Pub Date : 2021-04-23DOI: 10.1093/OSO/9780192895790.003.0009
Lorenzo Gasbarri
This chapter applies the dual legal nature to the law of treaties. It begins by describing how international organizations were conceptualized in the debates of the International Law Commission and of International Law Institute on the law of treaties. Afterwards it contends that the capacity of an international organization to conclude a treaty is based both on a norm of general international law and on a norm of the internal institutional legal system. This finding is applied to the controversial issue of the position of member states in the treaty concluded by the organization. The dual nature leads to rethinking the role of members within the organizations based on complementarity. It means that member states have an indirect involvement with the treaty concluded only by the organization. For instance, member states’ obligations arise in order to provide the organization with the means to fulfil the obligations of the organization.
{"title":"The Law of Treaties","authors":"Lorenzo Gasbarri","doi":"10.1093/OSO/9780192895790.003.0009","DOIUrl":"https://doi.org/10.1093/OSO/9780192895790.003.0009","url":null,"abstract":"This chapter applies the dual legal nature to the law of treaties. It begins by describing how international organizations were conceptualized in the debates of the International Law Commission and of International Law Institute on the law of treaties. Afterwards it contends that the capacity of an international organization to conclude a treaty is based both on a norm of general international law and on a norm of the internal institutional legal system. This finding is applied to the controversial issue of the position of member states in the treaty concluded by the organization. The dual nature leads to rethinking the role of members within the organizations based on complementarity. It means that member states have an indirect involvement with the treaty concluded only by the organization. For instance, member states’ obligations arise in order to provide the organization with the means to fulfil the obligations of the organization.","PeriodicalId":379859,"journal":{"name":"The Concept of an International Organization in International Law","volume":"48 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133350997","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/oso/9780192895790.003.0004
Lorenzo Gasbarri
Informalism comprises the theories that frame the law produced by international organizations in shades of normativity: member states and international organizations are integrated in heterarchical relationships primarily governed by politics; the law created by international organizations belongs to hybrid legal systems; the institutional veil is characterized by degrees of transparency depending on the internal relation of power; the conduct of a member state acting in the institutional forum is alternatively relevant or not relevant as a matter of international law, depending on the internal relation of power. This chapter describes the historical roots of this conceptualization and elaborates why under this perspective the rules of the organizations are considered as a matter of degrees of legality. Afterwards, it describes the flaws of this theory focusing on the law of the international civil service and on global administrative law.
{"title":"Informalism","authors":"Lorenzo Gasbarri","doi":"10.1093/oso/9780192895790.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780192895790.003.0004","url":null,"abstract":"Informalism comprises the theories that frame the law produced by international organizations in shades of normativity: member states and international organizations are integrated in heterarchical relationships primarily governed by politics; the law created by international organizations belongs to hybrid legal systems; the institutional veil is characterized by degrees of transparency depending on the internal relation of power; the conduct of a member state acting in the institutional forum is alternatively relevant or not relevant as a matter of international law, depending on the internal relation of power. This chapter describes the historical roots of this conceptualization and elaborates why under this perspective the rules of the organizations are considered as a matter of degrees of legality. Afterwards, it describes the flaws of this theory focusing on the law of the international civil service and on global administrative law.","PeriodicalId":379859,"journal":{"name":"The Concept of an International Organization in International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128671155","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/oso/9780192895790.003.0003
Lorenzo Gasbarri
Constitutionalism emerged as a reaction to functionalism to rebut the international nature of the relation between organizations and member states: member states are organs of the organization when they act in the fulfilment of its purposes; the law created by international organizations is purely internal law; the institutional veil is characterized by an impermeable opacity; the autonomy of the organization is maximal; the conduct of a member state acting in the institutional forum is not relevant as a matter of international law. This chapter describes the historical roots of this conceptualization and posits why under this perspective the rules of the organizations are internal law of each particular organization. Afterwards, it describes the flaws of this theory discussing the problems arising in terms of the principle of lex specialis and concerning the attribution of conduct to an international organization.
