subject to review by ECJ. So the Commission ‘may not give guarantees concerning the compatibility of specific practice with the treaty. In no circumstances does it have the power to authorise practices which are contrary to the Treaty’ (para 136).