ERCIYES
UNIVERSITY DEPARTMENT OF INTERNATIONAL RELATIONS
2011-2012 Academic Year INTERNATIONAL LAW-II Finals Tutorial
1. A common term used to
describe the totality of international human rights conventions in customary
human rights law is the 'International Bill of Rights'.
Discuss which international instruments and customs might make up this
bill of rights and discuss whether you agree or disagree with the existence of
an international bill of rights.
Commentary
This question calls for
discussion of the general treaties that make up international human rights law
and an analysis of whether there is any such thing as an 'International Bill of
Rights'.
The treaty regime includes the International Covenant on Civil and
Political Rights 1966 (lCCPR), and the
International Covenant on Economic, Social and Cultural Rights 1966 (lCESCR).
Furthermore, there is a General Assembly Resolution, the Universal Declaration of Human Rights 1948 (UDHR) that has
become part of customary international law.
Firstly, you need to show
some awareness of the variable enforcement mechanisms in each treaty, the rate
of ratification of the treaties and the difficulty in the reporting regime.
Secondly, the question
requires knowledge about the alleged hierarchy of human rights and whether
indeed in the contested third generation of rights, they are really human
rights at all.
Finally, the question calls
for a qualitative judgement, whether the student believes the concept, and therefore
can state which prevailing academic opinion is most persuasive.
Answer plan
• Describe the body of
treaties and international instruments that make up a possible international
bill of rights.
• Discuss the enforcement
system for those human rights.
• Engage in a discussion of
the hierarchy of human rights norms.
• Discuss the debate of
this issue within the academic literature.
• Conclude as to whether a
universal bill of rights exists.
2. "The role of international organisations in the world order
centres on their possession of international legal personality as distinct
from, and in addition to, personality under domestic law." Quoted from Malcolm Shaw, International Law, 6th Ed. (Cambridge:
Cambridge University Press, 2008) 1296f.
Discuss
Commentary
In considering the legal
position of international organizations it is useful to start by considering
whether such entities possess legal personality and, if so, what the
consequences of that legal personality are. Because international organizations
usually operate on both the international plane and in national territories,
one must consider whether these organizations possess international legal
personality and legal personality in domestic law.
Answer Plan:
• Discuss personality in
international law.
• Discuss the objective
legal personality and relations with non-member states
The following text is quoted from Dapo Akande, "International
Organizations" in Malcolm D. Evans (Ed.), International Law (Oxford, Oxford University Press, 2003) 272-5
A. PERSONALITY IN
INTERNATIONAL LAW
1. The meaning of
international legal personality
To say that an entity has
international legal personality is to say that the entity is a bearer of rights
and duties derived from international law. Whilst it was often asserted in the
nineteenth and early twentieth centuries that States were the only subjects of
international law it was decisively established in the Reparations for
Injuries Advisory Opinion that other entities, particularly international
organizations, also possess international legal personality. The case arose out
of the murder of a UN mediator in Jerusalem by a Jewish group. The UN General
Assembly requested an opinion from the International Court of Justice on
whether the UN had the capacity to bring an international claim (against
Israel) for the purpose of obtaining reparation for injuries done to the
organization and its agents. Whilst Article 104 of the Charter imposes an
obligation on UN member States to confer legal personality on the Organization
within their domestic legal systems, there is nothing in the Charter which
expressly grants international personality to the UN. Nevertheless, the Court
found that the UN possesses international legal personality, arguing that this
was necessary for the fulfilment of its functions. The Court also deduced legal
personality from the powers and rights that had been given to the UN (the power
of decision-making, domestic legal personality, and privileges and immunities,
treaty-making powers) under the Charter. The Court also noted that the
Organization 'occupies a position in certain respects in detachment from its
members' and that:
. .. the Organization was
intended to exercise and enjoy, and is in fact exercising and enjoying,
functions and rights which can only be explained on the basis of the possession
of a large measure of international personality and the capacity to operate upon
an international plane.
To say that international
organizations possess international legal personality only tells us that they
are capable of possessing international rights, capacities, or duties. It does
not define the particular capacities, rights, or duties that any particular
organization possesses.
2. The sources of
international legal personality for international organizations
Although treaties
establishing universal international organizations do not usually provide
expressly that they possess international legal personality, there are treaties
dealing with closed international organizations which do so. Where there is no
express treaty basis, international personality may be deduced by other means.
There are two basic schools
of thought regarding the method by which the personality is to be established
in the absence of an express treaty provision. The first school -the inductive
approach- asserts that the personality of an international organization is to
be implied from the capacities, powers, rights, and duties conferred on that
organization in its constituent instrument and developed in practice. According
to this school of thought, an international organization will only have
personality if its members intended it to have such personality or if it can be
asserted that such personality is necessary for the fulfilment of the functions
ascribed to it by its members. The second school -the objective approach-
asserts that an international organization has international legal personality
as long as certain objective criteria set out by law are fulfilled. Thus
personality is not derived from the will of the members. The relevant criteria
are essentially stated above in the definition of an international
organization: that there must be (i) an association of States or international
organizations; (ii) entrusted with functions or powers; (iii) endowed with at
least one organ with a will of its own.
