Constituent Instruments of International Organizations as a Special Sources of the Law of International Organizations

Constituent Instruments of International Organizations as a Special Sources of the Law of... Abstract The article deals with the study of constituent instruments of international organizations (IOs). The author analyzes constituent instruments of IOs and determines their peculiarities. The article defines charters of IOs as a more complex instrument than a multilateral agreement. Constituent instruments, charters, as a rule, firstly fix the will of sovereign states to establish an organization and to delegate certain rights and responsibilities. Charters are directly refer to relations between member states and organs. Except charters, the law of IOs also encompasses other international agreements governing various aspects of organizations. Significant number of international agreements together with charters of organizations results in complexity of the law of IOs. 1. INTRODUCTION International organizations (IOs) are one of the most dynamic institutes of human society, characterized by adaptability to the practice of international cooperation, in the framework of which they perform their functions. International organizations are one of the most striking legal phenomena in modern international law.1 International organizations are independent entities of international law. They play a major role in international politics and significantly affect the legal status of both their member states and third countries. In turn, states seek to preserve and even strengthen the control over the functioning of the organizations with their membership. It requires a clearer delimitation of competences between states and IOs, as well as between different bodies of IOs. Such a desire manifests itself in the constant calls for the reform of internal organization of IOs in order to achieve better efficiency, flexibility, and efficiency of their activities. The above requires a detailed study of the peculiarities of constituent instruments of IOs as specific sources of law of IOs. Originally limited almost exclusively to state-to-state relations, international law has expanded to involve more actors, especially IOs. These entities, such as the United Nations, the World Trade Organization, the International Monetary Fund, the International Labor Organization, the International Criminal Court, as well as regional institutions such as the African Union, the European Union, and the Organization of American States, play a significant role in the international community, especially in international law-making. The role these organizations can and should play in their relations with states and in international law is subject to study. This area of research includes the review of ongoing process of improving efficiency, effectiveness, and accountability of IOs through institutional reform (www.asil.org). Currently, most disputable issues of the theory of international law, mainly the issues related to the structure and activities of IOs, their legal status became a thing of the past. The issue of legal personality of IOs, for instance, is not subject to disputes. Great attention is paid to the issue of binding nature of international law. J Alvarez,2 K Daugirdas,3 MM Parish,4 and ND White5 raise fundamental issues concerning the future of international law, given the challenges that IOs pose to legal positivism, traditional sovereignty conceptions, as well as the rule of law. International law is binding upon states as well as IOs. Thus, it means that IOs, like states, are bound by general international law. Law of IOs consists of principles and rules set forth in constituent instruments of IGOs along with applicable principles and rules of international law. Thus, the impact of IOs on international law addresses how IOs, particularly those within the UN system, have changed the forms, contents, and effect of international law. A curious confluence of interests between states and IOs means that international law can extend ever more. However, it hardly affects the underlying dynamics of international relations. Many scientists thoroughly studied IOs, rather than law of IOs. We think that his study can help initiate a proper discussion on the role of IOs in global governance. International organizations perform certain functions. In this regard, the trend of new functions in IOs is new. Whereas IOs perform various functions, this does not prevent from classifying them according to a common framework for analyzing their internal power distribution. In this view, the vertical and horizontal models observed in states by constitutional theory have some merit. Thus, building a framework for analyzing power distribution within IOs seems possible despite the variety in their functions. To this end, state constitutional theory provides valuable grounds. International organizations’ legal orders are found to be independent from external instruments such as constituent treaties. This autonomy is, first, ascertained from a material standpoint. The prevalence of a finalist understanding in interpreting organizations’ founding treaties, coupled with a significant role of customary law for generating the rules of their proper law prevents to see in implementing such instruments as the mere realization of the parties’ will. In contrast, using specific rules for interpreting founding treaties that focus on seeking for efficiency and are mostly centered on the organization itself instead of being protective of the parties’ sovereignty is an invite to progressive development of their substance.6 Most scientific works are devoted to the issue of relationships between IOs and their organs, staff, and third parties, including issues of power, finance, and privileges and immunities, as well as membership, institutional structures, and accountability, decision-making and acts, funding, and legal personality. Special attention was paid to the practice within the United Nations system and the European Union. Although public IOs such as the United Nations, the World Trade Organization, the World Health Organization, the ASEAN, the European Union and others have broadly divergent objectives, powers, fields of activity, and number of member states, as well as share a wide variety of institutional problems.7 As the effectiveness and continuity of IOs depend on no small extent on their ability to adapt themselves constantly to a rapidly evolving world, the necessary flexibility must be ensured by provisions included in the constitutions of the organizations. The juridical tool used to meet these needs is an amendment clause incorporated in the constitutive instrument.8 The scope and nature of legal personality, emergence, and embodiment of the will of IOs are currently discussed. Growing role of IOs, widening range of issues that fall within their competence cause new legal problems, including the law of IOs, as well as the peculiarities of constituent instruments of IOs. 2. LITERATURE REVIEW There are few publications on this issue. The main studies are related to the structure and activities of IO. Most scholars argue that IOs acts constitute part of international law, due to their treaty nature and the fact that they often govern relations between States.9 The issues of sources of international law and the law of IOs are not thoroughly studied. The sources of international law constitute one of the most central patterns around which international legal discourses and legal claims are built. The question of the sources of international law pertains to how international law is made or identified. As is similarly witnessed in contemporary domestic law and theory, sources are one of the most central questions in contemporary international law, both in practice and in theory. Not only is it important for practitioners to be able to identify valid international legal norms and hence the specific duties and standards of behavior prescribed by international law, but the topic also has great theoretical significance.10 The question remains whether the IOs acts can be considered sources of international law. Currently, only some UN General Assembly resolutions are deemed to be sources of international law. International organizations are actively involved in law-making process. They create legal norms by concluding international agreements and adopting legal acts. Thus, IOs often play leading roles in the negotiations and conclusion of treaties. Contracts between commercial entities and IOs are increasingly common. Before contracting with IO it is important to check the IO’s constituent instruments to determine if it has: (a) the capacity to enter into a contract, and (b) the legal personality to sue or be sued. Article 104 of the UN Charter, for instance, provides for that the UN shall enjoy such legal capacity as may be necessary for it to exercise its functions. In other instances, the position may not be as clear-cut, and it may be necessary to examine if legal personality can be inferred from the functions of the IO.11 When contracting with an IO, it should be considered that the organization possesses legal capacity to enter into commercial contracts and fall within the jurisdiction of national courts or arbitral tribunals; legal personality to sue and be sued before national courts or arbitral tribunals; have privileges and immunities and waive them, where appropriate; and enforce any judgments or arbitral awards in countries where its assets are located. The constituent treaties of IOs provide for their capacity to perform legal acts under national law, such as entering into contracts and initiating legal proceedings.12 The law-making process of the IO falls into the field of scientific research. The right to be engaged in law-making process is assumed in the constituent instrument of the organization. This issue was studied with regard to international economic organizations. SA Voitovich,13 VL Talko,14 TM Tsygankova, TF Gordeeva,15 N Blokker, RW Heinsch16 studied the rules on membership, institutional structure, decision-making and acts, funding, and legal personality. Special attention was paid to the international economic organizations in the international legal process. Constituent instrument and other relevant acts of the organization establish normative grounds for its establishment and activities. Thus, constituent instruments determine both type of legal acts of IO and their legal nature, for example WTO, EU. Scholars and practitioners, offer a profound theoretical, as well as practical approach to studying contemporary IOs, especially in light of increased emphasis on issues of reform, constitutionalism, globalization, and