Law of International Organizations

LAW OF IOs – LEZIONE 1
Individuals are subjects of a legal system because they have rights and duties under their national
legal systems > as legal subjects they exist in a legal system.
In the international legal system, the states are the primary legal subjects > the main subjects of
international law > not individuals.
1648 is considered the year when international law first appeared > 30 years’ war had ended and
national states appeared for the first time > states are at the core of the existence of international
law.
In the international system, those who are subject to the law are at the same time its creators > it’s
an anarchic and decentralized legal system.
A state is a collective entity, a political authority capable of assuring a certain degree of safety and
solidarity onto a community and onto a territory > to be considered as such, a state must fulfill 2
criteria > internal and external sovereignty > international law doesn’t specify how to acquire this
international subjectivity > bc the states exist prior to international law, which acknowledges states
for what they are.
 External sovereignty means that the legal system (the constitution) of a state must be
completely independent from a legal pov > no other legal authority can legitimate or allow the
existence of another state > the constitution is the core of every legal system.
The states must have a legal autonomy > they need legal independence and originality of the
national legal order.
For ex. Ciskei in south Africa was a self-proclaimed republic that claimed to be independent > at
first it looked legally independent > BUT from a judicial pov the system depended on the legal
authority of south Africa > so it was considered a part of south Africa (political and economic
influence doesn’t matter > we only consider legal/judicial independence).
 Internal sovereignty must fulfill 3 other criteria > people, territory, government > to be
internally sovereign, a state must have a territory, a government, and effectively exercise the
public power on its territory and on its people. A state must effectively exert some form of
public power on its territory and its people > the population doesn’t matter in terms of numbers.
There are some states whose borders have changed in the past > for ex. Palestine’s borders and its
territories have changed > but it’s not relevant > what matters is that the state keeps on exerting its
authority on its territory and on its population.
Political recognition has a mere declarative value from a legal pov, but it’s important from a
political pov > a state recognizes another entity as a state > it’s a unilateral political decision > it
doesn’t have any legal value on the subjectivity of a state > for ex. the fact that several Arab states
don’t recognize Israel doesn’t affect Israel’s subjectivity.
Recognition has no legal value > but from a political pov to be recognized by relevant states is
important for the acquirement of the legal subjectivity of a state.
Especially after WW1 and WW2 international relations have changed > a state to be an
international legal subject must respect 2 other criteria > respect of basic of human rights and of
the principle of self-determination.
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Law of international organizations
- The self-determination principle ended its political push after the decolonization process > people
have the right to create their own governments that represent their interests > colonies depended on
the authority of western states > these territories wanted to regain their sovereignty.
BUT for ex. Catalunya can’t rely on this principle bc the territorial integrity of a state can’t be
violated > so the central government can limit the principle of self-determination of people.
Moreover, Quebec wanted to become independent from Canada > BUT the supreme court of
Canada said that the principle applied only if the minority that wanted to become independent
wasn’t represented within the central political institutions > BUT Quebec was represented > so the
independence was not granted.
- Basic human rights must be respected > for ex. for a certain period ISIS had internal sovereignty >
power on the territory and on the people + external sovereignty > its legitimation didn’t come from
any other political authority > ISIS could have been a state > BUT it didn’t respect basic human
rights > prohibition of genocide and of discrimination which leads to ethnic cleansing, prohibition
of slavery, etc. > SO international law never recognized ISIS as a state.
The state is the main actor of international law > and then there are other actors that exist around the
states > nothing happens in the international system without the willingness of the states > UN, UE,
every international organization comes from the initiative of the states > BUT international
organizations are NOT completely independent from the states.
Other subjects of international law are:
- Para states > states that in the past were effective states but not now are not 100% states (like the
Vatican state)
- Proto states > entities that are on the verge of becoming states
- International organizations (including regional organizations > EU)
- Individuals > very indirectly
 Para states
Para states were once 100% effective states > the holy see and the sovereign military order of
Malta > the Holy see was a big and very powerful state within the Italian state > then it’s territory
progressively shrunk > now it consists of only Vatican City > BUT it’s still recognized as an
international legal subject because of its spiritual mission > it has rights and duties.
Especially since the catholic church has properties and interests everywhere, there are laws that
regulate relations between states and the holy see.
The sovereign military order of Malta was a catholic institution located in Malta and Rhodes > it
stopped existing as an independent political authority > but it still exists > it has the spiritual
mission of helping those in need > since it was a state before it still has some of its sovereign
powers recognized by international law BUT only related to its mission.
 Proto states
Proto states are political entities that are trying to gain independence by claiming their right of
self-determination > they are trying to become states > Palestine, movements for the national
liberation, etc. > clash between principle of territorial integrity and self-determination principle.
When movements of national liberation obtain enough power to effectively exercise their
governance on a certain part of a territory and on its population > international law starts
recognizing these movements as a part of the international legal system, and provides them with
rights and duties > BUT only as far as their interests and mission go.
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 Individuals
Some think that individuals have rights under international law > but not everyone agrees.
International law is created by states > individuals are not states > people are one of the
requirements to build a state > BUT they don’t have rights or duties in the international law
field > they apply only to collective entities (para and proto states, international organizations,
states) > BUT the situation is evolving > European convention of human rights > treaty signed
and ratified by 48 European states > directly gives everyone some human rights that may be used
against the states > if a state violates one of these rights > an individual can go in front of the
European court of human rights and accuse its state of the violation of a human right.
There are rights within the international law that also apply to individuals > this is because of the
willingness of the states > states decided to limit their sovereignty and to sign and ratify a treaty
in order to protect human rights > the state limits its own power to grant rights to individuals > so
it’s not international law that gives subjectivity to individuals > the states through international
law give rights and duties to the individuals.
For ex. the international criminal court directly considers individuals as legal subjects when they
commit crimina juris gentium > dreadful violations of human rights > genocide, slavery, ethnic
cleansing > the individual considered responsible for the violation can be sent in front of the
international criminal court.
Also the processes of Nürnberg and Tokyo allowed for the first time to judge individuals on an
international level.
BUT legal prosecution can only be carried out if a state decides to limit its power and to
participate in this system > if a state doesn’t want to participate in the system of the international
criminal court, then its statute doesn’t apply to the citizens of that state.
 International organizations
International organizations are established by states, which decided to create an entity with the
purpose to achieve a goal that cannot be acquired by states alone.
International organizations have a limited subjectivity, that depends on:
- The speciality principle
- A well-defined mission
- An independent organizational structure
International organizations are governed by the principle of speciality > the States create them and
give them powers > since states alone cannot achieve alone for ex. international peace and security
> they create a technical organization that is specifically established for a certain goal > for ex. the
main objective of the United Nations is to grant international peace and security (among other
goals). International organizations have an international subjectivity > BUT it’s limited > an
international organization is not an entity with absolute political and legal powers (like a state has)
> an international organization exists because of the states > they have a purpose, a mission to
accomplish > its international objectivity only applies as far as its mission goes.
For ex. in 1996 the WHO asked the International Court of Justice if it had become unlawful to use
nuclear weapons > bc they are related to health > ICJ didn’t answer the question bc it wasn’t in the
WHO’s sphere of power to ask that.
International organizations must also have an independent structure > they must exist
independently from the states that established them or other entities.
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Bernadotte case - 1949
In 1949 a Swedish UN agent, Folke Bernadotte, was killed in Israel while performing its duties
> are the United Nations entitled to ask for a reimbursement to a State deemed responsible for an
illicit act?
The UN had sent a diplomatic mission in the middle east and Bernadotte was working on behalf of
the UN as a mediator between Israel and Palestine > Bernadotte was killed by Israeli extremists >
Swedish person working for the UN and killed in Israel > who can ask for an international
proceeding and claim the damages, Sweden or the UN?
Traditionally it would have been Sweden > Sweden had the right to ask for a proceeding and a
compensation > the ICJ said that you may have the right to make a legal claim only if you are an
international legal subject > the UN is an international legal subject > the UN charter allows the
UN to exist and gives it political and legal power > the charter gives the UN itself objectives that
cannot be accomplished without an international legal subjectivity > the UN charter doesn’t say
specifically how the UN is an international legal subject, just that the UN had rights and duties
under the international law > therefore the UN can ask for a remedial according to the international
law. However, the judges said that the UN are not a state or a super state > the UN has no internal
sovereignty > no territory, no people, no government + no external sovereignty > its
legitimization comes from the UN charter, a treaty signed and ratified by the states > the UN exists
because of a treaty made by the states > SO the UN doesn’t have a legal originality.
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LAW OF IOs - LEZIONE 2
 Hard law > binding

 Soft law > not legally binding
The source of international law is the law itself > those who create the law are at the same time
bound by it > decentralized legislative system > the states produce law in an anarchic way > the
provisions derive from the international community itself > there is no centralized system that
creates the law > there is no legislator that creates legal provisions > there is no authority above
the states.
There are 3 levels of sources of law > NO hierarchic order > in fact, a treaty (2nd level source) may
be more important than a 1st level source > it’s a logical order that gives legal legitimation > for
ex. the legitimation of 2nd level sources derives from 1st level sources + 3rd level sources are enacted
by international organizations for the states these acts are directed to (bc they ratified agreements) >
BUT international organizations are created through treaties, which are 2nd level sources.
 1st level sources: general law
The general law includes social facts and unwritten rules that are perceived as rules by the states
> for ex. pacta sunt servanda > all treaties must be respected. General law includes customs and
international law principles > general law applies to every subject of the international law.
 2nd level sources: particular international law
Particular international law includes treaties and international conventions > it only applies to
the parties that ratified the treaty.
 3rd level sources
3rd level sources are adopted by international organizations, and only apply to the members of
the international organization to which the piece of law is directed.
The art. 38 of the statute of the international court of justice lists the 1st level sources of
international law:
“The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:
a) international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b) international custom, as evidence of a general practice accepted as law;
c) the general principles of law recognized by civilized nations;
d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified experts of the various nations, as subsidiary means for the determination of rules of
law.” (subsidiary tool to interpret the international law) AND 3rd level sources (this part is not
in the article)
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International customs apply generally to all the states > general provisions > customs are general
practices accepted as law.
Customs have 2 constitutive elements:
 objective element (usus or diuturnitas) > constant repetition of a behavior over time
 subjective element (opinio iuris) > belief that the behavior is legally binding
To assess the existence of a custom one can look at:

- Diplomacy and practices followed by the States
- Case law
- Treaties
ICJ - Advisory Opinion on the legality of nuclear weapons (1996)
The general assembly of the UN asked the international court of justice to express an advisory
opinion on the legality of the threat and use of nuclear weapons > it’s true that states hadn’t
been using nuclear weapons for 50 years > so there is an usus > BUT there is no opinio iuris >
the judges looked at how states acted towards the several attempts to formulate a resolution that put
a ban on the use of nuclear weapons > many states believed that it was legal to use nuclear weapons
> they weren’t using them because of political and economic interests (risk of mutual destruction).
ICJ - The Republic of Nicaragua v. The United States of America > Contras case (1986)
The USA had interests in not allowing leftist governments to be built in central and south America
> they wanted to limit left wing movements. In Nicaragua there was a leftist government, and the
USA financed the Contras movement to create a revolution and get rid of the leftist government.
BUT the Nicaraguan government claimed that according to the principle of non-intervention in
the internal affairs of other states, financing a rebel movement inside another state was a clear
interference in Nicaragua’s internal affairs. When the states negotiate treaties, they can usually
make reservations > USA put a reservation on the jurisdiction of the ICJ > they are willing to
be judged by the ICJ only for issues related to general customs > NOT multilateral agreements.
In fact, the ICJ can judge states only if they want to face a proceeding. Nicaragua said that the USA
violated the non-interference principle, which is encoded in the charter of the UN > a
multilateral treaty. Moreover, the USA claimed that they were not interfering in Nicaragua’s
internal affairs bc contras already existed > they were just promoting principle of self-determination
of people > BUT Nicaragua proved that the contras movement was created by the USA to
overthrow the government > so the USA lost the case > after this, the USA withdrew their consent
to be judged by the ICJ in any case.
The role of the UN and the International law commission
General customs exist as a social fact > but whats a social fact
In 1947 the international law commission was established by the UN general assembly > its goal
is to create codification agreements, in an attempt to codify general customs in agreements that
the states can ratify.
General law applies to everyone regardless of if there’s a treaty or not > customs apply generally to
all the states > BUT a general agreement applies only to the states that ratified it > even if the
custom and the agreement are related to the exact same rule.
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The general principles of international law are core values upon which the whole international
system is based. These core principles are:
o Pacta sunt servanda
o Equal sovereignty
o Non-interference in internal affairs
o Self-determination of peoples
o Prohibition of the threat or the use of force
o Pacific resolution of controversies
o General principles of humanitarian law
o Principles of law recognized by civilized nations (procedural nature)
The resolution 2625 of 1970 adopted by the UN general assembly lists these general principles >
BUT it’s a soft law instrument > not legally binding > these principles are binding only because
they are general customs.
The first legal attempt to ban war was in 1928 with the Briand-Kellogg agreement > prohibition of
the use of force and attacks against other states.
Ius cogens
International customs are normally waivable by treaties, BUT some customs are non-waivable by
any other source of law due to their fundamental importance > ius cogens provisions are
hierarchically on a higher level:
 Prohibition of the use of force
 Obligation to pacifically solve international controversies
 Equal sovereignty
 Prohibition of gross violation of human rights (slavery, genocide, ethnic cleansing, etc.) > crimina
iuris gentium
 General international law principles
Article 53 of the 1969 Vienna Convention on the law of treaties:

“A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international
law, a norm accepted and recognized by the international community of States as a whole as a norm from
which no derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character”
Unilateral objections to a custom are NOT accepted > if a state that doesn’t want to follow an
international custom bc it doesn’t perceive it as legally binding > it’s not legally valid > only in a
case of collective objection there may be some effects on the custom.
General principles of law recognized by civilized nations are procedural provisions that allow
the correct development of a proceeding of the ICJ (for ex. ne bis in idem > you cannot be
judged twice for the same crime).
Erga omnes obligations are principles based on a different kind of reasoning > according to the
classic reasoning of international law, states have rights and duties towards each other > the
international community is not a legal subject, it doesn’t have in itself rights or duties > BUT when
it comes to genocide, pollution of the environment > a state not violating the rights of another state,
but of the whole community > responsibility to protect theory. For ex. after the genocide in
Rwanda the international community started to perceive itself as a community of actors that must
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protect some values and therefore the general international community regardless of individual
interests > in such cases other states can intervene.
Secondary sources of law - Particular law
International treaties or conventions are contracts that can be bilateral or multilateral.

Treaties are particular law > general law applies to everyone > particular law only to those who
have ratified the treaty + they are special law > they can derogate customs > except for ius cogens
> states willingly accept rules that regulate the relationships among them related to a specific
issue. Special provisions are stronger than general provisions on the same issue > special law
overcomes general law except for ius cogens.
The legal foundation of the validity of treaties is the custom pacta sunt servanda > contracts
must be respected. Moreover, treaties only affect the parties that ratified the treaty > pacta tertiis
nec nocent neque prosunt > pacts do not affect in any way third parties.
Treaty law is mainly addressed by general law, by customs > these are also codified within the
Vienna Convention on the law of treaties of 1969, a codification agreement that entered into
force in 1980.
There are 2 ways in which a treaty can be created:
-Solemn formation
-Simplified formation
The Vienna convention of 1969 tried to write down all the existing customs > entered into force in
1980 > it only applies to states and only to treaties that are written.
International conventions are needed to encode specific provisions > but it doesn’t matter how the
provision becomes binding > principle of the freedom of choice of the formation of treaties.
In the simplified formation of treaties, the signature is the ratification > it’s often used for
technical-administrative treaties > very technical treaties usually don’t have crucial political
implications and they can be directly ratified by the plenipotentiaries.
The most common method is the solemn formation of treaties, which consists of 4 steps:
1. Negotiation
2. Signature/Authentication
3. Ratification
4. Entry into force
The negotiation is a phase where a specific issue is discussed > there is a debate among the
representatives > there are people who can negotiate and act on behalf of states, the
plenipotentiaries > some institutions are implicitly plenipotentiary and don’t have to carry the
document that attests this qualification:
- The head of the government
- The head of the state
- The minister of foreign affairs
- Ambassadors
The negotiation doesn’t have a predetermined duration > it depends on the issue and on the
evolution of the negotiation process.
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After the negotiation there is the signature of the text > once the text is authenticated, it cannot be
changed > it’s not yet an applicable piece of law > but it can’t be changed anymore > so if the treaty
is ratified, the states are bound to follow the text they signed.
Ratification creates a legal obligation that a state must comply with.
In the case of the treaty of Versailles, the USA pushed Europe to write a treaty that established a
league of nations > the USA signed the but didn’t ratify. Another ex. is the Kyoto protocol of 1997
> the USA participated in the negotiation phase under the Clinton administration > but the Bush
administration decided not to ratify the protocol.
Regarding the entry into force, a bilateral treaty enters into force as soon as it’s signed and ratified
by the 2 states > for a multilateral treaty the conditions for the entry into force must be decided
before > for ex. a minimum number of ratifications.
After a treaty enters into force it produces effects > BUT STILL even before a treaty enters into
force, if a state signs a treaty, it must not act against it > it has to follow it anyway. After the entry
into force, the ratification must be deposited at the UN secretary general’s office > it’s a
document that the international community can keep as evidence that a state ratified the treaty > this
gives the other states the right to go in front of the ICJ to accuse another state of not respecting a
treaty > bc there is the document that proves that the state signed and ratified the treaty.
Ratification in Italy
According to art. 89 of the Italian constitution, any document signed by the president of the republic
is not valid unless it’s signed by the proposing minister (usually the minister working on the issue
in question > for ex. the minister of foreign affairs, of health, etc.) + if the president of the republic
signs a document that has force of law, the document must be countersigned by the president of the
council of ministers.
BUT 5 particular cases allow an exception:

 treaties that modify the national territory
 treaties that modify internal laws
 treaties of political nature > it’s very vague bc every treaty has a political nature and modifies
the internal law
 the parliament must give an opinion if the treaty in question establishes international courts or
arbitration courts
 treaties that create financial burdens to the state
If a region acts on behalf of the Italian republic > the Italian state will be responsible, not the region
bc the international law doesn’t recognize regions.
Moreover, also federal states are not subject of international law > bc one of the criteria to be a
subject of international law is external authority (its legitimization doesn’t come from another
authority) > BUT Italian regions have an external legitimization (in the constitution) + the USA
have a constitution that contemplates the creation of federal states.
Interpretation of treaties
In the past, the states interpret treaties according to the subjective method > now the only accepted
method is the objective method > the states must interpret the treaty based on the literal meaning
of the words. According to the 1969 Vienna Convention (artt. 31-33), the interpretation of the text
must be objective and authentic, in the light of its objectives and of the context of its adaptation >
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BUT preparatory work during the negotiation phase can be used as an auxiliary tool >
documents that can be used to interpret the text of a treaty based on what the states agreed on during
the negotiation process.
When it comes to treaties that establish international organizations, the teleological criterion
applies as well > the states look at the reason why the international organization was created >
doctrine of implied powers > implied powers are those that can reasonably be assumed as a
continuation of the express powers, even though they are not explicitly mentioned.
Reservations
Reservations allow the State to participate in a treaty, while excluding the legal effect of a
specific provision in the treaty > this works reciprocally with other States > it’s a bilateral
advantage > the reservation applies in both ways.
During the negotiation process, the plenipotentiary can make a reservation > a statement where a
state declares that it doesn’t want to be bound by a specific art. or clause.
States cannot take reservations after they have signed and ratified the treaty.
A reservation is allowed if:
a) The treaty explicitly allows it
b) It’s not contrary to the spirit and the objective of the treaty > reservation related to marginal
issues conveyed in the treaty
If a State takes an unacceptable reservation, it’s not considered as a party to the treaty.
Reservations can be accepted or rejected by the single states.
There is also the possibility to make a simple objection > it’s a political demonstration to show that
a state doesn’t agree with the other state’s reservation.
If a state rejects the reservation, the treaty becomes invalid between the state that wants the
reservation and the one that doesn’t accept it > BUT it will still apply among the other states that
accepted the reservation.
The sources of the 3rd level are those adopted by international organizations > they can be
binding (UN Security Council resolution, EU regulations) or non-binding (UN General Assembly
resolution) > these sources produce effects on the international community. The treaty that created
the international organization states whether its resolutions are binding or not.
3rd level sources can derogate general international law > for ex. international customary laws >
there is no hierarchy among sources of law (except for ius cogens).
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How to make international law internally effective
How the internal law of a state adapts to international law depends on the country > in some
countries there is no differentiation between the international legal system and the national
legal system > these countries follow the monism theory > for ex. in the Netherlands international
law directly applies internally > no need for the internal law to adapt to international law.
In countries that follow the dualism theory (for ex. Italy), internal law and international law are
completely separated > there’s the need to make establish a communication between the two in
order to make international law effective in the national legal system.
Adaptation is an internal matter > international law must be followed BUT it doesn’t provide any
rule as to how the states must adapt to the international law > principle of free choice.
Moreover, if a state doesn’t adapt to an international treaty, the citizens of that state are not bound
by it. The 2 main adaptation systems involve an ordinary procedure and a special procedure.
 Ordinary procedure (transposition/reformulation)
The ordinary procedure is based on the transposition or the reformulation of the treaty within
a state’s own legal system > the legislator passes an ordinary piece of law that contains the text of
the treaty > the treaty is now applicable on an internal level and makes Italy responsible towards
other states.
 Special procedure (reference)
With a special procedure, the legislator doesn’t pass a law containing the same provision expressed
in the treaty > the piece of law contains instead a reference to the treaty > the legislator doesn’t
copy the text of the treaty > they just refer to it.
In the case of a specific reference, the legislator specifically addresses the international treaty or
the international provision. In the case of a general reference, the legislator refers to an unspecified
set of rules.
Adaptation mechanism in Italy - customs and general principles
Art. 10 - “L’ordinamento giuridico italiano si conforma alle norme del diritto internazionale generalmente
riconosciute”
Customs and general principles of international law (1st level sources) are social facts that exist
but are unwritten > they are legally binding for all the states.
Art. 10 of the Italian Constitution is a permanent adapter or transformer > it follows the
special procedure of adaptation. Italy, with the art. 10 of its constitution, generally recognizes
international provisions > there is a constant referral to customs > there’s no need for the
legislator to transpose every single custom or general principle > art. 10 is enough to apply any
general provision. In fact, customs change according to the behavior of the states > a constant
referral makes it possible for the legislator not to adapt to every single custom and change it when
the states change their behavior > it’s a permanent adaptation. Moreover, customs enter in the
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internal system with constitutional rank > IF there’s a contrast between a custom and a
constitutional provision, usually the custom prevails > BUT if a custom collides with one of the
core values of the constitution > the core value prevails, and the custom is invalid > BUT only
with core values.
Adaptation mechanism in Italy - treaties
The principle of indifference was followed until the constitutional modification of 2001 > Italy
wasn’t bound to follow the treaties that it had ratified > Italy didn’t have to adapt the internal
system to the international system > so a treaty didn’t produce any effect internally.
After 2001, according to art. 117 of the constitution, the legislator must adapt the internal law to
the international law > the legislator must respect international obligations.
Since 2001 the legislator has the duty to follow international law obligations that are valid for the
Republic > ratified treaties that have entered into force internationally.
Art. 117 comma 1 - “La potestà legislativa è esercitata dallo Stato e dalle Regioni nel rispetto della
Costituzione, nonché dei vincoli derivanti dall'ordinamento comunitario e dagli obblighi internazionali”.
Do treaties enjoy a constitutional rank by virtue of art. 117?

