1. University of Macerata 2014-2015 Prof. Avv. Roberto Baratta, PhD University of Macerata 2014-2015 Prof. Avv. Roberto Baratta, PhD International Organisations Law 2 International Organisations Law 2

2. A brief historical overview of the development of IOs It was not until the nineteenth century that the IOs were first established In that very period the international system of states became sufficiently stable to allow them to seek forms of cooperation. After the Westphalian Peace (1648), the practice of convening a so-called ‘international congress’ became a regular mode of diplomacy - whenever a problem arose a congress was convened to discuss it The most important example is the Congress of Vienna (1815) which ended the Napoleonic wars and lasted for decades First examples of cooperation: the Rhine Commission (1815) to deal with issues of navigation or pollution; other river Commissions were the Po Commission (1849) and the European Commission for the Danube (1849) Organisations also established by private citizens: Red Cross (1863) The Peace Conferences of The Hague was organised in 1899 and 1907. They approached universal participation, with 44 states being represented

3. As the river commissions showed, states were ready to sacrifice their sovereignties to favour cooperation in order to solve common problems Transport and communications were the other areas to manage common problems (in 1865 the International Telegraphic Union; in 1874 the Universal Postal Union and so forth) The case of Versailles Congress for the peace settlement following the First World War - The failure of the League of Nations which had a high profile political aim: to guarantee peace and the establishment of a system of collective security ******* IOs are legal forms of co-operation: international law is not only a law of co-existence, but becomes also a law of co-operation between States States are sovereign and powerful, but as the first forms of IOs show, they are ready sometimes to sacrifice their sovereign prerogatives to facilitate the management of common problems (Klabbers). IOs are forms of cooperation to pursue at best results MS alone cannot not achieve

4. The League of Nations The League of Nations was founded on 10 January 1920 at Geneva. It came into being as a result of the Paris Peace Conference that ended the First World War. Paris Peace ConferenceParis Peace Conference The President of the USA, Wilson, was convinced that the only way to avoid another disaster, was to create an international body whose sole purpose was to maintain world peace and which would sort out international disputes as and when they occurred. This would be the task of the League of Nations The League of Nation's task was simple - to ensure that war never broke out again. So, it was the first IO designed not just to organise co- operation between states, but to pursue a high political aim, i.e. to guarantee peace and the establishment of a system of collective security The League had a virtual unlimited competence of discussing anything that fell within the field of international relations

5. At its greatest extent from 28 September 1934 to 23 February 1935, it had 58 members. The League however failed to bring stability to the world the founding treaty made no meaningful distinction between great powers and small powers and made it possible for its MS to withdraw easily; that option was used inter alia by Germany and Japan, as did Japan, Italy, Spain, and others The USA never joined. The Senate refused to grant approval to ratify the Covenant. Moreover, the USSR was not admitted until 1934, and then expelled in 1939 after it invaded Finland. League ultimately proved incapable of preventing aggression by the Axis Powers in the 1930s. Germany withdrew from the League. The onset of the Second World War showed that the League had failed its primary purpose, which was to prevent any future world war. The League lasted for 26 years.

6. During the Second World War, in 1944, agreement was reached on the need to cooperate on monetary and trade issues, eventually leading to the creation of IMF and GATT. In Europe the Council of Europe and the OECD (Organisation of Economic Cooperation and Development) were created In 1951 the first supranational organisation was founded, i.e. the European Coal and Steel Community Due to the Cold War, the North Atlantic Treaty Organisation and the Warsaw Pact were founded, while east and west met in the OSCE (Organisation for Security and Cooperation in Europe) A number of IOs born in Africa, Asia and Australia Continents There is no part of the world which is not covered by the work of some IOs

7. Classifying IOs in terms of stated functions (some are active in economic fields, others in peace and security and so on) - the EU has developed from a purely economic organisation into one which pursue also social and political goals in terms of membership. Some IOs aspire to almost universal membership (the UN is a typical example of an open org. inviting all states to join). Others are regional O., limiting the membership to states located in a certain geographical region (for instance, Council of Europe and EU) or to states that have particular economic ties and interests, such as the Organisation of Petroleum Exporting Countries (OPEC), its membership spanning the globe, or the NATO (based on the values of Atlanticism) or the Organisation Internationale de la Francophonie in terms of being intergovernmental or supranational organisations. As to the former, the general rule is that the law-making decisions are taken by unanimity or consensus; IOs provisions have no direct effect within the domestic legal order of the MS; MS are not prevented from legislating in the field in which the IO could intervene