functionalism. Thus, J Klabbers17 notes a lot about the law of IOs. While not always very certain, he states that this body of law, nonetheless, is just as substantive as, say, international criminal law or the law of the sea. He does not pay much attention to the output or effectiveness of the work of IOs. In short, he treats functionalism as a broad church, but a church devoted to the law of IOs—not to the phenomenon of IOs generally or to their role in global affairs. The secondary law of IOs comprises acts with diverse designations—ranging from resolutions, decisions, recommendations, declarations, guidelines, regulations, directives, or standards—made by different organs and addressed to member states, organs or individuals. In light of this heterogeneity of legal instruments, it is obvious that the legal nature of IOs acts is even more controversial than that of their constituent instruments. The above-mentioned works require the study of various aspects of the functioning of IOs for the further development of the law of IOs as a branch of modern international law. It determines the relevance of this article, as well. The article is aimed at theoretical and practical study of IOs charters as more complex instruments rather than common multilateral agreements. Charter contains rules which determine legal status of an IO, the relationship between the organization and its member states, membership in the organization, its terminating and suspending, rules for secession, structure, functions, authority of bodies, procedure, and forms of the organization’s relations with other subjects of international law. 3. METHODS The methodological basis of the study is a system of general scientific and special scientific methods that provide objective analysis of the subject. Given the specific subject of the research, the following methods were employed: the dialectical method of cognition (enabled to analyze the main problems of the law of IOs as areas of international law. Given the growing number of IOs, they perform new functions, as well as their executive bodies have wider powers due to redistribution of powers between the organs of the organization. As independent entities of international law IOs play a major role in international politics and impact on the legal position of their member states and third countries); historical and legal method (to study development of IOs as subjects of international law. Currently, the issue of legal personality of IOs is not subject to dispute. Most of the disputable issues of the theory of law of IOs became the history. The issue of IOs acts as sources of international law is interesting and controversial); comparative legal method (to research peculiarities of the constituent instruments of IOs. We determine the peculiarity of the constituent document of IOs in comparison with the peculiarities of common international treaty. It is concluded that the UN Charter as an international treaty of particular importance and main source of international law remains the basis for all IOs); formal legal method (to study constituent instruments of the UN, European Union, WTO, etc. First of all, the UN Charter is analyzed and determined as an international treaty of a special type and importance, as well as exploring the founding agreements of the European Union, the WTO, etc. Much attention is paid to the acts of organs. It is concluded that some acts, in particular of the European Union, are acts of direct effect, and are binding upon member states and institutions, as well as individuals and legal entities). 4. DATA, ANALYSIS, AND RESULTS The charter of an IO is an international multilateral agreement or other constituent instrument that determines the nature, main tasks, and objectives of the IO. Usually it establishes its main bodies (the highest body, the executive body, the secretariat, etc.), the range of powers thereof, as well as the order of their formation and representation of members of the organization therein. Charters of IOs provide for the basic principles of cooperation of the members of the organization and ways of attaining its objectives. As a rule, it also specifies the procedure for the development and adoption of legal acts and the methods of their implementation. In addition, these instruments determine the order of admission to membership in the organization, as well as exit or exclusion from its members. Sometimes the established procedure for settlement disputes between members of the organization results from the interpretation of the constituent instrument. In addition to the charters, the law of IOs also comprises other international treaties which govern various aspects of the activities of the organizations. The large body of international treaties along with the charter of the organization stipulates considerable scope and complexity of the law of specific IOs. The body law of IOs consists of principles and rules of the constituent instruments of IGOs, along with applicable principles and rules of international law.18 The sources of the law of IOs are the following: (i) constituent charters or agreements; (ii) agreements on the rules, rules of procedure; (iii) separate acts on the status of personnel; (iv) agreements with the government of the host countries; agreements with other IOs.19 Treaties may have different designations: international conventions, international agreements, covenants, final acts, charters, protocols, pacts, accords, and constitutions of IOs.20 Protocols and annexes are integral parts of constituent instruments. Declarations are supplementary means of interpretation of treaties and protocols. In particular, according to the European Union, its constituent instruments do not by their nature differ from other international treaties establishing international intergovernmental organizations or international organs. They are subject to the provisions of the Vienna Conventions on the Law of Treaties of 1969 and 1986, as well as the main principles of modern international law. Constituent instruments may have different designations. The most frequently used designations are ‘charter’ or ‘agreement’. In the international legal literature the term ‘charter’ frequently denominates constituent instruments of IOs as a legal category. For example, the constituent instruments of some IOs (UN, ILO, FAO, IAEA, and others) are charters, and of others (WTO, IMF, EU)—agreements. However, whatever the designation of a constituent instrument of an IO, in international law with regard to their legal nature they have specific features compared with conventional international treaties. The term ‘charter’ (or ‘statute’) is used to designate formal and significant instruments, such as a constituent treaty of an IO. In turn, some scholars apply the term ‘Constitution of the Organization’. As the effectiveness and continuity of IOs depend to no small extent on their ability to adapt themselves constantly to a rapidly evolving world, the necessary flexibility must be ensured by provisions included in the constitutions of the organizations.21 The constituent instrument, called ‘charter’, is the legal ground for the establishment and operation of an IO. According to its legal nature, charter is an international treaty of specific nature (sui generis). The main feature of an international treaty, which is the charter of an IO, is that it establishes the rights and obligations of parties thereto (states), like any other international treaty, as well as establishes an IO. It means that the bodies are established, the issues of legal status of members of the organization, its personnel, the nature of relations with other IOs, the states—non-members, etc. are determined. In this regard, Article 5 of the Vienna Convention on the Law of Treaties of 1969 reads as follows: ‘The present Convention applies to any treaty which is the constituent instrument of an IO and to any treaty adopted within an IO without prejudice to any relevant rules of the organization’. Thus, Article 5 consists of two parts. It includes a general rule according to which charters of IOs are international treaties, by virtue of which they are subject to the provisions of the Vienna Convention of 1969. However, at the same time, Article 5 includes a special rule, which emphasizes the specific feature of this group of international treaties, since the provisions of this convention are extended to them taking into account the rules that operate within the IO itself.22 Thus, the provisions of the Vienna Convention on the Law of Treaties of 1969 concerning the conclusion and entry into force of multilateral treaties, the invalidity of treaties, the application of an international treaty to third states, as well as the provisions containing the pacta sunt servanda principle mainly apply to the charters of IOs. A charter of an IO, in contrast to a multilateral treaty, established a permanent international entity that operates on its basis.23 Since an IO is an international legal institution—a subject of international law, it must be established and operate in accordance with the norms of general international law governing the relationship between all subjects of international legal relations. The main principles of international law and other imperative rules play a special role. The Vienna Convention on the Law of Treaties of 1969 sets forth that it ‘applies to any treaty that is a constituent act of an international organization’.24 The constituent instrument is the main source of the law of IOs. Constituent treaties are of long-term nature. Thus, the Treaty of Rome and the Maastricht Treaty are of unlimited duration (Article 53 of the Treaty on European Union, Article 356 of the Treaty on the Functioning of the European Union).25 At the same time, a specific feature of this category of international treaties results from the practice of IOs. For example, to accept a reservation made by a state to the constituent instrument of an IO, the consent of the competent authority of the organization is required. In practice, the UN has a rule that excludes the succession of membership in the UN, while the transfer of rights and obligations under other international treaties is possible, etc. Thus, in 1947 when Pakistan gained independence from India, the issue concerning Pakistan’s membership in the United Nations arose: whether it should gain membership by succession or on general grounds under the procedure for admission to membership in the organization. The accession of Pakistan to the UN on a general basis has led to the international custom, according to which rights and obligations of a member in IOs cannot be transferred under constituent instruments of IOs. When the People’s