International Law and International Organizations

International Law and International Organizations

Introduction

Originally, states were the only entities capable of gaining recognition as members of the international community. Based on their original position, states were the only entities eligible as subjects for international law. The chief tenet presiding over this State community was the sovereignty each State possesses. Such sovereignty allowed them to contribute to a legal structure based on a restricted amount of regulations that were indispensable to ascertain peaceful relations among States. Therefore, the cooperation of States to create this law translated into the creation of laws of co-existence[1]. Nonetheless, the international community has experienced significant challenges due to the increasing interaction amid States. This interaction involved the creation of international organizations via the cooperation of States. The main purpose for the inception of international organizations constituted the achievement of particular goals that the States could not achieve. Furthermore, the institutionalization of international law has occurred through these international organizations.

Nevertheless, the main subject of contention arising from this case comprises the level of power international organizations possess. After the creation of international organizations, States rarely possess influence over the decisions international organizations make. This is because international law provides for the International Legal Personality of international organizations. A respective entity having the capability of owning international privileges and obligations and the ability to sustain its rights by offering international claims possesses international legal personality[2]. Therefore, by possessing legal personality, international organizations have independent and autonomous powers relative to their member States. Furthermore, international organizations are responsible for the restructuring of international law in the present international legal context. International organizations possess dynamic degrees of authority that vary from standardization of political interaction between States to administrative coordination. Thus, their power over international law is evident where these entities possess the legal influence to encroach on the States’ sovereignty.

Overview of International Organizations

The terminology, international organizations, constitutes a broad range of entities. In a wide scope, international organizations also encompass Non-Governmental Organizations (NGOs) and Multinational Companies (MNCs). These entities usually possess their basis within their State’s local legal structure[3]. However, the scope of international organizations places emphasis on Intergovernmental Organizations. The membership of these organizations is essentially a mandate of the States. International organizations undergo establishment via States. Usually, States educe international agreements that focus on establishing the creation of these entities[4]. These international agreements allow for the conferment of powers that the international organizations should possess. Therefore, they act as a reference point in any case the organizations breach their powers and limitations within the contract. International organizations possess restricted degree of international personality, specifically with reference to member States. They are able to enter in international agreements and in turn, enable their delegates to possess certain rights and immunities.

Various estimates exist concerning the precise number of international organizations. This is due to the creation of international organizations rapidly in order to perform vested obligations and law-making duties within the global society. Nonetheless, it is still possible to assert the magnitude of the existence of international organizations in relation to their states. Accordingly, the ratio of international organizations to member States is actually in excess of three to one[5]. Furthermore, these entities vary from universal organizations, which comprise organizations such as the United Nations, to regional organizations, which possess convoluted structures and extensive powers. An example of this is the European Community. Additionally, international organizations also constitute small entities such as the Nordic Council. Based on the extensive range of international organizations, it is indeed apparent that landscape of international law has changed radically from the epoch of the State as the main subjects.

International organizations assume a very significant role within the contemporary international community. They harmonize cooperation in various fields such as environmental protection and conservation, human rights, and humanitarian assistance. Therefore, without the intervention of such bodies, it would be greatly difficult to solve most of the challenges experienced in this present era. Even though it is still achievable for States to execute cooperation regardless of the institutionalization of these entities, the permanent bodies elevate the cooperation to a greater level[6]. In relation to the extensive range of international organs, other organizations also play a fundamental role in the international community. These entities comprise the technical organizations. Examples of these bodies comprise the International Telecommunications Satellite Organization (INTELSAT), the International Maritime Organization and the International Postal Union. Additionally, other organizations such as the International Bank for Reconstruction and Development and the International Monetary Fund have assisted in lessening the economic fissure between member nations.

Significant contributions arising from international organizations also comprise the codification of certain areas within international law. Most of the areas that these organs focus on are due to the rapid dynamics of the global environment. Some of the organizations that have contributed to the codifications of these areas include the United Nations on a global scale and the Council of Europe regionally. These organizations are responsible for the creation of numerous treaties governing various aspects. In relation to the United Nations, the most viable feature is the institution of the International Law Commission (ILC). Some of the significant illustration of treaties with respect to the UN comprises the Vienna Convention of 1969 and the Law of the Sea Convention[7]. In terms of the Council of Europe, significant treaties include the Protection of Human Rights and Fundamental Freedoms.