8. As to the latter, the EU is the only supranational organisation that is known worldwide. The most important EU features are: i) decision making is based on majority vote; ii) EU law attains supremacy over conflicting domestic law (Costa v. Enel case); iii) much of the EU law is directly applicable or directly effective in the legal system of the MS (Van Gend en Loos case); iv) MS have transferred parts of their sovereignty to the EU so that it stands above its MS (hence the term supranational); v) that attribution implies the so-called doctrine of pre-emption: not only EU law prevails over conflicting internal law, but MS action is no longer acceptable in some areas; vi) the MS are no longer in control of the EU destiny, they are no longer master of the treaties

9. The EU as a sui generis IO It cannot be compared to other IOs. By contrast, there are quite different views: - Constitutional lawyers are quite willing to see the EU as a sort of Constitution in progress beyond the nation states - Private lawyers prefer to consider EU just as a form of organising the market across frontiers; no more implications is perceived in institutional terms - Generally for international lawyers EU is a mere IO, perhaps a sui generis IO, but still an IO

10. ECJ Opinion 2/13: “…the EU is, under international law, precluded by its very nature from being considered a State” (para. 156) “the founding treaties of the EU, unlike ordinary international treaties, established a new legal order, possessing its own institutions, for the benefit of which the MS thereof have limited their sovereign rights, in ever wider fields, and the subject of which comprise not only those States but also their nationals” (para 157)

11. This “new kind of legal order, the nature of which is peculiar to the EU” … has “its own institutional framework and founding principles, a particularly sophisticated institutional structure and a full set of legal rules to ensure its operations” (para. 158). As a result: 1. the system of EU competences, as defined by the treaties, cannot be adversely affected by accession to international treaties (cf. para. 160); 2. the specific characteristics of the EU, such as the powers of its institutions, and particularly the ECJ competences according to Article 344 TFEU, must be preserved (cf. para. 161) 3. the ECJ “must review” whether an international agreement the EU institutions would like to conclude, is “in conformity … with the basic constitutional charter, the treaties” (para. 163); 4. the specific characteristics of EU and EU law include those relating to the constitutional structure of the EU, namely the principle of conferral of powers and its institutional framework (paras. 164 and 165)

12. In the ECJ’s perspective (Opinion 2/13), the EU is not a State; the specific characteristics arising from the very nature of EU law, are twelve: 1. EU law stems from an independent source of law, the treaties (para. 166) 2. the principle of primacy of EU law over the laws of the MS (para. 166) 3. the direct effect of a whole series of EU law provisions to the MS and their nationals (para. 166) 4. EU law possesses a structured network of principles, rules and mutually legal relations linking the EU and its MS, and its MS with each other, which are now engaged in ‘a process of creating an ever closer union among the peoples of Europe’ (Article 1 TEU) (para. 167) 5. the EU is based on a set of common values (Article 2 TEU) (para 168). 6. That implies and justifies the existence of mutual trust between the MS that those values will be recognised and, therefore, that the law of the EU that implements them will be respected (para. 168)

13. 7. At the heart of the EU legal structure are the fundamental rights recognised by the Charter (para. 169) 8. The autonomy enjoyed by EU law (in relation to both national law and international law) requires that interpretation of fundamental rights must be ensured within the framework of the structure and objectives of the EU (para. 170) 9. Fundamental rights must be respected not only by institutions, but also by its MS when they implement EU law (para. 171) 10. Internal market provisions and those concerning citizenship of the Union, the area of freedom, security and justice, and competition policy, are “a series of fundamental provisions” which are “part of the framework of a system that is specific to the EU", are structures in a way to contribute "to the implementation of the process of integration that is the raison d’être of the EU itself” (para 172)

14. 11. According to the principle of sincere cooperation, MS are obliged to ensure, in their respective territories, the application and respect for EU law (para. 173) 12. Instrumental for preserving the specific characteristics and autonomy of the EU legal order, is its judicial system which is intended to ensure consistency and uniformity in the interpretation of EU law (para. 174). Therefore, A) it is for the national courts and tribunals and for the ECJ to ensure the full application of EU law and to ensure judicial protection of individual rights under EU law (para. 175) B) the preliminary ruling procedure is the “keystone” of the judicial system since that procedure has the object of securing uniform interpretation of EU law (para 176)

15. To put it shortly, three macro-elements show the EU specificity with regards to other IOs 1. EU is founded on a set of fundamental rights for the benefit of EU citizens and individuals, its ultimate goal is in the long run to integrate in one single entity different European peoples within the EU supranational legal framework 2. EU enjoys a complex institutional system which looks like a state legal system, rather then an IO. EU has an impressive amount of competences and powers conferred to it by MS. Accordingly, MS have lost a corresponding portions of national sovereignty 3. The European Court of Justice (ECJ) has played a pivotal role in the construction of the EU integration process, as an autonomous legal order