Republic of Bangladesh gained independence from Pakistan and was admitted as a member of the UN in 1974 the issue of succession of membership was not raised.26 Along with charters, international conventions, protocols and declarations can be approved. In particular, the term ‘convention’ may have both general and specific meaning. The term ‘convention’ in general means the following: Article 38 (1) (a) of the Statute of the International Court of Justice reads as follows: ‘International conventions, whether general or particular, establishing rules expressly recognized by the contesting states in addition to international custom, and the general principles of law recognized by civilized nations, as well as judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law’. In this general use, the term ‘convention’ encompasses all international agreements in the same way as the general term ‘treaty’. Generally recognized principles and rules of law are also traditionally referred to ‘conventional law’ in order to distinguish them from other sources of international law, such as customary law and the general principles of international law. Thus, the general term ‘convention’ is synonymous with the general term ‘treaty’.27 ‘Convention’ is a specific term: if during the last century the term ‘convention’ was traditionally used to designate bilateral agreements, it is currently used to designate official multilateral treaties with a large number of parties. Conventions remain generally open to accession for the international community as a whole or a large number of states. Typically, treaties concluded under the auspices of IOs are called ‘conventions’ (e.g. the Convention on Biological Diversity of 1992, the United Nations Convention on the Law of the Sea of 1982, the Vienna Convention on the Law of Treaties of 1969). The same applies to acts adopted by IOs (e.g. the Convention on the Rights of the Child of 1989 adopted by the United Nations General Assembly). The term ‘protocol’ refers to agreements that are less formal than agreements called ‘treaties’ or ‘conventions’. This term can be used to designate the following types of instruments: Signature protocol is a subsidiary instrument to the treaty drawn up by the same parties. The protocol refers to subsidiary issues, such as interpretation of certain provisions of the treaty, official provisions not incorporated in the treaty, or settlement of technical issues. Ratification of a treaty will, as a rule, ipso facto include ratification of the protocol; Optional protocol to the treaty is an instrument providing for additional rights and obligations. It is as a rule approved on the same day, however, it is independent and subject to separate ratification. Such protocols allow some parties to the treaty to establish inter se a binding mechanism that goes beyond the scope of the general agreement and is not accepted by all parties (e.g. the Optional Protocol to the International Covenant on Civil and Political Rights of 1966); Protocol based on a framework treaty is an instrument specifying obligations designed to achieve the overall objectives of the earlier framework convention. Such protocols provide for a simplified and accelerated process of concluding a treaty. Such protocols are widely used in the field of international environmental law, for example the Montreal Protocol on Substances that Deplete the Ozone Layer of 1987 adopted under Articles 2 and 8 of the Vienna Convention for the Protection of the Ozone Layer of 1985; Protocol on amendments is an instrument modifying one or more earlier treaties, such as the Protocol Amending Agreements, Conventions and Protocols on Drugs of 1946; Protocol as a type of supplementary treaty is an instrument containing additional provisions to the earlier treaty, such as the Protocol Relating to the Status of Refugees of 1967 to the Convention Relating to the Status of Refugees of 1951; Protocol (Proces-Verbal) is an instrument that envisages certain agreements reached by the parties.28 The term ‘declaration’ is used to refer to different international instruments. However, a declaration is not legally binding in any case. This term is often deliberately chosen to demonstrate that the parties are not determined to establish legally binding obligations, but want to declare certain positions, for example the Rio Declaration of 1992. At the same time, declarations can also be treaties in the general sense and be binding under international law. In this regard, in each individual case, it is necessary to determine whether the parties’ intention was to establish legally binding obligations. Determining the parties’ intentions most often can be a difficult task. Certain instruments, called ‘declarations’, as originally envisaged, should not have binding force, but later their provisions could have become a reflection of international customary law or become mandatory as rules of customary law, for example the Universal Declaration of Human Rights of 1948. The binding declarations can fall within the following categories, namely: Declaration may be a treaty, for example the United Kingdom and China Joint Declaration on Hong Kong of 1984; Interpretative declaration is an instrument attached to the treaty to interpret or clarify its provisions; Declaration may also refer to an informal agreement on any issue; A number of unilateral declarations (statements) may constitute binding agreements, for example declarations (statements) according to the optional status of the Statute of the International Court of Justice, that establishes legal relations making them parties, although they are not directly referred to each other. Egypt’s unilateral Declaration on the Suez Canal of 1957 and its application was deemed an international obligation. In domestic and foreign literature, most of the research was conducted given the definition of the UN Charter as a treaty of a specific type. Indeed, the UN Charter is a multilateral universal treaty of a specific type and importance. It determines rights and duties of the member states, as well as establishes universally accepted norms and principles of international law. Given the above, it is the main source of modern international law.29 The importance of the UN Charter is also determined by the fact that it sets forth the goals of securing peace, peaceful coexistence and cooperation of the states, and ensures their agreement to take joint action to achieve these goals within the Organization on the basis of generally accepted principles and rules of international law. The provisions of the UN Charter prevail over other international treaties. Thus, Article 103 of the Charter of the United Nations reads as follows: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’ (Charter of the United Nations). A significant number of bilateral and multilateral treaties have been adopted on the basis of the UN Charter or contain direct references thereto. The principles and objectives of the UN Charter have been further developed in international treaties, the UN treaties, such as the Human Rights Covenants, the Agreement on Disarmament, and others.30 One of the main characteristics of the UN Charter is the procedure for amending and revision of the Charter, which is strictly governed. Thus, to incorporation amendments of partial nature into the UN Charter, they must be approved by two thirds of the votes of the members of the General Assembly of the United Nations, followed by ratification by two-thirds of the members of the Organization, including all permanent members of the Security Council. The revision of the Charter takes place at the General Conference of the United Nations, the term and place of which shall be determined by two-thirds of the votes of the members of the General Assembly and by the votes of nine (fifteen) members of the Security Council. It is envisaged that each member of the Organization shall have one vote at the conference. After this any modification of the UN Charter, recommended by two-thirds of the votes of the conference participants, shall come into force after ratification in accordance with the constitutional procedure by two-thirds of the members of the Organization, including all permanent members of the Security Council. That is, in the case of revision of the Charter, all five permanent members of the Security Council are required to vote. The Charter also provides for that a Member of the United Nations which has persistently violated the principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council (Article 6 of the Charter of the United Nations). The United Nations has not yet taken such measures. No provision of the Charter sets forth the possibility of quitting membership in the Organization, but every member of the UN as a sovereign state is entitles thereto. The UN Charter provides for the possibility of suspending the rights and privileges of the UN member states if preventive or coercive measures have been approved by the Security Council against it. Such a suspension is by the General Assembly, upon recommendation of the Security Council, and the renewal by the Security Council. Like charters of international intergovernmental organizations, the constituent treaties of the European Union include provisions for the conclusion of international agreements with a view to their implementation. In particular, the legal regulation by international agreements includes the issue of amending and supplementing all constituent treaties (Article 48 of the TEU); determining location of institutes of the European communities (Article 241 of the TFEU). The possibility of concluding international agreements within the EU is also enshrined in the provisions concerning cooperation in the social sectors (Article 156 of the TFEU), education, training and youth (Article 165 of the TFEU), culture (Article 167 of the TFEU), health (Article 168 of the TFEU), although there is no direct reference to international agreements as an instrument of such cooperation. All these agreements must be subject to the provisions of the constituent treaties, being aimed at their implementation.31 In general, unlike charters of many IOs, the constituent instruments laying the grounds for the European integration within the European Union do not include any general provisions that seek to achieve the objectives of these instruments through international agreements. The integration processes is mainly governed by the acts of the European Union institutions. 