THE CAPACITY OF INTERNATIONAL ORGANIZATIONS TO CONCLUDE TREATIES

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1 THE CAPACITY OF INTERNATIONAL ORGANIZATIONS TO CONCLUDE TREATIES

2 THE CAPACITY OF INTERNATIONAL ORGANIZATIONS TO CONCLUDE TREATIES, AND THE SPECIAL LEGAL ASPECTS OF THE TREATIES SO CONCLUDED by HUNGDAH CHIU, S.J.D. (HARVARD) Associate Professor of International Law National Taiwan University MARTINUS NIjHOFF / THE HAGUE / 1966

4 To My Parents

5 ACKNOWLEDGEMENTS The writer is greatly indebted to Professor Louis B. Sohn of the Harvard Law School for having read the whole manuscript in its various stages of development and offered many valuable suggestions and criticisms. He is also grateful to Professor R. R. Baxter of the Harvard Law School for the experience and training received from participation in his seminar on the law of treaties. The tedious work of correcting the errors of someone whose native tongue is not English has been undertaken by his friend, Mr. R. R. Edwards, A.B., LL.B. (Harvard), of the Harvard Law School. The writer wishes to express his sincere thanks to him. Finally, the writer would like to express his everlasting gratitude to his parents and his brother for their encouragement and financial support in the course of writing this book. Cambridge, Mass. June 1, Hungdah Chiu

6 CONTENTS Acknowledgement List of Abbreviations INTRODUCTION vn XV 1 I. HISTORICAL SURVEY OF THE TREATY-MAKING PRACTICE OF INTERNATIONAL ORGANIZATIONS A. Introduction (6) B. Treaty-Making Practice in the Inter-War Period (8) (1) The League of Nations (8) (a) Mandate Agreements (8) (b) Minority Declarations or Treaties (9) (c) Agreements with Member State (12) (d) Agreement with Non-member States (12) (e) Agreements with Other International Organizations (12) (2) The Affiliated Bodies of the League of Nations (13) (a) The Nansen International Refugees Office (13) (b) The League of Nations Health Organization (14) (c) The International Institute of Intellectual Cooperation (14) (d) The Saar Governing Commission (15) (3) The Permanent Court ofinternationaljustice (15) (4) The Reparation Commission (15) (5) The International Commission of the Danube and the European Commission of the Danube (16) (6) The International Commission of Cape Spartel Lighthouse (17) C. Development after the Second World War (17) 6

7 x CONTENTS II. THE BASIS OF THE TREATY-MAKING CAPACITY OF INTERNATIONAL ORGANIZATIONS 19 A. Introduction (19) B. Constitutional Provisions (19) C. International Personality (22) (1) The Meaning of the Term "International Personality" (22) (2) The Views of Writers (25) (a) Carroz and Probst (25) (b) Kelsen (27) (3) Conclusion (29) D. The Implied Power Theory (32) E. The Basis of Treaty-Making Capacity (33) (1) Introduction (33) (2) Evolution of Treaty-Making Practice of International Organizations (34) (a) The Inter-War Period (34) (b) Development after the Second World War (36) (3) The Basis and Limitation of Treaty-Making Capacity of International Organizations (46) III. THE CONCLUSION OF TREATIES 49 A. Form of Agreements (49) (1) Introduction (49) (2) Terminology (50) (3) Form (51) (a) Introduction (51) (b) Exchange of Notes (51) (c) Disjunctive Exchange of Notes (53) (d) Parallel Resolutions (61) (4) Sources ofinformations about the Texts of Agreements (63) B. Constitutional Requirements - Limitation on the Treaty Making Capacity of International Organizations (66) (1) Introduction (66) (2) Capacity of International Organizations to Become Parties to Multilateral Treaties (67) (a) The Meaning of the Term "Multilateral Treaty" (67) (b) The Necessity of International Organizations to Become Parties to Multilateral Treaties (68) (c) The Opinions of Writers and the IC] (70) (d) The Practice ofinternational Organizations (71)

