1. International Organisations Law 13

2.  Under IOs founding instruments, legal acts may be subjects to certain conditions of validity  hierarchical relationship between the treaty and legal acts It would not be quite rational to let national courts to hear challenges of invalidity  fragmentation and uncertainty the French Conseil d’Etat has held in 1994 that French administrative courts have no competence to examine the legal justification of decisions taken by an international body Quite to the contrary, Danish Supreme Court endorsed a review of EC law by Danish Courts: ‘ the courts of law cannot be deprived of their right to try questions as to whether an EC act of law exceeds the limits for the transfer of sovereignty ’ involved in EC participation. So Danish courts may not declare an act invalid, but they can declare it inapplicable in Denmark (Carlsen v Rasmussen decision of 6 April 1998, para 9.6) Validity of legislative and administrative acts

3.  Illegality of acts issue moves from the assumption that the founding basis is a conventional instrument. Thus, legal acts not adopted with the prescribed procedure, or adopted by an organ lacking the requisite power to decide the measure in question, or by an organ lacking the necessary power etc., they ultimately are inconsistent with the rules agreed upon by the parties In these situations, unless the principle of subsequent practice justifies informal amendments adopted by the MS through the Organisation’s organs, the issue of invalidity arises. 1962 Certain Expenses ICJ Opinion, p. 167: expenses tested against the purposes of the UN - presumption of legality Little possibility to rebut the presumption … validity

4.  Consequences are varied: i)The act is invalid ab initio, and thus never considered as legally effective. ii)Invalidity is declared without retroactive effects. iii)Partial invalidity. If only a part of the organizational act is tainted by a defect, the remainder of the act remains valid provided that it is severable from the invalid part (severability of provisions) There is a final possibility under international law: to cure the defect of a legal act through acquiescence (or acceptance or estoppel). For instance, ultra vires acts may be considered as valid if no MS or no other organ objects. In the current practice of IOs, it happens that ultra vires acts are highly welcomed by the vast majority of members. That explains why the ICJ adopted a strong presumption that whatever falls within the purpose of the UN, it is not an ultra vires act (ICJ 1962 Opinion on Certain Expenses ). Ultra vires doctrine has little chance of successful application: only the most blatant cases of ultra vires instruments may possibly be regarded as invalid Consequences of invalidity

5.   The most elaborated and developed system of judicial review exists in the EU – It is set out in Article 263 TFEU  MS, institutions and, to a certain extent, even individuals may challenge the validity of regulations, directives, decisions and more generally any act adopted by the institutions insofar as they set legal effects  Grounds for annulment: i) lack of competence; ii) infringement of an essential procedural requirement; iii) violation of the treaty rules or any rules relating to application of the treaty; iv) misuse of powers (the institution uses a power that has for purpose a power other than that for which the very same power has been granted)  However, the ECJ jurisdiction does not cover CFSP acts, unless limited exceptions (in particular, individual restrictive measures) Judicial review under EU law

6.   The UNSC should act within the limits set out in the Charter: - Art. 24(2): as to the maintenance of peace and security, the SC ‘ shall act in accordance with the Purposes and principles of the UN ’ - Art. 25: ‘ The Members of the UN agree to accept and carry out the decisions of the SC in accordance with the present Charter ’ Art. 2(7) : domestic jurisdiction clause. This clause however was not written as a validity clause and we should not place too much weight upon it. -Nonetheless, it often has been invoked to prevent the UN from discussing politically sensitive issues such as human rights, though just discussing does not run counter to such a clause. In any case, it provides an exception, since this clause ‘ shall not prejudice the application of enforcement measures under Chapter VII ’ -Moreover, as the PCIJ held in 1923, whether something is within a state’s domestic jurisdiction is ‘ an essentially relative question: it depends on the development of international relations ’. The more international relations develop (customary and treaties), the less domestic jurisdiction becomes. -Moreover, the key word is ‘ essentially ’. Judicial review of SC acts

7.   Article 2(7) prohibits UN from sending fact-finding missions without the consent of the state concerned, as well as sending peace-keepers or human rights rapporteurs without such consent.  It may be circumvented by the SC when it acts under chapter VII  During the Cold War the SC hardly acted. From the early 1990s onwards, the SC activity has raised some concerns. Sanctions on states and other actors have been imposed; the SC has assumed responsibility for the administration of territories such as Kosovo and East Timor, sometimes even exercising legislative powers. Issues of legality and validity of that activity have become a hot topic amongst academics Domestic jurisdiction clause

8.   Usually the SC, when imposing sanctions, creates a Sanctions Committee, charged with the task of administering the related regime.  Kadi and Yusuf were blacklisted by the Sanctions Committee overseeing the sanction regime against Afghanistan for having possibly supported terrorist activities. Their bank account were frozen. They claimed this violated human rights, in particular their right to have access to justice and a fair trial, as well as their right to property. Since the UN does not offer the possibility of judicial review, K and Y asked the CFI of the EU to review the legality of the SC acts.  The CFI declined the case, holding that it essentially lacked jurisdiction to review SC activity, with a curious exception to review the compatibility of the SC acts with jus cogens norms. The ECJ reversed the judgment and held that the EU legal order is autonomous from the UN legal order  ECJ exercises judicial review over EU acts implementing UNSC resolutions The Kadi and Yusuf case

9.   International law has a hard time thinking in terms of a hierarchy or norms, since that concept would undermine state sovereignty. Classical reference to peremptory norms of international law ( jus cogens ). Given its customary character (binding States even without a consensual basis), jus cogens by definition is difficult to reconcile with the very notion of State sovereignty. So hierarchy is inherent to international law.  ICJ has so far left unaddressed the effects of jus cogens on the activities of IOs the dispute between Bosnia and Serbia (1993): Bosnia argued that the SC resolution 713(1991) imposing an arms embargo against it, implied its inability to defend and ultimately contributed to the genocide of the Bosnians. And since genocide is prohibited as a matter of jus cogens, the SC Res. was invalid. Hierarchy between acts

10.   Another example of possible hierarchy:  Article 103 provides that, where conflict arises between obligations under the UN Charter and obligations under other treaties, the UN Charter prevails.  Hierarchy of norms is well-established in the EU legal order, as the distinction between primary law and secondary law shows Art. 103 UN Charter