5. DISCUSSIONS There are many types of international legal acts of IOs: statutes, multilateral conventions, international treaties, and pacts, which establish different forms of control over the implementation of the norms contained in these instruments, as well as provide for the establishment of special bodies for control. The specific nature of international treaties, which are the constituent acts of IOs, inspired scholars to elaborate the theory according to which the charters of IOs are not international treaties and by their nature are equal to state constitutions. In particular, this theory is substantiated in the works of American professor V. Friedman, Uruguayan professor H. Arechaga, Israeli professor Sh. Rozen, and others. The legal grounds for this theory are as follows. Its proponents in studying the legal nature of charters of IOs refer to constitutional law of capitalist states, considering the charter of the organization as a constitution of the federal state. The union of states within the framework of IOs is not a federal state and a constituent instrument of an organization, it is not a constitution, but an international treaty, which is the basic, existing legal form governing relations between sovereign states in the international arena.32 Charters of IOs contain rules determining the purpose of an IO, its tasks and functions. These provisions are vital since they establish a general criterion for determining the rights of an IO to an act, should it fail to be directly provided for in the charter of the IO. That is, charters are a source of so-called intelligent competence, which is often used by IOs (e.g. WTO, EU). Thus, the WTO Agreement establishes the relationship between the latter’s rules and the provisions of other sources of its law—multilateral trade agreements (Article XVI: 3 of the Agreement), the provisions of the GATT 1994 and the agreements contained in Annex 1A to the WTO Agreement (general explanation to Annex 1A to the WTO Agreement), the norms of the law of GATT and the WTO in general (Article XVI of the WTO Agreement). No clear distinction between the activities of an IO as a whole and of each of its bodies contributes to the successful functioning of the organization and ensures the legitimacy of decisions taken by its bodies, since the latter cannot go beyond the competence established by the constituent instrument of the IO. Since charters to international treaties of a specific type are well substantiated, it can be concluded that a charter is the legal basis for IO’s activities in the field of international relations, and the rules and principles that are established therein, as well as should be the basis of all actions of an IO in the international arena. In addition to the charters, other international treaties governing various aspects of the activities of these organizations also refer to the law of IOs. A large body of international treaties together with a charter of an organization determines the scope and complexity of the law of individual IOs. For example, the complexity of WTO law is due to the fact that, in addition to the charter of this organization, it also includes more than 20 agreements and arrangements embodied in four annexes to this agreement and being an integral part thereof. INTERPOL’s Constitution, adopted in 1956 by the INTERPOL General Assembly, can be characterized as an agreement in simplified form. It takes the usual wording of treaty instruments and contains standard provisions which can be found in other treaties establishing IOs. The Constitution empowers INTERPOL to conclude international agreements (Article 41). In application of this Article, the Organization has concluded a significant number of international agreements with other subjects of international law. These include more than 40 agreements relating to INTERPOL’s privileges and immunities on the territory of different States, either for the establishment of a bureau, for the organization of a General Assembly session or a Regional Conference, or for the deployment of personnel in the field for police operations. INTERPOL has also concluded, for example, a general cooperation agreement with the United Nations. On the basis of its constituent instruments, an IO will provide its own operation and develop its own legal and political order. The dynamic interaction of an IO with the subjects of its legal order, including its member States and other entities or individuals such as employees, may thereby give rise to a variety of legal acts that are generally summarized under the term secondary law of the IO, because they emanate from the constituent instruments as the primary source of rights and obligations within the legal order of the organization. Considering the dual nature of the constituent instruments, the importance of the constituent instruments of IOs does not justify the interpretation of the secondary law as international law.33 The law of IOs is an organically interconnected body of legal principles and norms that ensure functioning and operating of the organization. Members of the organizations are bound to adhere to the relevant rules due to the fact of membership therein. Failure to comply with certain rules of the law of IOs implies imposing relevant sanctions. 6. CONCLUSION The constituent instrument of an IO is one of the main sources of the law of IOs as a field of international law. Constituent instrument may have various designations, ‘charter’ or ‘agreement’ being the most common. In the international legal literature, treaties as sources of the law of IOs are studied mainly due to their subject-matter. These may be agreements concluded on specific issues, determining objectives, tasks, structure and competence of the bodies, membership and rights and responsibilities of members, procedure of work and other issues. A charter of an IO is a rather complex instrument, different from the ordinary multilateral agreement. In our view, considering charters of IOs in terms of their role in legal regulation of cooperation between states and these organizations, the following should be considered. The above instruments play a major role in this area, since, firstly, they consolidate the determination of sovereign states to establish an IO and empower it with certain rights and responsibilities. Secondly, a charter governs a large number of issues which are directly related to the organization’s relations with the states. In particular, the charter contains the rules governing legal status of an IO, relationship between the organization and its member states, its structure, competence, functions of its bodies, as well as order and form of organization’s relations with other actors of international relations. Thirdly, charters contain norms defining the purpose of establishing an IO, its tasks and functions. These provisions constitute a general criterion for determining the rights and obligations of an IO to perform activities, should such rights fail to be directly set forth in the charter of the IO. That is, charters are the source of so-called ‘intelligent competence’ of the IO. Fourthly, charters play a coordinating role with respect to other sources of law of IOs, namely the establishment of their hierarchy. Charters resolve this issue indirectly, determining the procedure for the adoption and validity of legal acts of the bodies of IOs, as well as the latter’s right to conclude international treaties. Charters contain provisions that directly govern these issues. The law of IOs sets a body of rules governing legal status, activities of the organization, its interaction with other subjects of international law, participation in international relations. Footnotes 1 R Virzo and I Ingravallo Evolutions in the Law of International Organizations (Leiden, Netherlands: Martinus Nijhoff Publishers, 2015). 2 J Alvarez The Impact of International Organizations on International Law (Brill Nijhoff, 2016). 3 K Daugirdas ‘How and Why International Law Binds International Organizations’ [2016] Harv Int’l L J 57, 325–81. 4 MM Parish ‘International law and International Organizations: The Legacy of the Twentieth Century. Right’ [2014] J Higher School Econ 2, 124–41. 5 ND White The law of International Organizations (3rd edn Manchester University Press, 2016). 6 A Schifano ‘Distribution of Power within International Organizations’ [2017] International Organizations Law Review 14, 346–401. 7 HG Schermers and MN Blokker International Institutional Law (5th Revised edn Leiden, Netherlands: Martinus Nijhoff Publishers, 2011). 8 R Zacklin The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies (Leiden, Netherlands: Martinus Nijhoff Publishers, 2005). 9 Above n 6. 10 S Besson and J d’Aspremont The Sources of International Law. The Oxford Handbook on the Sources of International Law (Oxford, UK: Oxford University Press, 2017). 11 L Raimanova Why Contracting with an International Organisation is Different, 2012. http://www.allenovery.com/publications/engb/Pages/ ContractingWithInternationalOrganisations.aspx (accessed 4 December 2017). 12 A Reinisch Contracts between International Organizations and Private Law Persons, 2006. deicl.univie.ac.at/fileadmin/user.../contracts_ios_epil.pdf (accessed 3 August 2017). 13 SA Voitovich International Economic Organizations in the International Legal Process (Leiden, Netherlands: Martinus Nijhoff Publishers, 1994). 14 VL Talko International Legal Forms of Cooperation of States with International Economic Organizations: diss. ... Candidate Legal, National Academy of Sciences of Ukraine (Institute of State and Law, 2000). 15 TM Tsygankova and TF Gordeeva International Organizations (K KNEU, 2001). 16 N Blokker and RW Heinsch The Law & Practice of International Organizations – Practicum (2011-1012). https://studiegids.leidenuniv.nl/courses/show/30602/the_law_practice_of_international_organizations_-_practicum (accessed 17 September 2017). 17 J Klabbers ‘The Transformation of International Organizations Law: A Rejoinder’ [2015] Eur J Int Law 26.4, 975–77. 18 Above n 7. 19 TM Tsygankova and TF Gordeeva, International organizations, K.: KNEU. 20 T Buergenthal and S Murphy Public International Law in a Nutshell (4th edn 2007). 21 R Zacklin The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies (Martinus Nijhoff Publishers, 2005). 22 EA Shybaeva and M Potochniy Legal issues of the structure and activities of international organizations (2nd edn Moscow: Publishing House of Moscow State University, 1988). 23 II Lukashuk, International Law, Textbook (M.: Beck, 1998). 24 IP Blishchenko and AH Abashidze The Law of International Organizations: Textbook (M.: RUDN, 2013). 25 VI Muravyov The law of the European Union: Textbook (K.: Yurinkom Inter, 2011). 26 Above n 10. 27 ibid. 28 ibid. 29 Above n 21. 30 ibid. 31 Above n 24. 32 Above n 21. 33 Above n 9. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Statute Law Review Oxford University Press