The pacta sunt servanda principle enters with constitutional rank through art. 10 > BUT it’s not
enough as an explanation. In 2007, the Constitutional court made two twin judgments
(judgments that refer to the same substantive matter) > 348 and 349/2007. The issue concerned the
way in which a judge should act if there was a contrast between an ordinary law that transposed
an international convention and another ordinary law on the same subject matter. In such
cases, the competent judge must interpret the two provisions and try to find a conciliation > if it’s
impossible to find a conciliation the judge must suspend the proceeding and bring the issue in
front of the constitutional court.
Then, the constitutional court investigates the compatibility of the treaty with the Constitution
AND the compatibility between the treaty and the ordinary law > IF the ordinary law is not
compatible with the treaty, the internal law is invalid. In fact, treaties are “interposed rules”
(norme interposte) between the Constitution and ordinary law.
Adaptation mechanism in Italy - 3rd level sources
3rd level sources are pieces of law or resolutions enacted by international organizations.
Usually, adaptation relating to third level sources follows the same practice used with treaty
law > BUT in Italy there is a “legal vacuum” regarding third level sources.
Legal vacuum bc the constitution doesn’t say anything about third level sources > the constitution
was written in the 40s > third level sources were just starting to exist > so the constituent assembly
didn’t feel the need to write a constitutional provision about them.
Art. 11 Const. - “L'Italia ripudia la guerra come strumento di offesa alla libertà degli altri popoli e come
mezzo di risoluzione delle controversie internazionali; consente, in condizioni di parità con gli altri Stati,
alle limitazioni di sovranità necessarie ad un ordinamento che assicuri la pace e la giustizia fra le Nazioni;
promuove e favorisce le organizzazioni internazionali rivolte a tale scopo”
Art. 11 of the Italian constitution established that Italy limits its sovereignty in favor of
international organizations > Italy allows the limitation of its sovereign power in order to attain
international peace and security > therefore giving further legitimation to the sources of third
level. Italy promotes international organization that aim at establishing international peace and
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security > therefore, Italy adopts pieces of law or resolutions enacted by the organization in order to
reach this goal.
Some scholars argue that the ratification of the treaty that establishes an IO is enough to give
effectiveness to sources of third level internally, BUT according to the practice, each act must be
individually adapted > the legislator can adapt to provisions of international organizations
through the ordinary procedure or the special procedure (like with treaties).
NB: the European union is a special legal system regulated by its particular rules and principles >
for ex. the internal system automatically adapts to the directives enacted by the EU (directives
set a goal that states must reach > BUT they are free to decide how to reach the goal). Moreover,
EU regulations don’t need to be adapted > they are effective as soon as they are adopted by the
European parliament. For ex. if the security council adopts a resolution that addresses directly the
EU and not each state individually > the EU adopts a regulation > and the adaptation to
international law is directly done by the European union.
Germany vs Italy - Ferrini case
If a custom collides with a core value expressed in the constitution, the custom is invalid.
In 2004, some relatives of victims of crimes committed by Nazis asked Italian courts for a
reimbursement > the judge said that Germany was responsible and had to pay > Germany refused
bc if this sentence passed then any judge in any part of the world would be allowed to ask Germany
to pay back > and then there would be claims against any kind of crime committed > it’s not
sustainable and unlawful from a legal pov. In fact, Germany invoked the immunity > Germany
committed those crimes BUT Germany is immune to Italian jurisdiction > the ICJ concluded that
Germany was right > there was no custom saying that immunity falls in front of crimina iuris
gentium. BUT in Italy the proceedings kept going on > the case went in front of the Italian
constitutional court > bc when core values are damaged by international customs, the customs are
invalid (in the internal system, not in the whole international system).
So the principle of non-discrimination must be respected > the constitutional court said that the
provision of the UN charter that establishes that states must respect the sentences of the ICJ is
unconstitutional in the part that says that we have to respect also those sentences that go against
our core values > counter limitation theory > states limit their national sovereignty through
international law > SO the states can counter limit the limits imposed by international law if it says
that we must respect a sentence of ICJ even if it goes against our core values > the states can limit
the limitations put on their sovereignty by international law.
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Immunity/Rule of jurisdiction
Immunity, or the rule of jurisdiction, assures the correct functioning of the international
system > this rule relies on the most important principle of international law > that all states are
equal > every state has the same rights as any other state > equal sovereignty > par in parem non
habet iudicium. The State has exclusive authority on its territory and on its internal affairs > so,
each state has exclusive jurisdiction on its sovereign matters. Immunity derives from the principle
of equality. AND since all states are equal > they have no right to proceed against the activity of
another state, affecting its sovereignty. Since every state has exclusive jurisdiction on its territory, a
state cannot and must not judge the activity of another state OR proceed against any public
act performed by another state within its jurisdiction.
It’s impossible to make a state stand in front of a judge of another state > therefore, every state is
immune from the jurisdiction of other states. Immunity is an international customary rule that
applies to every international subject > customary law and NOT ius cogens > can be derogated by a
2nd level source > a State can renounce to a customary law through a treaty. The Basel convention
of 1972, and the New York convention of 2004 are codification agreements that aimed at
crystallizing immunity rules between contracting parties > bc immunity is a customary law.
NB: immunity is a procedural rule > AND immunity from jurisdiction ≠ immunity from
execution > the proceeding against another state cannot start bc states don’t have the right to
proceed against another one > and even if a state undergoes a proceeding it can’t be condemned.
The battle of Lepanto took place in 1571 > it was fought between the alliance of Christian powers
(Rome + Spanish crown + republic of Venice) and the Turks.
Before the battle, the Christian army anchored in Messina > there were both Spanish and Venetian
ships > some Spanish sailors and soldiers were allowed to go on Venetian vessels > but a Spanish
sailor and a Venetian sailor had an argument and a duel > the Venetian admiral decided to hang the
Spanish bc of insubordination. When the Spanish admiral found out he believed he was in the right
to punish the venetian admiral bc he violated the principle of sovereignty > every Spanish soldier
was under the exclusive jurisdiction of the Spanish crown.
This episode risked putting an end to the entire mission before the battle even started.
Immunity is divided in three categories:

- State immunity
- Functional immunity
- Personal immunity
 State immunity
State immunity covers the totality of the state, including its internal articulations (for example
Regions, regional institutions and entities, etc.) and its representatives.
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In the past, states were completely immune from the jurisdiction of other states > state immunity
was absolute.
Every act by a state was considered as an expression of its sovereign power and could not be judged
by the judicial authority of another state > BUT today state immunity can fall in presence of
particular circumstances.
Now there are 2 distinct categories of state acts:
 Acta iure imperii > acts that fall under the domain of public power > immunity stands
 Acta iure privatorum > occur when a state acts as a private entity, for ex. on the economic
market > if a state buys stocks as an investment, this doesn’t fall under public activity > it’s
something a private actor may do > immunity falls
Ex. Tango bonds case of 2001

Argentinian economy collapsed and the state wasn’t able to pay back its debts > many states had
bought Argentinian obligations that Argentina wasn’t able to pay back > lawsuits started bc those
states wanted to be paid.
The Italian court of cassation recognized that Argentinian law declaring the default of the nation
was an acta iure imperii > if a state sells obligations this is an acta iure privatorum > BUT if the
state is obliged to admit default > the piece of law declaring the default is an act of public authority
and not private authority.
BUT the USA demanded a reimbursement for its investors > it depends on the approach of the
different states.
- In some cases, the judge decides if an act is of public or private authority

- Alternatively, the legislator creates a list of acts that are considered acts of private authority >
list method (especially Anglo-Saxon countries)
So, immunity from jurisdiction means that a state cannot judge another state based on its acta iure
imperii > BUT for acta iure privatorum national judges can decide to demand a payment > BUT
this doesn’t mean that executing the sentence is easy or that the judges can seize the state’s property
easily. A state can seize property from another state only if it’s on its territory AND it’s not used for
public purposes > a state can only touch those properties that are used for private purposes + if both
the private and public aspect exist on the same property > the public aspect prevails.
In the international case law there is a humanitarian exception > Ferrini case > the ICJ
recognized absolute immunity for Germany’s acta iure imperii even if the crimes committed
were crimina iuris gentium > immunity persists even in the face of an explicit violation of human
rights.
During the 1st gulf war > Al-Adsani was imprisoned and tortured > escaped to the UK and asked to
condemn Kuwait for crimina iuris gentium > ICJ dismissed the appeal > bc Kuwait was
exercising its public power > immunity stood.
Pinochet was a dictator who ruled Chile during the 70s and the 80s > while he was in the UK Spain
asked for him be extradited and arrested > the judges recognized that immunity had to fall because
of the crimes Pinochet committed > BUT the proceeding was later annulled > bc the judge wasn’t
considered as an impartial figure > the wife of the judge worked for Emergency, which had an
interest in seeing Pinochet extradited and arrested. Then, a new proceeding started and Pinochet
was considered criminally punishable > BUT the sentence didn’t have any concrete effect > the
judge recognized Pinochet’s immunity bc he was acting as head of the state and not as a civilian.
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BUT Pinochet was still extradited, in application of the convention for punishment of torture and
inhuman acts, which allowed the extradition of individuals that committed such crimes > in the end
Pinochet was not sentenced because he was too old and ill.
 Functional immunity
Functional immunity covers the activity of those who work on behalf of the state and who
perform functions that belong to the state > this kind of immunity is more subtle and derives from
state immunity.
Calipari case > Calipari was an Italian agent killed in the early 2000s by American soldiers in Iraq
> an Italian journalist had been kidnapped by Iraqi Taliban > so the Italian secret services sent
Calipari to save him > when Calipari arrived in front of a USA blockade, he was killed.
Were the USA responsible to pay back Italy? NO bc those soldiers were performing a duty under
the command of the USA army > the soldiers had to shoot at arriving vehicles that were not
clearly recognizable.
Rainbow Warrior case > France was testing nuclear weapons in the Pacific Ocean > Greenpeace
and its Rainbow Warrior vessel tried to stop the explosions in the area > the ship went back to the
Auckland harbor > 2 French secret agents bombed the boat and killed 2 people > and then the
New Zealand authorities captured the 2 agents. Mitterand, the president of the French republic at
the time, said that he gave the order to bomb the Rainbow Warrior, and that NZ had to grant
functional immunity > but NZ didn’t want to > the case ended thanks to arbitration. In general,
the immunity of secret agents only applies if the country where the mission occurs has given
its approval > NZ said it didn’t give the approval for the mission.
Mexico vs USA case > in the 1930s, a Mexican diplomat was beaten up twice by the same US
policeman in Texas for private purposes. The first time since it was a private matter > it didn’t
matter that the man was a policeman and was possibly acting on behalf of the state > the USA were
not responsible.
The second time the policeman used the police car and handcuffs > USA were considered
responsible bc he used tools of the USA government > he was clearly using public means for
private purposes > so the USA were condemned > immunity didn’t apply in that case.
 Personal immunity
Personal immunity fully covers some individuals, whose function is essential to the interests of
the state, from the jurisdiction of another state for public or personal matters > personal immunity
is absolute and it covers both public and private acts.
- Head of the state or head of the government
- Ministers
- Ambassadors > but within their mission > immunity for private acts ends with the mandate
of the individual lasts > when the mission ends the person can be prosecuted, whereas
immunity for public acts stands forever.
Personal immunity also applies to embassies through a fictio iuris, which extends immunity also
to the building where ambassadors perform their mission and act on behalf of public power.
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 Immunity of International Organizations
Usually, immunity rules concerning international organizations are directly established in the
treaties that create the organization. Moreover, international organizations enjoy immunity from
the jurisdiction of states when they operate within their own mission and scope > if they go beyond
their mission’s boundaries immunity doesn’t cover them.
Mothers of Srebrenica case > Mothers of Srebrenica vs State of the Netherlands and the UN > in
1995 Bosnian and Serbian forces killed 8-10k people in one day bc of ethnic reasons > Serbians
wanted to kill Bosnian Muslims > UN wanted to create safe haven for Bosnian Muslims > BUT
when Bosnians found out Serbians were coming, they went to an UN compound managed by Dutch
armed forces > Dutch commander ordered to close the doors > Serbians got to them and massacred
them > genocide > the purpose was to wipe out a category of population > was the UN responsible?
Were the Netherlands responsible?
In 2007, the relatives of the victims of the massacre of Srebrenica asked Dutch courts for a
compensation by the UN for not having adequately protected their relatives, arguing that UN
couldn’t be granted immunity bc they indirectly contributed to crimina iuris gentium > they
indirectly helped Serbians commit a genocide.
In 2012, the supreme court of the Netherlands dismissed the appeal > referred to what the ICJ
had said in 2012 about the Ferrini case > immunity doesn’t fall in case of crimina iuris gentium >
the UN were operating within their mission > even though they failed > they were acting within the
limits of their mission > so immunity still stood > the European court of human rights agreed too.
BUT among the several arguments of the mothers of Srebrenica > there was the fact that the
European convention on human rights (that the Netherlands signed) gives the right to action >
the right to go in front of a judge > BUT if both the UN and the Netherlands are granted immunity
> they can’t enjoy art. 16 of the European Convention on Human Rights > BUT according to art.
103 of UN charter, in case of a contrast between a treaty and UN charter > the UN charter prevails
> so the right to action is not valid.
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LAW OF IOs - LEZIONE 6 (ultima di Sciaccaluga)
Internationally wrongful acts
Internationally wrongful acts are violations of international law committed by international law
subjects > for ex. Russia violated the territorial integrity of a sovereign state > Ukraine > it’s
unlawful. The only 2 possible ways to move war legally are:
a) As an act of self-defense > responding to an attack with armed forces > BUT the reaction must
be proportionate.
b) If the UN security council (through a resolution) allows one or more states to start a war
against another state to maintain international peace and security.
The rules that regulate the consequences of a wrongful act are called “secondary rules” > the
rules that are violated are “primary rules” > secondary rules “protect” primary rules.
Secondary rules are usually customs > they are not written down and they apply to every
international legal subject > since the end of the 40s there has been an effort to codify these
customs in a Convention > Draft articles on Responsibility of States for Internationally
Wrongful Acts (1949-2001) > BUT these are just draft articles > not treaties > they are not legally
binding > customary law is binding.
The 2 constitutive elements of an international wrongful act are:
 the objective element: it’s a violation of an international law provision (treaties, customs,
acts by IOs, etc.) > there is a rule and someone breaks it.
Usually, legal obligations can be:

- negative > a negative obligation says that a state must not do something
- positive > a positive obligation says that a state must do something
- procedural > a procedural obligation says that a state must follow some procedures so that a
violation won’t be committed in the future
A violation can also be omissive > for ex. if a state doesn’t do something > for ex. in the
Bernadotte case, Folke Bernadotte had to be positively protected by Israel > BUT Israel failed in
providing the positive element > violation of international law.
 the subjective element: is the attributability of the violation to a subject of international

law > a state or a subject of international law must have committed a wrongful act, otherwise
there is no violation.
To understand if a behavior is attributable to an international law subject, one must look at the
state’s articulations, institutions entities or individuals that work on behalf of the state and at the
internal state practice. Moreover, there may be a violation of international law without an
international law subject BUT the state remains the only legal subject responsible for the
violation > for ex. if Liguria violates international law provisions, Italy is responsible because
regions are state articulations.
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In the case of the Texas policeman that used a police car and the handcuffs provided by the
government > the state is the only responsible subject.
Concerning the subjective element related to private actors:

 Due diligence > a state is under the positive obligation to make sure that private actors on its
territory don’t violate international law.
For ex. transboundary pollution > a state is under the due diligence to impede that a private
company on its territory pollutes the territory of another state > IF the state doesn’t make sure that
the economic activity of the company doesn’t cause damage to other countries it’s a violation of
international law > the damaged state can ask for a compensation.
 Positive obligations > Bernadotte case + assault on USA’s embassy in Teheran > in 1979 a
regime change took place in Iran > during the revolution a group of university students attacked the
US embassy and entered it, holding hundreds of people in hostage > huge violation of international
law > embassies have full immunity and no one can attack them.
Was the Iranian state responsible? The state is under the positive obligation to prevent the
occupation of an embassy + the Iranian public authority supported this violation > so the ICJ
concluded that the subjective element existed > bc students were private individuals BUT the public
authority had an unlawful conduct > Iran responsible for the violation of the international law.
 Extraordinary renditions > after the 9/11 attack, the USA started to unlawfully kidnap some
suspected terrorists all around the world and bring them to Guantanamo without trials > but
immunity applies only if the state where the mission occurs has given the approval.
Abu Omar case > Italy was condemned by the European court of human rights because it
collaborated with the USA, not respecting the human rights of those who were under its
jurisdiction.
Relationship between international law and internal law
Violations of international law are completely independent from violations of internal law > if
an act violates international law to respect internal law, the act is internationally wrongful
(Ferrini case > violation of international law committed in order to respect internal law and the
Italian constitution’s core values > still a violation) + if an act violates internal law but not
international law, there is no internationally wrongful act > for ex. if Italy sends the wrong
plenipotentiary to attend a meeting and this plenipotentiary ratifies a treaty against the will of the
state > IF there is no manifest error then Italy must still respect the treaty ratified > it’s just a
violation of internal law. BUT if the violation of internal law is so obvious that the international
community recognizes it then the treaty ratified by mistake becomes void.
Exclusion of illegality
Under some circumstances, a wrongful act may be carried out without making the committing state
internationally responsible > with the exclusion of illegality > the wrongful act still exists BUT
the state is not responsible for the violation.
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This happens when:
1. the damaged state gave its consent > a state damages another state which had previously given
its consent to do so > consent must be clear, must be given previously (ex ante) and it must
come from a legitimate authority.
2. a state acts in self-defense > a state can defend itself from an external attack by using armed
forces (the use of force is unlawful unless the state has the permission of the security council or
for self-defense) > BUT the response must be proportionate, necessary (the response must be
necessary to defend the vital interests of the nation) and immediate (otherwise it’s an act of war
aggression > preventive self-defense of USA is not legal under international law).
3. a state violated international law against another state > and as a consequence the state adopts
countermeasures and in turn violates the law against the first state > BUT this doesn’t include
the use of armed force > the reaction must be proportionate > economic sanctions, embargo, etc.
> inademplendi non est ademplendum.
4. the state is forced to violate international law because of extreme and exceptional
circumstances that are unforeseeable and make the correct behavior impossible > force
majeure > for ex. if a jet pilot with no permission to fly in another state’s territory violates the
rule and flies in that area anyway because there’s a huge storm in their path > there is a violation
but the pilot is not responsible for it bc there is a force majeure.
Remedial of int law violations
Even if there is an exclusion of illegality, the obligation to remedy the violation persists > to
remedy a wrongful act, there are some customary rules to follow:
a. Cease the violation > the violation must stop as soon as possible
b. Integral reparation of damage: the situation existing before the violation must be restored
c. Compensation: the damage must be compensated through emerging damage + loss of profit +
interests > SO restore damage + pay back the damage caused + pay the interests.
Alternatively, damages can be compensated through “satisfaction measures” (for ex. official
apology) > the compensation measure is agreed upon on a diplomatic level, and the damaged state
is “satisfied” by apology of the one that committed the violation.
NB: these are customary rules > beyond these, states may decide to regulate their relations with
special rules (like treaties).
Role of ius cogens and erga omnes obligations
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If a violation of ius cogens or erga omnes obligations occurs between 2 parties every state is entitled
to defend these core values > for ex. genocide doesn’t affect only 2 countries > it affects the whole
community > any state could intervene and defend the international community.
LAW OF IOs - LEZIONE 7 (inizio Carpaneto)
The starting point is that any activity is «affected» by international organizations > they have an
influence on other legal systems > BUT at the same time they create legal problems concerning
their «life-cycle»: their creation, functioning, termination.
There are 2 ways to study international organizations:

- Vertical approach > involves studying as many international organizations as possible
In the last century and a half, the number of international organizations exploded > now there are
around 300 of them > together with the states, they are the main actors of international relations >
international organizations can also affect the international legal order and influence other
legal systems.
The EU focused at first only on the economic field > now its competence has evolved.
The UN changed the focus of its activity > human rights issues were the priority > then
peacekeeping also became crucial > now it also deals with economic matters.
- Horizontal approach: involves studying the legal framework of the organizations, the way
cooperation is structured and, therefore, focusing on the incidence of various legal rules relating
to IOs > focusing on the main issues of the organizations > for ex. not all international
organizations have the same criteria to accept new members > membership is one of the issues
together with responsibility > how can international organizations be held responsible for their
actions > in fact, there is a huge number of international organizations BUT there are no rules on
their responsibility.
The EU is the only international organization with a constantly evolving legal framework > for ex.
before the Lisbon treaty it wasn’t possible to withdraw from union > art. 50 of the Lisbon treaty
regulates withdrawal. UN charter was adopted in 1949 and its structure never changed.
The main problem of international organizations is that there is no common legal framework >
all international organizations have their own rules, which are generally expressed in their statutes.
Moreover, the feature of every international organization is the existing tension between 2
competing concepts:
a) Interests of the individual states (theory of functionalism) > the states decide to cooperate and
establish an entity > an international organization exists bc of the will of the states > concept
of sovereignty and the principle of attribution of powers;
b) International organizations also reflect the interests of the international community
(especially those focusing on peace and international security) > theory of implied powers >
BUT the interests of the states should leave space to the interests of the international
community.
In the EU all the states are equal > no veto power > BUT adopting a decision requires unanimity >
it’s kind of like a veto power. In the UN the permanent members of the security council, the states
that won WW2, have veto power > it’s less democratic than the EU.
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A first definition of international organizations was developed by Klabbers > an international
organization is a voluntary association of international actors which has a distinct will from
the member states and which is subject to the respect of international law. An international
organization is a stable entity, which has its rules of law and its own bodies, through which it
realizes the common purposes of the associated actors by the exercise of particular functions and
powers.
Associated actors means that members are NOT only states > some international organizations are
open to other international organizations > the UN and the EU only accept states > BUT the WTO
allows the EU to make decisions on behalf of the member states, bc the EU has an exclusive
competence in trade matters (in the UN system the EU is just an observer and cannot vote in the
decision making process).
1) Voluntary association of states
An international organization must consist of at least 2 states > for ex. the Institutionalized
cooperation for the management of the river Uruguay between Argentina and Uruguay.
Regarding “other international actors”, membership of other international organizations is still an
issue (for ex. the membership of the EU in the UN, whilst EU is a member of FAO and of WTO).
States have generally the same status > at least they should have the same status > it’s not always
true > the UN contemplates veto power, the EU also contemplates veto power since it requires
unanimity + the International Monetary Fund and the World bank group reflect the economic power
of the states > they are structured as private companies and each state buys shares > more shares a
state buys, more power it has.
Are all creatures made by States IOs?
For ex. New Jersey and New York developed a cooperation similar to an international organization
> a port authority > BUT they are not autonomous states > they are federal states > the only state
is the USA > it’s an internal cooperation > to be an international cooperation the international aim
must be clear.
2) Subject to the respect of International Law
International organizations are generally established by international treaties > an intentional

act > conscious decision of the States > BUT the treaties that create international organizations are
not the same as other international treaties > they are peculiar in two ways:
 Generally they’re not subject to reservations > members should be bound by the same rules
In international treaties you can have reservations, which enable a state to accept a multilateral
treaty as a whole BUT with the possibility not to apply certain provisions. This is NOT possible in
international organizations > it shouldn’t be possible but sometimes it is > in the EU some states
have negotiated different positions > for ex. Denmark is outside the cooperation of justice and
internal affairs and doesn’t share the EU rules on migration + in Poland, polish judges do not feel
bound to respect the European Charter of Fundamental Rights.
BUT the EU doesn’t call them reservations > they are special positions > they are acceptable bc
it’s a necessary compromise to have more members > the aim is to make the organization work and
to keep growing.
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The EU also contemplates enhanced cooperation > some member states can adopt decision even
without the approval of every other member > some states that agree on certain topics are allowed
to adopt a legal act even if there isn’t the agreement of every single member > it doesn’t apply to
every member > SO in general in international organizations there shouldn’t be reservations > BUT
STILL differentiations exist.
 Treaties that establish international organizations tend to prevail on other international

