Understanding Powers of International Organizations

Similar documents
The European Union in Search of a Democratic and Constitutional Theory

Acknowledgements List of abbreviations PART I: INTRODUCTION 1. Chapter 1: Introduction 3

PROCESSES AND PRODUCTION METHODS (PPMs) IN WTO LAW

The Individual in the International Legal System: Continuity and Change in International Law

Compliance with International Trade Obligations. The Common Market for Eastern and Southern Africa

The Relationship of WTO Law and Regional Trade Agreements in Dispute Settlement. From Fragmentation to Coherence. Malebakeng Agnes Forere

Voluntary Export Restraints in WTO and EU Law

Treaty Interpretation by the WTO Appellate Body

INTERNATIONAL ORGANIZATIONS IN WTO DISPUTE SETTLEMENT

LEGAL ASPECTS OF ECONOMIC INTEGRATION IN AFRICA

European Patent Law. Towards a Uniform Interpretation. Stefan Luginbuehl PhD, Lawyer, European Patent Office, Germany

Modern Comparative Politics Approaches, Methods and Issues

CONTENTS CHAPTER I INTRODUCTION 1-15 CHAPTER II HUMAN RIGHTS AND CRIMINAL JUSTICE: A HISTORICAL PERSPECTIVE

Table of Contents. The Author 3. List of Abbreviations 15. General Introduction 17. Part I. Sources of Constitutional Law 35. Chapter 1.

Summary Contents. Introduction: European Constitutional Law. lxiii

Table of Contents. Preface Abbreviations... 13

THE WTO DISPUTE SETTLEMENT PROCEDURES

THE UNESCO CONVENTION ON THE DIVERSITY OF CULTURAL EXPRESSIONS. A Tale of Fragmentation in International Law. Toshiyuki KONO Steven VAN UYTSEL (eds.

Greening International Jurisprudence

Enforcing Obligations Erga Omnes in International Law

INTERNATIONAL ORGANIZATIONS AND THEIR HOST STATES

Conflicts in International Trade Law

Public Interest Environmental Litigation in India, Pakistan and Bangladesh

An Introduction to the Law of CONTRACT STEPHEN GRAW

Policy-Making in the European Union

The Interception of Vessels on the High Seas

Judicial Transparency Checklist

THESIS JURISDICTION IN CIVIL COURTS

DETAILED TABLE OF CONTENTS

DETAILED TABLE OF CONTENTS

Wolters Kluwer. Constitutional Values and European Contract Law. Stefan Grundmann KLUWER LAW INTERNATIONAL. Law & Business

International. Organisation in World Politics. Third Edition DAVID ARMSTRONG, LORNA LLOYD AND JOHN REDMOND A macmiuan

Eternity Clauses: a Safeguard of Democratic Order and Constitutional Identity

English Legal System in Context

STATE IMMUNITY AND THE VIOLATION OF HUMAN RIGHTS

THE PROCEDURE OF THE UN SECURITY COUNCIL

Social Justice and Democracy

EXCLUSIVE RIGHTS AND STATE MONOPOLIES UNDER EC LAW

TABLE OF CONTENTS. Foreword xix Preface xxi Introductory Note xxiii CHAPTER 1 THE ROLE OF APPELLATE TRIBUNALS 1

The International Covenant on Economic, Social, and Cultural Rights

AFRICAN REGIONAL TRADE AGREEMENTS AS LEGAL REGIMES

International Labour Law

INCORPORATION OF EUROPEAN FOUNDATION CENTRE/ CENTRE EUROPÉEN DES FONDATIONS INTERNATIONAL NON-PROFIT ASSOCIATION AT 1000 BRUSSELS, RUE ROYALE 94.

Supranational Elements within the International Labor Organization

One main book, supplementary reading Treaty collection, Global and Regional Treaties Web pages

The Relationship Between Constitutionalism and Pluralism

TREATY SERIES 2013 Nº 8. WIPO Patent Law Treaty

WORLD INTELLECTUAL PROPERTY ORGANIZATION GENEVA DIPLOMATIC CONFERENCE FOR THE ADOPTION OF THE PATENT LAW TREATY. Geneva, May 11 to June 2, 2000

Global Political Economy. Theory and Practice

INTERNATIONAL LAW, THE INTERNATIONAL COURT OF JUSTICE AND NUCLEAR WEAPONS

Global Competition: Law, Markets, and Globalization

THE LAW AND POLITICS OF WTO WAIVERS

1B. Constitution and the ROL

Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure

THE LEGALITY OF CREATING PLURILATERAL AGREEMENTS WITHIN THE WTO FOR SINGAPORE ISSUES

Modern Political Thinkers and Ideas

Constitution Elements

DRAFT LAW ON NORMATIVE ACTS. of BULGARIA *

Public Liability in EU Law

Behind the Multilateral Trading System

Social Movements and Protest

THE WTO DISPUTE SETTLEMENT PROCEDURES

The Charter of the United Nations

INTERNATIONAL HUMAN RIGHTS LAW

CISG Exclusion and Legal Efficiency. Lisa Spagnolo. Wolters Kluwer Law & Business

Zurich Open Repository and Archive University of Zurich Main Library Strickhofstrasse 39 CH-8057 Zurich Year: 2011.

