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2020 | Book

Membership in International Organizations

Paradigms of Membership Structures, Legal Implications of Membership and the Concept of International Organization

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About this book

This book proposes that fundamental concepts of institutional law need to be rethought and revised. Contrary to conventional wisdom, international organizations do not need to have members, and the members do not need to be states and international organizations. Private sector entities may, for instance, also be full members. Furthermore, international organizations do not need to possess international legal personality, nor is their autonomy a corollary of their personality. Moreover, the notion of “subject of international law” also needs to be reconsidered and the very concepts and definitions of “intergovernmental organization” and “international organization” need to change and be defined in a wider manner.
In this publication the legal implications of membership are analyzed and a new analytical framework for international organizations is proposed and the argument is propounded that the power of creation of new organizations has passed over to international organizations and other entities while an outlook on future development is also presented.
Dr. Gerd Droesse is a recognized specialist in institutional law, international administrative law, complex institutional and financial policy matters and corporate governance issues, with over 30 years of experience in working for international organizations in senior and management positions. He was the Legal Counsel/Acting General Counsel of the Green Climate Fund and assisted the World Green Economy Organization as General Counsel in its transition to a new type of intergovernmental organization.

Table of Contents

Frontmatter
Chapter 1. Introduction
Abstract
This chapter discusses the basis and outline of this book and the main themes of this book. One core thesis is that international organizations do not need to have members and that membership does not need to be confined to states and a few international organizations. Private sector entities and other stakeholders may be subjects of membership as well. Also, the chapter highlights the need for substantial changes to current concepts of “subject of international law” and “international legal personality” and stresses the need for a new definition of international organization. In addition, a dynamic rather than a static concept of international organization is warranted not only to achieve an accurate understanding of the special characteristics of certain international organizations, but also in relation the interactions of the various governing bodies of international organizations. Hence, the book proposes fundamental changes to current concepts of international law and the law of international organizations.
Gerd Droesse
Chapter 2. Historic Evolution of Membership Concepts
Abstract
This chapter analyses historic perspectives of membership and traces the development of the international private unions (IPUs) and international administrative unions (IAUs) established in the 19th century to today’s international organizations. The purpose of the chapter is not to provide facts but to show connections, e.g. between the establishment of the IPUs and the recent emergence of a new type of dual and hybrid organization which has become a new business model for establishing international organizations. Also, the fact that previously international organizations have admitted both technical administrations and dependent territories to membership on a par with states is of relevance for the discussion on eligible subjects of membership. The chapter also highlights the differences between membership concepts and collective security concepts (with regard to relations with non-members) of the League of Nations and the UN, as well as the emergence of treaty bodies and quasi-autonomous bodies established under the auspices of the United Nations, and the proliferation, privatization of international organizations and new institutional paradigms.
Gerd Droesse
Chapter 3. Concepts of International Organization and Membership
Abstract
This chapter discusses the classification of international organizations in different ways, such as: according to (i) the manner of their establishment (public and private organizations); (ii) the division of power (legislative, administrative, and judicial organizations);” (iii) “the extent of authority and power of the organization vis-à-vis states: policy-making, operative and supranational organizations;” (iv) the scope of their activities (general or special organizations), or (v) in relation to their membership structures. These classifications are generally discussed with reference to traditional international organizations with treaty foundation. It is one of the themes of the book that the above approach is too narrow and that classifications as mentioned above should also comprise international organizations without a treaty base. The classification of an international organization does not depend on the mode of its establishment but on its functions. The book also shows that region is a political concept not a geographic one and discusses the many connotations of region for organizations legal and institutional frameworks. In addition, the chapter reviews in detail the definitions and concepts of membership, the difference between membership and representation, and certain cases where such distinction increasing gets blurred.