8 CONTENTS XI (3) Deviation from Normal Voting Procedure as Required by Treaties Concluded by International Organizations - Question of Constitutionality (72) (4) Methods Used to Decide the Constitutionality of Treaties Concluded by International Organizations (75) (a) Introduction (75) (b) The Question of the Constitutionality of Treaties Arises as Between An International Organization and Its Member or Members (76) (c) The Question of the Constitutionality of Treaties Arises as Between An International Organization and Another International Organization or Non Member State or States (79) (d) Conclusion (80) (5) Validity of Treaties Concluded by International Organizations in Violation of Limitations on the Organizations' Capacity (81) (a) Introduction (81) (b) The Valid Theory (81) (c) The Voidable Theory (82) (d) The Void Theory (83) (e) Conclusion (84) C. Constitutional Requirements - Organs Competent to Conclude Treaties (84) (1) Organs Competent to Conclude Treaties for International Organizations (84) (a) Introduction (84) (b) The Opinions of Writers (85) (c) The Practice ofinternational Organizations (90) (2) The Question of Apparent Authority of the Chief Executive Officer (91) (3) The Competence of Regional Offices or Semi-autonomous Organs to Conclude Treaties (93) (a) Regional Offices (94) (b) Semi-autonomous Organs (95) (4) Methods Used to Decide Which Organ is Competent to Conclude Treaties for an International Organization (96) (5) Validity of Treaties Concluded by Incompetent Organs (97) (a) The Valid Theory (97)

9 xu CONTENTS (b) The Voidable and the Void Theory (99) D. Procedure of Conclusion (100) (1) Full Powers (100) (2) Signature (102) (3) Approval (104) (4) Entry into Force (105) (5) Reservations (106) (6) Registration (109) IV. CERTAIN KINDS OF TREATIES A. Succession Agreements (111) (1) Introduction (Ill) (2) Constitutional Basis and Process of Negotiation (112) (a) Successor Organizations (112) (b) Predecessor Organizations (115) (3) Special Legal Character (120) B. Relationship Agreements (122) (1) Introduction (122) (2) Constitutional Basis (122) (a) The UN (123) (b) The Specialized Agencies and the IAEA (124) (c) Certain Regional Organizations (127) (d) Other International Organizations (128) (3) Process of Negotiation (129) (a) The UN and the Specialized Agencies (129) (b) Inter-Agency Agreements (131) (c) Agreements between the Specialized Agencies and Other International Organizations (131) (4) Contents (132) (a) Agreements between the UN and the Specialized Agencies (132) (b) Inter-Agency Agreements (135) (c) Agreements between the Specialized Agencies and Other Inter-Governmental Organizations (136) (5) Certain Special Legal Problems (136) C. Institutional Treaties (139) (1) Introduction (139) (2) General Conventions or Agreements (140) (a) Introduction (140) (b) Constitutional Basis (141) 111

10 CONTENTS XIII (c) Process of Negotiation, Contents, and Special Legal Character (142) (3) Headquarters and Host Agreements (152) (a) Introduction (152) (b) Constitutional Basis (154) (e) Process of Negotiation, Contents, and Legal Character (154) (4) Agreements relating to Special Political Tasks (158) (5) Agreements concerning Particular Meetings (159) D. Trusteeship Agreements (159) (1) Introduction (159) (2) Constitutional Basis (160) (3) Process of Negotiation (161) (4) Contents (162) (5) Special Legal Problems (163) E. Technical Assistance Agreements (168) (1) Introduction (168) (2) Constitutional Basis (169) (3) Process of Negotiation, Contents, and Special Legal Character (169) (a) Basic Agreements (170) (b) Supplementary Agreements (172) (c) Agreements relating to Special Projects (173) F. UNICEF, Special Fund, and OPEX Agreements (173) (1) Introduction (173) (2) The UNICEF Agreements (173) (3) The Special Fund Agreements (175) (4) The OPEX Agreements (176) (5) Legal Character (177) G. Loan and Guarantee Agreements (177) (1) Introduction (177) (2) Constitutional Basis (178) (3) Process of Negotiation (178) (a) Exploratory Discussions and Preliminary Investigation (178) (b) Formal Negotiation (179) (4) Contents (180) (5) Special Legal Problems (181) H. Conclusion (184)

