Anthony Aust. Handbook of International Law

Подождите немного. Документ загружается.

Page 195

Article 3 of the Torture Convention 1984

prohibits the return or extradition of a person to another

state if there are substantial grounds for believing that he would be in danger of being tortured.

Obligations of the state of refuge to the refugee

The Convention has two dozen Articles on the treatment of refugees by the state of refuge.

Generally, these require refugees to be treated no less favourably than other aliens who are there and

not to discriminate as between refugees on grounds of race, religion or country of origin. (The

Convention counter-balances this with the obligation on refugees to abide by the laws of the host

state.) Many of the provisions are now subsumed by other international human rights obligations.

There is a (qualified) obligation to issue refugees with travel documents. Before the Convention,

these were known as ‘Nansen Passports’.

66. 1465 UNTS 85 (No. 24841); ILM (1984) 1027; UKTS (1991) 107; BGG 229.

67. Oppenheim, p. 892, n. 8; I. Kaprielian-Churchill, ‘Rejecting “Misfits”: Canada and the Nansen

Passport’ (1994) International Migration Review 281–300.

Page 196

9 International organisations

I don’t want to belong to any club that will accept me as a member.

Schermers and Blokker, International Institutional Law, 4th edn, Leiden, 1995

Klabbers, An Introduction to International Institutions, Cambridge, 2002

Sands and Klein (eds.), Bowett’s Law of International Institutions, 5th edn, London, 2001

Shaw, International Law, 5th edn, Cambridge, 2003, pp. 1161–215

International organisations grew out of the diplomatic conferences of the nineteenth century as states

sought more effective ways to deal with problems caused by the rapid development of international

society. The International Telegraphic (later Telecommunications) Union and the Universal Postal

Union were founded in the 1860s. There are now countless international organisations, ranging from

large ones with global responsibilities and virtually universal membership, such as the United

Nations and the UN specialised agencies, to regional or highly specialised organisations, such as the

(large) European Union and the (tiny) International Whaling Commission. Although each

organisation is different and must be studied separately, they share the following basic

characteristics:

Establishment by treaty (constituent treaty), although there are some exceptions. The

Organization for (previously Conference on) Security and Co-operation in Europe

(OSCE/CSCE), emerged following the Helsinki Final Act 1975, which was not a treaty.

Nor

was the Commonwealth or its secretariat established by treaty.

The International Committee

of the Red Cross (ICRC) is a Swiss corporation, and states are not members of it. However, it

has a special place internationally, being regarded with particular respect by governments and

referred to in (and sometimes a party to) treaties.

1. G. Marx, Groucho and Me, 1959, Ch. 26.

2. See p. 62 above.

3. See ILM (1965) 1108.

4. See further Shaw, pp. 192 and 821.

Page 197

Membership limited exclusively or primarily to states. This is reflected in the alternative

generic term ‘intergovernmental organisation’. Only states can be members of the United

Nations, but the European Community has been able to become a member of certain

organisations, such as the FAO

and the Commission for the Conservation of Antarctic Marine

Living Resources,

which admit to membership organisations on which their members have

conferred exclusive competence for certain matters. Some organisations admit as members

non-state entities on the basis that they are separate customs territories. Thus China, Hong

Kong (the Hong Kong Special Administrative Region (HKSAR))

and China, Macau, as well

as Chinese Taipei (Taiwan), are full members of the World Trade Organization (WTO). Both

China and the HKSAR are members of the International Textiles and Clothing Bureau, the

World Tourism Organization (WTO) and the World Meteorological Organization (WMO).

Other organisations have a separate category of associate membership for the overseas

territories of members. Many organisations allow non-member states and some non-state

entities to be observers without the right to vote.

International legal personality separate from its members (see below).

Financed by the members.

Permanent secretariats.

International organisations usually have three main organs: an assembly, in which all the members

are entitled to sit (usually with one vote each); an executive body (often with restricted

membership); and a secretariat. These organs need to be carefully distinguished from the

organisation itself and its members.

Membership and representation

Many international organisations, such as the UN specialised agencies, are open for membership by

any state. Others that are limited to particular regions (e.g. Europe) or interests (e.g. Antarctic

science) restrict effective membership accordingly.