Gerd Droesse
Chapter 4. Decline or Disaggregation of the Nation State, Dichotomy of Public and Private and Constitution and Constitutionalization
Abstract
This chapter discusses the decline, or, as Slaughter has shown, the disaggregation of the nation state. It highlights that it is possible, as a matter of principle, that forms of cooperation between regulatory agencies or other sub-state actors may also qualify for recognition as international organization based on progressive institutionalization. It is proposed that international organizations should transform themselves into fora and platforms that involve a great variety of stakeholders, including, inter alia, sub-state actors. The public-private distinction, “which stands out as one of the grand dichotomies of Western thought”, also increasingly became blurred, as the borderline between public and private international law is moving. Also, the way between international and non-governmental organizations has become a two-way road, and whether an entity should be classified as public or private, often is a policy decision and has nothing to do with the process of its creation or the representation arrangements in its governing bodies. Public authority may also be exercised by private-sector entities. The chapter also discusses the concept of constitution, the transformational potential of constituent agreements, and constitutionalization in relation to the membership structures and legal and policy frameworks of international organizations. While the constituent agreement establishing an international organization is frequently seen as a hybrid of treaty and constitution, an international organization does not need to be established by a treaty, nor does its constitution need to be adopted as a treaty. This is shown with several examples and it is substantiated that the constitution adopted by a plenary body of an international organization may have similar functions as a constitution adopted by a treaty; it may also be the basis for the external action of the organization. In addition, the chapter reviews the various implications of the discussion on constitutionalization and discusses the connotations of the “fragmentation, pluralization, verticalization (and privatization) of international law”, the role of the private sector, and implications of governance structures for the legitimacy of international organizations.
Gerd Droesse
Chapter 5. Membership in International Organizations
Abstract
This is a core chapter of the book. It shows that—contrary to conventional wisdom—international organizations do not need to have members as (i) the parties to the organization’s constituent agreement do not need to become members. Also, (ii) a membership structure is not suitable for all international organizations, especially international organizations producing global public goods or fighting global public bads, and effectively, there are international organizations without a formal membership structure. Also, traditional membership concepts are predicated on the club theory, and in this context, on the correlation of benefits and obligations resulting from membership. However, such traditional concepts of international organization are not suitable, or only suitable to a very limited extent, for new types of organizations producing global public goods for fighting global public bads. In addition, they lose importance as an eligibility criterion even for traditional organizations with a treaty base. The chapter discusses different types of membership and subjects of membership. While it is firmly established that states, international organizations, and dependent territories are eligible subjects of membership, the question whether corporations and other transnational actors may be full members of international organizations is generally not even raised, let alone answered. There is no reason why such forms of institutionalized participation should be excluded. It conceivable that there may be international organizations with a membership structure consisting entirely of corporations and other non-state actors. Affiliate or sector membership of private sector entities and other transnational actors should be encouraged. Moreover, international organizations should become hubs, platforms and fora for a great variety of actors, including sub-state actors. This chapter also reviews membership procedures and various classifications of such procedures based on the number of organs that are involved in the approval of the membership process, based on the criteria adopted for the review process and relating to different subjects of membership.
Gerd Droesse
Chapter 6. Subjects of International Law and International Legal Personality
Abstract
The chapter proposes that a wider concept of “subject of international law” is required. It recalls the concepts of sovereignty and subject of international law which were distinct and broader in the middle ages that in the time after the Peace of Westphalia, as this underlines that the notion of subject of international law may be thought about in a much wider context that its current application. International law has no intrinsic constraint against the recognition of entities other than states or intergovernmental organizations as subjects of international law. Hence, a new class of dual or hybrid organizations established under national law but with recognition of its international legal personality by its home country and other countries has emerged. These organizations may be classified as subjects of international law and as international organizations. Moreover, the concept of “subject of international law” is broader than that of “international legal personality”. Hence, organizations characterized by “institutional ambivalence by design”, such as OSCE, may qualify for recognition as subjects of international law and as international organizations, if it is established that they are acting on the international plane. Moreover, also organizations established as trust funds may qualify for recognition as subjects of international law. This is shown with regard to Global Environment Facility and the Credit Guarantee and Investment Facility established as a trust fund of ADB. It is demonstrated that current theories of international law are not adequately suited to international organizations established as trust funds. As regards international legal personality, the chapter focuses on three issues: First, it shown that international legal personality is not a requirement for membership. Second, international legal personality does not need to be conferred to an organization at the time of its establishment, in the constituent agreement or otherwise. Hence, organizations may acquire international legal personality subsequently, based on bilateral or multilateral agreements which recognize their international legal personality or legal capacity, or through a variety of other means. Third, entities established as a subsidiary body or as a financial mechanism of an international convention may possess international legal personality. Whether this is the case, is not to be determined with reference to the mode of their establishment but based on their functions and the position which recognized subjects of international law have adopted in their regard. Moreover, the legal status of the European Agencies is reviewed. It is also discussed whether a conference or meeting of the parties to a multilateral convention may establish an international organization with international legal personality.