treaties that exist among states
Two examples of clauses establishing the priority of the treaty of an international organization
on all other treaties are:
- Art. 103 of UN charter > says that the charter prevails over other international treaties.
“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and
their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
- Art. 351 of TFEU > it’s a more nuanced rule > more respectful of obligations and rights adopted
before the creation (or the joining) of the EU > the EU cannot ignore the fact that it was created
when international organizations and bilateral agreements among states already existed > the idea is
that states can keep the agreements made before joining the new system > BUT if there are
incompatibilities the states should eliminate incompatibilities to make the system of agreements
coherent > the system should be coherent (bc being a member of the EU gives advantages that are
strictly linked to the EU legal system) + states should also develop a common attitude.
“The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before
the date of their accession, between one or more MS on the one hand, and one or more third countries on the other,
shall not be affected by the provisions of the Treaties.
To the extent that such agreements are not compatible with the Treaties, the MS or States concerned shall take all
appropriate steps to eliminate the incompatibilities established. MSs shall, where necessary, assist each other to this
end and shall, where appropriate, adopt a common attitude.
In applying the agreements referred to in the first paragraph, MSs shall take into account the fact that the advantages
accorded under the Treaties by each MS form an integral part of the establishment of the Union and are thereby
inseparably linked with the creation of common institutions, the conferring of powers upon them and the granting of
the same advantages by all the other MSs.”
Moreover, not all international organizations are created through a treaty > for ex. UNICEF was
created with a resolution of the General Assembly of the UN.
NB: all member states of the UN have the same weight when they vote inside the general assembly.
3) Stable entity
Stability is what distinguishes international organizations from summits/conferences (which

are organized to solve specific problems) > it’s a body that has a distinct will and is independent
of its members and that works and operates on a daily basis > a structure can be created and then
dismantled right after > doesn’t mean that stability didn’t exist.
When summits and conferences happen regularly, they may become international organizations:
- The Organization for security and cooperation in Europe (OSCE) became a stable
organization in 1995.
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- The periodic conference organized to discuss the world trade problems, became the WTO in 1995
> it started as a stable system of conferences > then became an international organization.
G8 is not an international organization > it’s a summit.
A second definition of international organizations is provided by Ian Hurd > international

organizations as «diverse and sophisticated entities, with legal, political and social dimensions
that overlap and conflict in interesting ways».
1) Diverse
International organizations are diverse > they are usually created for a specific purpose or
mission, so there aren’t two completely identical organizations > for ex. an international organization
with that manages the navigability of a river is very specific (an exception is the UN > its mission is
so broad it includes economic, political, military issues, etc.) + they vary widely in their area of
authority and in their structures > some international organizations can adopt binding acts and
others that can’t > for ex. the resolutions of the UN general assembly aren’t legally binding.
2) Overlapping
There can be cases of overlapping of functions among international organizations > for ex. the UN
and NATO in former Yugoslavia and in Ukraine, or environmental issues and protection of
human rights > there is no global organization that single handedly protects the environment >
there is no entity that is in charge to deal with environmental issues.
For ex. in the founding treaty of the WTO there is a clear reference to sustainable development >
respect for environment and human rights > even though its main purpose is to develop trade > but
trade can have an impact on the environment.
BUT the problem with this overlapping of competences is that it’s easy to have different views
> for ex. cases about environmental issues that are dealt with by different international courts, like
the European court of human rights, the international court of justice, the international criminal
court (which considers the endangering of the environment as an international crime > eco crime).
3) Evolutive nature
International organizations have a changing nature > they can move forwards or backwards >
for ex. the EU moved forwards with the Lisbon treaty bc it became something stronger than a
cooperation > BUT at the same time it moved backwards bc the Lisbon treaty includes the
possibility to withdraw from the EU.
A third definition of international organizations can be found in art. 2 of the draft articles on
the responsibility of international organizations (updated last in 2011) > draft articles are NOT
legally binding but can still be taken into consideration.
So, an international organization is an organization established by a treaty or other instrument
governed by international law and possessing its own international legal personality.
International organizations may include as members, in addition to States, other entities.
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According to this definition, international organizations have the capacity to make decisions on
behalf of the member states + can welcome another international organization as a member.
IOs and their «civilization» mission
Globalization is the incapacity of national law to deal with some situations (environment, drug
traffic, corruption, etc.) > issues are global now > the states cannot do everything on their own >
they need some form of international cooperation > this causes tensions between the territoriality
of national law and the globalization of the situations > international law takes the place of national
law and international organizations are the place where international law is adopted.
Moreover, international organizations can make it easier to understand people with different
origins and cultures and, therefore, may be considered and important factor of civilization.
Governmental VS non-governmental
Governmental organizations are established by states > NON-governmental organizations are

established by the civil society (so governments are not involved)
The structure of a governmental organization consists of 3 bodies:

 Political body > tries to reflect the formal equality existing among States > all the states are
equal, especially in the voting system (1 state 1 vote) > for ex. this body in the UN is the
general assembly
 Political body that performs executive tasks > this body doesn’t represent all the members >
in the UN it’s the security council > consists of just 15 states (5 permanent and 10 on rotation)
 Administrative and technical body > the secretariat
This structure is NOT applicable to all international organizations > the EU is more modern >
doesn’t have a strict division of tasks (for ex. there is no secretariat > BUT each body has a system
of administration) + it’s a regional organization > having fewer member states countries means it’s
easier to manage tasks. The bodies of the EU are:
- Parliament > it represents the population > citizens are directly involved in the decision
making process
- Council of EU > it represents governments > it composition changes depending on the issues
discussed > the decisions are made by this body together with the parliament
- European council > represents the head of the states and of the governments
- Commission > is a technical body more than a political one > it performs executive tasks
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Another important aspect for international organizations is the budget > governmental
organizations are financed by the states > for ex. the WTO or the UN > the states contribute directly
to the budget of the organization.
The EU finances itself > the activities of the EU cover the expenses of the organization itself > in
the UN system if a state fails to pay its contribution, the UN can suspend the rights and benefits of
that state.
NGOs are made by the civil society > its members are private entities, citizens (Greenpeace,
Doctors without Borders, Amnesty international), coming from different States + they are NOT
necessarily nonprofit > some have economic interests.
The goal of NGOs is creating cross-border connections > BUT NGOs don’t follow international
law > they aren’t regulated by international law > they are not considered international actors yet
> international law is just starting to consider them in this sense.
A similar ex. is that of international enterprises > they have a relevant role and affect international
relations > BUT it’s difficult for international law to influence their activities.
The law applicable for NGOs is the law of the state where the seat is > for ex. Amnesty
International’s seat in Genova follows Italian laws (the main siege is in London) > there is no
supranational regulation of these entities > there is just coordination among different seats > the
cross-border element is the network between the different seats.
Before the European court of human rights applies the European convention on human rights of
1950 > it was possible to make individual applications BUT also NGOs are allowed to make an
application, as established by art. 34 of the ECHR > for ex. Amnesty could go in front of the
Strasbourg court (European court of human rights) and act against a state.
An application is a request made in front of a court > an individual fills out an application to start a
legal proceeding > the application tells the scope of the proceeding > the court cannot expand or
restrict the matters of discussion > the application sets the exact boundaries of the proceeding.
In 1948 > even before the European convention on human rights > the ECOSOC had a consultative
role for the general assembly > as established by art. 71 of the UN charter, the ECOSOC can
consult NGOs > it’s a body that represents the economic and social parties in the dialogue with
UN organs > it connects the states with civil society.
Art. 34 ECHR: “The Court may receive applications from any person, non-governmental organizations or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the Protocols (…)”
Art. 71 UN Charter: “The Economic and Social Council may make suitable arrangements for consultation with non-
governmental organizations which are concerned with matters within its competence. (…)”
The role of international organizations
There are 3 different views on the role of international organizations:

- Minimal view > int. orgs. as resources for the member states
- Neutral view > int. orgs. as places where States may discuss interests and problems
- More positive view > int. orgs. as totally independent international actors, with a legal
subjectivity separated from their founders
International organizations can develop during their lives > when they are created, they are
generally tools for the states to reach a goal that they couldn’t reach alone > resource for the
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states BUT international organizations can also be entities where a dialogue that’s not strictly
related to the specific position of individual states exists > not fully independent > states still
make decisions. According to the third view, international organizations are independent actors.
For ex. the EU has exclusive competence regarding trade > makes decisions on behalf of the states.
The UN system in some cases is a real resource on the field for the states > BUT it’s difficult to
make decisions bc of the veto power. Before the existence of the UN system, war was the natural
way of solving disputes among states > after 1948 things changed.
Ian Hurd considers the role of international organizations by looking at 3 elements:

 Consent > what are the obligations that countries consent to when they join the organization?
Consent is related to what the states are willing to do, what conditions they would accept, to
join an international organization. States sign a treaty in a specific time, depending on their
goals > BUT international organizations can evolve, can change > their objectives can change >
this means new obligations for the states > for ex. the UN charter doesn’t include peacekeeping
operations > the states gave consent to protect international peace and security BUT didn’t
directly give their consent to peacekeeping operations.
 Compliance > if the states comply to these obligations.
 Enforcement > the method that each organization uses to impose the respect of the obligations
by the states > the power of enforcement.
The WTO has one of the most modern systems of resolution of disputes > tries to solve them
amicably.
When talking about international organizations, Jan Klabbers analyzes 3 aspects:

a) the relations between the int. org. and its member states (membership, financing,
dissolution)
b) the internal structure of the int. org.
c) the relations between the int. org. and the outside world
The rise of int. orgs.: from coexistence to cooperation
With the evolution of international law came the evolution from a law of coexistence to a law of
cooperation of the states > this was the goal of the creation of international organizations.
At the beginning there were institutions for the management of rivers + organizations created by
private persons (for ex. the Red Cross created by Henri Dunant and the International Working
Men’s Association created by K. Marx).
Then, the “internationalization” of relationships made it necessary to cooperate (transport
and communication).
A major breakthrough occurred in 1919 > new institutions were created > like the League of
Nations (whose goals were the establishment of peace and of a collective security system) and the
International Labor Organization.
Later were created: the UN, IMF, Council of Europe, European Coal and Steel Community,
European Economic Community, European Community for Atomic Energy, the NATO.
International organizations can be distinguished based on:

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o Functions > economic field, peace and security, military (EU sui generis)
o Membership > can be universal or limited (in the case of regional organizations, like NATO and
EU) > some int. orgs. may be universal but with a limited participation (Organization of
Petroleum Exporting Countries > OPEC)
o Level of cooperation > political or technical organizations (even though the distinction may be
difficult)
o Nature of the org. > intergovernmental or supranational organizations (these make decisions
that directly influence the civil society > make decisions on behalf of the states > EU)
a) Relations between int. orgs. and their member states
 The legal position of int. orgs.
International organizations are subjects of international law > they are independent actors and
they bear rights and obligations under international law > in 1949 the ICJ gave an opinion on
Reparation for Injuries > “the subjects of law in any legal system are not necessarily identical in
their nature or in the extent of their rights, and their nature depends on the needs of the community”.
Moreover, after the Bernadotte case the ICJ said that the UN is an international actor as long
as its structure and its mission are clear.
Request of opinion: are the UN allowed to bring a legal claim against the entity responsible for the
death of Folke Bernadotte (a UN mediator)?
Problems: the UN Charter didn’t provide anything in this regard + Israel was not a UN member at
the time.
Opinion: UN is to be regarded as having international legal personality and as having the right to
bring a claim, both in its own name and in the name of its employees.
Regarding the legal personality of international organizations (which entails the possibility for int.
orgs. to do something), there is a debate about the “will theory”, or “subjective theory”, vs
“objective theory”:
 According to the will theory, or subjective theory, it’s the will of the founders of the
organization which decides on the organization’s legal personality > BUT the will of the
founders could be really different from the organization’s goals later on (as for the UN: no
reference in the Charter).
 According to the objective theory, as soon as an entity exists as a matter of law, it has an
international legal personality (presumptive personality) > no need to look whether founders
wanted or not to create a legal entity.
Regarding the legal personality of international organizations under domestic law, there are
two formulas:
- The blank check formula > art. 104 of UN charter > allows the international
organization to exercise its legal capacity > each legal order shall be prepared to accept
any activity of the organization.
Art. 104 UN Charter: «The Organization shall enjoy in the territory of each of its member state such legal
capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes»
- A more detailed formula that expresses the legal personality of the EU > art. 335 of the
Treaty on the Functioning of the European Union > the EU enjoys the most extensive
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form of legal capacity inside each of its member states > can take part in legal
proceedings and can acquire and dispose of movable or immovable property.
Art. 335 TFEU: «in each of the MSs the EU shall enjoy the most extensive legal capacity accorded to legal
persons under their laws … in particular may acquire or dispose of movable or immovable property and may
be a party of legal proceedings»
The legal capacity has several levels > on an international level it concerns relations with other
international actors (for ex. they can make agreements with a state or a state can enter the
organization) + at the national level it concerns relations with entities within a single state > for
ex. to buy a building you have to get in contact with the private owner of the building.
 Powers of the international organizations
According to the doctrine of attributed powers, international organizations and their organs
have the power that the member states give them > they can do what the member states allow
them to do > states give up some of their competences in favor of the organization.
The principle of attribution of power is expressed within the founding treaty of the organization >
it’s the key principle of the whole system of competences in the EU.
BUT sometimes this doctrine can be taken to its extreme, giving only a marginal role to the int.
orgs. + international organizations need some flexibility in order to evolve > in fact, some int.
orgs. tend to move away from a strict system of attribution of power.
Another issue arises when states must follow an obligation they didn’t give their consent to when
they established the organization > for ex. peacekeeping operations are not in the UN Charter, what
about the salary of the staff involved?
The doctrine of implied powers emerged because of the struggles between central government
and local authorities in the context of the federal system of the USA > this doctrine of implied
powers is necessary for the functioning of international organizations > a good application of this
theory is the EU system > the principle of the effet utile is used to justify actions that are not
exactly aligned with the powers granted by the founding treaty.
There are two interpretations of the principle of the “effet utile”:
- Restrictive approach, according to which the powers of the organization derive from
express powers granted by the treaty
- Wide approach, according to which the powers of the organization derive from its
objectives and functions
Art. 352 of the TFEU is a flexibility clause > beside the system of attribution of power there’s the
possibility to exercise tasks when it’s necessary to obtain an objective set out in the treaty and the
treaties didn’t give the organization the necessary power to do so > it’s a way of updating the
content of a treaty.
Art. 352 TFEU: If action by the EU should prove necessary to attain one of the objectives set out in the Treaties, and
the Treaties have not provided the necessary powers, the Council… shall adopt the appropriate measures
 Sources of international law concerning international organizations
The constituent documents of international organizations are treaties > BUT not ordinary
treaties > the statute of an int. org. is an international agreement, which generally follows the
rules of Geneva convention of 1969
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- they are often concluded for an indefinite period (generally there is no expiration date
established in the treaty)
- they are only amended with the help of the organization’s pertinent organs > the treaty
establishing an int. org. generally has a complex mechanism for formal amendment > bc of
this complex mechanism it’s important the doctrine of implied powers
- they are interpreted in the light of the organization’s goals > limit on the interpretation.
The main issues within the founding treaties usually concern:
 Reservations
There is no specific regulation regarding reservations > in the treaties that establish international
organizations reservations are generally not allowed > BUT many rules are provided by the case
law of the International Court of Justice.
1951: ICJ’s opinion Reservations to Genocide.
1969 Vienna Convention > rules on reservations provided by the treaties must be followed > art.
20.3 > when a treaty is a constituent instrument of an int. org., and unless it provides otherwise, a
reservation requires the acceptance of the competent organ of that organization.
In the EU are contemplated opt-out procedures and interpretative declarations.
 Revisions
A revision involves the decision of the competent bodies of the organization > for ex. in the EU
you need a conference + and in the UN system you need a conference AND a majority of 2/3 in
the general assembly.
Moreover, there is tension between the need to adapt a constituent document (majority) and the
need to take into consideration State sovereignty (unanimity).
Art. 48 TEU > amendments must be discussed at intergovernmental conferences and enter into
force after being ratified by all members.
Arts. 108-109 UN charter > it’s required to set a general conference and amendments must be
voted by a 2/3 majority of the GA.
This is bc if the membership is limited, unanimity is required > if the membership is universal, the
majority is enough.
 Withdrawal and termination
The UN system and its charter don’t contemplate the possibility to withdraw > BUT it doesn’t
mean that a state can’t leave > according to the customary law rebus sic stantibus encoded in art.
62 of the Vienna convention of 1969, in case an amendment is not accepted, or the system
changed too much compared to when the state first joined, there’s the possibility to withdraw >
withdrawal cannot be invoked unless there is dramatic change of the circumstances that can justify
it OR if the obligations of the organization > BUT the UN system deals with peace and security >
the system didn’t change that much. Indonesia was one of the few cases of withdrawal from the UN
(1965).
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Instead, the EU system changes more rapidly > so the rebus sic stantibus could also be invoked in
the EU system before the Lisbon treaty.
Art. 56 of the 1969 Vienna Convention > when no withdrawal clause is provided, the treaty is
not subject to withdrawal, except in 2 cases:
- when a right of withdrawal was already in the intention of the drafters
- when the right of withdrawal is implied in the nature of the agreement (for ex. alliance treaty)
The right of withdrawal of a state from the EU was established in 2009 with the Lisbon treaty >
art. 50 of the TEU > if a country withdraws it can re-join the EU BUT it must start the whole
application process again > art. 49 of the TEU.
Art. 62.1 of the 1969 Vienna Conv. - Fundamental change of circumstances (rebus sic stantibus)
“A fundamental change of circumstances which has occurred with regard to those existing at the time of the
conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or
withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the
treaty; and
(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.
(…)”
Art. 50 TEU:
1. Any MS may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A MS which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines
provided by the European Council, the Union shall negotiate and conclude an agreement with that State (…) That
agreement (…) concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the
consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal
agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in
agreement with the MS concerned, unanimously decides to extend this period. (…)
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred
to in Article 49.
Art. 49 TEU:
Any European State which respects the values referred to in Art. 2 and is committed to promoting them may apply to
become a member of the Union.
The European Parliament and national Parliaments shall be notified of this application. The applicant State shall
address its application to the Council, which shall act unanimously after consulting the Commission and after
receiving the consent of the European Parliament, which shall act by a majority of its component members. The
conditions of eligibility agreed upon by the European Council shall be taken into account.
The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission
entails, shall be the subject of an agreement between the MSs and the applicant State. This agreement shall be
submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.
Brexit
- 23 June 2016 > referendum: leave or remain > leave won

- 29 March 2017 > notification (the UK must leave at 11pm UK time on Friday, 29 March 2019)
- Court of Justice of the EU in the case C-621/18 Andy Wightman (and others) v. Secretary of State for
Exiting the EU on the possibility of unilaterally revoking the notification of the intention of the UK and
Northern Ireland to withdraw from the EU > it is possible.
Possible scenarios:
- Revocation of the notification
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- New deal
- No-deal Brexit: leaving the EU without a deal on 29 March 2019
- Withdrawal agreement entered into force on 31st of January 2020
Brexit timeline:
19 October 2019 – UK request of prorogation – Council of Europe

24 January 2020 – signature agreement UK and EU
29 January 2020 – UK ratification
29 January 2020 – European Parliament approves the agreement and 30 January 2020 EU ratifies
31 January 2020 – UK is not a member of the EU anymore
 Interpretation
International treaties should be interpreted by following the objective approach > the literal
meaning of the words > BUT it’s also possible to use the subjective method > BUT still the
general rule is to interpret treaties in good faith.
International organizations generally stick to the establishing a treaty according to the the will of the
founders > the EU system allows to interpret EU law.
The only way interpretation can be justified is if we look at int. orgs. as a good thing >
especially bc there is no specific agreement on the exact goals of the organizations > if we accept
int. orgs. as something good we can justify derogations and special rules that apply to int. orgs.
In fact, if we look at the practice we find that constituent documents are largely interpreted always
taking into consideration the goals of the organization.
Art. 31 of the 1969 Vienna Convention > “treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in the context and in the light of its object and purpose”
 Issue of memberships
The constituent treaties of international organizations control who can join the organization +
under what conditions + the procedure that must be followed.
BUT in practice decisions on membership do not always follow a functionalist logic and may be
influenced by human rights or policy considerations.
The membership of the IMF is not possible without the membership of the World Bank.
The ILO membership follows by right for UN member states, whereas non-UN members must
follow a special procedure.
As for the European Communities, it has been always clear that a State could only join all 3.
Issues of membership in the UN concern other forms of membership: associate, partial, affiliate
membership + Palestine has no membership, it’s qualified as observer State + the membership
status of micro-States.
Art. 4 of the UN charter > Membership in the UN is open to all peace-loving states which
accept the obligations contained in the present Charter and, in the judgment of the organization,
are able and willing to carry out these obligations.
Art. 49 TEU > EU membership shall be decided unanimously by the Council, having consulted
the Commission and having received the approval of the European Parliament. Moreover, all
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applicants must have respect for liberty, human rights, democracy and the rule of law. Also, an
accession agreement is required between the EU Members and the applicant state.
Regarding state succession, according to customary rules a successor state will be bound by
existing customary rules as its predecessor or predecessors.
BUT there are problems with treaty obligations > should succession be automatic? Should the new
State have the right to start with a clean slate? > there are no specific rules in the UN charter > bc
successions are relatively rare and it’s difficult to create a uniform discipline for different cases.
The only rule, which may be applied to treaties adopted within international organizations,
but without prejudice to any relevant rules of the organizations, is art. 4 of the 1978 Vienna
Convention on Succession of States in respect of Treaties: the general rule is continuity
between successor and predecessor > BUT in case of newly independent States (for ex. former
colonies) they should start from scratch.
Termination of membership is mentioned in the following articles:
Art. 6 UN Charter > expulsion
Art. 5 UN Charter > suspension of rights and privileges of membership (voting)
Art. 7 TEU > suspension of rights (Austria 1999-2000, recently Hungary)
 Problem of financing
The problem of financing is an issue of practical relevance > the UN has the problem of
financing peacekeeping operations. Sources of income can be gifts and donations from private
persons (ex. UNHCR donation from the B
ill and Melinda Gates Foundation) + sponsoring of conferences.
The EU has its own resources > customs duties, agricultural levies, part of the Value Added Tax >
thanks to art. 311 of the TFEU the EU has the power to add new resources or to abolish existing
ones.
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b) Internal structure
International organizations need institutions and organs to function > the TEU speaks about
“institutions”, the UN Charter speaks about “organs”.
There is a growing number of subsidiary/auxiliary organs, independent bodies and agencies
that help the institution on a daily basis > both in EU and UN system.
The main organs within int. orgs. are:
 The plenary body
In the plenary body all member states are represented > they meet at regular intervals, where
there are representatives from the governments > in the EU the plenary body is the Council of the
European Union > in the UN it’s the general assembly.
In the EU there is no clear distinction between legislative and executive power > doesn’t fit in
this 3-fold structure > sui generis.
In the Council of the European Union every member state participates > at each meeting the
ministers representing each member state change depending on the issues discussed.
The European council was established with the Lisbon treaty of 2009 > it represents the head of
the states > NO legislative power > provides the union with general political directions and
priorities.
The European commission is a political (each commissioner comes from each member state) and
technical (it works on the legislation and external relations + has executive power) body.
The Parliament represents the citizens of the EU.
An exception is the International Labor Organization > the plenary body is not just a purely
intergovernmental body > there are also representatives of the civil society > employees and
employers > ½ rep from gov, ½ rep from employers and employees.
The more supranational the organization is, the more the method of majority is used > the less
supranational and the more intergovernmental the organization is, the more unanimity and
consensus are used (everybody shall agree, and nobody shall disagree with the decision).
The majority method is an evolution of the decision-making process on an international level > bc
if the decision is made by the majority > it means that the int. org. makes decisions on behalf of
everyone, including the minority that didn’t agree > this has to do with the autonomy of the org.
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 The executive body
The executive body meets and makes decisions (sometimes they are binding, like in the case of the
UN security council) > generally such bodies are based on the idea of «representation».
In the EU the executive body is mainly the Commission, but not exclusively > although the
members of the Commission are allocated between member states, they do not represent their states
> instead they are supposed to act in European interests.
In the UN the executive body is the security council > the executive body represents all the states
> BUT there can’t be 193 representatives > SO there are 5 permanent members + 10 rotating
members > every month the presidency of the security council changes.
 The administrative body / secretariat
The administrative body is not employing staff on loan from the host state anymore > it doesn’t
have just administrative functions > for ex. the proactive administration of the EU Commission.
 Other bodies
- Judicial bodies > the court of justice of the European Union + international court of justice >
BUT not every international organization has a system to solve disputes.
- In some cases there are parliamentary bodies or assemblies
- There are also committees and comitology > specific organs that work on specific issues > not
originally foreseen, problems of democracy, composition of advisory committee
These bodies are crucial bc the states can delegate to them some decisions > BUT on the other hand
this delegation can cause problems in terms of democracy and the will of the states.
In the EU there is NO secretariat bc
UE NO secretariat bc each body has its own administrative system.
c) Relationships between int orgs and the world
1. Treaty-making power
The member states of an international organizations may give the organization the power to
conclude treaties > nowadays is well established that int. orgs. may conclude treaties.
The capability to adopt treaties is the ability to establish legal agreements with other actors >
this depends on the sovereignty that each organization enjoys + on the competences attributed
to the organization by the states > for ex. the EU has exclusive competence in the field of trade >
but it can exercise the treaty making power also in other fields.
Some specific treaty making powers are in the charter of the UN > the goal is international
peace and security > regarding this goal the charter has several provisions that allow the UN to
establish treaties with member states providing military forces but also third parties (NATO)
In the past, there was a distinction between capacity and competence