However, there is no
radical difference between the two schools if one accepts that the
characteristics which confer international legal personality on international
organizations must necessarily be conferred on it by its members. Once those
characteristics are conferred (by the will of the members through the
constituent instrument or subsequent practice), the rules of international law
confer international personality on the organization with all the consequences
that this entails. Arguably, all that the Court did in the Reparation for
Injuries Opinion was to search to see if the characteristics necessary for
international personality (and which are predetermined by international law)
had been conferred on the UN by its members.
3. The consequences of the
possession of international legal personality by international organizations
Possessing international
legal personality means that an organization possesses rights and duties in
international law but this does not usually tell us the particular rights and
capacities possessed by a particular organization. However, there are certain
consequences which flow from the possession of international legal personality
by an international organization:
(i) Personality
distinguishes the collective entity (the organization) from the members. In
particular, legal personality, separates out the rights and obligations of the
organization from those of the members.
(ii) Personality entitles
the organization to bring a claim in international law for the purpose of
maintaining its own rights. Such claims by international organizations will be
brought through the mechanisms which exist in international law for the
settlement of international disputes and can only be made in an international
tribunal if that tribunal has jurisdiction to deal with the case.
(iii) Personality entails
the consequence that an international organization is responsible or liable for
the non-fulfilment of its obligations and gives rise to a presumption that
members of the organization are not liable with respect to the obligations of
the organizations, although this presumption can be displaced. The principle
that members of the organization are not liable for its obligations is
illustrated by the International Tin Council (ITC) cases.
These three consequences
are inherent in the very notion of international legal personality and apply to
any international legal person. However, there are other consequences of the
personality of international organizations which do not apply to all
international legal persons but result from the nature of personality possessed
by international organizations.
First, customary
international law confers, at least within the host State, certain privileges
and immunities on international organizations that are necessary for the
efficient and independent functioning of the organization. Secondly,
international organizations possess a power to conclude agreements which are
subject to the law of treaties. Whilst the question whether a particular type
of treaty is within the competence of any particular organization depends on
its implied powers, every organization at least has the competence (where not
expressly denied) to enter into certain types of treaties. These include
host-State agreements and treaties for the purpose of settling claims by and
against the organization.
B. OBJECTIVE LEGAL
PERSONALITY AND RELATIONS WITH NON-MEMBER STATES
Does personality exist only
in relation to members or is this personality objective in the sense that
non-members are bound to recognize it, with all the consequences that this
entails? Given that international organizations are created by treaties which
do not bind non-parties without their consent, it might be argued that the
personality of an international organization is only binding on members. This
would mean that non-members would only be bound to accept that personality
where they have 'recognized' the organization as a legal person. However, it
seems that the personality of international organizations is in fact objective
and opposable to non-members.
In the Reparation for Injuries Opinion,
the Court had to consider whether the UN could bring a claim against a State
(Israel) which was not a member of the Organization. It took the view that:
... fifty States,
representing the vast majority of the members of the international com- munity,
had the power, in conformity with international law, to bring into being an
entity possessing objective international personality and not merely
personality recognised by them alone.... II
Clearly then, international
organizations with a membership consisting of the vast majority of the
international community possess objective international personality.
However,
it is important to note that the Court did not say that only such
organizations possess objective personality and there are good reasons of
practice and principle for concluding that the personality possessed by any
international organization is objective and opposable to non-members. In
practice, 'no recent instances are known of a non-member State refusing to
acknowledge the personality of an organization on the ground that it was not a
member State and had not given the organization specific recognition'.
Furthermore, domestic courts of non-member States do acknowledge the
international personality of inter- national organizations." As a matter
of principle, the personality of international organizations derives from rules
of customary international law that are binding on all States. Thus, once
international law ascribes personality to an organization, a subject of international
law is created with its own rights and its own duties.
3. Examine and compare the rules relating to the immunity of diplomats
and consuls.
Commentary:
Diplomatic and Consular
immunity is a well-accepted doctrine of public international law. The area is
largely regulated by two international conventions which must be the basis for
any answer to the question: the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations.
A very useful reference is Chanaka Wickremanisnghe, "Immunities
Enjoyed by Officials of States and International Organizations" in Malcolm D. Evans (Ed.), International Law (Oxford, Oxford University Press, 2003) 388-98
Answer plan
• Define diplomatic and
consular immunity.
• Discuss the customary
international law in this area.
• Discuss the 1961 Vienna Convention on Diplomatic
Relations.
• Discuss the 1963 Vienna
Convention on Consular Relations.