Constituent Instruments of International Organizations as a Special Sources of the Law of International Organizations

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0144-3593
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Abstract

Abstract The article deals with the study of constituent instruments of international organizations (IOs). The author analyzes constituent instruments of IOs and determines their peculiarities. The article defines charters of IOs as a more complex instrument than a multilateral agreement. Constituent instruments, charters, as a rule, firstly fix the will of sovereign states to establish an organization and to delegate certain rights and responsibilities. Charters are directly refer to relations between member states and organs. Except charters, the law of IOs also encompasses other international agreements governing various aspects of organizations. Significant number of international agreements together with charters of organizations results in complexity of the law of IOs. 1. INTRODUCTION International organizations (IOs) are one of the most dynamic institutes of human society, characterized by adaptability to the practice of international cooperation, in the framework of which they perform their functions. International organizations are one of the most striking legal phenomena in modern international law.1 International organizations are independent entities of international law. They play a major role in international politics and significantly affect the legal status of both their member states and third countries. In turn, states seek to preserve and even strengthen the control over the functioning of the organizations with their membership. It requires a clearer delimitation of competences between states and IOs, as well as between different bodies of IOs. Such a desire manifests itself in the constant calls for the reform of internal organization of IOs in order to achieve better efficiency, flexibility, and efficiency of their activities. The above requires a detailed study of the peculiarities of constituent instruments of IOs as specific sources of law of IOs. Originally limited almost exclusively to state-to-state relations, international law has expanded to involve more actors, especially IOs. These entities, such as the United Nations, the World Trade Organization, the International Monetary Fund, the International Labor Organization, the International Criminal Court, as well as regional institutions such as the African Union, the European Union, and the Organization of American States, play a significant role in the international community, especially in international law-making. The role these organizations can and should play in their relations with states and in international law is subject to study. This area of research includes the review of ongoing process of improving efficiency, effectiveness, and accountability of IOs through institutional reform (www.asil.org). Currently, most disputable issues of the theory of international law, mainly the issues related to the structure and activities of IOs, their legal status became a thing of the past. The issue of legal personality of IOs, for instance, is not subject to disputes. Great attention is paid to the issue of binding nature of international law. J Alvarez,2 K Daugirdas,3 MM Parish,4 and ND White5 raise fundamental issues concerning the future of international law, given the challenges that IOs pose to legal positivism, traditional sovereignty conceptions, as well as the rule of law. International law is binding upon states as well as IOs. Thus, it means that IOs, like states, are bound by general international law. Law of IOs consists of principles and rules set forth in constituent instruments of IGOs along with applicable principles and rules of international law. Thus, the impact of IOs on international law addresses how IOs, particularly those within the UN system, have changed the forms, contents, and effect of international law. A curious confluence of interests between states and IOs means that international law can extend ever more. However, it hardly affects the underlying dynamics of international relations. Many scientists thoroughly studied IOs, rather than law of IOs. We think that his study can help initiate a proper discussion on the role of IOs in global governance. International organizations perform certain functions. In this regard, the trend of new functions in IOs is new. Whereas IOs perform various functions, this does not prevent from classifying them according to a common framework for analyzing their internal power distribution. In this view, the vertical and horizontal models observed in states by constitutional theory have some merit. Thus, building a framework for analyzing power distribution within IOs seems possible despite the variety in their functions. To this end, state constitutional theory provides valuable grounds. International organizations’ legal orders are found to be independent from external instruments such as constituent treaties. This autonomy is, first, ascertained from a material standpoint. The prevalence of a finalist understanding in interpreting organizations’ founding treaties, coupled with a significant role of customary law for generating the rules of their proper law prevents to see in implementing such instruments as the mere realization of the parties’ will. In contrast, using specific rules for interpreting founding treaties that focus on seeking for efficiency and are mostly centered on the organization itself instead of being protective of the parties’ sovereignty is an invite to progressive development of their substance.6 Most scientific works are devoted to the issue of relationships between IOs and their organs, staff, and third parties, including issues of power, finance, and privileges and immunities, as well as membership, institutional structures, and accountability, decision-making and acts, funding, and legal personality. Special attention was paid to the practice within the United Nations system and the European Union. Although public IOs such as the United Nations, the World Trade Organization, the World Health Organization, the ASEAN, the European Union and others have broadly divergent objectives, powers, fields of activity, and number of member states, as well as share a wide variety of institutional problems.7 As the effectiveness and continuity of IOs depend on no small extent on their ability to adapt themselves constantly to a rapidly evolving world, the necessary flexibility must be ensured by provisions included in the constitutions of the organizations. The juridical tool used to meet these needs is an amendment clause incorporated in the constitutive instrument.8 The scope and nature of legal personality, emergence, and embodiment of the will of IOs are currently discussed. Growing role of IOs, widening range of issues that fall within their competence cause new legal problems, including the law of IOs, as well as the peculiarities of constituent instruments of IOs. 2. LITERATURE REVIEW There are few publications on this issue. The main studies are related to the structure and activities of IO. Most scholars argue that IOs acts constitute part of international law, due to their treaty nature and the fact that they often govern relations between States.9 The issues of sources of international law and the law of IOs are not thoroughly studied. The sources of international law constitute one of the most central patterns around which international legal discourses and legal claims are built. The question of the sources of international law pertains to how international law is made or identified. As is similarly witnessed in contemporary domestic law and theory, sources are one of the most central questions in contemporary international law, both in practice and in theory. Not only is it important for practitioners to be able to identify valid international legal norms and hence the specific duties and standards of behavior prescribed by international law, but the topic also has great theoretical significance.10 The question remains whether the IOs acts can be considered sources of international law. Currently, only some UN General Assembly resolutions are deemed to be sources of international law. International organizations are actively involved in law-making process. They create legal norms by concluding international agreements and adopting legal acts. Thus, IOs often play leading roles in the negotiations and conclusion of treaties. Contracts between commercial entities and IOs are increasingly common. Before contracting with IO it is important to check the IO’s constituent instruments to determine if it has: (a) the capacity to enter into a contract, and (b) the legal personality to sue or be sued. Article 104 of the UN Charter, for instance, provides for that the UN shall enjoy such legal capacity as may be necessary for it to exercise its functions. In other instances, the position may not be as clear-cut, and it may be necessary to examine if legal personality can be inferred from the functions of the IO.11 When contracting with an IO, it should be considered that the organization possesses legal capacity to enter into commercial contracts and fall within the jurisdiction of national courts or arbitral tribunals; legal personality to sue and be sued before national courts or arbitral tribunals; have privileges and immunities and waive them, where appropriate; and enforce any judgments or arbitral awards in countries where its assets are located. The constituent treaties of IOs provide for their capacity to perform legal acts under national law, such as entering into contracts and initiating legal proceedings.12 The law-making process of the IO falls into the field of scientific research. The right to be engaged in law-making process is assumed in the constituent instrument of the organization. This issue was studied with regard to international economic organizations. SA Voitovich,13 VL Talko,14 TM Tsygankova, TF Gordeeva,15 N Blokker, RW Heinsch16 studied the rules on membership, institutional structure, decision-making and acts, funding, and legal personality. Special attention was paid to the international economic organizations in the international legal process. Constituent instrument and other relevant acts of the organization establish normative grounds for its establishment and activities. Thus, constituent instruments determine both type of legal acts of IO and their legal nature, for example WTO, EU. Scholars and practitioners, offer a profound theoretical, as well as practical approach to studying contemporary IOs, especially in light of increased emphasis on issues of reform, constitutionalism, globalization, and