There has been considerable debate in the international community as to the legality of the forceful actions in Kosovo in 1999, Afghanistan in 2002 and Iraq in 2003 under the United Nations Charter. There has been consensus, however, that the use of force in all these situations had to be both proportional and necessary. Against the background of these recent armed conflicts, this 2004 book offers the first comprehensive assessment of the twin requirements of proportionality and necessity as legal restraints on the forceful actions of States. It also provides a much-needed examination of the relationship between proportionality in the law on the use of force and international humanitarian law.

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Necessity, Proportionality and the Use of Force by States

国際通貨基金協定 = Articles of Agreement of the International Monetary Fund

The book investigates how an analogy between States and international organizations has influenced and supported the development of the law that applies to intergovernmental institutions on the international plane. That is best illustrated by the work of the International Law Commission on the treaties and responsibility of international organizations, where the Commission for the most part extended to organizations rules that had been originally devised for States. Revisiting those codification projects while also looking into other areas, the book reflects on how techniques of legal reasoning can be - and have been - used by international institutions and the legal profession to tackle situations of uncertainty, and discusses the elusive position that international organizations occupy in the international legal system. By cutting across some foundational topics of the discipline, the book makes a substantive contribution to the literature on subjects and sources of international law.

The Analogy between States and International Organizations

This paper discusses the role of the so-called "rules of the organization" in the draft Articles on the Responsibility of International Organizations (DARIO), adopted by the International Law Commission (ILC) on first reading. While the rules of the organization occupy a central place in the DARIO, the ILC has decided not to take a "clear-cut view" on their legal nature as either international law or internal law of the organization. This paper argues that the ILC’s indecision has left the DARIO with a fluctuating scope of application concerning various provisions such as the attribution of conduct, the breach of an international obligation, the obligation to make reparation, and countermeasures against an international organization. Since the rules of the organization are a term of art that was developed by the ILC in its work on the law of treaties and has rarely been addressed in legal scholarship, Part 1 examines the legal nature of the different components of the rules of the organization: the constituent instruments, the acts, and the established practice of the organization. While the constituent instruments are contracts between States at the moment of the creation of an international organization, they operate as constitutions during the life of the organization, giving it the autonomy to create internal law in force between the subjects of its legal order, including its member States. Part 2 therefore suggests to reconceive the rules of the organization as "internal law" of the organization as long as the organization functions effectively so as to appropriately reflect an international organization’s constitutional autonomy for purposes of international responsibility.

The Rules of International Organizations and the Law of International Responsibility

This thesis approaches the questions of the jurisdictional immunities of international organisations and their officials as the means whereby international organisations can be accommodated within the system of international law which allocates jurisdictional competence to States. The range of doctrinal approaches to these questions in the secondary literature is considered. However, general rules on such immunities are only of limited value in that each organisation must viewed on its own merits, and in the light of its own particular functional requirements. The thesis therefore seeks to demonstrate this individuated approach empirically by mapping the extensive range of international practice, i.e. treaty provisions, official decisions and views of international organisations and decisions of international courts and tribunals. At the level of national law, a comparative survey is made of legislative practice of various States and the decisions of their courts. The immunities of international officials are an extension of the immunities of their employer organisations, and also a means of ensuring institutional coherence and integrity. This thesis concludes that there are primarily two aspects to this process of accommodation of international organisations in the system of allocation of national jurisdiction: Firstly there is a functional aspect, which concerns the degree to which national authorities may exercise jurisdiction over the relations of international organisations with third parties. This is derived from treaty law and is specifically granted to meet functional requirements of each organisation. Secondly there is an institutional aspect, which concerns the internal relations of an organisation, including the relations between its organs, its relations with its member States and its employment relations. The abstention of national courts on these issues might best be considered as a requirement deriving from the international status of organisations, and, therefore, of more general application as a requirement of customary international law.

The jurisdictional immunities of international organisations and their officials

One of the principal issues of interest to international lawyers in the International Tin Council cases decided by the English courts was whether member states of the International Tin Council (ITC) were secondarily or concurrently liable to third parties for the debts of the organization. This issue may arise when two or more states form an organization with legal personality that can perform functions with legal consequences. In the course of performing these functions, such an organization may incur liabilities to third parties. These third parties may be states, other organizations, individuals or legal persons. The states may be member states of the organization itself or other states, and the individuals and legal persons may be nationals of member states or not. The liabilities may emanate from transactions, such as international agreements between states and the organization, that take place at the international level and may be governed by international law; or they may stem from transactions governed by municipal law, whether between the organization and states, individuals or legal persons. Such liabilities may be contractual, quasi-contractual or delictual.

C. F. Amerasinghe

Papers

Liability to Third Parties of Member States of International Organizations: Practice, Principle and Judicial Precedent