International Organizations and Law-Making

It is undisputed that international organizations have the capability to execute decisions that bind their member States and to exercise sovereign authority as well. This is obvious in organizations such as the United Nations (UN), the World Health Organization (WHO), the International Monetary Fund (IMF), the Universal Postal Union (UPU), the European Community (EC), North-Atlantic Treaty Organization (NATO), the International Civil Aviation Organization (ICAO), the Organization of American States (OAS), the Organization for Economic Co-operation and Development (OECD) and the World Meteorological Organization (WMO)[8]. Based on this assertion, it is apparent that international organizations are rapidly becoming vital significant lawmakers. This is evident based on the functions of the United Nations or other supranational entities such as the European Union (EU) and the World Trade Organization (WTO).  Moreover, international organizations offer an appealing institutional model for the current account of the authority of international law.

International organizations bear a resemblance to national legislative institutions where individuals categorize themselves as formal legislators and comprise disparate powers that intervene in the procedure. Nonetheless, international organizations have become autonomous organs of lawmaking authority based on their independence from the States responsible for creating them. The reason for their lawmaking influence arises from certain factors or sources. One of the factors involves the legality of the legal-logical power they exemplify. The second source of their authority involves their considerable control over information and technical proficiency[9]. By embodying such aspects in the international community, international organizations near absolute power in the creation of legislations based on the influence of the States. Furthermore, the accessibility of such sources which arises primarily from the global influence of the States enables international organizations to act in a manner that exemplifies the interests of the States rather than the interests of the organizations themselves.

Nonetheless, international organizations are rapidly shifting to novel forms of lawmaking without the influence of the States. By undergoing conception based on States’ various needs, it has come to realization that States have accorded significant authority to these international organs. This is because member States created numerous and different legislations for international organizations in order for these entities to venture into areas restricted from the member States. However, the near absolute lawmaking authority of international organizations was not the case at one point. Traditionally, certain propositions were significant in order to determine the lawmaking authority international organizations could possess. Foremost, States provided organizations with law-making authority with reference to the constituent treaty. Secondly, international organizations only possessed lawmaking powers accorded to them by the States’ constituent treaties. Lastly, the law-making authority that international organizations possess is limited to internal affairs[10].

These propositions would accomplish the utilization of predictable mechanisms by international organizations during the creation of law. Furthermore, the propositions would necessitate the use of law-making mechanisms in a manner that is consistent with the unique aims and objectives of the member States[11]. However, based on current developments within the international community, it is apparent that such conventional propositions are inapplicable in dictating lawmaking powers for international organizations. Moreover, essential mechanisms, which establish international organizations, are subject to interpretation by the entities and parties responsible for their application.  It is, therefore, probable that the provisions implicated in the constituent treaty pertaining to the organizations’ lawmaking authority undergo interpretation in a different manner separate from the original meaning explicated by the drafting States[12]. Therefore, in accordance to this assertion, it is obvious that international organizations, via the process of interpretation, possess the capability of augmenting their lawmaking powers with reference to the Interpretation Clause in the 1969 Vienna Convention.

The Power of International Organizations in Lawmaking

Indeed, international organizations in the present epoch possess significant lawmaking powers in the international community. Such authority presents them as primary lawmakers within the international system. Nonetheless, such power by international organizations originates purely from the interests of the States. In accordance to the Frankenstein Problem, states possess the capability to create international organizations and allocate considerable powers to them in terms of design features selected by the nations. However, in order to States to grant more authority to these organizations, they need to sacrifice their power as well[13]. Therefore, if States need these entities to commit to certain interests significantly, it is also necessary for them to surrender much of their sovereignty to these international organizations. However, this issue is a consequence arising from the materialization of international organizations in this present epoch. From this point onwards, it is important to determine the ways in which international organizations gain recognition as primary lawmakers in the present global system.

One of the ways in which international organizations act as primary lawmakers is through Classification and Creation of Classes of Action and Actors[14]. This aspect mainly involves the interpretation of certain meanings in international law. Through classification, international organizations embody a bureaucratic perspective. This means that international organizations exercise their lawmaking powers by instituting rules and regulations within their respective domains in the international community. Based on this aspect, international organizations, through their rules and regulations, categorize knowledge and information. They are able to do this through the implemented rules and regulations. Furthermore, it is impossible to object such rules based on the adoption of a bureaucratic system. A bureaucratic system focuses on rationalization through impersonality and legislation. Therefore, international organizations as primary lawmakers execute power by rationalizing the international community into adhering to certain practices in areas such as monetary allocation, trade and commerce based on affixed rules and regulations[15].

