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

the focus of this course: INTRODUCTION the focus of this course: on institutional law of international institutions (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 says that the law of international institutions (hereinafter, II) is somehow immature: a) there is no convincing theory about the international legal personality of IIs; similarly, it is argued, no clear ground has been submitted to justify the theory of implied powers. So, it is assumed, in numerous points the international institutions law lacks certainty b) within II there usually is a tension between sovereignty of Member States (hereinafter, MS) on whose consent the II 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 often is some form of compromise available in practice between sovereignty of MS and common interest

What is an international institution? Why Do States cooperate? Legal theorists often say that an II is a social creation, a social construct. IIs do not exist in nature. IIs rest upon an intentional act of their founding members. Focus is on the intention of the parties Indeed, an II is usually created by States to meet in common their ends. An II is a form of cooperation between States in order to pursue common goals (assuming that they cannot be pursued by its members as individual States or would be better achieved all together). In that sense one may argue that IIs are functional entities Many policy/economic/social 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 to IIs. 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 it is enhanced, however “in common” it may be exercised. 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 II 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 (ECtHR, Behrami case, 2007, para. 144) That is a necessary feature of any II to exist. Otherwise, it would be indistinguishable from other forms of cooperations, such as international conferences and so forth However, this is not an unproblematic concept. Critics hold that IIs are legal fictions: indeed an II is little more than the tool in the hand of the member states (Klabbers) This opinion goes too far. International personality of IIs is a fact under the modern int. law. They are no legal fiction. How to explain otherwise the conclusion of int. agreements by IIs themselves, i.e. agreements which are effective only for the IIs themselves? And Behrami case? 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 II? IIs are founded on a constituent treaty, ie a founding international agreement usually concluded by States. 1. Thus, by definition IIs 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 II, but a non governmental organisation (NGO), e.g. Greenpeace or Amnesty International Thus, an II is a creation of States, though sometimes membership is accorded to other IIs – e.g. EU is a member of the FAO (Food and Agriculture Organisation) and is a founding member of the WTO (World Trade Organisation) 2. An II is created by means of an international treaty. G7, G8, G20 as examples of occasional diplomacies or unstructured intergovernmental conferences 3. So, another feature is that IIs must have a minimum of permanent structures and organs capable of expressing an autonomous will