Legal Position of Intergovernmental Organizations

Peter H.F. Bekker, Ph.D., is Professor and Chair in International Law at the University of Dundee’s Centre for Energy, Petroleum and Mineral Law and Policy and regularly appears before international tribunals as a member of the New York Bar.

“It is a book which deserves a place in specialized international law collections, and certainly on the shelves of anyone, be they a government or private party, who has any legal dealings with international organizations.” —Maurice Mendelson, Book Review, XXIII(4) Law Books in Review 159 (1996) “Peter Bekker’s work on the legal position of intergovernmental organisations is an important contribution to this area of the law. … The strength of this book is its laying out of a clear and flexible framework for the consideration of organisational immunity. It is a reasonably technical discussion, although it is well illustrated by reference to practical examples, with particularly good use made of UN practice, and relevant work of the ILC. … [I]t is quite a practical guide for those creating and dealing with intergovernmental organisations.” —Michelle Jarvis, Book Review, 16 Australian Yearbook of International Law 380 (1995) “The author presents a coherent general theory on the basis of the immunity of intergovernmental organizations from national jurisdictions and on the limitations of such immunities.” —Ignaz Seidl-Hohenveldern, Book Review, 49 Zeitschrift für öffentliches Recht und Völkerrecht 432 (1995) “In his book Bekker has demonstrated that functional necessity is an important concept in the study of the immunities of international organizations. … Bekker has made an important contribution to the common law of international organizations … .” —Finn Seyersted & Geir Ulfstein, Book Review, 65 Nordic Journal of International Law 299 (1996)

• ContentsForewordPrefacePreface to the Second Revised EditionAbbreviations1 Introduction1 Purpose and Scope of This Study2 The Work of the International Law Commission on Relations between States and International Organizations (1962–1992)2.1 The Early Stages2.2 The First Part of the Topic2.2.1 The Work of Special Rapporteur El-Erian2.2.2 Codification and Progressive Development of International Law: The 1975 Vienna Convention2.3 The Second Part of the Topic2.3.1 The Work of Special Rapporteur El-Erian Continued2.3.2 Díaz González: A New Special Rapporteur – A New Approach?2.4 Current Status: The 1992 Report of theilc’s PlanningGroup2 A Three-Step Functional Necessity Analysis1 Step One Identification. Functional Necessity in Legal Status: Subject-Matter and Scope Ratione Personae1.1 Introduction1.2 The Concept of Function1.3 The Elements of Legal Status1.3.1 Introduction1.3.2 A Division into Three Elements1.3.2.1 The First Element: Personality1.3.2.2 The Second Element: Capacity1.3.2.3 The Third Element: Competence1.4 Draft Articles on Legal Status by the International Law Commission2 Step Two Selection2.1 Introduction2.2 Why: Basic Considerations in Granting Organizational Immunities2.2.1 Introduction2.2.2 (i) Political Independence of the Organization2.2.3 (ii) Impartiality of the Organization2.2.4 (iii) Equality of the Member States2.2.5 (iv) Avoidance of Undue National FinancialAdvantage: Financial Independence2.2.6 (v) Precedent and Equality of Status with Other Organizations2.2.7 (vi) Prestige and Authority of the Organization2.2.8 (vii) The Need for Special Protection in Initial Stages2.2.9 Conclusion2.3 What: Functional Necessity as a Basis for Selecting Organizational Immunities2.3.1 Introduction2.3.2 A List of Organizational Immunities2.4 Where: Legal Bases of Organizational Immunities2.4.1 Introduction2.4.2 Treaties2.4.2.1 Constituent Instruments of International Organizations2.4.2.2 General Multilateral Agreements2.4.2.3 Bilateral Agreements2.4.3 Domestic Legislation2.4.4 Customary International Law2.4.5 Conclusion3 Step Three Extent – Scope Ratione Materiae. The Role of Functional Necessity as a Yardstick for Determining the Extent of Organizational Immunities3.1 Introduction3.2 Organizational Immunities versus Other Types of Immunities3.3 Organizational Immunities Are Neither ‘Absolute’ Nor ‘Restrictive’3.4 ‘Official Activity’ versus ‘Commercial Activity’3.4.1 The ‘Official Activity’ Criterion Applied: The EMBL Award3.4.2 Determination of ‘Official Activity’: By Whom?3.5 Conclusion3.6 Methods of Counterbalancing Organizational Immunities3.6.1 Introduction3.6.2 Settlement of Disputes Concerning Alleged Abuse of Immunities3.6.2.1 Introduction3.6.2.2 Abuse Procedures: A Classification3.6.3 General Settlement of Disputes Procedures3.6.3.1 Introduction3.6.3.2 Waiver of Immunity3.6.3.3 International Judicial Settlement; Arbitration3.6.4 Additional Procedures3.6.5 Responsibility of Intergovernmental Organizations3.6.6 Conclusion3 The Functional Concept Applied: The International Tin Council1 Introducing: The Tin Crisis2 Step One: The Status of the ITC as an Organization3 Step Two: The Immunities of the ITC4 Step Three: The Extent of the Immunities of the ITC4 General ConclusionSelected BibliographyLegal Aspects of International OrganizationIndex