- The capacity to conclude treaties derives from international law
- The competence to conclude treaties derives from the Constituent treaty (and from the
doctrine of implied powers)
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If you don’t have a competence, the capacity depends on the power of the organization itself > BUT
you need the competence, a legal basis, to have the capacity.
One curious thing is that although an agreement between States and international organizations is
subject to the 1986 Vienna Convention, the relations between the member states establishing an int.
org. is subject to the 1969 Vienna Conv.
The reference is the 1986 Vienna Convention on the law of treaties with or between int. orgs. >
has NOT yet entered into force > 43 int. orgs. have ratified it for now > BUT a clause in the treaty
that establishes its entering into force requires that in order to enter into force the convention must
be ratified by 35 member states (and not int. orgs.) > but states are not interested.
The preamble says that capacity derives from international law > BUT this capacity is not
unlimited > art. 6 says that it’s governed by the rules of the int. org. > so the constituent treaty,
decisions made, resolutions adopted and established practice.
The Vienna convention of 1969 established rules for adopting international treaties > due to
the specificity of international organizations has been adopted a specific convention > the Vienna
convention on the law of the treaties with or between int. orgs. of 1986.
There are several important articles and agreements about the treaty making power of
international organizations:
- Art. 43 of the UN charter > possibility to make special agreements concerning the use of
military forces > legal basis for the treaty making power
1. All Members of the UN, in order to contribute to the maintenance of international peace and security,
undertake to make available to the SC, in accordance with a special agreement or agreements, armed forces,
assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace
and security.
2. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and
general location, and the nature of the facilities and assistance to be provided.
3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the SC. They shall be
concluded between the SC and Members or between the SC and groups of Members and shall be subject to
ratification by the signatory states in accordance with their respective constitutional processes.
- Art. 57 of the UN charter > possibility to make use of regional arrangements or agencies > but
NO enforcement without security council approval
1. The SC shall utilize such regional arrangements or agencies for enforcement action under its authority. But no
enforcement action shall be taken under regional arrangements or by regional agencies without the authorization
of the SC, except for measures against any enemy state, as defined in paragraph 2 of this Article
- Art. 63 of the UN charter > possibility for the ECOSOC to enter agreements
1. The Economic and Social Council may enter into agreements with any of the agencies referred to in Article 57,
defining the terms on which the agency concerned shall be brought into relationship with the UN. Such
agreements shall be subject to approval by the GA.
2. It may co-ordinate the activities of the specialized agencies through consultation with and recommendations to
such agencies and through recommendations to the GA and to the Members of the UN
- Headquarters agreements (with USA and Switzerland)
- Immunity agreements - art. 105 of the UN charter

1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are
necessary for the fulfillment of its purposes.
2. Representatives of the Members of the UN and officials of the Organization shall similarly enjoy such
privileges and immunities as are necessary for the independent exercise of their functions in connection with the
Organization.
3. The GA may make recommendations with a view to determining the details of the application of paragraphs 1
and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose).
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- Agreements with private actors (not international agreements)
- Art. 216 TFEU

1. The Union may conclude an agreement with one or more third countries or IOs where the Treaties so provide
or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's
policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is
likely to affect common rules or alter their scope.
2. Agreements concluded by the Union are binding upon the institutions of the Union and on its MSs.
- Art. 207 TFEU - trade agreements
- Art. 198 TFEU - association agreement with non-EU countries having special relations with
Denmark, the Netherlands, France or UK
- Other provisions (the topics are international by definition): development cooperation,

humanitarian aid, environment, transport
The UN has a strong treaty making power BUT limited to the UN mission > in the EU system
it’s possible to conclude agreements with one or more countries or int. orgs. when it’s
necessary to reach EU goals + agreements adopted by the EU are also binding for the member
states and not just the institutions of the EU.
The exercise of external power of the EU derives from the ERTA case > a sentence that dates
back to the 70s concerning road transportation on an international level > the court of justice of the
EU established the theory of parallel competence, which expanded the treaty making power of
the EU > if the EU enjoys internal competence on a specific topic THEN on the same issue it
automatically enjoys external competence > the power to deal with external aspects of transport
was implied on the basis of the existence of a power to regulate transport within the EU and the
need to protect the unity of EU law (if the EU lacked the external power, then member states could
circumvent EU law simply by entering into external agreements) > so an existing internal
regulatory power had to be complemented by an external power.
The theory of the parallelism of competences was confirmed by the court of justice of the EU in
opinion 1/76 and 1/94 > in the last opinion the court of justice introduced the limit of a link to the
purposes of the organization > there must be a clear link to the purposes of the EU.
Opinion 1/76: creation (with Switzerland) of a fund for vessels engaged in the Rhine and Moselle
navigation > an external power shall be deemed existing in order not to render the internal power
meaningless, even if it was not yet exercised.
Opinion 1/94: who is competent to conclude the WTO agreement? > more cautious approach:
implied external powers shall be limited to those cases where the EU action would be undoubtedly
linked to the objectives of the EU.
2. Organizational liaisons
There are a lot of international organizations > so they need to coordinate their activity > there are
some mechanisms that help form a connection among int. orgs.
In some cases, the membership to an international organization is precondition to enter
another > ILO and UN + to join the IMF you must be a member of the world bank and vice versa.
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The goal of the IMF is to keep the monetary system stable > world bank helps states plan projects >
one can’t work without the other > if the monetary system of a country isn’t stable the state cannot
plan ambitious projects, etc.
Moreover, there must be links between global and regional organizations > for ex. the EU
progressively acquired specific competences on foreign affairs and security > and applies
immediately the decisions of the UN > each member state doesn’t have to deal individually with the
resolutions of the security council anymore. Also, within the WTO the EU makes decisions on
behalf of the members states.
Participation to international organizations can be another way to connect and coordinate >
for ex. the EU is not a member of UN > BUT it’s an observer
Moreover, joint ventures can also exist > cooperation between international organizations and
external enterprises + joint programs.
Organizational liaisons are not really considered within the statutes of the international
organizations > sometimes the legal basis is not expressed directly > so it’s useful look at practice
or activities implemented.
Art. 53 of the UN charter:

1. The SC shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its
authority (…)
3. Issues of responsibility
What happens if something goes wrong in relations between an IO and some other actor?
UN SYSTEM
The United Nations organs are: Its functions are:

- Security Council - General limits to the United Nations functions
- General Assembly - Maintenance of Peace
- Secretariat - Economic cooperation
- International Court of Justice - Protection of human rights
- Decolonization and self-determination of peoples
Depending on the historical moment, the UN has had a role of

-a resource (minimal view) > a tool for the States, the sole actors of the international community
-a forum (neutral view) > place where States discuss interests and problems of mutual concern
-a real international actor (more positive view) > real actors of the international community with
independent legal standing from their founders.
The UN charter is the founding treaty of the UN > in 1942 the Atlantic Charter was laid down by
President F. D. Roosevelt and by the Prime Minister W. Churchill > the idea was NOT to develop
an int. org. > BUT to build a collective security system by coordinating the exercise of the use of
force > low level of cooperation > the goal was to discourage the use of force and aggression +
establish a strong cooperation between the States in economic and social matters.
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In 1943 the Moscow conference took place > URSS, USA, UK, and China concluded that it was
necessary to build an int. org. with specific bodies, based on the principle of sovereign equality
and open to membership of any state that wanted to pursue peace, independently of their size.
They made a declaration where they recognized “the necessity of establishing at the earliest
practicable date a general IO, based on the principle of the sovereign equality of all peace-loving
States and open to membership by all such States, large and small, for the maintenance of
international peace and security”.
At the Dumbarton oaks conference of 1944, URSS, USA, UK, and China proposed a treaty, and
the purposes of the organization were discussed together with its structure > the structure was
similar to that of the LON > BUT the UN bodies were much more powerful and effective.
The Dumbarton oaks meeting was considered as preparatory work for the UN charter > and
according to international law preparatory work is useful for the subjective method of interpretation
of treaties to understand better the intention of the states (BUT for the objective method has just a
subsidiary role). At this conference the states discussed:
 the purposes and the structure of the new body > similar to the League of Nations
 the functions and powers of the organs: relevant differences with the LON
 Detailed measures to be adopted in case of aggression (or threat of aggression) > chapter 7
 ECOSOC Council under the authority of the GA
 decisions adopted by majority (not unanimity) > differently from the LON
 the members of the security council > 11 members > the 5 “Great Powers” were permanent
members and the other 6 were elected by the GA every 2 years (no decision on the voting
procedure)
The chapter 7 of the charter is dedicated to the use of force > this represented a big change in
international law > before the use of force was the standard method to solve disputes > now the use
of force is regulated > it’s not possible for the states to make an act of aggression.
The idea of establishing ECOSOC also emerged because the states wanted to create a body that had
a connection with the population and society > bc it’s important in order to solve issues > it’s a step
forward compared to LON.
The decision-making process is based on the majority principle > the decision is of the
organization and not of the member states.
The security council had 11 members in the beginning, 5 of which were the great powers >
permanent members > the other 6 were elected every 2 years by the general assembly > now the
members are 15.
At the Yalta conference of 1945 the big powers decided to give themselves the veto power > the
possibility to block the adoption of any decision by the Council that is not of a merely procedural
nature > it’s the so called “Yalta formula” under art. 27 of the charter.
Art. 27 of the UN charter: “Each member of the SC shall have one vote. Decisions of the SC on procedural matters
shall be made by an affirmative vote of 9 members.
Decisions of the SC on all other matters shall be made by an affirmative vote of 9 members including the concurring
votes of the permanent members; provided that, in decisions under Chapter VI, and under par. 3 of Art. 52, a party to
a dispute shall abstain from voting”.
Distinction between procedural matters and non-procedural matters:

 Procedural matters > it’s easier to make decisions in the security council > it’s required the
affirmative vote of 9 members of 15. A procedural matter is for ex. asking to hold a meeting of
the general assembly + establishing the agenda of the security council.
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 Non-procedural matters > it’s required the affirmative vote of 9 members BUT 5 of them
must be the permanent members > if a permanent member says no the decision is not made.
The big problem of the Yalta formula is that it provides NO definition of what is procedural and
what’s not > permanent members frequently ask for the security council to consider as not
procedural a decision which instead might be procedural > so that they can exercise their veto
power > problem of the qualification itself of the decision.
Regarding art. 27, customary law progressively replaced codified international law > now there
is NO need for an affirmative vote > abstention from a permanent member is considered as an
affirmative vote > this doesn’t erase the problems related to the veto power > but makes it a little
easier to make decisions.
SO, first there is the qualification of the matter > then the 9 votes are required > the permanent
members can exercise a double veto > in the qualification process and in the decisional
process if the issue is not procedural.
SO > if a decision is about non-procedural matters > it’s required to have 9 affirmative votes (yes or
abstention), 5 of which of the permanent matters.
For decisions on procedural matters > it’s still required to have 9 affirmative votes out 15 (yes or
abstention) > BUT no need for 5 of them to be from the permanent members > no veto power.
To determine if the decision is procedural or not the states call a meeting of the general
assembly > BUT the decision itself to call a meeting could be argued to be a non-procedural
decision for political reasons
Regarding the qualification of the decision > since there is no definition of procedural or non-
procedural nature, the issue of qualification can be solved by looking at the practice > the practice
of the UN goes towards following the stricter approach > more likely to qualify a matter as
non-procedural in nature > this way the 5 permanent members have the possibility to exercise veto
power at the stage of qualification and then when deciding on the issue itself > double veto.
The UN charter was adopted in 1945, at the San Francisco conference > there were 50 states
present > even states which at that time were not completely independent (Ukraine and Belarus >
strongly depended on the Soviet Union) were accepted as independent states in order to have as
much participants as possible.
Italy did not participate to the San Francisco conference bc it was considered as an “enemy
State” (together with Germany and Japan) > it obtained the UN membership in 1955 > under
art. 53.2 > “the term enemy state applies to any state which during the WW2 has been an enemy of
any signatory of the present Charter” (see also art. 107).
The idea of participating in international organizations was also included in the Italian constitution f
1948 > art. 11.
Some articles of the UN charter have been added at the San Francisco conference > art. 51 on the
right of self-defense + art. 103 on the prevalence of the Charter, while some proposals have not
been adopted, for ex:
-providing the ICJ with the power of interpretation of the Charter > the charter has a very
concise character > a body with an exclusive power of interpretation would have helped with
the interpretation of the charter > but maybe it would have reduced sovereignty of the states if
they wanted to interpret the charter themselves.
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In the EU system, the European court of justice interprets EU legislation > the interpretation
doesn’t depend on the state’s unilateral interpretation.
-an authentic interpretation on the Yalta formula and the notion of procedural matters >
during the Yalta meeting there was a discussion on providing an interpretation of the Yalta
formula > but it was not adopted > this problem still wasn’t solved at the San Francisco
conference.
Art. 103 of the UN charter says that the UN charter has priority over all the other
international treaties (the EU had similar intentions, so it asked the states to make an effort to
coordinate the past agreements and the agreements made after joining the EU).
Art. 51 is a rule on self-defense > the art. says that if an armed attack occurs, the member states
can exercise their right of self-defense immediately after AND that the security council has the
exclusive power to adopt measures regarding international peace and security > SO the right
of self-defense of the states ends as soon as the security council starts discussing measures that
could be taken. So, self-defense is an exception to the exclusive competence of the security council
> BUT after the state reacts in self-defense, it must report the situation to the security council bc it’s
the only body that can handle the situation.
The USA tried to invoke preventive self-defense after the 9.11 attack > BUT the art. doesn’t say
that self-defense can anticipate the attack > preventive self-defense doesn’t exist under art. 51.
Art. 103 of the UN charter: “In the event of a conflict between the obligations of the Members of the UN under the
present Charter and their obligations under any other international agreement, their obligations under the present
Charter shall prevail.”
Art. 51 of the UN charter: “Nothing in the present Charter shall impair the inherent right of individual or collective
self-defence if an armed attack occurs against a Member of the UN, until the SC has taken measures necessary to
maintain international peace and security.
Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the SC and
shall not in any way affect the authority and responsibility of the SC under the present Charter to take at any time
such action as it deems necessary in order to maintain or restore international peace and security.”
The UN Charter entered into force in 1945 > the art. 110 regulates the entrance into force of
the charter > it depended on the ratification of the 5 permanent members + the ratification of the
states that had previously signed the charter.
The states that ratified the charter at the very beginning are considered original members >
art. 3 > Italy is not > hasn’t ratified the charter immediately after the San Francisco conference.
Art. 110: “1. The present Charter shall be ratified by the signatory states in accordance with their respective
constitutional processes.
2. The ratifications shall be deposited with the Government of the USA, which shall notify all the signatory states of
each deposit as well as the Secretary-General of the Organization when he has been appointed.
3. The present Charter shall come into force upon the deposit of ratifications by the Republic of China, France, the
Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the USA, and by
a majority of the other signatory states. (…)”
Art. 3: “The original Members of the UN shall be the States which, having participated in the UN Conference on
International Organization at San Francisco, or having previously signed the Declaration by UN of 1 January 1942,
sign the present Charter and ratify it in accordance with Article 110.”
Charter still works well bc of its limits > its concise character allowed the charter to survive the
transformations underwent by the organization without significant formal amendments of the
charter.
These transformations are:
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- dramatic increase in memberships > from 50 to 193 states > the latest states to join were South
Sudan in 2011, Montenegro in 2006, Switzerland in 2002.
- issues in constant evolution > from independence to interdependence > the action of a state affects
all the other states AND issues are now global > global warming, international terrorism, civil
wars.
- anachronism and injustice of veto power
- changes in the International Community > before the international community was made of only
states > now there are new “actors” > int. orgs., NGOs representing the civil society,
multinational enterprises + the individuals themselves have become increasingly relevant,
especially on human rights issues.
- the idea of sovereignty of the states was one of the pillars of the charter > equal treatment of all
sovereign states > BUT the protection of the sovereignty is not the priority anymore > it’s the
protection of the population > sovereignty in terms of responsibility towards the population
- moreover, the charter was conceived at a time when some countries had just won a war and were
granted specific powers bc of the victory > asymmetry > now the military power is relevant but the
political power is also strongly linked to the economic power
- the UN system became very expensive > for ex. the introduction of prisons managed by the
International Criminal Court > very expensive system
- lack of decisional power of the general assembly > the general assembly cannot adopt binding
acts > BUT it could have a relevant role bc it represents all the member states > the security council
makes the most important decisions and only represents 15 states.
The UN’s mission
Regarding the UN’s scope of activity, it’s easier to understand the matters which the
organization deals with, than those that are within its competence.
Art. 1 of the UN charter explains the purposes of the UN:
1. To maintain international peace and security, and to that end
- to take effective collective measures for the prevention and removal of threats to the
peace, and for the suppression of acts of aggression or other breaches of the peace
- to bring about by peaceful means, and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes or situations which
might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of equal rights
and self-determination of peoples, and to take other appropriate measures to strengthen
universal peace;
3. To achieve international cooperation in solving international problems of an economic,
social, cultural, or humanitarian character, and in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to race, sex,
language, or religion;
4. To be a center for harmonizing the actions of nations in the attainment of these common ends.
The first purpose is to maintain international peace and security > includes a lot of activities > a
problem is that “threats to peace” is very broad > for ex. just talking about nuclear weapons could
be considered as something that could lead to a threat to peace > acts of aggression and the breach
of peace are more easily recognizable.
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The UN must also adopt peaceful means for the solution of disputes among states, and should
make efforts in order to develop friendly relations among nations > and since disputes often derive
from economic, social, and humanitarian issues, the civil society and its needs cannot be ignored
> it’s important to cooperate in the economic, social, cultural fields > the UN also promotes the
respect of human rights.
Moreover, the UN must try to coordinate the action of the states in order to maintain international
peace and security, solve disputes amicably, and grant protection of human rights.
At the beginning the priority for the UN was the maintenance of international peace and
security > BUT then other problems emerged:
- 1950s-60s > decolonization > one key point of the charter is the principle of equal treatment of
all states and the promotion of the principle of self-determination > so, the organization created
bodies created to deal with the decolonization process > like the Trusteeship Council and the
Special Committee on Decolonization
- 1970s > the organization’s activity was mainly focused on cooperation in economic, social,
cultural and humanitarian fields, with the hope of assuring equal human dignity and a better
future for all
- 1989 > after the fall of the Berlin wall the focus went back to maintenance of international
peace and security > BUT the idea of war stopped being necessarily related to relations among
states > often international peace and security are threatened or violated by crisis arising within
one single state > for ex. the genocide in Rwanda > the UN sometimes focused on single states.
LIMITS OF THE UN
A limit of the UN is the limit of domestic jurisdiction > the UN may not intervene in matters
which are within the domestic jurisdiction of any State > this is established by art. 2.7 of the UN
charter > this limit has to do with the sovereignty of states > bc when the charter was
formulated, in 1945, international cooperation wasn’t so relevant > the general focus was on the
single states and the rules concerned mainly the action of the single states > now the focus is
on the international community as a whole.
Now > this limit is restricted compared to when the charter was adopted > the states joined several
international organizations and attributed powers to them, so that can exercise some powers on
behalf of the states > states gave up portions of their sovereignty > the limit of domestic
jurisdiction is restricted in the presence of a strong international cooperation.
So, according to art 2.7, the UN system can do anything to keep peace and security BUT must not
interfere with matters of domestic jurisdiction > BUT this rule doesn’t apply to the chapter 7 of
the charter, which is the chapter about the use of force > if the international community is in danger,
the limits of domestic jurisdiction, which otherwise apply, can be overcome.
Art. 2.7 “Nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially
within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under
the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter 7”
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UN charter: treaty or constitution?
Regarding the possibility to consider the UN charter as a constitution for the international
community, some believe it’s just a treaty that follows the rules on international treaties > and so
it’s not above other international sources > others believe that it’s a constitution.
There are some arguments in favor of the qualification of the charter in terms of “Constitution of
the international community”:
1- The charter may have effects also on third parties > on states that are not members of the UN >
the UN collective system may start an action any time an international crisis is at stake > it doesn’t
matter if the crisis involves member states or not > the UN can activate mechanisms contemplated
in the charter in case of a threat to peace.
For ex. North Korea is not a member > BUT if it becomes the main character of a threat to peace >
the UN may start an action against it.
The idea that that the charter includes the possibility to have an effect on third states is a
derogation of a traditional rule > the principle pacta tertiis neque nocent neque prosunt (art.
34 Vienna Convention), which says that treaties don’t apply and have no effect on third parties.
2- Evolutive interpretation > the Charter has been interpreted in a very evolutive way based on the
circumstances > for ex. art 27 > we don’t need 5 affirmative votes, also abstentions are considered
as an affirmative vote + sometimes even far away from the original test > for ex. peacekeeping
operations > the UN didn’t establish its own military forces > it exercises its power to maintain
peace and security through peacekeeping operations, which are not contemplated in the charter.
Also in the EU system there have been some changes > the EU has system of adjourning treaties
through conferences and agreements that formalize changes in the treaties > the UN system doesn’t
have and adjournment system.
3- The charter expresses the fundamental principles of the international community > the duty to
amicably solve the disputes among states, equal sovereignty, etc.
Some resolutions of the general assembly have a specific value > they can formalize already
existing customary laws > the general principles of int. law are just customary laws > in the 70s
the general assembly decided to write down them in a resolution > it’s not binding but it’s an
important source to use as reference.
4- Clear prevalence of the UN charter (art. 103) > the fact that the UN charter prevails over other
international treaties may lead to think that the charter is above > it was the will of the states to
include this rule in the charter and to be bound by it.
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Interpretation of the UN charter
There is no official interpreter of the charter > the proposal for the ICJ to interpret the charter
was dismissed at the San Francisco conference > ICJ can just give opinions on international law.
The functions of the ICJ are: solving disputes among states (art. 38 of the ICJ statute) +
rendering opinions upon request (art. 65 of the ICJ statute).
If there are no bilateral treaties or agreements to refer to, the ICJ can move on to other sources
of international law (int. treaties) > if it’s not possible the ICJ resorts to customary law and
general principles of int. law, but also to subsidiary elements (for ex. previous judgments and
opinion of scholars and experts).
The UN is allowed to ask for an advisory opinion from the ICJ > but can’t ask for an
interpretation > limit of opinion making power. BUT in some cases the advisory opinions of
the international court of justice become international law > to pursue an objective, the ICJ
sometimes applied the doctrine of implied power, according to which every organ has not only
the powers expressly attributed to it by the pertinent constitutional provisions BUT also the powers
necessary for exercising its express powers > sometimes this doctrine has been “recalled” by the
ICJ (the Opinion in the Bernadotte’s case), even if the general theory of interpretation would ask
to interpret treaties restrictively.
The ICJ cannot interpret the UN charter by using this doctrine > the charter is a treaty, so it’s
necessary to stick to the literal meaning of the articles, according to the art. 31-33 of the 1969
Vienna convention on the law of the treaties > objective method > interpretation and
preparatory works are just a subsidiary element.
Art. 31: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in the light of its object and purpose.
Art. 32: it’s allowed to resort to a supplementary means of interpretation, including the preparatory work of the treaty
and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31,
or to determine the meaning when the interpretation according to article 31 leaves the meaning ambiguous or obscure.
Art. 33: When a treaty has been authenticated in two or more languages, the text is equally authoritative in each
language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.
When a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and
32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty,
shall be adopted.
Rigidity of the charter
It’s difficult to formally amend the Charter > the main limit of the charter is that it’s not easy to
overcome the main problems of the organization due to the fact that the charter is too strict.
However, there are 2 procedures that can be followed:
- The revision > used for changes that noticeably affect the main characteristics of the
UN > it concerns more important decisions (art. 109)
- The amendment > it’s a softer instrument (art. 108)
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Both procedures require the affirmative vote of 5 permanent members or at least their
abstention > the 5 permanent members enjoy veto power even for decisions outside the security
council. Amendments can only be adopted with a vote of 2/3 of the members of the general
assembly AND must be ratified by 2/3 of the members of the UN, including the 5 permanent
members of the SC.
The revision requires a conference fixed by the 2/3 of the members of the general assembly + it
must be voted by the 2/3 of the participants of the conference AND ratified by the 2/3 of the
members of the UN including the 5 permanent members of the security council.
Art. 108: Amendments to the present Charter shall come into force for all Members of the UN when they have been
adopted by a vote of 2/3 of the members of the GA and ratified in accordance with their respective constitutional
processes by 2/3 of the Members of the UN, including all the permanent members of the SC.
Art. 109: A General Conference of the Members of the UN for the purpose of reviewing the present Charter may be
held at a date and place to be fixed by a 2/3 vote of the members of the GA and by a vote of any 9 members of the SC.
Each Member of the UN shall have one vote in the conference.
Any alteration of the present Charter recommended by a 2/3 vote of the conference shall take effect when ratified in
accordance with their respective constitutional processes by 2/3 of the Members of the UN including all the
permanent members of the SC.
NB: Art. 108 and 109 depart from the principle of int law that a change in the treaty need the
consent of all contracting States.
Modifications and withdrawal
There is NO article in the UN charter regarding withdrawal (in the LON departure was
admissible) > BUT at the San Francisco Conference it was said that “withdrawal could not be
excluded in the case of amendments that a State would not accept” > amendments should be
very significant > withdrawal is admissible just in case of a dramatic change of the rules or the
system > but this hasn’t happened yet.
BUT in practice the charter changes in terms of its concrete application (for ex. abstention equal
to affirmative vote + peace keeping as a valid tool) thanks to:
-the interpretation of the charter by considering the emergence of additional meanings
-the formation of customary rules internal to the UN system > the creation of customary rules is
the main method used to adapt the UN charter to the current situation
One ex. of amendment under art. 108 is the resolution no. 1991 of 1963 (entered into force in
1965) which:
a) expanded the number of the members of the security council > elected members from 6 to
10 > total membership from 11 to 15 + consequent amendments
b) enlarged the membership of the ECOSOC from 18 to 27 members (and in 1971 from 27 to 54)
Admission procedure and UN membership
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As established in art. 3, there are 2 different kinds of members > the original members, those
who signed the charter at the San Francisco conference + the rest of the states > among the original
members there are states that were not really independent > Belarus and Ukraine.
Art. 3: “The original Members of the UN shall be the states which, having participated in the UN Conference on
International Organization at San Francisco, or having previously signed the Declaration by UN of 1 January 1942,
sign the present Charter and ratify it in accordance with Article 110”.
According to art. 4, the UN membership is open to all peace-loving countries which accept the
obligations contained in the Charter and, in the judgment of the Organization, are able and willing
to carry out these obligations. The admission of any state will be decided by the General
Assembly upon the recommendation of the Security Council.
So, the states (NOT int. orgs.) must accept the UN system, which is based on peaceful resolution of
international issues and which gives exclusive competence of the use of force to the UN > the states
must also have the capacity to carry out the obligations that the membership entails.
Moreover, the admission procedure is in the hands of the general assembly > BUT there needs
to be the recommendation of the security council + the state must present to the secretary
general a request for admission containing a declaration made in a formal instrument that the
state accepts the obligation > the secretary general is the person to which the request of admission
is addressed. In theory if a state has all the requirements, it should have the right to join the system
and become a member bc the system is open > in practice the admission procedure requires a
recommendation of the security council and decision of the general assembly.
There is no tool for a state to ask the general assembly not to admit a state or to ask a UN body
to revise the decision > SO the security council and the general assembly have full discretion to
decide whether to admit a state or not.
At the time of the declaration of the United Nations (1942) and of the San Francisco conference
(1945), international law wasn’t too strict regarding the qualification of an entity as a state >
for ex. Belarus and Ukraine > the notion of state was different > a state now should be able to
protect its population’s rights > internal (effective and independent government on a population
within a defined territory) and external sovereignty (legal independence from other states).
BUT it’s difficult to verify the independence of an entity > for ex. the admission of Mongolia was
opposed by USA and China, and that of the Republic of Mauritania was opposed by URSS > in the
end they were both admitted, the opposing countries abstained from voting.
The case of Palestine
In 1974, the Organization for the Liberation of Palestine was recognized by the UN as an entity >
NOT as a state > then, in 1988 the Palestine national council proclaimed Palestine as a state,
replacing the designation of OLP.
In 1998, with the resolution 52/250, the general assembly granted Palestine the status of non-
member observer entity, with the right to participate to the works of the GA, to receive official
documents, to be granted some forms of immunity.
In 2011, Palestine sent the application for the admission to membership of the UN > BUT there
was a problem with the formal document presented to the secretary general > the committee didn’t
find an agreement about the statehood character of Palestine > the committee agreed that the
Palestine had a permanent population > BUT the territory was contested, and the Israeli
occupation made it impossible to have total control on the territory. Moreover, Palestinian authority
wasn’t able to engage in international relations.
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In November 2011, Palestine was recognized as a member of UNESCO despite the opposition of
the USA > this doesn’t mean that it was recognized as a state by the UN.
In 2012, the general assembly qualified Palestine as a non-state member observer.
BUT according to art. 93 of the UN charter, all members of the United Nations are parties to the
Statute of the International Court of Justice > a state which is not a UN member may become a
party to the Statute of the International Court of Justice on the conditions determined in each case
by the General Assembly upon the recommendation of the Security Council.
Until 2012, Palestine was in the category of «entities having received a standing invitation to
participate as observers in the sessions and the work of the General Assembly and maintaining
permanent observer missions at Headquarters »
In 2011 Palestine sent an application for Admission to Membership in the United Nations > BUT
the Committee was divided on the statehood character of Palestine bc according to the Montevideo
Convention (1933): an entity to be considered as a State should have: a) a permanent population; b)
a defined territory; c) a government; d) the capacity to have relations with other States.
So, the Committee proposed to the General Assembly to adopt an intermediary step and grant
Palestine the status of Non Member Observer State.
In 2012, the General Assembly voted to accord Palestine the ‘Non-Member Observer State’
Status in the United Nations > with this resolution, Palestine, along with Santa Sede, was qualified
as observer > they can’t be part of the International Court of justice. (Art. 93 of UN Charter)
The aim of the GA resolution was to strengthen and accelerate the peace process between
Palestine and Israel > the resolution contributed to strengthening the legitimacy of Palestine to
become part of multilateral treaties at international level.
Now Palestine is considered as a state in progress > not a complete state.
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Palestine could be qualified as a state > it has a constitution (independency from legal pov) + a
territory (even if the borders are contested) + a population > BUT is not yet a member of the UN >
it’s just an observer > it’s difficult to get the membership in the UN system bc de facto the security
council and the general assembly have full discretion in the decision > there is no mechanism for a
state that has not been included as a member to contrast the decision.
Other issues concerning the admission into the UN system
1. the admission of mini-States or microstates
Regarding the admission of mini or microstates, the problem is related to representation in the
general assembly > it’s the most democratic body of the UN > every state can express its opinion >
BUT sometimes can be too democratic > microstates enjoy the same power of big states > for ex.
San Marino has the same voting power of the USA > it’s not equal.
Two solutions proposed were:
- the associate membership (limited participation) > reduced voting power
- allowing the GA to establish a majority to represent a certain percentage of the
world’s population and of the States whose contribution to the UN budget reach a
certain level
These solutions were not adopted > mini-States such as Seychelles, San Marino, Liechtenstein,
Tonga and Nauru were admitted with full voting rights.
2. neutralized states
Neutralized states are states that in their constitution or in international agreements expressed their
will not to enter conflicts or to engage in activities that might lead to war > for ex. Austria,
Switzerland, Turkmenistan > how can they be part of a system whose purpose is to regulate the use
of force in case there is an international crisis?
Problems arise in the admission stage bc these neutralized states want to be exempted from carrying
out some of the Charter’s obligations:
Art. 2.5 > general obligation to assist UN in all actions
Art. 41 and 39 > chapter 7 > adoption of measures involving and not involving the use of force (for
ex. economic sanctions and the severance of diplomatic relations)
Art. 43 > agreements for military contingents
The UN’s purpose is to extend the membership to as many states as possible > BUT to become
a UN member the acceptance of the obligations of the Charter has to be unconditional > SO
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reservations or limitations are not admitted AND a conditioned decision of the general
assembly or a conditioned recommendation of the security council would be illegal.
SO, it’s not possible to have a special participation > when entering an international organization,
reservations are NOT admissible > no derogations to the charter > BUT sometimes there are
nuances > the EU contemplates the enhanced cooperation > still, the UN system doesn’t have this
flexibility > participation must be unconditional.
BUT since they have full discretion, if the security council and the general assembly consider the
state at stake as able and willing to fulfill the obligations > they can admit neutralized states.
Moreover, the maintenance of peace and security may be achieved with different means > states can
have different roles during an international crisis > diplomatic relations, economic sanctions, help
the population > participation can be differentiated.
BUT, regardless of the neutral status, states cannot be exempted from carrying out the Charter
obligations regarding maintenance of the peace > neutralized state cannot invoke their neutrality
status > bc if it has been declared in an international treaty (for ex. in the case of Austria) > the UN
charter prevails (art. 103) + if the neutrality is declared in the internal constitution or in an act of
domestic law (for ex. Japan) > the state is part of a system and must fulfill the duty to cooperate >
SO a state cannot invoke internal obligations in order to not respect international obligations
(art. 27 of the Vienna convention). A neutralized State is under the same obligations as the other
States. BUT, a pragmatic solution may be found in art. 48 of the UN charter: a state can’t be
permanently exempted from using force > the state must do what the UN decides > BUT the
monopoly on the use of force is in the hands of the security council, which can assign different
tasks to different states, and can ask a neutralized state to take actions that are not related to
the use of force.
Art. 48: “The action required to carry out the decisions of the SC for the maintenance of international peace and
security shall be taken by all the Members of the UN or by some of them, as the SC may determine. Such decisions
shall be carried out by the Members of the UN directly and through their action in the appropriate international
agencies of which they are members”
- Can admission be dependent on conditions/requirements different from those provided by art. 4.1?
No > the procedure is expressed in art. 4 > BUT the notions can evolve based on the evolution
of international law.
- Is it possible for a permanent member of the SC to veto the admission of a State having the
requirements under art. 4?
There are no mechanisms that grant membership > the only rule is art. 2, according to which all
members should fulfill in good faith the obligations contemplated by the charter > SO the
permanent members of the security council should exercise their discretionary power in good faith
> BUT if the per member doesn’t do so there is no mechanism to enforce the good faith.
Art. 2: “The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with
the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in
good faith the obligations assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that international peace
and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United
Nations.
5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present
Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or
enforcement action.”
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Regarding actual practice, between 1947 and 1955 emerged the issue of the admission of Bulgaria,
Finland, Italy, Romania, Hungary > western powers were against the admission of Bulgaria,
Romania and Hungary bc they believed these states violated human rights + the Soviet Union was if
favor of the admission of Italy and Finland ONLY if also Bulgaria, Romania and Hungary were
admitted > in the end in 1955 there was an admission en bloc > 16 states were admitted thanks to
diplomacy.
Moreover, in 1948, the ICJ gave a first opinion on admission, requested by the GA > according to
the ICJ (with a decision of 9 vs 6), conditional admission was not fair > when art. 4’s
requirements are met, the membership should be granted > the GA and the SC (as well as the
States) cannot legally refuse admission to countries which meet the requirements of art. 4.1 >
so, according to a literal interpretation of art. 4, the content of which is clear and does not need
further interpretation, the general assembly and the security council don’t have unlimited
discretionary power > their power is limited to the ascertainment of the requirements of art. 4.1.
The 6 judges against this opinion claimed that admission is an act of “political nature”, and that
the discretionary power of the security council derives from art. 24, that gives to the security
council the primary responsibility for the maintenance of peace and security.
In the general assembly, states can vote for admission > they must reach majority of 2 thirds of
present and voting states + 5 affirmative vote of the permanent members of the SC.
Some scholars (Conforti - Focarelli) are not persuaded by the presumption of existence of positive
obligations on the organs and on the automatic existence of obligations on the member states:
 The security council and the general assembly are free to admit (or to not admit) States > there
is NO obligation to admit States that meet the requirements under art. 4 > NOT because of the
political nature of the decision on admission (as the minority of the ICJ judges pointed out), BUT
because there is no way in the Charter to enforce such an obligation.
 Regarding the states in particular, voting in favor of or against the admission of a State in the
SC or in the GA has nothing to do with art. 4, but with the rules regulating the adoption of
decisions:
- Art. 18 > the GA needs a 2/3 majority of the present and voting members
- Art. 27 > the SC needs an affirmative vote of 9 members including the votes of the permanent
members > states are free to vote as they like > the only real obligation is to act in good faith
- Art. 2.2 > all Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfill in good faith the obligations assumed by them in accordance with the
present Charter.
In case of persistent violation of the principle of good faith, there is a mechanism of expulsion
under art. 6 > BUT it was never applied.
IF the security council is not able to recommend admissions bc of the veto by a permanent
member, can the general assembly proceed with admission on its own initiative?
The ICJ rendered an opinion on this question in 1950 > most of the judges said NO > the
recommendation of the security council is an essential requirement.
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So, the general assembly cannot overcome the recommendation of the security council > and the
admission process stops > this confirms the lack of remedies in the UN system against «inertia»
of the organs.
Readmission (art. 4)
Art. 4 of the UN charter covers the readmission of states > readmission is only admissible if the
state was expelled or withdrew from the UN + if the state lost its subjectivity (for ex. former
Yugoslavia).
In theory, the admission procedure should be carried out again, since a new situation exists > in
practice, in case of readmission, the UN followed a simplified procedure > in 1965 Indonesia left
the UN, and in 1966 asked to be readmitted + in 1958 Syria merged with Egypt, and in 1961
separated and asked to be separated > in both of these cases there was no recommendation from
the security council > just the unanimous approval of the general assembly.
Suspension from the exercise of rights
There are mechanisms that can be used against states that don’t fulfill their obligations:
- Full suspension > the state loses rights and privileges > art. 5
- Partial suspension > when a state doesn’t contribute financially > the general assembly
can suspend its voting rights > art. 19
Art. 5 – Full suspension

A Member of the UN against which preventive or enforcement action has been taken by the SC may be suspended
from the exercise of the rights and privileges of membership by the GA upon the recommendation of the SC. The
exercise of these rights and privileges may be restored by the SC.
Art. 19 – Partial suspension

A Member of the UN which is in arrears in the payment of its financial contributions to the Org. shall have no vote in
the GA if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two
full years. The GA may, nevertheless, permit such a Member to vote if it is satisfied that the failure to pay is due to
conditions beyond the control of the Member.
The only case when suspension was contemplated BUT NOT applied was the case of South
Africa in 1974 due to its apartheid policies > the general assembly refused the credentials of the
delegates of the South African government and excluded them from the organ’s proceedings >
if you don’t accept the credentials of the delegates you impede the state to act within the
organization > formally it was a deliberation on credentials > but it was actually a suspension
from the membership rights > the GA did this bc full suspension or expulsion would have been
even worse bc then the state could do whatever it wanted since it was outside the system.
The refusal of credentials was not in compliance with the charter > it wasn’t recommended by
the SC under art. 5 (suspension) and it wasn’t justified under art. 19 (partial suspension) > it wasn’t
even a customary rule or a sanction > it was just a pragmatic solution to impede the participation
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of south Africa in the activities of the organization > it was a practice aimed at denying the
international legal personality of the State.
In 1994 South Africa regained full membership (after the ending of its apartheid policy and the
calling of free and democratic elections in the country)
South Africa’s apartheid policy was considered a persistent violation of the principles of the Charter
> so the GA proposed the expulsion of south Africa BUT the SC never voted the recommendation.
UK, USA and France would have exercised their VETO power. Expulsion is contemplated under
art. 6 of the UN charter.
Art. 6: A Member of the UN which has persistently violated the principles contained in the present Charter may be
expelled from the Org. by the GA upon the recommendation of the SC.
State succession
There is no Charter provision about state succession > it’s difficult to distinguish between:
- Separation > followed by the creation of a new State (that then must be admitted)
- Dismemberment > implying the extinction of the State and creation of two or more
States (all to be admitted)
In 1991 the Soviet Union dismemberment was treated as a separation and Russia was
considered the successor of the Soviet Union.
In 1991 the dismemberment of Yugoslavia at the beginning was treated as separation, and the
Federal Republic of Yugoslavia initially occupied the seat of the former Yugoslavia > BUT in 1992
the federal republic of Yugoslavia was asked to apply for admission (and was admitted in 2000),
while the other republics were gradually admitted following the procedure under art. 4.
Incorporation and unification
Incorporation occurs when a state is extinguished and becomes part of another state > there are
no issues bc both were members of the UN > so the incorporating State keeps its seat inside the UN,
and the incorporated State ceases to exist.
Unification occurs when two or more States all cease to exist and give rise to a new State > in
this case the new state must follow the admission procedure under art. 4.
Special governments
Governments in exile (following revolutions or in wartime > created as a result of revolutions or

foreign military interventions) are governments that are no longer in control of the territory of
a state and of its population > and since the first element of admission is to be a state they can’t
have a seat in the UN. The solution is to try to grant continuity between the old and the new
government provided that the government effectively controls the territory > in this case,
despite the radical changes, the membership status should not be affected, so there is no need for a
new admission procedure > the new government will simply send its representatives.
Two ex. are Chile after Pinochet took over, and Cuba when the Castro regime was established.
What if the government is not democratic, and doesn’t respect human rights and the principle of
self-determination?
Since there is no mechanism to limit the participation of a non-democratic state > the solution
is to apply the rules on credentials:
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- Arts. 27-29 of the GA’s rules on procedure: check on the credentials at the beginning of
each session by a Credentials Committee
- Arts. 13-17 of the SC’s rules on procedure: Secretary-General has to power/duty to
check the credentials at the beginning of each meeting
In the general assembly every state can sit with 5 representatives > before the meeting starts the
credentials of the delegates are checked by a specific committee. In the security council the
members are fewer > so the secretary general checks the credentials. Checking the credentials or
checking if there are issues with the credentials is a procedural matter > there is no need for 5
affirmative votes of the security council > a simple majority is required in both the GA and the SC.
In theory the rules on credentials should not be the way out > BUT it’s a good way not to expel a
state > nothing in the wording of rules of procedure says not to use these rules and the practice
confirms it.
The institutional framework of the UN
Art. 7 lists the main organs of the UN system:

- General Assembly,
- Security Council
- Economic and Social Council,
- Trusteeship Council (decolonization),
- International Court of Justice
- Secretariat
The principal organs are those directly created by the Charter, which also provides the rules for
their functioning as permanent organs (none of them can be dismantled without amending the
Charter). Moreover, some subsidiary organs may be established by the principal organs in
accordance with the charter (art. 7.2, 22, 29, 68) > they are called subsidiary BUT their functions
are not subsidiary > for ex. the international tribunals or the tribunal for Rwanda (a special
international court that had to judge the behavior of those responsible for the genocide).
To alter the subsidiary organs there is no need to amend the charter > BUT a change of the
principal organs requires an amendment of the charter. The limit is that the principal organs
cannot create a subsidiary organ outside their competences.
The charter itself provides rules for the functioning of the organs > BUT there are also procedural
rules for every specific organ which are not in charter > the rules for the activities of each organ
are contained in the rules of procedures of the organs > for ex. in the south Africa case >
sanctions were not applied > BUT the rules of procedure of the GA gave the GA the power to check
the credentials of the delegates > if the GA doesn’t accept these credentials the representatives are
excluded from the meeting > this is not in the charter > procedural rules of the GA.
Art. 8 of the UN charter illustrates the principle of non-discrimination.
Art. 8: “The UN shall place no restrictions on the eligibility of men and women to participate in any capacity and
under conditions of equality in its principal and subsidiary organs.”
 Security council (art. 23)
The security council is disciplined by art. 23 of the charter > it’s a small body with executive
powers > it’s also the main organ of the UN system (not very representative of the international
community > the institutional framework needs to change). Each member of the SC has just one
representative. At first the members were 11 > now there are 15 members > 5 of which are
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permanent (those who won WW2 > China, France, Russia, UK and USA) > the other 10 members
are elected every 2 years based on 2 criteria:
- they must contribute to the maintenance of peace and security and to the other purposes of the UN
- they must be appointed based on an equitable geographical distribution > it’s an important body
that makes decisions for the rest of the international community > the distribution must be fair
Art. 23: “The SC shall consist of 15 Members of the UN. The Republic of China, France, the Union of Soviet
Socialist Republics, the UK, and the USA shall be permanent members of the SC.
The GA shall elect 10 other Members of the UN to be non-permanent members of the SC, due regard being specially
paid, in the first instance to the contribution of Members of the UN to the maintenance of international peace and
security and to the other purposes of the Organization, and also to equitable geographical distribution.
The non-permanent members of the SC shall be elected for a term of 2 years. (…)
Each member of the SC shall have 1 representative.”
With the resolution 1991 by the GA of 1963 the members of the SC went from 11 to 15 > entered
into force after the ratification of the 2/3 of the MS, including all permanent members (art. 108)
This resolution is one of the few examples of amendment of the charter > it consists of 2 parts >
only the first part was ratified by 2/3 of the member states > the second part is not binding.
The first part covers the amendment of art. 23 (under art. 108) > the second part covers the
distribution of the 10 non-permanent members > should have been 5 from African and Asian States
+ 1 from Eastern European States + 2 from Latin American States + 2 from Western European and
other States > not ratified.
Since the second part has not been ratified it’s not binding > but in practice it’s still followed.
Issues of the SC
Two issues of the security council are:

a) The legal meaning of the GA resolution 1991 > since only the first part has been ratified, is it still
a genuine international agreement, or is it a gentlemen’s agreement?
According to art. 10, the GA has the power of giving recommendations > so, even though it’s not
binding, following an act adopted by the GA means following a correct behavior > this
produces the effect of legality > in this case, following the criteria indicated by the GA excludes
any allegation of violation of the provisions of art. 23 on the geographical distribution.
This works bc in the UN system it’s difficult to adopt binding acts on important decisions bc of
the veto power > resolutions are often vague and not very detailed for this reason.
b) The issue of the EU seat > Italy proposed to change the composition of the SC in order to replace
the UK and France with the EU as a permanent member > after Brexit is not an issue anymore >
BUT according to art. 4, the membership is only open to states > NOT int. orgs. > floodgates
argument > once you accept one int. org., you must accept all the others + the European
continent would have been too represented compared to other states and continents.
Now France is the only EU state inside the security council.
The Yalta formula (art. 27)
Art. 27: “Each member of the SC shall have one vote.