Gerd Droesse
Chapter 7. Changing Concepts of Intergovernmental Organization and International Organization
Abstract
This chapter reviews various paradigms of international organization not established by a treaty and the concepts of and definitions of “intergovernmental organization” and “international organization”. The term “intergovernmental organization” needs to be interpreted in a wider manner to comprise a wide range of international organizations not established by a treaty, including organizations created pursuant to a decision of the conference of the parties to a multilateral convention or organizations established as trust funds. Furthermore, an intergovernmental organization” does not necessarily need to be defined as a public international organization. Hence, also dual and hybrid organizations incorporated under national law may qualify as “intergovernmental organizations”. However, this term is intrinsically problematic as it excludes all organizations not established by government and should, therefore, only be used if warranted by law. As regards the term “international organization”, the current definition of that term by the International Law Commission was coined in the specific context of the work of the Commission on the responsibility of international organizations and needs to be understood in this context. It is not suitable to be given a general application. The term “international organization” should not be understood to comprise only public international organizations. Rather, given the evolution of public international law, dual and hybrid organizations incorporated under national law are a new paradigm of international organization. However, the term “international organization” is broader than “intergovernmental organization”. Therefore, also organizations which are not established by agreement between governments or which do not have predominantly or exclusively states as members may qualify for recognition as international organization. The need for new concepts of “intergovernmental organization” and “international organization” is a corollary of new trends and developments in international law. It is related to the fact that the number of participants in the international legal system is increasing. In this context, a wider definition of international organization is required to include certain actors that were previously classified as nongovernmental. Such broader definition is also necessary as the borderline between public and private is shifting. The public and private and governmental and nongovernmental dichotomies can only capture the legal nature of international organizations to a limited extent. In the past, organizations that were not established by governments, and with representation arrangements not involving government representatives, were ipso facto relegated to the realm of non-governmental organizations. However, such an approach is no longer appropriate.
Gerd Droesse
Chapter 8. Membership and Privileges and Immunities
Abstract
The chapter shows that privileges and immunities are intrinsically related to membership concepts. In their member countries, privileges and immunities are generally extended to international organizations under their constituent agreements, and under multilateral agreements and/or headquarters agreements and other bilateral agreements. Moreover, there are instances where countries have extended privileges and immunities by way of a unilateral decision or through other arrangements. In certain cases, privileges and immunities may transform, the status of an organization. Privileges and immunities are increasingly viewed critically and there is wide-spread recognition that they do not afford untrammeled freedom for international organizations to conduct themselves as they deem fit. Both international courts and the national courts of organizations’ member countries scrutinize whether international organizations have complied with requirements of due process. In some cases, courts have made such compliance a condition for the grant of privileges and immunities, and it is being discussed whether adopting such an approach is advisable in contractual matters but also in the case of claims based on tort. A serious problem, in particular, for regional organizations and organizations of limited membership, is how to ensure the protection of the organization in non-member countries. In this regard, it is shown that at times it may be advisable for international organizations to renounce to privileges and immunities, limited to the enforcement of international arbitration awards, in those areas where they enjoy absolute immunity of jurisdiction. In doing so, they gain certainty of the law, as they have a better chance of enforcing arbitration awards. Finally, legal regimes applicable to privileges and immunities are fragmented and there is a lacuna in the regulatory framework of privileges and immunities, as there is a widening group of persons who, while contributing in an official capacity to the production of global public goods or the fight against global bads, are not covered by any privileges and immunities. New solutions are needed for the protection to this class of persons.
