CYIL 2014

MARTIN FAIX CYIL 5 ȍ2014Ȏ Why is this relevant here? With regard to treaty-making capacity, simply because, if one accepts the objective theory with the idea of inherent capacities, then the treaty-making power could also certainly be regarded as one capacity belonging to their common core, 48 and, because of Art. 38 ICJ Statute, treaties are on the top of the list of possible sources of human rights obligations which one needs to look at when trying to identify whether and how international organisations are bound by them. However, with regard to the capacity to enter into contractual relations it is neither possible 49 nor necessary to provide a final answer on the conflict delineated above for the following reasons: 50 Most of the international organisations are endowed with (explicit or implicit) capacity simply because it is necessary for fulfilment of their functions in practise. This is, for example, also the case of the United Nations. 51 Moreover, in the context of human rights, as will be explained in more detail below, two aspects create a more significant hindrance: first, human rights treaties often simply exclude international organisations from becoming parties to them; second, the principle of speciality applies. As the ICJ pointed out in its later Legality of the Threat or Use of Nuclear Weapons Advisory Opinion from 1996, “international organizations [...] do not, unlike States, possess a general competence. International organizations are governed by the ’principle of speciality’, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interest whose promotion those States entrust to them.” 52 This principle does not limit the organisation 48 Ibid. Similarly Lauterpacht: „ The capacity to conclude treaties is both a corollary of international personality and a condition of the effective fulfilment of their functions on the part of the international organizations .“ (LAUTERPACHT, Hersch. In: Doc. A/CN.4/L.161, as cited in REUTER, Paul [ILC Special Rappporteur], Yearbook of the International Law Commission 1972, vol. II., p. 179, note 74); see also the opinion of Pernice, who distinguishes between the external treaty-making capacity (which he describes as „ können “) and what the organisation is internally allowed to do („ dürfen “), see PERNICE, Ingolf. Völkerrechtliche Verträge internationaler Organisationen. ZaöRV . 1988, vol. 48, no. 1, p. 236. Also the preamble of the Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations (VCLTIO) from 1986l, which provides: „International organizations possess the capacity to conclude treaties, which is necessary for the exercise of their functions and the fulfilment of their purposes. “, seems to point in the direction of the inherent character of treaty-making capacity (but see the comment of Klabbers on the distinction between the source of the capacity and the rules applicable on the exercise of this capacity, KLABBERS, Introduction to International Institutional Law . Supra note 27, p. 41). 49 ILC Special Rapporteur Reuter commented on the issue with following words: „ The problem of the sources of the international capacity of international organizations was for a long time a stumbling block for the Commission .“ (REUTER, Paul, ILC Special Rapporteur, First report on the question of treaties concluded between States and international organisations or between two or more international organisations, Doc. A/CN.4/258, p. 180. 50 Moreover, many authors plead for the reconciliation of the two opposed views, cf. GAUTIER, Philippe. The Reparation for Injuries Case Revisted: The Personality of the European Union. Max Planck Yearbook of United Nations Law . No. 4, pp. 335 et seq . 51 Cf. CARROZ, Jean and PROBST, Yürg. Personnalité juridique internationale et capacité de conclure des traités de l’ONU et des institutions spécialisées . Paris: Foulon, 1953. 52 Legality of the Use by State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, p. 66, para. 25.

278