International organizations are created by a treaty between at least two subjects of international law, mostly States. These confer rights and obligations to international organizations, which they have to fulfil them with their own organs. Two decisive elements materialize during the founding process of an international organization. The first one is of international nature, namely the treaty between the founding States, because they agree on the international plain. Treaties between States are always of international nature, Art. 2 I lit. a VCLT. The second one may be of internal or international nature, or both, namely the constitution instruments of an international organization. Which alternative is the right one remains unclear and thus is the subject of this paper. The latter derives from the former, whereby they both form the constituent instruments of international organizations.
Since the International Law Commission (ILC) published the Draft Articles on the responsibility of international organizations (DARIO), containing rules when an international organization is responsible for a committed international wrongful act by them, the constituent instruments of international organizations are also referred to as the “rules of the organization”. DARIO is the daughter of Responsibility of States for Internationally Wrongful Acts (ARSIWA), with the same abandonment, namely to make international organizations responsible for international wrongful acts committed by international organizations, given that ARSIWA only addresses States.
This paper will be divided into three parts. While the first and third parts are auxiliary sections to introduce the topic and present the results of this paper, the second part is the main one. Accordingly, it is divided into two subparts, namely the notion and implications. In the first subpart, the problem of the term “rules of the organization” will be discussed, while the second subpart will highlight what could happen if the constituent instruments, another expression for the term “rules of the organization”, of international organizations are qualified as natural rules, international rules or rules that are of both natures.
Table of Contents
Introduction
Part one – Background
A. International Organizations
I. Founding process
1. Conditions
2. Consequences
a. Horizontally and vertically relationships
b. Constituent instruments
II. Open political communities
III. DARIO
B. Rules of the organizations
I. The work of the ILC
II. Purpose
C. Summary
Part two - Rules of the organizations
A. Notion
I. Constituent instruments
II. The meaning of the term “rules of the organization”
III. Nature
1. Constituent Instruments
a. Rules of the organizations
i. Internal - nature
1) Pacta tertiis
2) Third parties
3) Dependency
4) The competence to give themselves more competences
5) Resignation and Exclusion
ii. International nature
1) Effet utile and implied powers doctrine
2) International responsibility
3) Secondary/joint and parallel/concurrent responsibility
4) Existence of DARIO
iii. Dual nature
1) Constituent instruments
2) Dual Function
3) Special rules
4) Balance between internal and international aspects
2. Articles in DARIO - Commentary
a. Internal nature
b. Dual nature
3. Secondary law of international organizations
B. Implications – Rules of the organization
I. Internal nature
II. Dual nature
1. Shared responsibility
2. Institutional disobedience
3. Member States
C. Summary
I. Notion
II. Implication
Part three - Conclusion
Research Objectives and Topics
This paper examines the legal nature and implications of the term "rules of the organization" as defined in the Draft Articles on the Responsibility of International Organizations (DARIO). The research addresses whether these rules should be characterized as internal, international, or as possessing a dual nature, thereby determining how international organizations and their Member States are held responsible for wrongful acts.
- The legal personality of international organizations and their capacity to act autonomously.
- The historical context and the development of the term "rules of the organization" by the ILC.
- The duality of constituent instruments as both internal orders and international legal frameworks.
- The responsibility of Member States for the wrongful acts of international organizations.
- The application of the principle of lex specialis within the DARIO framework.
Excerpt from the Book
Pacta tertiis
On the international plain, States mostly interact in the form of contracts, or more precisely in the form of treaties, because the concept of treaties is established on the international plain. The ILC justified this concept “[…] by the foundational importance of principle of consent […]”. Consent is the source for obligations, with the result that, pacta sunt servanda, States have to respect and are bound to the treaty between them. However, the nature of a treaty is res inter alios acta. This means that the treaty must be only respected by those States or other subjects of international law who closed it. Therefore, the rule pacta tertiis applies for third parties. Accordingly, “[…] the contracting parties […] are truly the “masters of the treaties” [and of the international organization]”.
Towards third parties, who did not ratify the treaty or accepted the founded international organization by other means, did not accept the founded international organization as a subject of international law. For those States the international organization does not exist. They are not bound to the constituent instruments of international organizations. Third parties may accept the international organization founded by closing a treaty with this international organization or by other means. Put differently, if international organizations commit an international wrongful act towards third parties, these third parties may have the possibility or right to break through the constitutional veil of international organizations and demand responsibility from its Member States. Because consent plays a huge role on the international plain, the fact that an international organization is “[…] considered to function autonomously without the explicit consent of the contracting parties” is problematic. Due to pacta tertiis, the “rules of the organization” cannot be seen as international rules that must be respected by each entity on the international plain. The “rules of the organization” form a separate legal order on the international plain, namely because these rules only apply between its members on the vertical level.
Summary of Chapters
Introduction: This chapter outlines the transition of international responsibility from States to international organizations and introduces the core debate regarding the nature of the "rules of the organization".
Part one – Background: This section provides an overview of international organizations, their founding processes, and the historical development and purpose of the ILC's work on DARIO.
Part two - Rules of the organizations: This main part analyzes the notion, nature, and implications of the "rules of the organization", discussing their internal versus international character and specific legal doctrines.
Part three - Conclusion: This final chapter synthesizes the findings, confirming the necessity of a dual-nature interpretation to effectively address the complex legal status and responsibility of international organizations.
Keywords
International Organizations, DARIO, Rules of the Organization, International Responsibility, Legal Personality, Constituent Instruments, State Responsibility, ARSIWA, Pacta Tertiis, Lex Specialis, Implied Powers, Secondary Law, Member States, International Law, Attribution.
Frequently Asked Questions
What is the primary focus of this work?
The work primarily explores the legal nature of the "rules of the organization" within the context of the Draft Articles on the Responsibility of International Organizations (DARIO) and how this term affects the international responsibility of these entities.
What are the central themes discussed?
The study focuses on legal personality, the dual nature of constituent instruments, the responsibility of Member States for international wrongful acts, and the complex relationship between internal and international law for international organizations.
What is the primary research goal?
The goal is to determine if the "rules of the organization" should be classified as internal, international, or both, in order to clarify the responsibility regime for international organizations and their Member States.
Which scientific methodology is applied?
The author employs a legal-analytical approach, examining the DARIO articles, commentaries, and scholarly debate to interpret the status and legal obligations of international organizations under public international law.
What does the main body cover?
The main body investigates the constituent instruments, the ILC's drafting history, the distinction between internal and international nature, and the practical implications for shared responsibility and institutional disobedience.
Which keywords characterize this paper?
Key terms include International Organizations, DARIO, Legal Personality, International Responsibility, Pacta Tertiis, Lex Specialis, and Constituent Instruments.
How does the concept of "pacta tertiis" impact international organizations?
It implies that third parties who have not signed the constituent instruments are generally not bound by them, which poses a significant hurdle when attempting to hold international organizations responsible on the international plain.
Why is the "dual nature" of the rules of the organization considered important?
A dual-nature interpretation allows for flexibility, enabling these rules to act both as an internal constitutional order for the organization and as part of the broader international legal framework governing relations between subjects of international law.
What is the significance of the "lex specialis" principle in this study?
The paper argues that the application of "lex specialis" in DARIO is often misleading, as the internal rules of an international organization do not necessarily override general international law in the way the principle intends, creating confusion regarding liability.
- Quote paper
- Anonym (Author), 2014, Rules of the Organization under DARIO. Notion and Implications, Munich, GRIN Verlag, https://www.grin.com/document/311488
