Law of Public International Organizations

Institutional Problems

Typology of Institutions
  

Plenary Organs


General Assembly UN; General Council WTO;Council of Ministers EC Security Council, Executive Board IMF, World Bank, WHO

Non-plenary Organs; Executive Boards



Secretariat (Secretary/Director-General and Staff)



In UN, IMF, World Bank, WTO, CoE etc: (In EU/EC Secretariat-General of the Council and European Commission)


 

Judicial Bodies
ICJ, ECJ, ECHR all with very different functions European Parliament; Consultitative Assembly of the CoE

Parliamentary Bodies


Relations between Organs



Trias Politica (separation of powers) not present in I.O.s

 

For the simple reason that the founding treaties do not normally make sharp distinctions along those lines (see Tadic case, para. 43). Even if the beginning of such distinction exists (EC/EU), the other organs often want to maintain some measure of control over the so-called executive (cf. EC comitology )

Certain balance between Institutions is upheld.



Especially the ECJ attaches importance to that. The balance that has to be maintained is inherent in the Treaty. Superior legitimization of Parliament. But ECJ also always aware that it should not encroach on the functions of the legislator and the negotiator .


Example: lack of direct effect of WTO Agreement in EC law.

Delegation of Powers


How far can one go? In the European Communities not very far.


 

Because of the doctrine of the attribution of powers and (for the Commission) the doctrine of collegiality (which implies that any decision requiring exercise of discretionary powers has to be taken by the college) This is confirmed by continued validity of old case law (Meroni). Therefore, only very strictly circumscribed powers can be delegated or tasks of a purely executive character. Consequences for agencies. Limited escape from these restrictions by insisting on the unity of the Institution and thus take decisions at lowest possible level (both Council and Commission have put in place extensive machinery for that).

Delegation of Powers (cont.)



In the UN one can go pretty far.



The Security Council for instance delegates extensive tasks to so-called sanctions committees. They can even be responsible for extending the scope of Security Council sanctions with respect both to the products and financial assets subject and to the moral and natural persons subject to the sanctions (see SC Res. 1533(2004) and SC document SC 8987 in reader). This is a delegation ex ante and no reconfirmation by the Council is necessary. Issue of the respect of a minimally fair procedure. Sub-Delegation to a group of experts for a short term task, on which the experts are supposed to report through the sanctions committee (see also SC Res. 1533(2004)).

Creation of new bodies.



In the EC system.


Agencies (many of which have been spun off from the Council or Commission over the last decade) can only legitimately be created, if they remain purely executive (e.g. PMO, EPSO) or if they have very limited tasks (Human Rights Agency, OHMI etc). Subordinate organs are thus difficult to create.

In the UN system


UN organs have more scope for creating sub-organs which have very important tasks, often of a different nature than the organ creating it, and with virtually total independence:
Development agencies: UNCTAD; UNIDO.  Environmental agency: UNEP  Judicial bodies: UN Administrative Tribunal; ICTY. The latter more contested than the former: why? Background to this greater freedom: broader and vaguer powers of UNs principal organs.


Comitology
 

A typical EC phenomenon. Not comparable to delegation of powers or creation of sub-organs. Demonsrates that there is no full separation of powers; Council and Parliament want to keep Commission acting as executive within their grasp: Article 202 EC. Two successive decisions of 1999 and 2006.
  

The four objectives of the decisions clearly stated in preambles. Five procedures: advisory, management; regulatory; regulatory with parliamentary scrutiny; safeguards. How does it work? These procedures are referred to in a so-called basic act and are then applied, when, according to the basic act, they are applicable. Management procedures in the case of adaptations of agri and fisheris management, regulatory procedures in the case of regulatory implementation of e.g. Food safety and environmental regulations etc.