functionalism. Thus, J Klabbers17 notes a lot about the law of IOs. While not always very certain, he states that this body of law, nonetheless, is just as substantive as, say, international criminal law or the law of the sea. He does not pay much attention to the output or effectiveness of the work of IOs. In short, he treats functionalism as a broad church, but a church devoted to the law of IOs—not to the phenomenon of IOs generally or to their role in global affairs. The secondary law of IOs comprises acts with diverse designations—ranging from resolutions, decisions, recommendations, declarations, guidelines, regulations, directives, or standards—made by different organs and addressed to member states, organs or individuals. In light of this heterogeneity of legal instruments, it is obvious that the legal nature of IOs acts is even more controversial than that of their constituent instruments. The above-mentioned works require the study of various aspects of the functioning of IOs for the further development of the law of IOs as a branch of modern international law. It determines the relevance of this article, as well. The article is aimed at theoretical and practical study of IOs charters as more complex instruments rather than common multilateral agreements. Charter contains rules which determine legal status of an IO, the relationship between the organization and its member states, membership in the organization, its terminating and suspending, rules for secession, structure, functions, authority of bodies, procedure, and forms of the organization’s relations with other subjects of international law. 3. METHODS The methodological basis of the study is a system of general scientific and special scientific methods that provide objective analysis of the subject. Given the specific subject of the research, the following methods were employed: the dialectical method of cognition (enabled to analyze the main problems of the law of IOs as areas of international law. Given the growing number of IOs, they perform new functions, as well as their executive bodies have wider powers due to redistribution of powers between the organs of the organization. As independent entities of international law IOs play a major role in international politics and impact on the legal position of their member states and third countries); historical and legal method (to study development of IOs as subjects of international law. Currently, the issue of legal personality of IOs is not subject to dispute. Most of the disputable issues of the theory of law of IOs became the history. The issue of IOs acts as sources of international law is interesting and controversial); comparative legal method (to research peculiarities of the constituent instruments of IOs. We determine the peculiarity of the constituent document of IOs in comparison with the peculiarities of common international treaty. It is concluded that the UN Charter as an international treaty of particular importance and main source of international law remains the basis for all IOs); formal legal method (to study constituent instruments of the UN, European Union, WTO, etc. First of all, the UN Charter is analyzed and determined as an international treaty of a special type and importance, as well as exploring the founding agreements of the European Union, the WTO, etc. Much attention is paid to the acts of organs. It is concluded that some acts, in particular of the European Union, are acts of direct effect, and are binding upon member states and institutions, as well as individuals and legal entities). 4. DATA, ANALYSIS, AND RESULTS The charter of an IO is an international multilateral agreement or other constituent instrument that determines the nature, main tasks, and objectives of the IO. Usually it establishes its main bodies (the highest body, the executive body, the secretariat, etc.), the range of powers thereof, as well as the order of their formation and representation of members of the organization therein. Charters of IOs provide for the basic principles of cooperation of the members of the organization and ways of attaining its objectives. As a rule, it also specifies the procedure for the development and adoption of legal acts and the methods of their implementation. In addition, these instruments determine the order of admission to membership in the organization, as well as exit or exclusion from its members. Sometimes the established procedure for settlement disputes between members of the organization results from the interpretation of the constituent instrument. In addition to the charters, the law of IOs also comprises other international treaties which govern various aspects of the activities of the organizations. The large body of international treaties along with the charter of the organization stipulates considerable scope and complexity of the law of specific IOs. The body law of IOs consists of principles and rules of the constituent instruments of IGOs, along with applicable principles and rules of international law.18 The sources of the law of IOs are the following: (i) constituent charters or agreements; (ii) agreements on the rules, rules of procedure; (iii) separate acts on the status of personnel; (iv) agreements with the government of the host countries; agreements with other IOs.19 Treaties may have different designations: international conventions, international agreements, covenants, final acts, charters, protocols, pacts, accords, and constitutions of IOs.20 Protocols and annexes are integral parts of constituent instruments. Declarations are supplementary means of interpretation of treaties and protocols. In particular, according to the European Union, its constituent instruments do not by their nature differ from other international treaties establishing international intergovernmental organizations or international organs. They are subject to the provisions of the Vienna Conventions on the Law of Treaties of 1969 and 1986, as well as the main principles of modern international law. Constituent instruments may have different designations. The most frequently used designations are ‘charter’ or ‘agreement’. In the international legal literature the term ‘charter’ frequently denominates constituent instruments of IOs as a legal category. For example, the constituent instruments of some IOs (UN, ILO, FAO, IAEA, and others) are charters, and of others (WTO, IMF, EU)—agreements. However, whatever the designation of a constituent instrument of an IO, in international law with regard to their legal nature they have specific features compared with conventional international treaties. The term ‘charter’ (or ‘statute’) is used to designate formal and significant instruments, such as a constituent treaty of an IO. In turn, some scholars apply the term ‘Constitution of the Organization’. As the effectiveness and continuity of IOs depend to no small extent on their ability to adapt themselves constantly to a rapidly evolving world, the necessary flexibility must be ensured by provisions included in the constitutions of the organizations.21 The constituent instrument, called ‘charter’, is the legal ground for the establishment and operation of an IO. According to its legal nature, charter is an international treaty of specific nature (sui generis). The main feature of an international treaty, which is the charter of an IO, is that it establishes the rights and obligations of parties thereto (states), like any other international treaty, as well as establishes an IO. It means that the bodies are established, the issues of legal status of members of the organization, its personnel, the nature of relations with other IOs, the states—non-members, etc. are determined. In this regard, Article 5 of the Vienna Convention on the Law of Treaties of 1969 reads as follows: ‘The present Convention applies to any treaty which is the constituent instrument of an IO and to any treaty adopted within an IO without prejudice to any relevant rules of the organization’. Thus, Article 5 consists of two parts. It includes a general rule according to which charters of IOs are international treaties, by virtue of which they are subject to the provisions of the Vienna Convention of 1969. However, at the same time, Article 5 includes a special rule, which emphasizes the specific feature of this group of international treaties, since the provisions of this convention are extended to them taking into account the rules that operate within the IO itself.22 Thus, the provisions of the Vienna Convention on the Law of Treaties of 1969 concerning the conclusion and entry into force of multilateral treaties, the invalidity of treaties, the application of an international treaty to third states, as well as the provisions containing the pacta sunt servanda principle mainly apply to the charters of IOs. A charter of an IO, in contrast to a multilateral treaty, established a permanent international entity that operates on its basis.23 Since an IO is an international legal institution—a subject of international law, it must be established and operate in accordance with the norms of general international law governing the relationship between all subjects of international legal relations. The main principles of international law and other imperative rules play a special role. The Vienna Convention on the Law of Treaties of 1969 sets forth that it ‘applies to any treaty that is a constituent act of an international organization’.24 The constituent instrument is the main source of the law of IOs. Constituent treaties are of long-term nature. Thus, the Treaty of Rome and the Maastricht Treaty are of unlimited duration (Article 53 of the Treaty on European Union, Article 356 of the Treaty on the Functioning of the European Union).25 At the same time, a specific feature of this category of international treaties results from the practice of IOs. For example, to accept a reservation made by a state to the constituent instrument of an IO, the consent of the competent authority of the organization is required. In practice, the UN has a rule that excludes the succession of membership in the UN, while the transfer of rights and obligations under other international treaties is possible, etc. Thus, in 1947 when Pakistan gained independence from India, the issue concerning Pakistan’s membership in the United Nations arose: whether it should gain membership by succession or on general grounds under the procedure for admission to membership in the organization. The accession of Pakistan to the UN on a general basis has led to the international custom, according to which rights and obligations of a member in IOs cannot be transferred under constituent instruments of IOs. When the