International History of the Twentieth Century

External Relations of the European Union

Patent Law Treaty * (adopted at Geneva on June 1, 2000) TABLE OF CONTENTS

LEGAL RESOLUTION OF NUCLEAR NON-PROLIFERATION DISPUTES

War^ggression and Self-Defence

... Revision,

EUROPEAN CRIMINAL LAW

DJIBOUTI CONSTITUTION Approved on 4 September 1992

INTERNATIONAL LAW AND THE USE OF FORCE BY STATES

CONTENTS GEOGRAPHICAL LOCATION OF THE STATE 2.2 KASHMIR PRIOR TO THE REIGN OF GULAB SINGH 2.3 THE ADVENT OF MAHARAJA GULAB SINGH

WORLD TRADE ORGANIZATION

Fresh Perspectives on. the. War on Terror

Understand the basic concepts of European Union Law and differentiate the EU legal order from international and national legal orders.

OPINION. Relevant provisions of the Draft Bill

The Law of State Immunity

Horizontal Application of EU-Fundamental Rights. Prof. Dr. Bernd Waas

UN CHARTER & STRUCTURAL ASPECTS. Prof David K. Linnan USC LAW # 783 Unit Nine

* Sales Number Publications = books: annual reports, statistics, surveys, reports, minutes of seminars

Legal Principles and Mechanisms for Safeguarding Biodiversity

Subsidies in International Trade from the WTO Perspective. A Legal and Economic Analysis

INTERNATIONAL SUSTAINABLE DEVELOPMENT LAW Vol. I - The Concept Of International Development Law - Anthony Carty

Judicial Protection through the Use of Article 288(2)EC

The Morality of Conflict

International Encyclopaedia of Laws. Private International Law - Outline. The author(s) Table of Contents List of abbreviations

Edited by JOHN CARTWRIGHT STEFAN VOGENAUER and SIMON WHITTAKER HART- PUBLISHING

Issues in World Politics

Constitution and By-Laws of The Leo Club of. ARTICLE I Name The name of this organization is the Leo Club of

Post-conflict Peacebuilding: A Lexicon

National Judges as European Union Judges. Knowledge, Experiences and Attitudes of Lower Court Judges in Germany and the Netherlands

THE LAW OF CONTRACT REMEDIES FOR BREACH. Towards Codification of Israeli Civil Law

International Workshop on the Safe and Secure Management of Ammunition, Geneva (8-9 December 2016) CHAIR S SUMMARY

THE FORMATION AND TRANSFORMATION OF TRADING STATES: LIBERALIZATION AND STATE INSTITUTIONAL CHANGE SINCE A Prospectus

Reconciliation between fundamental social rights and economic freedoms

COMPARATIVE ANALYSIS OF MERGER CONTROL POLICY. Lessens for China

Transcription:

Understanding Powers of International Organizations A Study of the Doctrines of Attributed Powers, Implied Powers and Constitutionalism - with a Special Focus on the Human Rights Committee Viljam Engstrom ABO 2009 ABO AKADEMIS FORLAG - ABO AKADEMI UNIVERSITY PRESS

Contents Acknowledgements Abbreviations ix xii Part I Introducing the Doctrines as a Subject of Research 1 1 The Three Doctrines and the Question of "Who Decides" 2 1.1 First Example: Who in the UN Should Authorize Peacekeeping? By What Means? 2 1.2 Second Example: Who Should Decide on the Extent of European Integration? 6 2 Focusing on the Human Rights Committee 8 2.1 The Human Rights Committee as an International Actor 8 2.2 The Human Rights Committee as a Legal Person 12 2.3 The Three Doctrines and Committee Powers 15 2.3.1 The Committee Enjoys Powers that are Functionally Necessary 15 2.3.2 The Powers of the Committee are Limited to those Attributed to It 17 2.3.3 Constitutionalism and the Human Rights Committee.. 19 3 Towards a Better Understanding of Powers 20 3.1 "A Power" vis-a-vis "Power" 20 3.2 An Evergreen or Ignored Subject? Outlining the Aim of the Thesis 25 3.3 Sketching the Research Approach 28 3.3.1 On the Politics of Legal Reasoning 28 3.3.2 Avoiding Subjectivity!...32 3.4 The Task Ahead 35 Part II Reasoning on Powers and the Image of Organizations 40 1 An Outline of a Dichotomy 41 1.1 The Idea of Attributed Powers, 41 1.1.1 Early Powers. Organizations as Standing Conferences 41 1.1.2 The Image of Independence Emerges 45 1.1.3 Attribution as a Viable Notion 49