Decisions of the SC on procedural matters shall be made by an affirmative vote of 9 members.
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votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a
party to a dispute shall abstain from voting.”
According to the Yalta formula, each member of the SC has 1 vote + the 5 permanent members
have the veto power on non-procedural matters.
BUT this formula gives rise to 5 interpretation issues:
1. Affirmative vote or mere abstention?
2. Absence of a permanent member
3. Double veto
4. Abstention from voting by a member party to a dispute
5. Approval by «consensus»
1. Affirmative vote or mere abstention
The validity of a non-procedural decision of the SC (decision on non-procedural matters > art.
27) requires the affirmative votes of all 5 permanent members > abstention is the expression
of a contrary vote > the 5 permanent states must be clearly in favor of the decision > this is the
veto power.
However, there is an unwritten rule that derogates to the Charter provisions > there is an
unwritten rule which derogates to a treaty provision (no hierarchical order of the sources of law) >
the UN’s practice is to acknowledge the validity of decisions made with the abstention of one
or more permanent members > this practice mitigated the rigidity of art. 27 + made it easier
for the SC to put into practice an efficient action for the protection of peace since it depends on
the agreement of the permanent members > easier to justify abstention rather than negative of
affirmative vote.
When considering abstention as an affirmative vote > the only exception is ius cogens > the
international community gives the priority to ius cogens > this is confirmed by the fact that this
principle have been adopted by the GA > so they are not binding (although they produce the effect
of legality).
However, there are some open issues > if a state participate to the discussion but not to the vote >
can the non-participation to the vote count as abstention?
Non-participation doesn’t necessarily mean abstention bc it could also be used to make a point >
one must look at the will of the states.
Is the decision valid in case of abstention of all 5 permanent members? > technically there is no
negative vote > still considered affirmative vote.
Veto power is an anachronistic and undemocratic institution > should it be deleted from art. 27?
Should it be extended to other States beyond the 5 PM?
2 cases in which permanent members could or should give up their veto power are related to:
- The responsibility to protect theory > in case of gross violations of human rights in a State that is
unwilling or unable to stop them, the PMs of the SC should give up their veto power and let the SC
allow third-party States to intervene militarily in order to stop the violations > PMs do not agree,
and medium size and small States consider the mutual restraint as a guarantee.
- The execution of a decision of the UCJ which condemns a permanent state, under art. 94 of the
Charter > the decision should be executed.
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So, either the Yalta formula is changed with a formal amendment (less subject to interpretation,
clearer > BUT needs approval > it’s a complicated process) OR a practice that overcomes the Yalta
formula is developed.
2. Absence of a permanent member in the SC
The absence of a permanent member is not automatically considered as abstention BUT there
might be the will to stop the process. Two cases regarding Soviet Union occurred in 1946,
regarding the agreement with Iran, and in 1950, regarding the failure to substitute China with
Taiwan. Should the absence be interpreted as abstention? It depends > IF the aim of the absence is
to dissociate from the vote or to prevent the adoption of a resolution it can be considered as
abstention and therefore as a positive vote / IF the aim of the absence is to paralyze the activity
of the SC then it’s considered as a negative vote.
3. Double veto
What procedure shall be followed in deciding the preliminary question on the nature (procedural or
non-procedural) of the decision to be taken?
The charter doesn’t qualify what is procedural and what’s not > the problem of qualification is
that the practice goes in direction of following the harsher procedure > are considered
“procedural” those decisions concerning the meeting of the SC, the institution of subsidiary
organs, and the adoption of internal regulation > the permanent members may exercise freely
the double veto > the first time when they decide whether to qualify a matter as procedural or
not + after during the final decision.
The problem is not only the Yalta formula > also the fact that the ICJ has no special power of
interpretation (like for ex. the European court of justice). IF a member state believes that the SC
has adopted a substantive resolution with the legal majority for a procedural decision, it will accuse
the SC of a violation of the Charter > BUT there is no organ that is able to provide a binding
interpretation of the Charter and there is no mechanism of enforcement.
4. Mandatory abstention
In the charter there is no duty to mandatory abstention > the only provision is art. 52, about the
relations between the SC and other international actors.
When the members of the SC try to mediate and facilitate arrangements to solve local disputes > the
parties involved in the regional dispute should abstain from voting > nemo iudex in re sua >
you should be part of the discussion but not make the decision.
Art. 52: “Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with
such matters relating to the maintenance of international peace and security as are appropriate for regional action (…)
3. The SC shall encourage the development of pacific settlement of local disputes through such regional arrangements
or by such regional agencies either on the initiative of the states concerned or by reference from the SC. 4. This
Article in no way impairs the application of Articles 34 and 35.”
BUT the nemo iudex in re sua principle has been subject to criticism because:
- Its scope is too limited > it does not cover:
a) Decisions concerning actions and sanctions in case of threats to the peace
b) Decisions concerning membership status (such as expulsion)
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c) Measures against a State refusing to comply with a ICJ’s decision
A permanent member can’t be sanctioned bc there is no mandatory abstention > so it could
use the veto power against the decision > problem of enforcement of measures against
states that don’t comply with the rules > if a decision of the ICJ affects a permanent
member > it can use its veto power > there is no mechanism to enforce decisions of the ICJ.
- Moreover, in the charter there is NO definition of what a dispute is > you can refer to the
case law BUT there is no official definition.
Conclusion: anytime an issue concerns a perm member they should be obliged to abstain from
voting > BUT mandatory abstention only applies in situations under chapter 6 of the charter >
chapter that regulates the resolution of disputes > does NOT apply for chapter 7 situations
(measures involving or not involving the use of force)
5. Approval by consensus
The problem of the security council is that decisions are made by consensus > so the resolutions
will have a very vague and ambiguous content in order not to have contrary votes.
Regarding the participation to a discussion of NON security council members or individual

persons > according to art. 31 of the UN charter, any member of the UN which is not a member
of the SC may participate, without vote, in the discussion of any question brought before the
Security Council whenever the SC considers that the interests of that member are specifically
affected. According to art. 32 of the charter also states that are not members of the UN could be
invited to participate, without vote, in a discussion > BUT the SC will decide the conditions that
must be respected in order to participate to the discussion. An ex. would be inviting a new
government that hasn’t yet undergone the process of admission to the discussion.
Moreover, the rules of procedure also contemplate the possibility to invite physical individuals
to SC meetings > experts on the current situation or on current issues > any person competent
enough to provide information or assistance> art. 39 of the provisional rules of procedure.
For ex. the OLP was invited in 1975 under art. 32 + the federal republic of Yugoslavia was invited
between 1992 and 2000 (while representatives of Serbia and Montenegro have been invited as
individual persons) > BUT maybe it was more correct to invite them according to art. 39 of the
rules of procedure > bc they weren’t really states.
Arria-formula meetings
Definition: “very informal, confidential gatherings which enable SC to have a frank and private exchange of
views, within a flexible procedural framework, with persons whom the inviting member or members of the Council
(who also act as the facilitators or conveners) believe it would be beneficial to hear and/or to whom they may wish to
convey a message. They provide interested Council members an opportunity to engage in a direct dialogue with
high representatives of Governments and international organizations—often at the latter’s request—as well as
non-State parties, on matters with which they are concerned, and which fall within the responsibility of the SC”.
One of main criticisms directed towards the UN is that it’s not connected with the people and
other international organizations (apart from the EU > observer).
The practice of the Arria-formula meetings was initiated in 1992 by the then-President of the SC,
Ambassador of Venezuela Diego Arria. Arria-formula meetings are informal meetings of the SC
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that occur at the initiative of a member or members of the SC in order to hear the views of
individuals, organizations or institutions on matters within the competence of the SC > so
other institutions and the civil society can participate in these meetings, and the private sector could
also be involved.
Formal meetings are documented > BUT there are no reports of informal meetings.
Those who can participate in Arria-formula meetings are:
-high-level delegations from member states not represented in the Council
-representatives of non-state actors;
-mandate holders of monitoring procedures of the Commission on Human Rights and, more
recently, the Human Rights Council;
-heads of international organizations;
-high-level UN officials;
-representatives of NGOs and other members of civil society;
-representatives of territories not recognized as states who are stakeholders on issues before the
Council.
 General assembly (art. 9)
The general assembly is regulated by art. 9 of the charter > it’s the representative body of the UN
> it represents all member states > each state has 1 vote (art. 18.1) and 5 representatives (art. 9).
Originally, the representatives were 5 bc they were supposed to be a representation of the spectrum
of the political parties of a state > but in reality they are delegates representing the majority party of
the country. The reason for having 5 representatives is to allow several people, representing the
same State but expressing different, and perhaps even contrasting, views and interests to
participate to a GA discussion > this way the states can somehow get around the fact that the GA
is an assembly of State delegates and not a world Parliament > BUT in practice few are the
governments which accredit members of the opposition parties + 5 delegates are not sufficient
considering the Assembly committees and subcommittees (in fact, the rules of procedure of the
GA allow the participation of unspecified number of counselors, experts and other people with
a consultative role).
The delegates can also be of a different nationality from the state they are representing > it
doesn’t matter > what matters is the credentials > the delegates must have the permission of the
country they are representing bc of the important issues at stake.
The regular plenary session of the GA occurs every year in September > Tuesday of the 3rd week
of September > BUT there can also be special sessions at the request of the SC or of a majority of
the Members if the UN.
In case the SC fails to make a decision due to the veto power of the 5 PM, an emergency session
can be called > it’s the necessary requirement to ask for an emergency session of the general
assembly > it’s the second-best solution > the best would be a resolution by the SC bc they are
binding > GA resolutions are not binding > BUT thanks to the effect of legality resolutions of the
GA on important issues have a special value.
According to art. 22 of the charter, the GA has the power to establish subsidiary organs that the
GA considers necessary for the performance of its functions > some of the tasks of these subsidiary
organs consist in undertaking studies + being the forum for negotiation + promoting
international cooperation in specific fields + overseeing operational tasks (such as the
management of funds), etc.
Some subsidiary bodies are permanent > other have a mandate and then stop existing > the
permanent ones are:
- UNCTAD > UN conference of trade and development > commercial matters
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- UNITAR > UN institute for training and research
- UNPD > UN development program > development in any field
- UNICEF > UN children’s fund
- UNEP > UN environmental program
- The commission for international law > this commission created among other documents
the Vienna convention and the draft articles > it contributed to the development of int. law.
Art. 18: “Each member of the GA shall have one vote. Decisions of the GA on important questions shall be made
by a 2/3 majority of the members present and voting (qualified majority). These questions shall include:
recommendations with respect to the maintenance of international peace and security, the election of the non-
permanent members of the SC, the election of the members of the Economic and Social Council, the election of
members of the Trusteeship Council in accordance with paragraph 1 (c) of Article 86, the admission of new Members
to the UN, the suspension of the rights and privileges of membership, the expulsion of Members, questions
relating to the operation of the trusteeship system, and budgetary questions.
(par. 3) Decisions on other questions, including the determination of additional categories of questions to be decided
by a two-thirds majority, shall be made by a majority of the members present and voting (simple majority)”
Unlike the SC, the GA doesn’t have problems regarding the qualification of an issue > it just
follows the directions of art. 18.
According to art. 18, decisions of the GA on important questions (distinction between decisions
on important questions AND on other questions) must be adopted by a qualified majority > 2/3
of the members present and voting. The art. provides a list of important questions.
When deciding on other questions OR to extend the list of important questions, it’s only
required a simple majority > the majority of the members present and voting.
- Qualified majority > 2/3 of members present and voting > important questions
- Simple majority > 50% +1 > non important questions + enlarging list of important questions
Abstention can be interpreted in 2 ways > considered as an affirmative vote (like in the SC) or as
a simple abstention.
IF abstention is relevant > the majority shall be calculated by summing votes in favor, against and
abstentions + IF abstention is not relevant > the number of votes necessary for the adoption of the
decision will be made only by the sum of votes in favor and against.
BUT there is no clear rule in art. 18 > it doesn’t ask specifically for an affirmative vote.
According to art. 86 of the Rules of procedure, the members present and voting means
members casting an affirmative or negative vote > SO abstention should not count > the
number of votes necessary for approval is reduced and the GA can decide more easily.
SO, abstention doesn’t have a weight in the GA > it just lowers the number of potential votes >
and makes it easier to adopt a decision > they are not relevant for the counting of the majority
(simple or qualified) > therefore abstention should be considered as it is > even though there is no
practice and no clear rule in the charter > the only provision is art. 86.
The practice of the GA is not exhaustive > it’s merely indicative (the GA may decide in
individual cases, without resorting to art. 18 paragraph 3) > for ex. the GA makes the agenda of the
meeting and qualifies a question as important or not important > AND art. 19 of the Rules of
Procedures provides that the request to include an item on the agenda of an Assembly special
session may be approved only by a two-thirds majority if it is made after a certain date.
So, in theory the procedure to follow is contained in art. 18 > but in practice this procedure may
not be used > usually the members of the GA extend the list of important questions by including
them in the agenda right before the meeting.
Conclusion: the GA does not have a real decision making power > so a less rigid interpretation,
which would facilitate its functioning, is perhaps more in conformity with the spirit of the Charter.
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Abstention shall not be considered as a form of exercising the right of vote.
 ECOSOC council
The ECOSOC consists of 54 members. Its functions are:

a) Trying to implement a sustainable economic, social and environmental development.
b) Fostering debate and innovative thinking, and providing guidance and coordination among
regional economic and social commissions, functional commissions that deal with
intergovernmental discussions of major global issues, and specialized agencies and programs
c) Being responsible for the follow-up to major UN conferences and summits.
The ECOSOC represents a connection with the civil society (along with the Arria formula meetings
+ contacts between the SC and NGOs) > together with the SC, it’s the only body whose number of
members has been enlarged with an amendment of the UN charter.
 Secretariat
The secretariat is the administrative body which coordinates the daily activities > it has
approximately 43,000 staff members.
the head of the secretariat is the secretary general, an independent individual that acts on behalf of
the UN. The secretary general also has a political role > represents the UN outside of the
organization > it’s a symbol of UN ideals and a spokesperson for the interests of the world's
peoples > currently Mr. António Guterres of Portugal.
The Secretariat’s main functions are:
- to gather and prepare background information on various issues so that government
delegates can study the facts and make recommendations;
- to help carry out the decisions made by the different organs of the UN;
- to organize international conferences;
- to translate speeches and documents into the UN’s official languages;
- to keep the public informed about the work of the UN.
 International Court of Justice
The ICJ represents the judiciary power > it’s important for development of international law.
The ICJ renders opinions (for ex. the case Italy vs Germany on immunity issues > Corte di
Cassazione denied immunity for crimes committed by Nazis > BUT the ICJ concluded that
immunity can’t fall) + interprets treaties and customary law (not easy bc it’s not written).
The ICJ consists of 15 judges, who are elected for 9 years by the GA and the SC > they can be
elected again but only once > then their mandate expires. Judges must be independent from the
country they come from + there can’t be more than 1 judge coming from the same country > they
solve disputes among states. The ICJ has a consultive role > the bodies of UN can ask for an
opinion > BUT there is a limit to the power to ask for an opinion > the UN bodies can only ask
for opinions within their own competences > for ex. the World Health Org. asked for an opinion
on the use of nuclear weapons > ICJ said that it was outside its mandate and competence.
The main functions of the ICJ are to settle, in accordance with international law, legal disputes
submitted to it by States and to give advisory opinions on legal questions referred to it by
authorized UN organs and specialized agencies. The Court decides disputes between countries,
based on the voluntary participation of the States concerned. If a State agrees to participate in a
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proceeding, it is obligated to comply with the Court’s decision.
The purposes of the UN
As stated by art. 1 of the UN charter, the purposes of the UN are:

To maintain international peace and security, by taking effective collective measures for the
prevention and removal of threats to the peace, and for the suppression of acts of aggression or
other breaches of the peace, and to settle international disputes or situations which might lead
to a breach of the peace by peaceful means, and in conformity with the principles of justice
and international law. The UN should also develop friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples, and to take other
appropriate measures to strengthen universal peace.
To achieve international cooperation in solving international problems of an economic, social,
cultural, or humanitarian nature, and in promoting and encouraging respect for human rights
and for fundamental freedoms for all without distinction as to race, sex, language, or religion.
To be a center for harmonizing the actions of nations in the attainment of these common ends.
LIMITS OF THE UN
Despite its wide range of functions > the UN has 2 specific limits.
 Ratione personae
The UN charter is an international treaty so it’s binding only for those who signed and ratified it >
BUT art. 2.6 of the UN charter allows the UN to take action that affects also nonmember
states > AND since the majority of the states are UN members (except for Taiwan, Palestine and
the Northern Cyprus republic), the ratione personae limit is purely theoretical.
The activity of the UN may also affect non-member states > even though the character is addressed
just to member states > it may affect also third states > bc anytime there is a threat to peace the
action of the UN could also have effects over states which are not UN members > coherent with the
wide mission of the UN. Moreover, the practice shows that the UN is trying to involve more people
(for ex. with the Arria formula meetings).
Art. 2.6: The Org shall ensure that states which are not Members of the UN act in accordance with these Principles so
far as may be necessary for the maintenance of international peace and security.
Other rules referring to non-member states are:
Art. 32: “Any Member of the UN which is not a member of the SC or any state which is not a Member of
the UN, if it is a party to a dispute under consideration by the SC, shall be invited to participate,
without vote, in the discussion relating to the dispute (…)”
Art. 35.2: “A state which is not a Member of the UN may bring to the attention of the SC or of the GA
any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations
of pacific settlement provided in the present Charter”
Art. 50: “If preventive or enforcement measures against any state are taken by the SC, any other state,
whether a Member of the UN or not, which finds itself confronted with special economic problems arising
from the carrying out of those measures shall have the right to consult the SC with regard to a solution of
those problems”
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These rules should NOT be interpreted as directed to third States or as a derogation to the
customary rule of non-involvement of third parties (pacta tertiis neque nocent nec iuvant) > BUT as
the legal framework on the basis of which the UN is entitled to adopt measures affecting third
States, without granting them rights or establishing duties.
Moreover, the UN may exercise “pressure” on third States according to these provisions:
Art. 11.2: The GA may discuss any questions relating to the maintenance of international peace and
security and may make recommendations with regard to any such questions to the State or the States
concerned.

Chapter 6: Pacific settlement of disputes (Art. 33.2, Art. 36, Art. 37.2) > contemplates the power of
recommendation of the SC regarding “States concerned” that are “parties to a dispute”.
Chapter 7: Action with respect to threats to the peace, breaches of the peace and acts of aggression
authorizing the SC to take enforcement measures against States (for purposes of maintenance of peace)
Art. 39 – determine the existence of any threat to peace, breach of the peace and act of aggression
Art. 41 – measures not involving the use of armed force
Art. 42 – undertake military action
SO, the customary rule pacta tertiis neque nocent nec iuvant is NOT derogated
- recommendations are by definition not binding on the addressees
- imperative measures under Chapter VII fall within art. 24 entrusting the SC with the
primary responsibility for the maintenance of peace
- according to the practice non-member states don’t consider themselves bound by this system
In conclusion
- art. 2.6 does not impose an obligation on third States
- the obligations arising from art. 2.2 to 2.4 apply also to third State because of their
instrumental nature (the good faith obligation) or customary nature (peaceful
settlement of disputes and prohibition of the use of force).
- art. 2.5 still is a problem: obligation to give to the UN every assistance in any action
 Ratione materiae
The limit of ratione materiae is disciplined by art. 2.7 of the UN charter > this limit concerns
domestic jurisdiction > because of this limit, a state can refuse to do what the UN is asking or can
reject the activity of the UN > in fact, the UN cannot interfere with the domestic jurisdiction of
the states. BUT this limit doesn’t apply to chapter 7 > chapter 7 contemplates measures that
involve or not involve the use of force > measures to make a state do something > use of force,
economic sanctions, embargo, etc.
The conservative view of this limit tends to widen the sphere of application, in order to reduce
the activity of the Organization > the progressive view tends to restrict the notion of domestic
jurisdiction and to eliminate it in practice, with the consequence that such limit has nearly been
overcome in practice.
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Art. 2.7: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which
are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to
settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures
under Chapter VII.”
Some problems related to this limit are:

