University of Macerata Prof. Avv. Roberto Baratta, PhD International Institutions Law 2

Why do States create IIs? 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, specialists of international relations advocate 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. IIs serve some purpose (Utilitarianism as a ground to justify their creation) Still, both are perspectives of self-interest, even if one argues that participation to IIs 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 IIs? a) Viewing IIs as would-be states - its premiss is the concept of state, the federal model being an attraction. - 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 - also the ECJ pointed out that the EU is not a State

b) Viewing IIs as to their relations to the participating MS b) Viewing IIs as to their relations to the participating MS. Amerasinghe approach: MS 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 was 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 II 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 IIs should have inherent right to bring claim under international law. ICJ seems to endorse the functional necessity theory, according to which an II can reasonably claim such rights and privileges that would enable it to function effectively. The legal positions of IIs 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: because MS are generally keen to keep their creation in check; and it is in itself rather empty, deserving more theoretical elaboration. IIs are rather the result of the fundamental tension between the organisation and its members. This theory argues that in some respects an II and its members are indistinguishable from each other for: a) MS are always behind the Institution b) it is not always possible to tell whether an act is undertaken by an II or by its MS as a group But, if that were true how could one explain the well-settled international case law?