The relationship between international organisation and international law

Saorla Ó Corráin

0210056

 

The principal issues that will be addressed are; (a) the history of international organisation and law; (b) where international non-governmental organisations and international private organisations fit the paradigm; (c) whether international organisation and law prevent or cause war; (d) why the United Nations possesses legal personality and the rights and duties of the institution; (e) the ultimate relationship between international law and international organisation: recreating the social contract.

 

The relationship between international organisations and law is long, involved and somewhat circular. As early as ancient Rome, Cicero and Gaius were discussing ius gentium,1 an early form of international law, ‘every people that is governed by statutes and customs observes partly its own peculiar law and partly the common law of all mankind’.2

 

The Catholic Church is considered to be an organisation and as such, is important in the relationship between international law and organisation. The church adopted Roman law but modified it according to its beliefs. The writings of Thomas Aquinas, Augustine and Grotius were vital in the legislation of the Treaty of Westphalia (1648) and Vattel’s Law of Nations (1758). Since both those documents emerged international law has increased in volume. But it was in the twentieth century that international organisation developed fully. Nevertheless the relationship that international organisations and law share is centuries old.

 

There has been some progress in the field of legal personality as regard international non-governmental organisations (INGOs) as a European convention proves, ‘[the signatory countries], desiring to establish in their mutual relations, rules laying down the conditions for recognition of the legal personality of these organisations in order to facilitate their activities at European level’.3  Although the Article four in the Convention clearly states that personality will be decided on a case-to-case basis and therefore no precedent will ensue. International private organisations, namely multinational corporations, have made no ‘noticeable progress in playing a role in international law in [their] own right’.4 

 

Despite the common belief that intergovernmental agencies were set up to ‘ward off the scourge of a third world war’,5 a belief that ‘led to the proliferation of organizations and contributed to their increasing importance’,6  the realist school of international political science, headed by Morgenthau, was convinced that international organisation caused World War II

 

If western statesmen had been attentive to the historical imperatives of power politics, and not fascinated by the seductive allurements of international law and organizations, World War II might never have happened … the western democracies had only themselves to blame for World War II.7

 

It is easy to make such statements in retrospect. One of the principal faults in this argument is that World War II was caused, not by the League of Nations, but by violations of international law in the Treaty of Versailles and individual states.8 Thus the basic premise must be re-examined. International law, although frequently disregarded by states, is not completely irrelevant and international organisation has been vital in the twentieth century performing international duties to which states will not commit.

 

Realists also maintain that international law and organizations are essentially irrelevant to a proper understanding of international politics and consequently are irrelevant to the progressive development of international political theory’.9  They recognise that both international law and organisation have certain uses.10   

 

However, realism’s greatest fear is that combination of international organisation and law would lead to the death of the state. Aside from the impossibility of an ‘international’ or a ‘supranational’ without a nation, it is illogical since it is states that give international organisations personality and ratify international law. In addition realists have already stated that international organisation and law are irrelevant and therefore there is no reason to fear that the state will ‘wither away’.11 

 

At the time the capacity to act on the world stage was limited to states as the Statute of the International Court of Justice states, ‘Only states may be parties in cases before the Court’. However, legislation regarding the relationship between international organisations and international law changed in 1948, when the United Nations General Assembly requested a judgement from the International court of justice (ICJ) as to whether the UN had the capacity to bring international claims. The ICJ held that ‘the United Nations is a subject of international law and is capable of possessing international rights and duties, it has the capacity to maintain its rights by bringing international claims’,12 ‘to conclude international agreements and to enjoy privileges and immunities from national jurisdictions’.13  There is no automatic granting of international personality to other IGOs. States have discretion over the nature of the grant they agree to make and for that matter, also over the withdrawal of such a grant’,14  as related to the idea of pacta sunt servanda,  with the notable exception being the UN and its organs.15

 

International law, it could be argued, is the highest form of international organisation, an ideal to be aspired towards. Law is organisation, in fact one of the definitions of law in the Oxford English dictionary is ‘a principle of organization’. Of course, there is more to international organisation than a mere tool of law, but were an efficient global system of international laws in place then many of international organisation would become obsolete.

 

Is the merger of international organisation and law an attempt to recreate the social contract,16 with international bodies (states and organisations) in the place of individuals? If a global society wishes to recreate the social contract, that includes both international organisations and states, an effective system of sanctions must be put in place. The definitive failure with current international organisation and law is that the system of sanctions is unsuccessful. A case in point is that of the current Iraqi crisis. The UN’s sanctions have failed consistently. It is only after the credible threat of force (from two global powers acting independently of the organisation) that Iraq is disarming.

 

There are considerable problems which forming a global social contract. Like Rousseau’s society, all must give up a part of their sovereignty and all must be accountable. Until this happens international organisation and law will be weak and ineffective regardless of their relationship. 

 

Endnotes

 

1 Law of nations

2 Gaius, Institutiones I, (translation by F. Zulueta)

3 Preamble to the European convention on the recognition of the legal personality of international non-governmental organisations, (Strasbourg, 24.IV.1986)

4 Werner Levi, Law and politics in the international society (London, 1976) p. 113.

5 Antonio Cassese, International law in a divided world (Oxford, 1991) p. 75.

6 Ibid.

7 Francis A. Boyle, World politics and international law (Durham, 1985) p. 10.

8 War is just under the following conditions; that war is a last resort, that it is clearly an act of redress of rights actually violated or defence against unjust demands backed by the threat of force, that it is openly and legally declared by properly constituted governments, that there is reasonable prospect for victory, that the means are proportionate to the ends, that it is waged in such a way as to distinguish between combatants and non-combatants and that the victorious nation not require the utter humiliation of the vanquished.

9 Boyle, op. cit. p. 3.

10 Boyle, op. cit. p. 5–6.

11 Boyle, op. cit. p. 6.

12 Sir Robert Jennings and Sir Arthur Watts, Oppenheim’s international law volume 1: Peace (Essex, 1996) p. 515.

13 Martin Dixon, Textbook on international law (London, 2002) p. 114.

14 Levi, op. cit. p. 112.

15 Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Article 26 of the Vienna convention.

16 Levi, op. cit. p. 112.

17 Modelled on Jean-Jacques Rousseau’s The social contract. 

 

 

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