A) Meaning of domestic jurisdiction today
B) Meaning of the verb “to intervene”
C) Sphere of application of the exception (not applied under chapter VII)
D) Who is entitled to decide whether a topic falls within the notion of domestic jurisdiction
A) Meaning of domestic jurisdiction
Any member state affected by the activity of the UN can complain bc the activity might be
interfering too much in the domestic jurisdiction of the state > the affected state may claim that the
UN action is ultra vires > the UN is acting outside its competence > this mechanism also exists
in the EU system > states can accuse the EU of acting ultra vires.
In the past, the legal notion of domestic jurisdiction included matters in which the State was
free from international obligations of any kind.
BUT it’s a relative notion > it depends on the “amount” of international obligations a state
decides to accept.
Moreover, it’s also a negative definition > every matter in which a state is free from international
obligations (1923 advisory opinion of the permanent international court of justice) > if the matter is
covered by an international treaty it’s an international obligation > otherwise it falls under the
domestic jurisdiction of the state > BUT negative terms don’t provide a clear definition.
In order to give a positive definition we must look at the basics of the sovereignty of the state >
population, government and territory > domestic jurisdiction means that the State does not suffer
limitations regarding the treatment of its own citizens, the organization of its own government
(the kind of regime/government > the treaty that established the EU says that every member must
be democratic and share the same values), or the activities concerning the use of its own territory
> on these topics, customary international law tends not to interfere (with the exception of
protection of human rights).
BUT international treaties do interfere in matters such as cooperation in the economic, cultural
social fields, economic integration, as well as the protection of human rights > AND the 3
fundamental elements of sovereignty can be further limited > the EU has limited these 3 dimensions
> there is no real distinction between European and national citizenship + any state to be a member
must be democratic.
It’s possible to trace back to the domestic jurisdiction of every single state by looking at the treaties
and international agreements they made with other states or int. orgs.
Moreover, by putting together a positive and a negative definition > we could find a legal
definition of domestic jurisdiction > and this way the action of UN is not so limited and restricted
> as long as the UN acts on a general level it’s difficult to object the activity by saying that it’s
violating the domestic jurisdiction limit.
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For ex. the self-determination principle, promotion and respect of human rights, promotion of
decent life conditions, of employment, economic-social-cultural development all fall within the
UN’s mission > how is it possible to reconcile them with art. 2.7?
The proposed solution is that in all matters (included those covered by domestic jurisdiction)
the UN are allowed to adopt general resolutions > the UN don’t interfere with a state’s domestic
jurisdiction if they adopt general measures or make a general statement > for ex. if they say that
democracy is the best form of government to protect basic human rights > it’s just a statement.
The UN are NOT allowed to adopt resolutions directed to single States in matters which, even
if “covered” by international law, fall within the notion of domestic jurisdiction > if an
intervention affects a specific state, then it could be considered as interference > for ex. a resolution
directly addressed to a state.
BUT when the UN intervenes in an internal conflict, the UN tends to suggest a specific regime,
form of government, to overcome non democratic regimes > it’s not easy to find a solution.
The authors of the book further restrict the domestic jurisdiction limit > given the huge amount of
international obligations regarding human rights > citizens and population don’t constitute a
limit anymore > it’s very difficult for a state to object an intervention of the UN anytime the
population is at risk > everyone should act for the protection of human rights regardless of their
citizenship. SO, looking at the practice of the States, what remains essentially within the notion
of domestic jurisdiction is
-The organization of government (the form of State and of government, the organization of
public offices);
-The utilization of the territory.
NB: The notion of domestic jurisdiction does NOT cover human rights anymore > the UN can
intervene when a violation of human rights occurs in the territory of a given State > so the UN
can interfere if the intervention is directly towards a single state AND if specific international
rules might have been violated > BUT at the same time there is no common view on human rights
> there are different perceptions of what human rights are.
NB: the limit of domestic jurisdiction does NOT apply also in the case where after a civil war a
state must establish a new legal order > the UN intervenes and tries to mediate among the
different parties.
B) Meaning of the term «to intervene»
Art. 2.7 must be intended as prohibiting the organs from exercising the normal powers deriving
from the Charter. BUT there is a distinction between the discussion stage and the decision stage
> AND art. 2.7 does not apply to the discussion stage > discussing a matter of domestic
jurisdiction doesn’t count as an intervention > discussion must be free > the agenda of the GA
and the SC must be free > it’s important to allow discussion bc it’s already difficult for the SC to
make decisions > if not even discussion was allowed then the UN could not work properly.
C) The art. 2.7 exception
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The exception to art. 2.7 is that this principle must not prejudice the application of enforcement
measures under Chapter 7, so:
Art. 41 – measures not involving the use of force
Art. 42 – measures involving the use of force
Art. 40 – provisional measures (as for example ceasefire)
Art. 34 – investigations (Chapter 6)
SO, the limit of domestic jurisdiction is a necessary boundary to protect the sovereignty of a
state > BUT it doesn’t apply anytime enforcement measures under chapter 7 are involved >
this is also valid for non-member states > if a non-member is facing a civil war within its own
territory > the civil war could be dangerous for international peace and security > AND the UN can
intervene, overcoming limit of domestic jurisdiction.
Within chapter 7 are regulated measures involving (art. 42) and not involving the use of force
(art. 41) > AND it’s also very important the power of UN to make investigations (chapter 6 >
art. 34) > investigations are made by committee of experts sent onsite to analyze the situation.
Evolutive interpretation > the power to make investigations is regulated by chapter 6 > BUT the
SC can also order an investigation in situations falling under chapter 7. Moreover, the authors
of the book consider investigations as enforcement measures > measures that aren’t limited by
domestic jurisdiction > provisions under chapter 6 can be limited by domestic jurisdiction > BUT
since enforcement measures (chapter 7) are exempted from this limitation, if an investigation counts
as an enforcement measure, then the limit of domestic jurisdiction doesn’t apply.
Regarding recommendations (under art. 39), art. 2.7 refers to «enforcement measures» > and
art. 39 contemplates measures aimed at indicating to the State how to resolve a dispute > they are
NOT covered by the exception > and therefore the limit of domestic jurisdiction applies.
Art. 39 gives the SC the power to give recommendations > recommend behaviors to those states
responsible for a threat or breach of peace and acts of aggression > BUT a recommendation is not
an enforcement measure > it’s a suggestion on how to solve a dispute or how to behave.
SO > even if art. 39 is under chapter 7 > the limit of domestic jurisdiction CAN be invoked.
However, if the recommendations are strong and specific they can be qualified as enforcement
measures > so the limit of domestic jurisdiction doesn’t apply.
The practice doesn’t follow very much the rules of the charter > it must adapt to reality and actual
events that occur on a daily basis > evolutive interpretation of the charter > this confirms that the
charter is not up to date and not very suitable for current events > but at the same times shows the
spirit of adaptation of the UN.
D) Who is entitled to decide whether a topic falls within the notion of domestic jurisdiction
------
Maintenance of peace and security
The crucial function of the UN is the maintenance of international peace and security by
adopting effective collective measures for prevention and removal of threats to the peace, and
for the suppression of acts of aggression or other breaches of the peace, and by adjusting or
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settling international disputes or situations which might lead to a breach of the peace with
peaceful means and in conformity with the principles of justice and international law > art. 1.
In the beginning the aim of the UN was to build a collective security system.
The main body with the duty to ensure international peace and security is the SC > this aspect
is regulated by art. 24 (chapter 5) > the SC acts on behalf of the states > when the states signed and
ratified the charter agreed to this. BUT this power of the SC is an attributed power > the real
powers of the security council are written in the charter > the actions that the SC is allowed to
take are defined by chapter 6, 7, 8 and 12 > moreover the SC is NOT completely autonomous >
it must provide reports to the GA about its activity > the reports must be provided once a year but
it’s possible that the GA asks for special additional reports.
Art. 24: “In order to ensure prompt and effective action by the UN, its members confer on the SC primary
responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under
this responsibility the SC acts on their behalf. In discharging these duties the SC shall act in accordance with the
Purposes and Principles of the UN. The specific powers granted to the SC for the discharge of these duties are laid
down in Chapters 6 (pacific settlement of disputes), 7 (actions with respect to threats to the peace, breaches of the
peace and acts of aggression), 8, and 12 (international trusteeship system).
The SC shall submit annual and, when necessary, special reports to the GA for its consideration.”
Other bodies that contribute to the maintenance of peace and security are:
- The general assembly (art. 11) > the GA can deal with issue concerning the maintenance of
peace and security and then report its activity to the SC + the GA can ask the SC to pay
attention to specific issues
- The Secretary general (art. 98) > the charter gives the secretary general the power to act in
meetings of the GA, of the SC, of the ECOSOC, and of the Trusteeship Council, and can
perform other functions entrusted to him by these organs > the Secretary general can take part
in discussions dealing with the maintenance of peace and security > effective role in the
maintenance of peace and security
- Regional organizations > EU, NATO, etc.
Art. 11 - The GA may consider the general principles of co-operation in the maintenance of international peace and
security, including the principles governing disarmament and the regulation of armaments, and may make
recommendations with regard to such principles to the Members or to the SC or to both.
The GA may discuss any questions relating to the maintenance of international peace and security brought before it
by any Member of the UN, or by the SC, or by a State which is not a Member of the UN in accordance with Art. 35,
paragraph 2, and, except as provided in Art. 12, may make recommendations with regard to any such questions to the
State or States concerned or to the SC or to both. Any such question on which action is necessary shall be referred to
the SC by the GA either before or after discussion.
The GA may call the attention of the SC to situations which are likely to endanger international peace and security
Art. 98 - The SG shall act in that capacity in all meetings of the GA, of the SC, of the Eco-Soc, and of the Trusteeship
Council, and shall perform such other functions as are entrusted to him by these organs (…).
The functions of the SC under Chapter 6 (art. 33-38) - «peaceful settlement of disputes»
The great novelty of the UN system is that it transformed relations among states > before the use of
force was the main tool to solve disputes > but the UN created a collective security system where
the use of force should be the last resort.
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The Charter provides the member states with tools to solve disputes peacefully > the main feature
of chapter 6 is the peaceful settlement of disputes > the priority is to attempt to solve disputes
peacefully before resorting to the tools provided by chapter 7.
Arts. 33-34-35 discipline the conciliatory function of the SC.
Art. 33 - The parties to any dispute, the continuance of which is likely to endanger the maintenance of international
peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration,
judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. The SC
shall, when it deems necessary, call upon the parties to settle their dispute by such means.
Art. 34 - The SC may investigate any dispute, or any situation which might lead to international friction or give rise
to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the
maintenance of international peace and security.
Art. 35 Any Member of the UN may bring any dispute, or any situation of the nature referred to in Article 34, to the
attention of the SC or of the GA. A state which is not a Member of the UN may bring to the attention of the SC or of
the GA any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of
pacific settlement provided in the present Charter. The proceedings of the GA in respect of matters brought to its
attention under this Article will be subject to the provisions of Articles 11 and 12.
Art. 33 is the opening article of chapter 6 > specifies the kind of situations that fall typically
under chapter 6 > disputes among states that are likely to endanger the maintenance of peace
and security. For ex. the Marò case > 2 Italian marines were found guilty of having killed a
fisherman > they claimed it was in self-defense bc they felt in danger and didn’t know he wasn’t
dangerous > problems between Italy and India. The Italian government asked for the return of the
marines and promised that they would be sent back to India to be present at the trial > BUT when
the two marines got back to Italy they didn’t want to go to India anymore bc they didn’t want to be
convicted for murder > SO the Italian gov didn’t keep the promise > a dispute arose.
Chapter 6 deals with issues that are apparently just disputes among states but that could
possibly breach the peace > in these situations the first thing to do is to try to solve the dispute
peacefully > negotiation, mediation, conciliation, arbitration, judicial settlement or other
peaceful means. In the negotiation process there is no interference of a third party > with the
mediation and the conciliation there is the involvement of a third party > mediator (tries to help
the parties find a solution on their own) or conciliator (more active role > gives suggestions
regarding the solution of the dispute). Arbitration is a more formal proceeding > the arbitrators
are appointed by the 2 parties. With the judicial settlement the two parties go before a court.
Any member state of the UN can bring an issue to the attention of the UN organs > for ex. in
the Marò case, not just Italy or India, but also any other state that felt that the situation could have
escalated into a dangerous threat to peace > bc it’s in the interest of the whole int community to
preserve peace and security.
According to art. 34, the SC has the power to start an investigation > the SC appoints the
investigation commission, which enters the territory of the investigated state.
An investigation usually can take place only with the consent of the investigated state > BUT
since investigations can also have the value of an enforcement measure (under chapter 7), the
limit of ratione materiae (domestic jurisdiction) does NOT apply.
Investigations can be used in situations with lower level of risk but also in situations that can
actually threaten the peace.
The duty to solve peacefully any dispute relies on customary rules > BUT the charter provides
the tools to do so + when the SC believes it’s necessary > it can decide that the two states must
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solve the dispute using specific means. The duty of the litigant states is to solve disputes
peacefully > then, the security council can:
- suggest which peaceful means to use
- recommend appropriate procedures or methods of adjustment (art. 36).
- enter the merits of the case (art. 37)
- recommend to the parties involved the terms of settlement of the dispute (art. 38) >
general power of recommendation > how to solve the situation
Art. 36 - The SC may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature,
recommend appropriate procedures or methods of adjustment. The SC should take into consideration any procedures
for the settlement of the dispute which have already been adopted by the parties. In making recommendations under
this Article the SC should also take into consideration that legal disputes should as a general rule be referred by the
parties to the ICJ in accordance with the provisions of the Statute of the Court.
Art. 37 - Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in
that Article, they shall refer it to the SC. If the SC deems that the continuance of the dispute is in fact likely to
endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36
or to recommend such terms of settlement as it may consider appropriate.
Art. 38 - Without prejudice to the provisions of Articles 33 to 37, the SC may, if all the parties to any dispute so
request, make recommendations to the parties with a view to a pacific settlement of the dispute.
The functions of the SC under Chapter 7 (art. 39-51) - threats to the peace and acts of aggression
The situations under chapter 7 involve threats to the peace, breaches of the peace, and acts of
aggression > in these cases the use of force may be contemplated. When the peace has been
breached or threatened, the SC may adopt a series of measures to restore the peace, which may
involve (or not) the use of armed force.
There is no clear boundary between art. 33 and art. 39 > the situations falling under chapter 6
are those which are likely to endanger the maintenance of international peace and security >
the difference between situations that can endanger the maintenance of peace and security and
situations that represent a threat to peace is not so clear > moving from chapter 6 to chapter 7 is
more a political matter > only the SC can establish if a situation falls under one category or
the other > according to art. 39, only the SC can determine the existence of any threat to the peace,
breach of the peace, or act of aggression + the SC can make recommendations or decide what
measures should be taken (in accordance with art. 41 and 42) > the purpose is to restore peace and
security.
Moreover, art. 40 contemplates the possibility for the SC to adopt provisional measures in
order to prevent the aggravation of a situation > these provisional measures are again under the
discretion of the SC > IF the states fail to comply with the provisional measures > the SC
should take the fact into account and adopt further measures.
The power of investigation is horizontal > it applies both for chapter 6 and chapter 7 situations >
we can apply the same reasoning also to provisional measures > they fall under chapter 7 but
can also be adopted by the SC in situations falling under chapter 6 in order to prevent the
aggravation of a dispute.
The most important rules of chapter 7 are art. 41 (not involving use of force) + art. 42
(involving use of force) > but there are other types of measures that are more effective than
those enlisted under art. 41 > for ex. economic sanctions.
Traditional art. 41 sanctions isolate the state and mainly damage the population > smart
sanctions are instead addressed to specific people or specific groups of people > more effective
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than general sanctions (especially in the case of terrorists) > BUT may have negative results > for
ex. if they are addressed to the wrong person > the UN also elaborated a mechanism of delisting
people that have the same name as the real addressees of the sanctions.
Therefore, art. 41 is indicative > the practice has been expanded.
Art. 42 contemplates stronger measures > it’s a sort of hierarchical order > if the SC doesn’t
consider the measures under art. 41 as adequate then it moves to art. 42 > BUT the SC should at
least think about measures not involving use of force.
Ambiguity > in the most recent resolutions of the SC there is an express reference to chapter 6 or 7
> before it wasn’t specified > so these resolutions explained why the SC was acting the way it was,
but it didn’t specify if the situation contemplated or not the use of force.
Art. 43 is a rule that has not been applied > it contemplated the creation of UN military forces
through agreements among states > the art. mentions agreements that the SC and member states
should negotiate > BUT there is no legal framework for UN military forces > there are just the
blue helmets for the solution of situations that endanger international peace and security.
Military forces are provided by the member states > BUT the fact that they consist of people
coming from different countries can create problems > for ex. problems in terms of coordination
and of responsibility > each national army follows its own commander.
Art. 39 - The SC shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and
shall make recommendations, or decide what measures shall be taken in accordance with Artt. 41 and 42, to maintain
or restore international peace and security.
Art. 40 - In order to prevent an aggravation of the situation, the SC may, before making the recommendations or
deciding upon the measures provided for in Art. 39, call upon the parties concerned to comply with such provisional
measures as it deems necessary or desirable.
Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The
SC shall duly take account of failure to comply with such provisional measures.
Art. 41
The SC may decide what measures not involving the use of armed force are to be employed to give effect to its
decisions, and it may call upon the Members of the UN to apply such measures. These may include complete or
partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of
communication, and the severance of diplomatic relations.
Art. 42
Should the SC consider that measures provided for in Art. 41 would be inadequate or have proved to be inadequate, it
may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and
security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of
Members of the UN.
Art. 43
All Members of the UN, in order to contribute to the maintenance of international peace and security, undertake to
make available to the SC, on its call and in accordance with a special agreement or agreements, armed forces,
assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and
security. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and
general location, and the nature of the facilities and assistance to be provided.
The agreement or agreements shall be negotiated as soon as possible on the initiative of the SC. They shall be
concluded between the SC and Members or between the SC and groups of Members and shall be subject to
ratification by the signatory states in accordance with their respective constitutional processes.
Differences between chapter 6 and chapter 7
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The 1st difference between chapter 6 and chapter 7 is the starting point > the situations that fall
under one art. or the other > chapter 6 deals with matters that could potentially disturb the peace
> that could likely endanger the maintenance of international peace and security.
Chapter 7 deals with ongoing international crisis > it deals with the existence of threats to the
peace, a breach of peace or acts of aggression.
The 2nd difference concerns the actors involved > in chapter 6 the main actors are the parties
of the dispute, the States involved in a situation that could potentially prejudice the peace > the
SC has the role of a peacemaker, which urges the States involved to settle the disputes > BUT the
States must express their consent to the settlement > the possibility to settle dispute is in the
hands of the states > the SC just gives suggestions and recommends the terms of the settlement.
In chapter 7 the main actor is the SC > its actions are directed against the States who are authors
of the ongoing crisis > the SC can also adopt measures against the will of the states > here the limit
of domestic jurisdiction doesn’t apply. The States are obliged to comply with the measures
adopted by the SC for the maintenance of the peace and international security (the breaking of
diplomatic relations, economic blockades, use of force).
AND since neutralized states must accept the obligation of the charter too > if it’s necessary they
might be asked to use armed forces despite their neutral status.
According to art. 48, the responsibility to keep the peace lies on the SC, which can decide how
each state contributes to the organization (for ex. in terms of military contribution or
humanitarian aid) > so the participation of neutralized states is still coherent with the UN
system > so the SC may exempt neutralized states from the use of force > chapter 7 says that the
use of force is not the only tool > there are also provisional measures, measures that don’t involve
use of force > those that involve the use of force are the last resort.
The 3rd difference concerns the degree of gravity and the instruments available > in chapter 6
there is a lower level of gravity > the pacific settlement of the dispute is performed by the SC
through recommendations (non-binding acts > art. 36- 37).
In chapter 7 there is a higher degree of gravity > stronger measures must be adopted > the
maintenance of peace is performed through:
- decisions > binding acts towards the addressed States (art. 41)
- resolutions of operational nature > for ex. a resolution through which the SC decides to
undertake certain actions and explains what the parties involved can do to solve the issue (art. 42)
- imposition of sanctions against States breaching or threatening to breach the peace
- in chapter 7 the SC can also give recommendations > art. 39 mentions the power of
recommendation of the SC
The 4th difference concerns the punitive nature of the measures adopted > in chapter 6 there are
NO punitive measures > in chapter 7 sanctions are the punitive measures typically adopted
against the States that violates or threatens to violate the peace > BUT the SC may also decide not
to adopt sanctions in a situation falling within Chapter 7 (for ex. the SC may face not an illegal
action, but an action objectively dangerous for peace and security).
Practical relevance of the differences
Chapter 6 measures must not affect matters of domestic jurisdiction > BUT the measures of
enforcement under chapter 7 do not face the limit of domestic jurisdiction > in a chapter 7
situation the domestic jurisdiction limit vanishes > the addressee of a sanction cannot invoke the
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limit > BUT if s recommendation doesn’t specify whether it has been adopted under chapter 6 or 7,
a state may invoke the limit of domestic jurisdiction.
Moreover, there is another rule that applies differently depending if it’s a situation under
chapter 6 or chapter 7 > art 27.3 about the Yalta formula.
If there is a chapter 6 situation, likely to endanger peace and security, BUT the SC has to adopt
a decision on NON-procedural matters > AND the situation involves a permanent member >
this permanent member must abstain from voting > duty of mandatory abstention > BUT this
applies only in limited circumstances > if the SC must adopt a decision on an issue falling under
chapter 7 there is no duty of mandatory abstention.
Art. 27.3
votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a
party to a dispute shall abstain from voting.
For ex. in 2014 there were problems between Russia and Ukraine > the SC wanted to settle the
dispute peacefully not to endanger peace and security > chapter 6 situation. A third state can ask the
SC to pay attention to a situation that is likely to endanger peace and security > so the SC must
make a decision on how to facilitate peaceful settlement of that dispute > this is a decision of NON
procedural matters.
Decisions about non-procedural matters require 9 affirmative votes including those of the 5
permanent members > SO in this case Russia should abstain.
BUT if there is an act of aggression > it’s a chapter 7 situation > SO Russia is not bound by the duty
of mandatory abstention > it only applies to chapter 6 situations. BUT chapter 6 situations are
in the hands of the states > the states must accept the peaceful settlement > that’s why a
mandatory abstention from the decision is needed > under chapter 7 there is no discretion of the
states > the SC decides everything.
SO > chapter 7: DON’T apply the limit of domestic jurisdiction and the mandatory abstention.
How to classify SC resolutions?
In the past the SC resolutions did not mention the articles or Chapters of the charter on
which they were grounded > so it was difficult to understand if the SC considered a situation as
under chapter 6 or chapter 7.
Now, when there is a chapter 7 situation there is generally a reference to chapter 7 > it may
happen that the grounds for the decision are connected with one Chapter and the operative
part is within the framework of another chapter > a resolution can reference chapter 6 in one part
and chapter 7 in another > the operative part > the operative part is the most important part to
classify the resolution > it establishes practical measures that must be adopted, which are
generally are based on chapter 7 + sometimes there can be references to specific art. of the charter.
For ex. the SC had established through different resolutions investigations to see whether there
were chemical weapons or weapons of mass destruction in Iraq > BUT the Iraqi government
didn’t cooperate with the SC and denied the permission to conduct the investigations > the Iraqi
government didn’t allow investigations on its territory.
The second part of resolution was the operative part, which expressly mentioned chapter 7 >
the SC decided that investigations must be conducted > the resolution didn’t mention a threat to
peace, but in its operative part it contemplated the adoption of measures under art. 41 (Chapter
7) not involving the use of force > the resolution said that states must accept the investigations >
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BUT it didn’t say that other member states were allowed to use all the necessary measures to solve
the situation (art. 42) > BUT still the SC warned Iraq that there were going to be consequences >
the USA interpreted the resolution as a permission to use force > but it was NOT the case.
Those who have the power to seize the SC are:

- states (UN members and non-members) > art. 35 > any member of the UN can bring any
dispute to the attention of the SC or of the GA + a state which is not a UN member can
bring to the attention of the SC or of the GA any dispute to which it is a party IF it
accepts in advance the obligations of pacific settlement provided in the Charter.
- general assembly > art. 11.3 > the GA can call the attention of the SC to situations which
are likely to endanger international peace and security
- secretary general > art. 99 > the secretary general can bring to the attention of the SC any
matter which in his opinion may threaten the maintenance of international peace and
security
IF the GA and the secretary general decide to report an issue to the SC > then there is the obligation
to meet > obligation of the convocation of the SC > then the SC has full discretion in
determining whether the conditions necessary for the exercise of its functions exist.
Art. 34 - investigation
The power of investigation is regulated by art. 34, in chapter 6 > if an investigation is of a general
nature it falls under chapter 6 > BUT if it focuses on a specific UN member (for ex. Iraq) then it
falls under chapter 7.
Art. 34 must attribute to the SC a general and all-encompassing power of investigation, since:
- Investigation is the starting point for the exercise of any of the powers of the SC
- It would be unreasonable to provide a power of investigation under Chapter 6 and not under
Chapter 7 (where such a power is not envisaged)
- This interpretation gives to the SC the freedom to decide for a general investigation or to
narrow it to specific purposes (in practice, general investigations are more frequent)
Which is the nature of the act giving rise to an investigation > a decision (binding > obliges the
States to cooperate with the investigating organs) or a recommendation (not binding)?
a) 1st solution > since an investigation is presumably carried out against the will of the State
under investigation, it requires a decision and not a recommendation > requires a binding act
(art. 25 > the Members of the UN agree to accept and carry out the decisions of the SC in
accordance with the Charter.)
b) 2nd solution > according to the authors of the book (Conforti and Focarelli) the SC should use a
recommendation, an operational resolution > and the recommendation should be followed
bc the aim of the UN is cooperation (the duty to cooperate derives from art. 2.5)
To what extent must a State cooperate with the investigation? To the maximum extent of
opening the territory to the Council or to its organs?
According to Conforti and Focarelli NO > otherwise there would have been a specific rule > like
for ex. art. 43, that establishes that all Members of the UN, in order to contribute to the maintenance
of international peace and security, undertake to make available to the Security Council facilities,
including rights of passage.
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What are the effects of a refusal of a State to open its territory or to fully cooperate with the
investigating organs?
The SC may consider this as a threat to peace > resolution 1441 (whose goal was to make Iraq
comply with its obligations) > if a state repeatedly obstructs the investigation it could be
considered as a violation of the duty of cooperation.
Investigations are usually envisaged in the operative part of the resolution.
The peaceful settlement function of the SC is limited to disputes or situations of a certain