In terms of the creation of classes, international organizations exercise lawmaking authority by interpreting legal meanings specified in treaties and conventions to their classified and rationalised knowledge. This is present in the changing delineation of certain terminology. For instance, the dynamic characterization of ‘refugee’ symbolizes a category that is complicated and requires distinction from other classes of individuals who live ‘temporarily’ or ‘unwillingly’ outside their native countries, exiles, persons seeking political asylum, guest and expatriate workers, displaced individuals and the diaspora communities[16]. Additionally, the decorum ensuing from the definition of ‘refugee’ is common especially in the confines within and around the United Nations High Commission for Refugees (UNHCR). The legal and functional delineation of the class stoutly influences the judgments concerning the classification of a person as a refugee[17]. The judgment also possesses a considerable influence on the circumstances of life of massive numbers of individuals globally. Thus, based on this illustration, international organizations have legal authority in determining the power of affected actors based on their decisions.

International organizations also act as primary lawmakers by fixing meanings. They exercise lawmaking authority by virtue of their capability to fix meanings[18]. This is relative to classification. Through identification of or labelling the social milieu, international organizations verify the parameters and borders of tolerable action. Therefore, in establishing borders of tolerable action, international organizations construct laws that apply to such context regardless of their rigidity or impersonality. Accordingly, actors exude predisposition towards goals and objects based on the connotation they create for them. Therefore, having the capability to invest circumstances with a specific meaning comprises a significant power source for international organizations. Furthermore, regardless of the assertion that international organizations do not act solely, the extensive nature of their resources contribute absolutely to achieve this end. On a different note, one circumstance that comprises a fixed meaning is the concept of development in the international community.

The institutionalization of the notion of development after the Second World War created a significant international mechanism that spread globally through development discourses. Consequently, the conclusion of the Cold War saw international organizations such as the United Nations endorse a re-evaluation of the delineation of security. International organizations lead this debate based on their argument that security also pertains to individuals as much as states[19]. Additionally, international organizations also argue that threats against security might be environmental, military, political or economic. By advocating for optional characterizations of security, international organizations are endorsing a disparate collection of actors and legalizing an alternative collection of practices. Based on this, international organizations have generated laws that allow them to exercise their interpretation of security. An example of this involves the definition and creation of laws for terrorism. Even though terrorism lacks a general definition, the United Nations defines it as criminal acts aimed or computed to invoke a condition of terror within the public[20].

By defining and fixing meanings within the international community, international organizations gain considerable justification in legitimizing their interventions in the international as well as local affairs of sovereign States. This situation is common especially in Third World countries. International organizations construct policies that allow them to arrest or detain an individual accused of crimes such as those against humanity overseas instead of the State. This action by international organizations gains knowledge as ‘international regulation’. Accordingly, through widening the lawmaking authority of international organs concerning internal matters, internal regulations directed by these entities are subject to acquisition of normative overrun impacts, which go beyond the organization’s internal area[21]. An illustration of an entity increasingly active in developing international regulation especially in terrorism-related areas and impunity is the United Nations Security Council (UNSC). The regulations issued by the UNSC directly focus on the citizen instead of the member State. Other organs such as the International Criminal Tribunal for Rwanda and Yugoslavia (ICTR and ICTY) also affect lawmaking in other states by issuing sanctions directed at persons rather than member States[22].

The spread of established regulations and norms through policies is also another manner in which international organizations act as lawmakers. International organizations express eagerness in transmitting the profits of their proficiency[23]. Usually, these organs function as conveyor belts for the spread of ideal institutions within the international community. Since international organizations possess considerable legal-logical authority, it is possible for them to exert policies that rationalize the international community. This further highlights a dimension of formal rationality, which involves control. Therefore, by acting as propellers of global norms and values, international organizations exercise their authority by influencing States within the international community to adopt Western policies, legislations and practices regardless of their sovereignty[24]. This action is usually common in Third World nations. For instance, international bodies such as the European Union and the United Nations involve themselves in training and developing police training in non-Western countries based on the notion that Western practices in policing are better situated for the process of democratization[25].

Conclusion

In conclusion, international organizations embody the primary lawmakers in the present international system. This is due to the unique resources and power that they possess from their member States. Accordingly, sources such as legal personality, legal-logical authority and control over information and technical proficiency arise from the States responsible for their creation. The rapid increase of a variety of international organizations is due to the interests of the States. States usually possess different interests that they are unable to gratify due to the imposed legislations evident within the international community. Therefore, by creating international organizations, States formulate the design features of these organs in accordance to their needs. However, in order for the States to ensure that international organizations possess greater power, they also need to surrender much of their authority to these organs. This issue creates the Frankenstein Problem in which international organizations possess near absolute authority enough to override the sovereignty of member States.

Bibliography

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Alvarez, J.E., “Constitutional Interpretation in International Organizations”, In Coicaud, J., and Heiskanen, V., (eds.), The Legitimacy of International Organizations, 2001, New York, United Nations University Press, pp.101-120.