People’s Republic of Bangladesh gained independence from Pakistan and was admitted as a member of the UN in 1974 the issue of succession of membership was not raised.26 Along with charters, international conventions, protocols and declarations can be approved. In particular, the term ‘convention’ may have both general and specific meaning. The term ‘convention’ in general means the following: Article 38 (1) (a) of the Statute of the International Court of Justice reads as follows: ‘International conventions, whether general or particular, establishing rules expressly recognized by the contesting states in addition to international custom, and the general principles of law recognized by civilized nations, as well as judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law’. In this general use, the term ‘convention’ encompasses all international agreements in the same way as the general term ‘treaty’. Generally recognized principles and rules of law are also traditionally referred to ‘conventional law’ in order to distinguish them from other sources of international law, such as customary law and the general principles of international law. Thus, the general term ‘convention’ is synonymous with the general term ‘treaty’.27 ‘Convention’ is a specific term: if during the last century the term ‘convention’ was traditionally used to designate bilateral agreements, it is currently used to designate official multilateral treaties with a large number of parties. Conventions remain generally open to accession for the international community as a whole or a large number of states. Typically, treaties concluded under the auspices of IOs are called ‘conventions’ (e.g. the Convention on Biological Diversity of 1992, the United Nations Convention on the Law of the Sea of 1982, the Vienna Convention on the Law of Treaties of 1969). The same applies to acts adopted by IOs (e.g. the Convention on the Rights of the Child of 1989 adopted by the United Nations General Assembly). The term ‘protocol’ refers to agreements that are less formal than agreements called ‘treaties’ or ‘conventions’. This term can be used to designate the following types of instruments: Signature protocol is a subsidiary instrument to the treaty drawn up by the same parties. The protocol refers to subsidiary issues, such as interpretation of certain provisions of the treaty, official provisions not incorporated in the treaty, or settlement of technical issues. Ratification of a treaty will, as a rule, ipso facto include ratification of the protocol; Optional protocol to the treaty is an instrument providing for additional rights and obligations. It is as a rule approved on the same day, however, it is independent and subject to separate ratification. Such protocols allow some parties to the treaty to establish inter se a binding mechanism that goes beyond the scope of the general agreement and is not accepted by all parties (e.g. the Optional Protocol to the International Covenant on Civil and Political Rights of 1966); Protocol based on a framework treaty is an instrument specifying obligations designed to achieve the overall objectives of the earlier framework convention. Such protocols provide for a simplified and accelerated process of concluding a treaty. Such protocols are widely used in the field of international environmental law, for example the Montreal Protocol on Substances that Deplete the Ozone Layer of 1987 adopted under Articles 2 and 8 of the Vienna Convention for the Protection of the Ozone Layer of 1985; Protocol on amendments is an instrument modifying one or more earlier treaties, such as the Protocol Amending Agreements, Conventions and Protocols on Drugs of 1946; Protocol as a type of supplementary treaty is an instrument containing additional provisions to the earlier treaty, such as the Protocol Relating to the Status of Refugees of 1967 to the Convention Relating to the Status of Refugees of 1951; Protocol (Proces-Verbal) is an instrument that envisages certain agreements reached by the parties.28 The term ‘declaration’ is used to refer to different international instruments. However, a declaration is not legally binding in any case. This term is often deliberately chosen to demonstrate that the parties are not determined to establish legally binding obligations, but want to declare certain positions, for example the Rio Declaration of 1992. At the same time, declarations can also be treaties in the general sense and be binding under international law. In this regard, in each individual case, it is necessary to determine whether the parties’ intention was to establish legally binding obligations. Determining the parties’ intentions most often can be a difficult task. Certain instruments, called ‘declarations’, as originally envisaged, should not have binding force, but later their provisions could have become a reflection of international customary law or become mandatory as rules of customary law, for example the Universal Declaration of Human Rights of 1948. The binding declarations can fall within the following categories, namely: Declaration may be a treaty, for example the United Kingdom and China Joint Declaration on Hong Kong of 1984; Interpretative declaration is an instrument attached to the treaty to interpret or clarify its provisions; Declaration may also refer to an informal agreement on any issue; A number of unilateral declarations (statements) may constitute binding agreements, for example declarations (statements) according to the optional status of the Statute of the International Court of Justice, that establishes legal relations making them parties, although they are not directly referred to each other. Egypt’s unilateral Declaration on the Suez Canal of 1957 and its application was deemed an international obligation. In domestic and foreign literature, most of the research was conducted given the definition of the UN Charter as a treaty of a specific type. Indeed, the UN Charter is a multilateral universal treaty of a specific type and importance. It determines rights and duties of the member states, as well as establishes universally accepted norms and principles of international law. Given the above, it is the main source of modern international law.29 The importance of the UN Charter is also determined by the fact that it sets forth the goals of securing peace, peaceful coexistence and cooperation of the states, and ensures their agreement to take joint action to achieve these goals within the Organization on the basis of generally accepted principles and rules of international law. The provisions of the UN Charter prevail over other international treaties. Thus, Article 103 of the Charter of the United Nations reads as follows: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’ (Charter of the United Nations). A significant number of bilateral and multilateral treaties have been adopted on the basis of the UN Charter or contain direct references thereto. The principles and objectives of the UN Charter have been further developed in international treaties, the UN treaties, such as the Human Rights Covenants, the Agreement on Disarmament, and others.30 One of the main characteristics of the UN Charter is the procedure for amending and revision of the Charter, which is strictly governed. Thus, to incorporation amendments of partial nature into the UN Charter, they must be approved by two thirds of the votes of the members of the General Assembly of the United Nations, followed by ratification by two-thirds of the members of the Organization, including all permanent members of the Security Council. The revision of the Charter takes place at the General Conference of the United Nations, the term and place of which shall be determined by two-thirds of the votes of the members of the General Assembly and by the votes of nine (fifteen) members of the Security Council. It is envisaged that each member of the Organization shall have one vote at the conference. After this any modification of the UN Charter, recommended by two-thirds of the votes of the conference participants, shall come into force after ratification in accordance with the constitutional procedure by two-thirds of the members of the Organization, including all permanent members of the Security Council. That is, in the case of revision of the Charter, all five permanent members of the Security Council are required to vote. The Charter also provides for that a Member of the United Nations which has persistently violated the principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council (Article 6 of the Charter of the United Nations). The United Nations has not yet taken such measures. No provision of the Charter sets forth the possibility of quitting membership in the Organization, but every member of the UN as a sovereign state is entitles thereto. The UN Charter provides for the possibility of suspending the rights and privileges of the UN member states if preventive or coercive measures have been approved by the Security Council against it. Such a suspension is by the General Assembly, upon recommendation of the Security Council, and the renewal by the Security Council. Like charters of international intergovernmental organizations, the constituent treaties of the European Union include provisions for the conclusion of international agreements with a view to their implementation. In particular, the legal regulation by international agreements includes the issue of amending and supplementing all constituent treaties (Article 48 of the TEU); determining location of institutes of the European communities (Article 241 of the TFEU). The possibility of concluding international agreements within the EU is also enshrined in the provisions concerning cooperation in the social sectors (Article 156 of the TFEU), education, training and youth (Article 165 of the TFEU), culture (Article 167 of the TFEU), health (Article 168 of the TFEU), although there is no direct reference to international agreements as an instrument of such cooperation. All these agreements must be subject to the provisions of the constituent treaties, being aimed at their implementation.31 In general, unlike charters of many IOs, the constituent instruments laying the grounds for the European integration within the European Union do not include any general provisions that seek to achieve the objectives of these instruments through international agreements. The integration processes is mainly governed by the acts of the European Union institutions. 