{"title":"Constitutionalism","authors":"Lorenzo Gasbarri","doi":"10.1093/oso/9780192895790.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780192895790.003.0003","url":null,"abstract":"Constitutionalism emerged as a reaction to functionalism to rebut the international nature of the relation between organizations and member states: member states are organs of the organization when they act in the fulfilment of its purposes; the law created by international organizations is purely internal law; the institutional veil is characterized by an impermeable opacity; the autonomy of the organization is maximal; the conduct of a member state acting in the institutional forum is not relevant as a matter of international law. This chapter describes the historical roots of this conceptualization and posits why under this perspective the rules of the organizations are internal law of each particular organization. Afterwards, it describes the flaws of this theory discussing the problems arising in terms of the principle of lex specialis and concerning the attribution of conduct to an international organization.","PeriodicalId":379859,"journal":{"name":"The Concept of an International Organization in International Law","volume":"215 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116015592","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/oso/9780192895790.003.0012
Lorenzo Gasbarri
This chapter summarizes the main findings of the book. The concept of an international organization is defined by looking at the nature of the legal systems they develop. The notion of ‘dual legal nature’ describes how organizations create particular legal systems that derive from international law. This peculiar condition affects the law they produce, which is international and internal at the same time. The effects of the dual legal nature are discussed by analysing international responsibility, the law of treaties, and the validity of organizations’ acts. This conceptualization allows the development of a common legal framework applicable to all international organizations, despite their differences in terms of powers, membership, size, and other descriptive features. In particular, the most valuable consequence of this conceptualization is to rebut a frequent argumentative motif, under which organizations are either perceived as vehicles for member states’ interests or as autonomous entities.
{"title":"Conclusion","authors":"Lorenzo Gasbarri","doi":"10.1093/oso/9780192895790.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780192895790.003.0012","url":null,"abstract":"This chapter summarizes the main findings of the book. The concept of an international organization is defined by looking at the nature of the legal systems they develop. The notion of ‘dual legal nature’ describes how organizations create particular legal systems that derive from international law. This peculiar condition affects the law they produce, which is international and internal at the same time. The effects of the dual legal nature are discussed by analysing international responsibility, the law of treaties, and the validity of organizations’ acts. This conceptualization allows the development of a common legal framework applicable to all international organizations, despite their differences in terms of powers, membership, size, and other descriptive features. In particular, the most valuable consequence of this conceptualization is to rebut a frequent argumentative motif, under which organizations are either perceived as vehicles for member states’ interests or as autonomous entities.","PeriodicalId":379859,"journal":{"name":"The Concept of an International Organization in International Law","volume":"100 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122965619","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1163/1875-8096_pplrdc_ej.9789028603592.001_344.11
Lorenzo Gasbarri
The final consequence of the dual legal nature discussed in the book concerns the international responsibility of international organizations. In particular, this chapter describes how the absence of a common conceptualization affected the work of the International Law Commission, the International Law Institute, and the International Law Association. Afterwards, the chapter focuses on the dual attribution of conduct to an international organization and to its member states. It contends that dual attribution is extremely important in practice and it reviews the cases in which it was at issue. After providing a set of principles on how to apply the dual attribution, it distinguishes between three sets of circumstances: dual attribution via institutional links, dual attribution via factual links, and exclusion of dual attribution when the conduct is attributable to only the organization or its member states. Finally, it discusses the effects of dual attribution in terms of joint responsibility.
{"title":"International Responsibility","authors":"Lorenzo Gasbarri","doi":"10.1163/1875-8096_pplrdc_ej.9789028603592.001_344.11","DOIUrl":"https://doi.org/10.1163/1875-8096_pplrdc_ej.9789028603592.001_344.11","url":null,"abstract":"The final consequence of the dual legal nature discussed in the book concerns the international responsibility of international organizations. In particular, this chapter describes how the absence of a common conceptualization affected the work of the International Law Commission, the International Law Institute, and the International Law Association. Afterwards, the chapter focuses on the dual attribution of conduct to an international organization and to its member states. It contends that dual attribution is extremely important in practice and it reviews the cases in which it was at issue. After providing a set of principles on how to apply the dual attribution, it distinguishes between three sets of circumstances: dual attribution via institutional links, dual attribution via factual links, and exclusion of dual attribution when the conduct is attributable to only the organization or its member states. Finally, it discusses the effects of dual attribution in terms of joint responsibility.","PeriodicalId":379859,"journal":{"name":"The Concept of an International Organization in International Law","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116136985","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/oso/9780192895790.003.0005
Lorenzo Gasbarri
Exceptionalist conceptualizations are grounded on the belief that certain institutions develop differently from others, and consequently, the same international regulatory framework cannot apply to all: member states are agents or third parties depending on the organization; the rules are internal or international depending on the organization; the institutional veil is characterized in degrees of transparency depending on the organization; the autonomy of the organization is a matter of degrees; the conduct of a member state acting in the institutional forum can be relevant as a matter of international law depending on the organization; organizations are very different entities depending on descriptive elements, such as their level of integration or their geographical scope. This chapter describes the historical roots of this theory and later explains why the rules are either perceived as international or as internal law depending on the organization. The theory is rebutted examining the exceptionalism of the EU and of the OSCE.