Issues of membership are quite different

5. See the FAO Constitution, Article (3) at www.fao.org.

6. See Article of the CCAMLR Convention, 402 UNTS 71 (No. 22301); ILM (1980) 837; UKTS

(1982) 48; TIAS 10240; B&B Docs. 628.

7. Section of Annex to the Joint Declaration on the Question of Hong Kong, 1399 UNTS 33 (No.

23391); ILM (1984) 1366; UKTS (1985) 26.

8. See p. 208 below.

9. See p. 357 below.

Page 198

from questions of representation. Representation is concerned with which government is entitled to

represent a state within an international organisation. A prime example is China. The Republic of

China was an original Member of the United Nations. But in 1949 the Nationalist (Kuomintang)

Government lost the civil war to the Communists and retreated to the island of Formosa (Taiwan).

The victors formed the Government of the People’s Republic of China (the ‘PRC Government’),

which the United Kingdom and other States recognised as the PRC Government in 1950. But

opposition, led by the United States, to the PRC Government representing China in the United

Nations persisted until 1971, when the General Assembly decided that the PRC Government should

represent China.

Credentials

Credentials must be distinguished from representation. Credentials are set out in a formal document

issued, by a head of state or government or the foreign minister, to an international organisation (or

to the state or body organising a diplomatic conference) stating that the person (or persons) named in

the document is (or are) authorised to represent that state. The rules of procedure of the organisation

(or conference) will govern the requirements for credentials,

and a credentials committee is

usually convened to scrutinise them.

Withdrawal

The UN Charter and some other constituent treaties have no provision permitting a member state to

withdraw, but the right to do so can probably be implied,

although in some cases (such as the

European Union) there might be heavy financial consequences.

International legal personality

An international organisation is rather like a company in that it has legal personality separate from

its members. This makes the organisation a

10. See Rules 27–29 of the Rules of Procedure of the UN General Assembly and Rules 13–17 of the

Provisional (sic) Rules of Procedure of the UN Security Council. See also R. Sabel, Procedure at

Diplomatic Conferences, Cambridge, 1997.

11. See Klabbers, An Introduction to International Institutional Law, Cambridge, 2002, pp. 121–6.

12. See Aust, pp. 233–4, especially n. 46.

Page 199

subject of international law, with rights and duties under it.

Perhaps the most important aspect of

separate international legal personality is that the international organisation can enter into treaties

with other subjects of international law, whether member states, non-member states or other

international organisations.

Its constituent treaty may provide that it shall have international legal

personality; otherwise, this may be inferred from its purpose, the powers given to it by its members

and its practice.

The constituent treaty will usually provide also that in the territory of each member the

organisation shall have the legal capacity it needs to carry out its functions, such as entering into

contracts, buying and selling land and taking part in legal proceedings. This means, in effect, that

each member must accord it the status of a corporation in its domestic law. Whether this requires

legislation will depend on the constitutional law and practice of the member. In the United

Kingdom, and possibly in some other states that follow the dualist approach to the status of treaties

in domestic law,

the fact that the United Kingdom is a party to a treaty establishing an

international organisation will, in itself, not accord it legal personality in United Kingdom law.

There will usually have to be legislation (either an Act of Parliament or an Order in Council under

the International Organisations Act 1968) to accord it corporate status.

When legal personality has

been conferred on an international organisation by the law of a member state, the law of a non-

member state may treat the organisation as having legal personality even in that state.

Immunities and privileges

To ensure that ministers, diplomats and other officials attending meetings of an international

organisation, whether at its headquarters or elsewhere, are free from interference in carrying out their

duties, they enjoy certain immunities and privileges. They are also accorded to the organisation itself

and its staff. The guiding principle is that there must be a functional need for immunity, primarily to

ensure independence of the participants and the organisation. Certain fiscal privileges are accorded

13. On subjects, see p. 13 above.

14. On treaties with international organisations, see p. 53 above.

15. Reparations for Injuries Suffered in the Service of the United Nations, ICJ Reports (1949), p. 174; 16

ILR 318. Because they were not established by treaty, there may be some doubt whether the

Commonwealth or the OSCE have international legal personality.

16. See p. 81 above.

17. See generally Shaw, pp. 1187–93, and p. 82 above.

18. Arab Monetary Authority v. Hashim [1991] 2 WLR 738; 85 ILR 1.