gravity > these are references in arts. 33-36-37 > disputes or situations the continuation of which is
likely to endanger international peace and security > BUT a peaceful settlement may also concern
disputes not endangering the peace, if all the parties agree to bring the case before the SC.
Art. 33 gives the SC the power to settle disputes + to give recommendations > the list of
peaceful means is not exhaustive.
Art. 36 allows the SC to provide the method or procedure of conciliation and mediation
through the creation of subsidiary organs (under art. 29), such as Commission of good offices > but
the states are still the main actors. The limit is that under art. 36 the SC should not enter the
merits > not recommend how to solve the dispute, say who is wrong or right, condemn a certain
conduct, etc.
Art. 37 allows the SC to enter the merits and to recommend the terms of settlement + the
states have the duty to present the dispute to the SC in case they fail to settle it.
The conditions for the exercise of this power are:
1. the existence of a dispute
2. the resorting of the parties to the SC
3. a proven impossibility to reach an agreement through the means available under art. 33
Art. 2.3
All Members shall settle their international disputes by peaceful means in such a manner that international peace and
security, and justice, are not endangered.
Art. 33
The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and
security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. The SC shall,
when it deems necessary, call upon the parties to settle their dispute by such means.
Art. 36
The SC may, at any stage of a dispute of the nature referred to in Art. 33 or of a situation of like nature, recommend
appropriate procedures or methods of adjustment. The SC should take into consideration any procedures for the
settlement of the dispute which have already been adopted by the parties. In making recommendations under this Art
the SC should also take into consideration that legal disputes should as a general rule be referred by the parties to the
ICJ in accordance with the provisions of the Statute of the Court.
Art. 37
Should the parties to a dispute of the nature referred to in Art. 33 fail to settle it by the means indicated in that Art.,
they shall refer it to the SC. If the SC deems that the continuance of the dispute is in fact likely to endanger the
maintenance of international peace and security, it shall decide whether to take action under Art. 36 or to recommend
such terms of settlement as it may consider appropriate.
Art. 38
Without prejudice to the provisions of Articles 33 to 37, the SC may, if all the parties to any dispute so request, make
recommendations to the parties with a view to a pacific settlement of the dispute.
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The collective security system
The most innovative part of the UN Charter (art. 41 and 42 in particular) is related to the creation of
a collective security system. There was an evolution > before the Cold War, the system did not
function > with the Gulf war of 1991 the system has had a «second life» > today, the SC actions
taken on the basis of Chapter 7 are the most relevant and important UN activities > BUT the
paradox is that the most important activities of the UN are the ones with uncertain legal basis.
1- The actions taken under chapter 7 can be considered as a strong intervention in the domestic
affairs of a state > for ex. the reconstruction of States disrupted by a civil war, intervention in case
of a massive violation of human rights > this is a big change > international crisis can derive not
just from disputes between states BUT also from problems within a single state.
In this regard, the UN created a specific body > the peace building commission > a joint
subsidiary body of the SC and the GA > its main tasks are
- to come up with strategies for post-conflict reconstruction and restoration of peace and to
coordinate the activities of the actors involved (at the request of the local authorities)
- to issue opinions
BUT the peacebuilding commission has been criticized bc it follows the idea that democracy is
the only and best method to protect human rights and therefore tries to establish democracy
even in places where it’s not a traditional form of government.
2- Moreover, more and more frequently special measures are adopted without any justification in
the light of the provisions of the charter > for ex. the establishment of international tribunals >
they are not contemplated in the charter.
Within art. 39 there is no definition of what is a threat to peace and the degree of danger over
which the adoption of specific measures is needed > there’s the lack of a basic definition of the
crucial concepts of the charter. Moreover, there’s the issue of the discretion of the SC > does the SC
have full discretion to decide what is peace?
In the absence of an official definitions from the UN Charter, peace can be defined in:
-Negative terms: absence of inter-State or internal conflicts
-Positive terms: a set of political, social and economic circumstances that obstruct the rising of
future conflicts > peace could mean more than just absence of conflict > it could mean a
situation that can prevent future conflicts
AND depending on the definition given, the SC can have more or less power for ex. a threat to
peace is the minimum requirement for the SC to take action against an ongoing crisis > this
can also apply in case of internal conflicts > there is no definition of threat to peace in internal
affairs either > but internal crisis happen.
Moreover, a breach of the peace is considered an international or internal conflict even if it
does not reach the more serious level of an act of aggression > it’s not used frequently and rarely
in internal conflicts > it’s more frequent in international conflicts.
Art. 39
The SC shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall
make recommendations, or decide what measures shall be taken in accordance with arts. 41 and 42, to maintain or
restore international peace and security.
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Regarding the act of aggression, a definition of both crime and act of aggression is given by art.
8 bis of the Rome Statute of the ICC:
1. “crime of aggression” means the planning, preparation, initiation or execution, by a person who can
effectively exercise control over or direct the political or military action of a State, of an act of aggression
which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the UN.
2. “act of aggression” means the use of armed force by a State against the sovereignty, territorial
integrity or political independence of another State, or in any other manner inconsistent with the
Charter of the UN.
Any of the following acts, regardless of a declaration of war, shall, in accordance with UN GA resolution
3314 of 14 December 1974, qualify as an act of aggression:
a) The invasion or attack by the armed forces of a State of the territory of another State, or any
military occupation, however temporary, resulting from such invasion or attack, or any annexation by
the use of force of the territory of another State or a part of it;
b) Bombardment by the armed forces of a State against the territory of another State or the use of any
weapons by a State against the territory of another State;
c) The blockade of the ports or coasts of a State by the armed forces of another State;
d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of
another State;
e) The use of armed forces of one State which are within the territory of another State with the agreement
of the receiving State, in violation of the conditions provided for in the agreement or any extension
of their presence in such territory beyond the termination of the agreement;
f)The action of a State in allowing its territory, which it has placed at the disposal of another State, to be
used by that other State for perpetrating an act of aggression against a third State;
g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which
carry out acts of armed force against another State of such gravity as to amount to the acts listed
above, or its substantial involvement therein.
The SC has full discretion in determining what is a threat to peace > it’s a wide notion > so the
SC has a huge power + the authors of the book recognize a strong discretion of the SC bc of the
relationship between the SC and the other bodies established in the charter.
A threat to peace is a vague and flexible notion + it’s NOT necessarily characterized by
military operations or the use of military force or by the existence of an international unlawful
act > in practice a threat to peace can be:
- an extended policy of racial segregation (apartheid),
- violent prosecution of a minority,
- gross and systematic violation of human rights (former Yugoslavia, Albania, Kosovo),
- genocide or killing of civilians (Rwuanda),
- a civil war situation (Congo),
- establishment of an authoritarian regime (Haiti),
- refusal to extradite terrorists,
- terroristic attacks,
- engaging of nuclear programs,
- piracy and acts of robbery at sea (Somalia)
According to Conforti and Focarelli the SC doesn’t have unlimited powers > there are legal limits:
 In case of military operations (situations characterized by the use of military force)
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In case of military operations, the SC may not consider as a threat to peace/breach of the
peace/act of aggression the use of armed force in individual or collective self-defense.
Regarding the doctrine of preventive self-defense (the use of force before the attack occurs)
Conforti and Focarelli think that art. 51 should be interpreted strictly > NO preventive self-
defense > but what if the use of force is exercised as a reaction to gross violation of human rights
(humanitarian intervention)?
Art. 51
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed
attack occurs against a Member of the UN, until the SC has taken measures necessary to maintain international peace
and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to
the SC and shall not in any way affect the authority and responsibility of the SC under the present Charter to take at
any time such action as it deems necessary in order to maintain or restore international peace and security.
 Situations NOT characterized by military operations (not involving the use of armed force)
Examples of situations not characterized by military operations are: the adoption of a certain
political regime, closing of ports, lack of adoption of adequate measures against the spreading
of a contagious disease, corruption of the elite in power, etc. > any of these situations, given the
global character of international relations, may be considered as a threat to peace.
In such situations, the discretion of the SC is more extended > the SC must decide in a case-by-
case basis > it has a “blank mandate” > the only limit is the general belief of the States of the
international community > so what the international community thinks > we can look at meetings of
the general assembly > for ex. emergency meetings + GA resolutions > and then the SC can assess
the situation on behalf of the international community.
Since the SC has the primary responsibility for the maintenance of peace and security (art. 24), it
can also predict what evaluation can provoke the opposition of the international community
(by considering for ex. the resolutions of the GA or any other international instrument on which
there is a strong unanimous consensus + the informal support that the int. community may give) and
therefore suggest their assessment on behalf of the international community.
The SC may also act under chapter 6 (peaceful settlement of disputes) > but it has limits > under
chapter 7 the SC is more powerful bc the limits of domestic jurisdiction and mandatory
abstention don’t apply.
In fact, under chapter 7, the SC has the power to:
- Make recommendations (art. 39 - softest measure in chapter 7) > for the exercise of the
peaceful settlement function SC may still play its peaceful settlement function, indicating to
the States involved the procedures and methods of settlement (art. 33, 36) + the terms of
settlement (art. 37)
- Decide measures (under arts. 41-42) > these measures, involving or not involving the use of
force, are binding
Art. 39 and chapter 6 measures can be distinguished:

 by looking at the operative part > often resolution involving art. 39 measures also refer
to other measures under Chapter 7
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 by looking at whether the resolution mentions threat to peace/breach of the peace/act of
aggression
 by looking at the context, at the objective situation > if the crisis derives from the use of
military force (it does not matter whether the conflict is international or internal) then it is a
breach of the peace
Provisional measures - art. 40
Both provisional measures (art. 40) and investigations (art. 34) are applicable under both
chapter 6 and chapter 7.
In order to prevent the aggravation of a situation, the SC may, before making the
recommendations or deciding the measures provided for in art. 39, ask the parties concerned to
comply with provisional measures. The limit is that the SC cannot prejudice the rights and the
position of the parties concerned.
Some provisional measures involve asking to cease hostilities, to cease fire, to withdraw troops,
to create demilitarized zones and humanitarian corridors, to release prisoners and hostages, to
sign an armistice, to refrain from those actions which are likely to exacerbate the situation.
Since the wording of art. 40 is ambiguous, it’s not clear whether such provisional measures are
binding or not.
NB: provisional measures do NOT have a military nature > therefore the SC power under art.
40 does not include the power to ensure that these measures are followed by using force or through
peace enforcement operations.
Arts. 41 and 42 - involving and not involving the use of force
Under art. 41, the SC may decide to adopt measures NOT involving the use of armed force > for
ex. the interruption of economic relations and of rail, sea, air, radio, and other means of
communication, and the severance of diplomatic relations.
The list of measures is not exhaustive > the sanctions in the list are not the only ones adopted > the
trend is to adopt more specific sanctions in order not to damage too much the population and focus
more on specific people (for ex. sanctions to people close to Putin) > smart sanctions.
Under art. 42, the SC may decide to adopt measures involving the use of armed force > action
by air, sea, or land forces > these actions may include demonstrations, blockades, and other
operations by air, sea, or land forces by the UN members > the use of force is highest level of
power that the SC can exercise. This art. was conceived as a tool to be used in international
crisis (ex. the use of force against a State responsible for aggression/threat to peace/breach of the
peace) BUT it has also been used in purely internal crisis (ex. a civil war constituting a threat to
peace) > enforcement measures under chapter 7 do not face the limit of domestic jurisdiction.
Decisions of the Council under art. 42 are not operational measures, BUT a direct action of
the UN (for ex. the use of national armed contingents which are under an international command
depending on the SC).
The purpose of this rule is to concentrate in the hands of the SC the power to decide on the use
of force and the supervision of the military operations > in order to guarantee the objectivity
and impartiality of the operation and that the action remains within the limits strictly necessary
for the maintenance of the peace + to remove any military initiative form the individual State
which is not justifiable under art. 51.
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Arts. 43 - 48
Article 43
All Members of the UN, in order to contribute to the maintenance of international peace and security, undertake to
make available to the SC, on its call and in accordance with a special agreement or agreements, armed forces,
assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and
security. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and
general location, and the nature of the facilities and assistance to be provided. The agreement or agreements shall be
negotiated as soon as possible on the initiative of the SC. They shall be concluded between the SC and MS or between
the SC and groups of MS and shall be subject to ratification by the signatory states in accordance with their respective
constitutional processes.
Article 44
When the SC has decided to use force it shall, before calling upon a MS not represented on it to provide armed forces
in fulfilment of the obligations assumed under Article 43, invite that MS, if the MS so desires, to participate in the
decisions of the SC concerning the employment of contingents of that Member's armed forces.
Article 45
In order to enable the UN to take urgent military measures, Members shall hold immediately available national air-
force contingents for combined international enforcement action. The strength and degree of readiness of these
contingents and plans for their combined action shall be determined within the limits laid down in the special
agreement or agreements referred to in Art. 43, by the SC with the assistance of the Military Staff Committee.
Article 46
Plans for the application of armed force shall be made by the SC with the assistance of the Military Staff Committee.
Article 47
There shall be established a Military Staff Committee to advise and assist the SC on all questions relating to the SC’s
military requirements for the maintenance of international peace and security, the employment and command of
forces placed at its disposal, the regulation of armaments, and possible disarmament.
The Military Staff Committee shall consist of the Chiefs of Staff of the permanent members of the SC or their
representatives. Any Member of the UN not permanently represented on the Committee shall be invited by the
Committee to be associated with it when the efficient discharge of the Committee's responsibilities requires the
participation of that Member in its work.
The Military Staff Committee shall be responsible under the SC for the strategic direction of any armed forces placed
at the disposal of the SC. Questions relating to the command of such forces shall be worked out subsequently.
The Military Staff Committee, with the authorization of the SC and after consultation with appropriate regional
agencies, may establish regional sub-committees.
Art. 48 > possibility for the SC to choose the contributions of the states in chapter 7 situations
“1. The action required to carry out the decisions of the Security Council for the maintenance of international peace
and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may
determine.
2. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the
appropriate international agencies of which they are members.”
_____
In 1992 the Secretary General B. Boutros Ghali presented to the SC the report “An Agenda for
Peace” > the report dealt with the strengthening of the UN role in the area of the maintenance
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of the peace, provided that the agreements under art. 43 of the Charter might be concluded in the
future > idea of possible revival of UN military force.
Nowadays, art. 42 can be implemented in 2 ways:

- Peacekeeping operations > creation of UN forces (“blue helmets”) > an invention of the
UN > not contemplated by the charter > halfway between chapter 6 and chapter 7
- Authorization for the member states to the use of force (individually or through regional
organizations)
Some ex. of PKO are:

o 1960 ONUC > Operation des Nations Unies au Congo > to help Congo out of its state of civil war
and anarchy
o 1978 UNIFIL > UN Interim Force in Lebanon
o 1992 UNPROFOR > UN Protection force > established in the former Yugoslavia and operating in
particular in Bosnia-Herzegovina until December 1995
o 2007 MINURCAT > UN Mission in the Central African Republic and Chad
PKOs and DPKO
To manage PKO, in 1992 the secretary general Boutros-Ghali created the Department of
Peacekeeping Operations > it a sort of intermediary/contact point between the SC and PKO (the
DPKO is also connected to the civil society) > its functions are:
 To provide political and executive direction to UN PKOs around the world and maintain
contact with the SC, troop and financial contributors, and parties to the conflict in the
implementation of the SC mandates;
 To integrate the efforts of UN, governmental and non-governmental entities in the context of
peacekeeping operations.
 To provide guidance and support on military action and other relevant issues for PKOs.
The Department of peacekeeping cooperation should also give military direction > BUT it’s
difficult to direct military operations bc there is no UN military force > there are just national
armies cooperating and working together.
There are 4 generations of PKOs:
 The first generation (from 1960 – Cold war)
In the beginning PKOs were authorized by the receiving state or by local authorities > the aim
was the maintenance of neutrality between the conflicting parties > the use of force was
limited to the self-defense of the military forces and to the protection of the mission + the
recruitment occurred through agreements between the UN and the member states > the goal
was to respect the sovereignty of the states.
 The second generation (from 1989 – extension to the «civil» sphere)
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The 2nd generation of PKOs was multidimensional > it consisted of multifunctional peacekeeping
operations AND there was an extension to the civil sphere > repatriation of refugees,
humanitarian assistance, monitoring of the respect of the human rights, monitoring of the elections
or referendums, relief after natural disasters (2010 earthquake in Haiti)
 The third generation (enforcement of peace)
With the 3rd generation the power of PKOs became stronger > the consent of the state where PKOs
were sent was not necessary anymore + the requirement of neutrality stopped existing.
Peace enforcement operations took place in Congo, former Yugoslavia, Somalia.
BUT the issue with peace enforcement mission was related to the issue of the enforcement of
democracy.
 The fourth generation
There have been some talks about fourth generation operations > they should be carried out by an
institutional and permanent UN army (which has not yet been created).
Legal framework of PKOs
The legal framework of PKOs is NOT provided by the charter but by resolutions > so it’s
difficult to find a justification for them.
1) Res. 1327 / 2000 > decisions and recommendations on the establishment and behaviors of
peacekeeping forces > PKO must
- Have clear and achievable mandates
- Have credible deterrent capability
- Be deployed within 30 days, 90 for more difficult cases
- Have a prospective peace agreement
- Comply with the rules and principles of international law (in particular humanitarian law,
human rights and refugee law)
2) 2008 Principles and guidelines on the peacekeeping operations of the UN
3) Res. 1422 / 2002 and Res. 1487 / 2003 > imposed immunity > the issue of immunity of the
officials and personnel of the UN operations from the ICC jurisdiction is still unsolved > this is
related to the huge issue of responsibility > blue helmets have immunity bc they act under the UN
mandate.
Open issues about PKOs
 What is the legal framework for peacekeeping operations?
Chapter 6 peaceful method to settle disputes

Chapter 7 convers coercive actions
According to the Secretary General Boutros-Ghali PKO are an «invention» of the UN.
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The main features of PKOs are:
- operating with weapons in conflict zones, but low-level use of force
- not traditional war operations against a State
- preventing the intensification of the conflict or assisting the State after a conflict
- they are expensive and voluntary (there is always a gain…)
- they are (were) characterized by the consent of the State
In fact, taking into account the high costs linked to peacekeeping operations, member states have
the obligation to contribute to the costs of operations even though these operations aren’t regulated
by any specific Charter provision.
 Responsibility for the acts committed by the peacekeepers
Peacekeepers are UN organs > the UN is therefore «accountable» for their unlawful acts,
including violations of human rights and international humanitarian law > BUT at the same time
peacekeepers are officers of the State > so their actions should be attributed both to the UN and to
the State.
The authorization of the use of force by States
The authorization of the use of force given to the states is NOT coherent with the Charter >
nothing in the Charter authorizes member states to resort to the use of force > it’s the opposite > the
Charter tried to take away the use of force from the States and to centralize it in the SC + chapter 7
doesn’t mention authorization + chapter 8 says that the Council can rely, upon authorization, on
regional organizations (BUT NOT single member states) > BUT still the SC has «authorized»
member states to use the force against a State or within a State and placed under its authority
the command and the supervision of military operations.
The problems are related to:

1. recommendation NOT engage in unlawful conducts
2. authorization to have a conduct which otherwise would be unlawful
3. delegation (it must be within the powers of the SC)
In the practice, the three different solutions have been adopted > again the solution is to consider
the existence of an ad hoc customary rule (principle of authorized intervention) and the
question of the nature of the act shall be solved on a case-by-case basis.
Art. 51 - collective self-defense
Art. 52
Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such
matters relating to the maintenance of international peace and security as are appropriate for regional action provided
that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the UN.
The Members of the UN entering into such arrangements or constituting such agencies shall make every effort to
achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before
referring them to the SC.
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The SC shall encourage the development of pacific settlement of local disputes through such regional arrangements or
by such regional agencies either on the initiative of the states concerned or by reference from the SC.
This Article in no way impairs the application of Articles 34 and 35.
Art. 53
The SC shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its
authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the
authorization of the SC (…).
Regional organizations
NATO – North Atlantic Treaty Organization

WEU – Western European Union
OAS – Organization of American States
League of Arab States
African Union
Commonwealth of independent States
ECOWAS – Economic Community of West African States
OSCE – Organization for Security and Co-operation in Europe
OECS – Organization of Eastern Caribbean States
The practice of regional organizations
In the past the SC addressed resolutions both to the member states individually and to the member
states as members of regional agencies > now in recent practice chapter 7 applies directly towards
the member states of a regional organization.
Regional organizations are «used» in peacekeeping operations or State building operations (more
than in enforcement action of a military nature).
Other functions of UN > slide 75
 Economic cooperation and action for development

 Protection of human rights
 Decolonization and self-determination of peoples
 Registration of treaties > treaties are deposited at the secretary general
 Judicial function > through the ICJ
 Financing of the organization > the system is proportioned to the income of the states
Protection of human rights
The charter refers to the protection of human rights in art. 1.3 > the main actors are the GA and
the ECOSOC + subsidiary bodies such as the UN Commission for Human Rights (UNCHR),
replaced in 2006 by the Human Rights Council > its main functions are:
- universal periodic review (started in 2008)
- special procedure: compliance procedure > checks respect of human rights > but with soft
law instruments
83
The main acts of the HRC are NOT binding > recommendations, declarations of principles, draft
of multilateral treaties.
Cooperation for sustainable development
Among other purposes, the UN aims at establishing a cooperation in sustainable development

(art. 1, art. 55) > the main actors are the GA, the ECOSOC + UNCTAD, UNIDO, UNEP (an
important program for the protection of the environment > not yet an int. org.).
The main instruments of these actors are declaration of principles, recommendations, drafts of
conventions and programs > again NOT binding.
The declarations of principles are just recommendations > not binding > but still important acts >
the are adopted by the GA.
Only the SC resolutions are binding acts > the action of the UN is limited bc binding acts can only
be adopted by a body where the permanent members have veto power.
BUT there are also soft law instruments which have an effect of legality.
The ICJ can provide opinions and solve disputes among the states > BUT the jurisdiction of
the ICJ must be accepted by the states.
Russia tried to justify its attack by saying that a genocide was occurring in areas that Russia
recognizes as independent states > SO Ukraine > went before the ICJ on the basis of the
compromissory clause, according to which any dispute relating to the interpretation or application
of the treaty in question may be referred to the ICJ unilaterally by any party to the treaty.
So the ICJ is not just a consultative organ > it can establish whether a state is responsible of
genocide or not > Ukraine took the matter before the ICJ > no issues of jurisdiction bc Ukraine
asked the ICJ to establish if Ukraine is NOT committing genocide > negative solution > reverse
compliance > Ukraine asked the ICJ to ascertain that it didn’t commit genocide.
The reaction of the EU was a general condemnation + economic sanctions have been adopted +
military aid + humanitarian assistance + beside traditional ones, also sanctions directed towards
diplomats have been adopted + sanctions addressed to Belarus (ally of Russia).
Council of Europe > set up after WW2 to keep the peace in Europe > it focuses mainly on the
protection of human rights > Russia and Ukraine are European countries > they are members of the
council of Europe > BUT Russia was suspended bc it violated human rights > expulsion is natural
consequence of suspension that didn’t have any effects.
The European court of human rights requested for Russia to stop the aggression.
Moreover also the private sector became involved > soft law instrument > effort of the international
community to try to regulate the activity of multinational enterprises > BUT it’s difficult bc an
enterprise established in one state must follow the laws of that state but at the same time if it has
other offices in other states it must follow the regulations of those states.
As a result of the economic sanctions a lot of companies are moving away from Russia.
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Law of International Organizations

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Law of International Organizations

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LAW OF IOs – LEZIONE 1

 Hard law > binding

 1st level sources: general law

 2nd level sources: particular international law

 3rd level sources

To assess the existence of a custom one can look at:

ICJ - Advisory Opinion on the legality of nuclear weapons (1996)

The role of the UN and the International law commission

Article 53 of the 1969 Vienna Convention on the law of treaties:

Secondary sources of law - Particular law

International treaties or conventions are contracts that can be bilateral or multilateral.

BUT 5 particular cases allow an exception:

How to make international law internally effective

 Ordinary procedure (transposition/reformulation)

 Special procedure (reference)

Adaptation mechanism in Italy - customs and general principles

Do treaties enjoy a constitutional rank by virtue of art. 117?

Adaptation mechanism in Italy - 3rd level sources

Germany vs Italy - Ferrini case

Immunity is divided in three categories:

Ex. Tango bonds case of 2001

- In some cases, the judge decides if an act is of public or private authority

Internationally wrongful acts

Usually, legal obligations can be:

 the subjective element: is the attributability of the violation to a subject of international

Concerning the subjective element related to private actors:

Relationship between international law and internal law

Remedial of int law violations

Role of ius cogens and erga omnes obligations

LAW OF IOs - LEZIONE 7 (inizio Carpaneto)

There are 2 ways to study international organizations:

1) Voluntary association of states

2) Subject to the respect of International Law

International organizations are generally established by international treaties > an intentional

 Treaties that establish international organizations tend to prevail on other international

Stability is what distinguishes international organizations from summits/conferences (which

G8 is not an international organization > it’s a summit.

A second definition of international organizations is provided by Ian Hurd > international

LAW OF IOs - LEZIONE 8

IOs and their «civilization» mission

Governmental organizations are established by states > NON-governmental organizations are

The structure of a governmental organization consists of 3 bodies:

The role of international organizations

There are 3 different views on the role of international organizations:

Ian Hurd considers the role of international organizations by looking at 3 elements:

When talking about international organizations, Jan Klabbers analyzes 3 aspects:

The rise of int. orgs.: from coexistence to cooperation

International organizations can be distinguished based on:

a) Relations between int. orgs. and their member states

 The legal position of int. orgs.

 Sources of international law concerning international organizations

The main issues within the founding treaties usually concern:

 Withdrawal and termination

- 23 June 2016 > referendum: leave or remain > leave won

- Withdrawal agreement entered into force on 31st of January 2020

19 October 2019 – UK request of prorogation – Council of Europe

 The plenary body

c) Relationships between int orgs and the world

In the past, there was a distinction between capacity and competence

- Headquarters agreements (with USA and Switzerland)

- Immunity agreements - art. 105 of the UN charter

- Art. 216 TFEU