11 XIV CONTENTS v. THE LEGAL CHARACTER OF AGREEMENTS CONCLUDED BY INTER- NATIONAL ORGANIZATIONS 186 A. Introduction (186) B. Legal Character in General (186) (1) The Practice of States (186) (a) Argentina (187) (b) Canada (188) (c) France (188) (d) Germany (189) (e) Switzerland (190) (f) The United States (191) (2) The Opinions of International Organizations (192) (a) The ILO (192) (b) The UNRRA (192) (c) The UN (193) (d) The WHO (193) (e) The Bank (194) (3) The Juriprudence ofinternational Tribunals (194) C. Tests to Decide the Legal Character of An Agreement (194) (1) Introduction (194) (2) The Settlement of Disputes (195) (a) Diplomatic Procedure - Negotiation (196) (b) Advisory Opinion (198) (c) Arbitration (199) (d) Combination of Arbitration and Advisory Opinion (204) (e) Other Procedures (205) (1) Conclusion (206) (3) Registration (206) (4) The Tests of Legal Character as International Agreements (209) CONCLUSIONS Bibliography Index

12 LIST OF ABBREVIATIONS Am.J. Int'l L. Ann. Dig. Bank American Journal of International Law. Annual Digest of Public International Law Cases. International Bank for Reconstruction and Development. British and Foreign State Paper. Bank of International Settlement. B.F.S.P. BIS Brit. Yb. Int'l L. British Yearbook of International Law. CE Council of Europe. Cmd. British Command Paper. E.A.S. United States Executive Agreement Series. ECAFE Economic Commission for Asia and the Far East (UN) ECE Economic Commission for Europe (UN). ECITO European Central Inland Transport Organization. ECLA Economic Commission for Latin America (UN). EcoSoc Economic and Social Council (UN). ECSC European Coal and Steel Community. EEC European Economic Community. EONR European Organization for Nuclear Research. FAO Food and Agriculture Organization of the United Nations. Fund International Monetary Fund. GAOR General Assembly Official Records (UN). IAEA International Atomic Energy Agency. IANEC Inter-American Nuclear Energy Commission. IBE International Bureau of Education. Int'l & Compo L. Q. International and Comparative Law Quarterly. ICAO International Civil Aviation Organization. ICEM Intergovernmental Committee on European Migration.

13 XVI ABBUVIATIONS ICMMP International Committee of Military Medicine and Pharmacy. ICJ International Court of Justice. ICWM International Committee of Weight and Measures. IFC International Finance Corporation. IHB International Hydrographic Bureau. IlA International Institute of Agriculture. IlIC International Institute of Intellectual Cooperation. ILC International Law Commission (UN). ILO International Labour Organization. Int'l L. Rep. International Law Reports. IMCO Intergovernmental Maritime Consultative Organization. IMO International Meteorological Organization. INCAP Institute of Nutrition for Central America and Panama. IRO International Refugee Organization. ITU International Telecommunication Union. LAS League of Arab States. L.J. Law Journal. LN League of Nations. L.N.T.S. League of Nations Treaty Series. L.R. Law Review. Martens N.R.G. De Martens, G.F., Nouveau Recueil General de Traites. OAS Organization of American States. Off. Bull. Official Bulletin. Off. J. Official Journal. Off. Rec. Official Records. OIHP Office International d'hygiene Publique. ONUC United Nations Congo Operation. OPEX Operational and Executive Personnel (UN). PASB Pan-American Sanitary Bureau. PASO Pan-American Sanitary Organization. PAU Pan-American Union. PCIJ Permanent Court of International Justice. PICAO Provisional Internationl Civil Aviation Organization. Proc. Proceedings. Recueil des Cours Recueil des Cours de l' Academie de Droit International.

14 ABBREVIATIONS XVII Stat. TAB T.I.A.S. T.S. UN UNEF UNESCO UNICEF UNJSPF UNKRA UNRRA UNRWA U.N.T.S. UPU U.S.T. WHO WMO United States Statute at Large. Technical Assistance Board (UN). United States Treaties and Other International Acts Series. Treaty Series. United Nations. United Nations Emergency Force. United Nations Educational, Scientific and Cultural Organization. United Nations International Children's Emergency Fund. United Nations Joint Staff Pension Fund. United Nations Korean Reconstruction Agency. United Nations Relief and Rehabilitation Administration. United Nations Relief and Works Agency for Palestine Refugees in the Near East. United Nations Treaty Series. Universal Postal Union. United States Treaties and Other International Agreements. World Health Organization. World Meteorological Organization.

THE NATIONALITY OF SHIPS

THE NATIONALITY OF SHIPS THE NATIONALITY OF SHIPS BY H.MEYERS Senior Lecturer in International Law, University of Amsterdam FOREWORD BY D. H. N. JOHNSON Professor of International and Air Law, University