5. DISCUSSIONS There are many types of international legal acts of IOs: statutes, multilateral conventions, international treaties, and pacts, which establish different forms of control over the implementation of the norms contained in these instruments, as well as provide for the establishment of special bodies for control. The specific nature of international treaties, which are the constituent acts of IOs, inspired scholars to elaborate the theory according to which the charters of IOs are not international treaties and by their nature are equal to state constitutions. In particular, this theory is substantiated in the works of American professor V. Friedman, Uruguayan professor H. Arechaga, Israeli professor Sh. Rozen, and others. The legal grounds for this theory are as follows. Its proponents in studying the legal nature of charters of IOs refer to constitutional law of capitalist states, considering the charter of the organization as a constitution of the federal state. The union of states within the framework of IOs is not a federal state and a constituent instrument of an organization, it is not a constitution, but an international treaty, which is the basic, existing legal form governing relations between sovereign states in the international arena.32 Charters of IOs contain rules determining the purpose of an IO, its tasks and functions. These provisions are vital since they establish a general criterion for determining the rights of an IO to an act, should it fail to be directly provided for in the charter of the IO. That is, charters are a source of so-called intelligent competence, which is often used by IOs (e.g. WTO, EU). Thus, the WTO Agreement establishes the relationship between the latter’s rules and the provisions of other sources of its law—multilateral trade agreements (Article XVI: 3 of the Agreement), the provisions of the GATT 1994 and the agreements contained in Annex 1A to the WTO Agreement (general explanation to Annex 1A to the WTO Agreement), the norms of the law of GATT and the WTO in general (Article XVI of the WTO Agreement). No clear distinction between the activities of an IO as a whole and of each of its bodies contributes to the successful functioning of the organization and ensures the legitimacy of decisions taken by its bodies, since the latter cannot go beyond the competence established by the constituent instrument of the IO. Since charters to international treaties of a specific type are well substantiated, it can be concluded that a charter is the legal basis for IO’s activities in the field of international relations, and the rules and principles that are established therein, as well as should be the basis of all actions of an IO in the international arena. In addition to the charters, other international treaties governing various aspects of the activities of these organizations also refer to the law of IOs. A large body of international treaties together with a charter of an organization determines the scope and complexity of the law of individual IOs. For example, the complexity of WTO law is due to the fact that, in addition to the charter of this organization, it also includes more than 20 agreements and arrangements embodied in four annexes to this agreement and being an integral part thereof. INTERPOL’s Constitution, adopted in 1956 by the INTERPOL General Assembly, can be characterized as an agreement in simplified form. It takes the usual wording of treaty instruments and contains standard provisions which can be found in other treaties establishing IOs. The Constitution empowers INTERPOL to conclude international agreements (Article 41). In application of this Article, the Organization has concluded a significant number of international agreements with other subjects of international law. These include more than 40 agreements relating to INTERPOL’s privileges and immunities on the territory of different States, either for the establishment of a bureau, for the organization of a General Assembly session or a Regional Conference, or for the deployment of personnel in the field for police operations. INTERPOL has also concluded, for example, a general cooperation agreement with the United Nations. On the basis of its constituent instruments, an IO will provide its own operation and develop its own legal and political order. The dynamic interaction of an IO with the subjects of its legal order, including its member States and other entities or individuals such as employees, may thereby give rise to a variety of legal acts that are generally summarized under the term secondary law of the IO, because they emanate from the constituent instruments as the primary source of rights and obligations within the legal order of the organization. Considering the dual nature of the constituent instruments, the importance of the constituent instruments of IOs does not justify the interpretation of the secondary law as international law.33 The law of IOs is an organically interconnected body of legal principles and norms that ensure functioning and operating of the organization. Members of the organizations are bound to adhere to the relevant rules due to the fact of membership therein. Failure to comply with certain rules of the law of IOs implies imposing relevant sanctions. 6. CONCLUSION The constituent instrument of an IO is one of the main sources of the law of IOs as a field of international law. Constituent instrument may have various designations, ‘charter’ or ‘agreement’ being the most common. In the international legal literature, treaties as sources of the law of IOs are studied mainly due to their subject-matter. These may be agreements concluded on specific issues, determining objectives, tasks, structure and competence of the bodies, membership and rights and responsibilities of members, procedure of work and other issues. A charter of an IO is a rather complex instrument, different from the ordinary multilateral agreement. In our view, considering charters of IOs in terms of their role in legal regulation of cooperation between states and these organizations, the following should be considered. The above instruments play a major role in this area, since, firstly, they consolidate the determination of sovereign states to establish an IO and empower it with certain rights and responsibilities. Secondly, a charter governs a large number of issues which are directly related to the organization’s relations with the states. In particular, the charter contains the rules governing legal status of an IO, relationship between the organization and its member states, its structure, competence, functions of its bodies, as well as order and form of organization’s relations with other actors of international relations. Thirdly, charters contain norms defining the purpose of establishing an IO, its tasks and functions. These provisions constitute a general criterion for determining the rights and obligations of an IO to perform activities, should such rights fail to be directly set forth in the charter of the IO. That is, charters are the source of so-called ‘intelligent competence’ of the IO. Fourthly, charters play a coordinating role with respect to other sources of law of IOs, namely the establishment of their hierarchy. Charters resolve this issue indirectly, determining the procedure for the adoption and validity of legal acts of the bodies of IOs, as well as the latter’s right to conclude international treaties. Charters contain provisions that directly govern these issues. The law of IOs sets a body of rules governing legal status, activities of the organization, its interaction with other subjects of international law, participation in international relations. Footnotes 1 R Virzo and I Ingravallo Evolutions in the Law of International Organizations (Leiden, Netherlands: Martinus Nijhoff Publishers, 2015). 2 J Alvarez The Impact of International Organizations on International Law (Brill Nijhoff, 2016). 3 K Daugirdas ‘How and Why International Law Binds International Organizations’ [2016] Harv Int’l L J 57, 325–81. 4 MM Parish ‘International law and International Organizations: The Legacy of the Twentieth Century. Right’ [2014] J Higher School Econ 2, 124–41. 5 ND White The law of International Organizations (3rd edn Manchester University Press, 2016). 6 A Schifano ‘Distribution of Power within International Organizations’ [2017] International Organizations Law Review 14, 346–401. 7 HG Schermers and MN Blokker International Institutional Law (5th Revised edn Leiden, Netherlands: Martinus Nijhoff Publishers, 2011). 8 R Zacklin The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies (Leiden, Netherlands: Martinus Nijhoff Publishers, 2005). 9 Above n 6. 10 S Besson and J d’Aspremont The Sources of International Law. The Oxford Handbook on the Sources of International Law (Oxford, UK: Oxford University Press, 2017). 11 L Raimanova Why Contracting with an International Organisation is Different, 2012. http://www.allenovery.com/publications/engb/Pages/ ContractingWithInternationalOrganisations.aspx (accessed 4 December 2017). 12 A Reinisch Contracts between International Organizations and Private Law Persons, 2006. deicl.univie.ac.at/fileadmin/user.../contracts_ios_epil.pdf (accessed 3 August 2017). 13 SA Voitovich International Economic Organizations in the International Legal Process (Leiden, Netherlands: Martinus Nijhoff Publishers, 1994). 14 VL Talko International Legal Forms of Cooperation of States with International Economic Organizations: diss. ... Candidate Legal, National Academy of Sciences of Ukraine (Institute of State and Law, 2000). 15 TM Tsygankova and TF Gordeeva International Organizations (K KNEU, 2001). 16 N Blokker and RW Heinsch The Law & Practice of International Organizations – Practicum (2011-1012). https://studiegids.leidenuniv.nl/courses/show/30602/the_law_practice_of_international_organizations_-_practicum (accessed 17 September 2017). 17 J Klabbers ‘The Transformation of International Organizations Law: A Rejoinder’ [2015] Eur J Int Law 26.4, 975–77. 18 Above n 7. 19 TM Tsygankova and TF Gordeeva, International organizations, K.: KNEU. 20 T Buergenthal and S Murphy Public International Law in a Nutshell (4th edn 2007). 21 R Zacklin The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies (Martinus Nijhoff Publishers, 2005). 22 EA Shybaeva and M Potochniy Legal issues of the structure and activities of international organizations (2nd edn Moscow: Publishing House of Moscow State University, 1988). 23 II Lukashuk, International Law, Textbook (M.: Beck, 1998). 24 IP Blishchenko and AH Abashidze The Law of International Organizations: Textbook (M.: RUDN, 2013). 25 VI Muravyov The law of the European Union: Textbook (K.: Yurinkom Inter, 2011). 26 Above n 10. 27 ibid. 28 ibid. 29 Above n 21. 30 ibid. 31 Above n 24. 32 Above n 21. 33 Above n 9. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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