Gerd Droesse
Chapter 9. Legal Implications of Membership
Abstract
This chapter shows that, based on the club principle, membership has multiple legal implications and ramifications. One of the major benefits of membership in international organizations is that members have the right to participate in organizations’ decision-making procedures and be represented in the organizations’ governing bodies. However, traditional state–centric representation mechanisms based on a three-tier governance structure involving governing bodies composed exclusively or predominantly of state-appointed representatives increasingly have become questionable with regard to their functionality, inclusiveness and legitimacy. Substantial benefits may be gained from transforming organizations into multi-actor structures which give, in addition to states and international organizations, also other stakeholders a voice in decision-making. Moreover, there are new trends relating to organizations’ decision-making procedures which may be considered being given a wider application in international organizations. In this context, this chapter focuses on the challenges faced by international organizations regarding their legitimacy, the functionality of their traditional three-tier systems, and their decision-making procedures. As regards organizations’ funding mechanisms, three issues are raised. First, to enhance their effectiveness and impact, international organizations should explore alternative sources of funding, including the private sector, philanthropy, civil society, foundations, and crowd sourcing. Second, new funding mechanisms need to be designed for organizations producing global public goods. Third, special issues apply in the case of international financial institutions, whose capital structures and governance structures are intrinsically linked with membership concepts as they involve the members in their quality of shareholders. The legal structures of concessional windows of international financial institutions, on the other hand, are based on membership concepts only in those cases where they were established as international organizations with international legal personality and legal capacity under national law, but not in those instances where concessional resources are administered under one legal personality together with ordinary capital resources. Depending on the legal structure of concessional windows, different constraints and challenges apply for enhancing their effectiveness by leveraging resources on capital markets. Moreover, linkages exist between membership structures and operational modalities and procurement.
Gerd Droesse
Chapter 10. New Concept of International Organization
Abstract
This chapter elaborates a new analytical framework for the definition of international organization. It shows that neither establishment by an international agreement, nor membership or international legal personality should be part of a definition of international organization. Moreover, the autonomy of international organizations should not be exclusively be analysed under the aspect of the relations of an organization with its members. For being able to classify an entity as international organization, it is to be determined whether a cooperative undertaking is institutionalized to the extent that it can classified as an “organization”. Such classification generally requires that the purpose and functions of the organization have been defined and that it has organs through which it can act. Moreover, a classification as mentioned above requires that an entity enjoys political autonomy and institutional independence. The “political autonomy” refers to the classical notion of “volonté distincte”, while institutional independence relates to the “extent to which international organizations constitute a legal order distinct from the general international legal order”. Another important criterion is whether an organization is competent to perform some of the core functions which any international organization needs to perform, such as the such as the power to approve a budget, appoint the head of the Secretariat and decide on policies, procedures and operational activities. Also, an international organization must act on the international plane. Whether this is the case is an institutional fact and depends on the organization’s functions and the position which recognized subjects of international law have adopted in its regard. It is also shown that the power of creation of new international organizations has passed over to international organizations and other actors. Moreover, the chapter discusses future challenges on international organizations.
Gerd Droesse
Backmatter
Metadata
Title
Membership in International Organizations
Author
Dr. Gerd Droesse
Copyright Year
2020
Publisher
T.M.C. Asser Press
Electronic ISBN
978-94-6265-327-6
Print ISBN
978-94-6265-326-9
DOI
https://doi.org/10.1007/978-94-6265-327-6