Alvarez, J.E., International Organizations as Law-Makers, Oxford, UK, Oxford University Press, 2006.

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Besson, S., and Tasioulas, J., The Philosophy of International Law, Oxford, Oxford University Press, 2010.

Blokker, N, Proliferation of International Organizations, Dordrecht, Kluwer Academic Publishers, 2001.

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Sarooshi, D., International Organizations and Their Exercise of Sovereign Powers, Oxford, Oxford University Press, 2009.

Scharf, P. M., The Law of International Organizations, Durham, Carolina Academic Press, 2007.

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Woodward, B. K., Global Civil Society in International Lawmaking and Global Governance: Theory and Practice, Leiden, Martinus Nijhoff Publishers, 2010.

 

[1] J. E. Alvarez, “International Organizations: Then and Now”, American Journal of International Law, no.1002, 2006, pp.333.

[2] D. Sarooshi, International Organizations and Their Exercise of Sovereign Powers, Oxford, Oxford University Press, 2009, p.36.

[3] I. Hurd, International Organizations: Politics, Law, Practice, Cambridge, Cambridge University Press, 2011, p.77.

[4] M. P. Karns and K. A. Mingst, International Organizations: The Politics and Processes of Global Governance, Boulder, Lynne Rienner Publishers, 2010, p. 150.

 

[5] J. E. Alvarez, International Organizations as Law-Makers, Oxford, UK, Oxford University Press, 2006, p. 57.

[6] C. F. Amerasinghe, Principles of the Institutional Law of International Organizations, Cambridge, Cambridge University Press, 2007, p.40.

[7] D. Lewis, International and Regional Organisations, Oxford, Oxford University Press, 2006, p. 103.

 

[8] I. Brownlie, Principles of Public International Law, Oxford, Oxford University Press, 2003, p. 121.

[9] N. Blokker, Proliferation of International Organizations, Dordrecht, Kluwer Academic Publishers, 2001, p. 45.

[10] J. Klabbers, “The Changing Image of International Organizations”, In Coicaud, J., and Heiskanen, V., (eds.), The Legitimacy of International Organizations, 2001, New York, United Nations University Press, p. 221.

[11] J. Klabbers and A. Wallendahl, Research Handbook on the Law of International Organizations, Cheltenham, Edward Elgar, 2011, p. 56.

[12] I. Brownlie, Basic Documents in International Law, Oxford, Oxford University Press, 2009, p.101.

[13] A. Guzman, “Doctor Frankenstein’s International Organizations”, Berkeley School of Law, 2012, p. 8-9.

[14] B. K. Woodward, Global Civil Society in International Lawmaking and Global Governance: Theory and Practice, Leiden, Martinus Nijhoff Publishers, 2010, p.46.

[15] A. Roberts and S. Sivakumaran, “Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law”, The Yale Journal of International Law, vol.37, no.1, 2012, pp.113.

[16] J. Klabbers, “Law-making and Constitutionalism”, In Klabbers, J., Peters, A., and Ulfstein, G., (eds.), The Constitutionalization of International Law, Oxford, Oxford University Press, 2009, p.112.

 

[17] S. Besson, “The Authority of International Law-Lifting the State Veil”, Sydney Law Review, vol. 31, no.343, 2009, p.354.

[18] S. Besson and J. Tasioulas, The Philosophy of International Law, Oxford, Oxford University Press, 2010, pp.76-79.

[19] J. d’Aspremont, “The multifaceted concept of the autonomy of international organizations and international legal discourse”, In Collins, R., and White, N. D. (ed.), International Organizations and the Idea of Autonomy: Institutional Independence in the International Legal Order, New York, Routledge, 2011, pp.63-67.

[20] H. W. Kushner, Encyclopaedia of Terrorism, Thousand Oaks, Sage Publications, 2011, p.34.

[21] J. E. Alvarez, “Constitutional Interpretation in International Organizations”, In Coicaud, J., and Heiskanen, V., (eds.), The Legitimacy of International Organizations, 2001, New York, United Nations University Press, p.117.

[22] P. M. Scharf, The Law of International Organizations, Durham, Carolina Academic Press, 2007, p.99.

[23] C. Archer, International Organizations, New York, Routledge, 2001, pp. 23-34.

[24] J. G. Ku, “The Delegation of Federal Power to International Organizations: New Problems with Old Solutions”, Minnesota Law Review, vol.85, no.71, 2000, p.72.

[25] A. Stumer, “Liability of Member States for Acts of International Organizations: Reconsidering the Policy Objections”, Harvard International Law Journal, vol.48, no.2, 2007, p.554.

 

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