1.2 The Idea of Implied Powers 53 1.2.1 From an Ever Increasing Enthusiasm 53 1.2.1.1 The ICJ on the Role of the UN 53 1.2.1.2 The Doctrine as a Tool for European Integration 61 1.2.2... to a More Restricted Account? 66 1.3 Concluding Remarks: Defining Powers and the Idea of "Trends" 70 2 Powers - An Inevitable Source of Debate 73 2.1 Framing the Question: On the Source of International Obligations i. 74 2.2 Powers as Constitutive of the Independence of Organizations 78 2.3 Overdoing It: Deriving Powers from the Existence of an Organization 82 2.4 Powers as Expressive of the Intent of Members 87 2.5 Overdoing it: Associating Powers with Member Views 90 2.6 Concluding Remarks: A Dual Image of Organizations 94 3 Structuring the Dichotomy 96 3.1 Internal and External Means of Guidance 97 3.1.1 Expressly Safeguarding Member Prerogatives 97 3.1.2 Principles of Interpretation as Guidance 101 3.2 The Constitutionalization of Organizations 109 3.2.1 From a Constitutional Character to Constitutionalism 109 3.2.2 Constitutionalism in Organizations 114 3.2.2.1 The Supranational Constitutionalism of Europe... 114 3.2.2.2 Constitutionalism in the WTO 118 3.2.2.3 The UN and the Idea of a World Constitution 121 3.3 Concluding Remarks: The Promise of Constitutionalism... 124 Part III Three Doctrines in Search of Content 127 1 Reconciling Attributed and Implied Powers 128 1.1 The Elusiveness of Implied Powers 128 1.1.1 Implied Powers or Implied Functions? 128 1.1.2 Different Expressions of a Functional Character 131 1.1.3 The Problems with Defining Functional Necessity 138 1.1.4 Looking for Guidance in the Constituent Instrument 143

1.2 The Attributed Character of all Powers 150 1.2.1 Attribution by Treaty 151 1.2.2 Attribution by Implication 153 1.3 Concluding Remarks: On the Emptiness of the Attributed and Implied Powers Doctrines 157 2 Breaking Up the Doctrine of Constitutionalism 160 2.1 Identifying Formal and Substantive Aspects of Constitutionalism!...162 2.2 Formal Constitutionalism and its Critique 166 2.2.1 Judicializing Organizations 166 2.2.2 Potential Problems ^.TT. 170 2.2.2.1 Separating Political and Judicial Questions 170 2.2.2.2 Politicizing the Judiciary 176 2.2.2.3 Judicializing the Political Process 181 2.3 Substantive Constitutionalism and its Critique 187 2.3.1 Democratizing Organizations 187 2.3.2 Different Sources of Legitimacy 188 2.3.3 Is Democratic Legitimacy in Organizations Possible? 193 2.3.3.1 Democratic Legitimacy Deficits 193 2.3.3.2 On the Possibility of a Demos 199 2.4 Constitutionalism as Hegemony 204 2.5 Concluding Remarks: The Virtue of Constitutionalism 210 Part IV The Powers of the Human Rights Committee 213 1 Effectiveness, Consent, and the Question of Reservations 214 1.1 Arguing for Implied Powers 214 1.2 Emphasizing Attribution 221 1.3 Using One to Oppose the Other 224 2 Meeting the Doctrines on their Own Terms 231 2.1 Which Effectiveness? 232 2.2 What Consent? 237 3 Constitutionalism and the Human Rights Committee 240 3.1 Arguing in Favor of Judicialization 242 3.2 Potential Risks with Judicialization 246 3.2.1 The Committee Is Politicized 246 3.2.2 Disputes over Civil and Political Rights are Overlegalized 249

3.3 Democratic Legitimacy and the Committee 254 3.4 On the Difficulties of Democratization 257 3.4.1 Introducing Democratic Elements to the Committee. 257 3.4.2 Is There a Universal Conception of Human Rights?... 263 4 Concluding Remarks: Three Dichotomies and the Determination of Human Rights Committee Powers 269 Part V General Conclusion 274 1 A Recapitulation I 274 2 Contributions to Understanding Powers of Organizations 281 2.1 Revealing Different Aspects of "Who Decides" 281 2.2 In Prospect 284 Svensk sammanfattning Bibliography Index xv xxiii lxix