{"title":"Exceptionalism","authors":"Lorenzo Gasbarri","doi":"10.1093/oso/9780192895790.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780192895790.003.0005","url":null,"abstract":"Exceptionalist conceptualizations are grounded on the belief that certain institutions develop differently from others, and consequently, the same international regulatory framework cannot apply to all: member states are agents or third parties depending on the organization; the rules are internal or international depending on the organization; the institutional veil is characterized in degrees of transparency depending on the organization; the autonomy of the organization is a matter of degrees; the conduct of a member state acting in the institutional forum can be relevant as a matter of international law depending on the organization; organizations are very different entities depending on descriptive elements, such as their level of integration or their geographical scope. This chapter describes the historical roots of this theory and later explains why the rules are either perceived as international or as internal law depending on the organization. The theory is rebutted examining the exceptionalism of the EU and of the OSCE.","PeriodicalId":379859,"journal":{"name":"The Concept of an International Organization in International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123745917","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/oso/9780192895790.003.0002
Lorenzo Gasbarri
Functionalism is conventionally considered the mainstream paradigm of the law of international organizations: organizations are agents of their member states by the means of a contractual relationship; the law created by international organizations is purely international law; the institutional veil is characterized by a crystallin transparency; the autonomy of the organization is minimal and only granted by a rigid conferral of competences and few implied powers; the conduct of member states acting in the institutional forum is relevant as a matter of international law. This chapter introduces the historical roots of this conceptualization and elaborates why under this perspective the rules of the organizations are purely international law. It describes the flaws of this theory, discussing the breach of institutional rules by the organization and the adoption of countermeasures against a wrongful act committed by a member state.
{"title":"Functionalism","authors":"Lorenzo Gasbarri","doi":"10.1093/oso/9780192895790.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780192895790.003.0002","url":null,"abstract":"Functionalism is conventionally considered the mainstream paradigm of the law of international organizations: organizations are agents of their member states by the means of a contractual relationship; the law created by international organizations is purely international law; the institutional veil is characterized by a crystallin transparency; the autonomy of the organization is minimal and only granted by a rigid conferral of competences and few implied powers; the conduct of member states acting in the institutional forum is relevant as a matter of international law. This chapter introduces the historical roots of this conceptualization and elaborates why under this perspective the rules of the organizations are purely international law. It describes the flaws of this theory, discussing the breach of institutional rules by the organization and the adoption of countermeasures against a wrongful act committed by a member state.","PeriodicalId":379859,"journal":{"name":"The Concept of an International Organization in International Law","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127751748","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1080/00128325.1962.11661819
Lorenzo Gasbarri
This chapter summarizes the previous findings and exposes the false dichotomies that led to the proliferation of the different conceptualizations. It shows how the four conceptualizations can be applied to a legal dispute concerning the responsibility of an international organization. In particular, it discusses the Al-Dulimi case before the European Court of Human Rights. The circumstances of the case prompt the adoption of one or the other conceptualization on the basis of the argumentative strategy. The analysis highlights the difficulties in providing a general legal framework to establish the responsibility of international organizations and/or of their member states. The chapter is divided into two subsections, focusing on the admissibility and the merits of the Al-Dulimi case. It concludes that the adoption of an international legal framework applicable to all international organizations is subject to the possibility to rebut limited perspectives and to adopt an ‘absolute point of view’.
{"title":"Interim Conclusions","authors":"Lorenzo Gasbarri","doi":"10.1080/00128325.1962.11661819","DOIUrl":"https://doi.org/10.1080/00128325.1962.11661819","url":null,"abstract":"This chapter summarizes the previous findings and exposes the false dichotomies that led to the proliferation of the different conceptualizations. It shows how the four conceptualizations can be applied to a legal dispute concerning the responsibility of an international organization. In particular, it discusses the Al-Dulimi case before the European Court of Human Rights. The circumstances of the case prompt the adoption of one or the other conceptualization on the basis of the argumentative strategy. The analysis highlights the difficulties in providing a general legal framework to establish the responsibility of international organizations and/or of their member states. The chapter is divided into two subsections, focusing on the admissibility and the merits of the Al-Dulimi case. It concludes that the adoption of an international legal framework applicable to all international organizations is subject to the possibility to rebut limited perspectives and to adopt an ‘absolute point of view’.","PeriodicalId":379859,"journal":{"name":"The Concept of an International Organization in International Law","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126319779","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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