1. University of Macerata 2014-2015 Prof. Avv. Roberto Baratta, PhD
International Organisations Law 10

2. Organisation structures
IOs necessarily possess some organs to perform functions.
The principle of institutional balance is a tool to ensure a mutual check between different organs
- that is a well-established principle within the EU legal order. Yet, a similar principle, it is sometimes argued, exists in other IOs, such as the UN, governing in particular the relationship between the GA and the SC
Organs usually lack a separate legal personality in respect with the personality of the O as a whole
EU qualifies its organs as Institutions, whereas the term Organs normally applies to IOs
UN Charter speaks of principal organs: Article 7 (1) lists 6 principal organs, while Article 7(2) allows for the establishment of subsidiary organs

3. Three Main Organs of IOs
i) A plenary body. All members of the IO are represented; usually national Governments are represented
ILO plenary body is an exception: half consists of governmental representatives, half of representatives of employers and employees
ii) An executive body is supposed to take decisions on shorter notice (eg UN SC – it is composed by 5 permanent members + 10 members coming from all over the 5 continents according to a fixed key; Executive Board of the IMF is composed by 24 MS)
iii) a Secretariat. IMF Director usually comes from Europe, while an American traditionally heads the World Bank.
Secretariats are composed by international civil servants, their service being neutral or impartial.
The political role of the UN-Secretary General: Article 99 UN Charter allows SG to bring problems to the attention of the SC; he mediates disputes between MS (there is no specific legal basis, but the related practice of mediate and good office making is a long-standing one)
Staff employed is usually selected taking into account adequate geographical representation

4. Other bodies
iv) Judicial bodies aimed at solving disputes between MS or between the O itself and its staff.
Examples: the ICJ, the ECJ and the ECHR
v) Parliamentary body. Most important example, the EP
Subsidiary organs. It is generally accepted that organs may create subsidiary organs: e.g. Article 7(2) UN Charter provides for a general power to do so, while the same Charter grants specific powers to the GA (article 22), the SC (Article 29) and likely even to the Economic and Social Council (Article 68)
The Administrative Tribunal created by the GA to hear disputes between the UN staff and the UN itself – the ICJ Opinion (1954) the ICJ main argument: the implied powers doctrine: the power to create UNAT was not specified in the Charter. Yet, it could be implied from the Charter ‘by necessary intendment’ (at 57). The aim of the Charter is to promote freedom and justice for individuals: setting up a judicial remedy for staff is consistent with that aim

5. Limits to creating other organs?
Such a problem arose when the UNSC established the International Criminal Tribunal for the Former Yugoslavia. Mr Tadic, accused of war crimes, claimed before the Tribunal that the setting up of the same organ was illegal, being it an ultra vires act. Indeed, the UN Charter does not not confer such a power to the SC
The Appeal Chamber of the ICCFY rejected that claim. Legal reasoning:
- Article 39 of the UN Charter confers to the SC a wide discretionary power to determine whether there is a breach of peace, threat to peace, or an act of aggression (though this power is not unlimited, given that the SC must act within the principles and purposes of the Charter according to Article 24), provided that it is aimed at maintaining or restoring international peace and security
- The SC could create that organ under Article 41, which provides that the SC ‘may decide what measures not involving the use of armed force are to be employed o give effect to its decisions, and it may call upon the members of the UN to apply such measures’

6. Controlling the creation of organs – by whom?
As a matter of principle, the legal problem is: assuming that the setting up of a subsidiary organ is ultra vires, who is in charge of deciding about its illegality? Had the Appeal Chamber the competence to decide about its competence, the so-called Kompetenz-Kompetenz? The Appeal Chamber invoked ‘common sense’ and the ‘higher sense of justice’ to ground its capacity to decide on the Kompetenz-Kompetenz. It is worth adding that international courts (such as ECHR or the ECJ, for instance) are used to claim their Kompetenz-Kompetenz. That is understandable insofar as there is no other judiciary to decide However, in this case the ICCFY could have done better to ask for an opinion to the ICJ

7. Hierarchy between organs
The matter concerning who decides about the legality of an alleged ultra vires act arises another issue: is there a hierarchy between organs? There is no unique answer. It depends upon the constituent instrument of the IO which is at stake. As regards the UN, the ICJ has always been very careful not to establish a hierarchy between the principal organs of the UN, i.e. the GA, the SC and the ICJ itself. In the 1962 Certain Expenses case, the ICJ was asked whether the GA could establish peace-keeping operations, due to the inactivity of the SC. Since France and USSR argued that sending troops power belonged to the SC exclusively, they did not want to contribute to the related expense. ICJ rejected any form of hierarchy:

8. ICJ legal reasoning
- Under Article 24(1) the SC bears primary responsibility for the maintenance of peace and security. Only one prerogative belongs to the SC: taking enforcement action, i.e. action going against the will of the State concerned under chapter VII of the Charter
Other powers, such as peace-keeping operations, are not exclusively; they are not a prerogative of the SC alone. In that realm, the GA is empowered to take some kind of action. As a result, the GA powers are complementary, when the SC is unable to act namely.
If an issue about the legality of a given decision arises, ICJ may render an opinion, if it is asked to do so. ICJ just noted that when drafting the Charter the proposal to confer a binding power to the ICJ about the legality of a given act adopted by the political organs of the UN was dismissed. Thus, the ICJ enjoys the power to render an opinion only.
The ICJ had the opportunity to dwell on the same problem in the Lockerbie case (a bomb exploded on a plane over Scotland and two Libyan citizens were suspected to be responsible. The SC adopted sanctions. Libya challenged the validity of the SC decision). Again the ICJ still left open the issue of hierarchy between it and the SC

9. Other Organisations The same issue is clearer as regards other IOs
In the EU the ECJ is the ultimate guardian of legality according to Article 19 TEU. However, it has no judicial power to assess the legality of CFSP activity of the EU (with the exceptions of restrictive individual measures). Moreover, EP, Council and Commission exercise inter alia political powers, and the ECJ is not expected to control them due to the principle of separation of powers. Ultimately, it is often argued, MS may amend the treaties and they remain the Master of the treaties, should they be unhappy about an ECJ ruling. Moreover, ae MS can individually withdraw from the EU or even terminate the treaties by common accord. As a result, they keep the ultimate political control over the EU treaties

10. The position of MS vis-à-vis the IOs
In the UN legal system, the SC may authorize armed action, but it does not have its own troops
The EU sets custom duties, but it does not have customs officers. However, the Commission does enjoy some implementing powers
All in all, most implementing decisions taken by IOs rests with the MS
Quite often however MS are subordinated to a given IO: e.g. Article 2(2) UN Charter (MS are required to fulfil in good faith the obligations assumed by them); the principle of loyal cooperation applies within the EU and so forth- these provisions just confirm the pacta sunt servanda principle
As long as MS are subordinated to the IO, on a legal basis laid down in the constituent treaty, MS organs may be equated to organs of the same IO  remember the notion of dedoublement fonctionnel coined by the French jurist George Scelle: state organs act as state organs under national law, whereas they act as international organs when they operate under international system