CYIL 2014

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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,

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

nor necessary to provide a final answer on the conflict delineated above for

the following reasons:

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.

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.”

This principle does not limit the organisation

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).

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.

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

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.

Legality of the Use by State of Nuclear Weapons in Armed Conflict, Advisory Opinion,

ICJ Reports 1996,

p. 66, para. 25.