Ige F. Dekker

Making sense of accountability in international institutional law

This contribution focuses on the accountability of international governmental organisations as a conceptual problem. To that end it gives a quite extensive summary of the Final Report of the International Law Association on the subject and examines whether accountability can be conceptualise as an actual or potential part of the existing legal system of international organisations. Mainly because of the underlying traditional approach to international (institutional) law, it is asserted that the ILA does not really succeed in this objective. Inspired by a more realistic view of the plurality of modern legal systems – as developed by the institutional legal theory – an alternative legal concept of accountability of international organisations is presented. Based on the fundamental value that legal power entails legal accountability, the legal concept covers all situations of alleged non-compliance by international organisations with a legally valid – but not necessarily also legally binding – rule of international law. For the time being such a concept will be heavily contested in theory and practice. However, for that very reason it can help to stimulate the development of international institutional law as long as the international legal community actually believes in the fundamental value and the divergent views only concern the content of the rules and practices involved in the accountability of international organisations.

Governance by International Organizations: Rethinking the Normative Force of International Decisions

The proliferation of international organizations of states and of norm-setting organs within these organizations has resulted in a large variety of types of decisions on the international level of administration.1 International organizations have shown a need for varying types of decisions to be able to respond to the need of establishing integration in different areas in a balanced manner (sometimes compelling, other times more directing). Reasons can be found in the necessity to find a balance between the process of integration and the degree of freedom of member states to continue setting their own policies, and the fact that citizens are often directly affected by decisions of these organizations. Each organization knows its own specific decision-types, but some well-known decision-types of the European Union can also be discovered in other international organizations.2

On the foundations and sources of international law

Foundations.- The Completeness of International Law and Hamlets Dilemma: Non liquet, the Nuclear Weapons case, and Legal Theory*.- The Genuine Link Concept: Time for a Post Mortem?.- Sources.- On International Customary Law in the Netherlands.- The Role of State Practice in The Formation of Customary International Humanitarian Law.- From Dyestuffs to Kosovo Wine: from Avoidance to Acceptance by the European Community Courts of Customary International Law as Limit to Community Action.- Some Remarks on the Effect of the Termination of a Treaty under Article 70 of the 1969 Vienna Convention on the Law of Treaties.- Some Observations on The Consequences of The Termination of Treaties and The Reach of Article 70 of The Vienna Convention on The Law of Treaties.- Epilogue.- Herman Meijers 1923-2000.

The Completeness of International Law and Hamlet's Dilemma

The aim of this paper is to examine whether the possibility of a genuine non liquet is ruled out by a so-called ‘closing rule’underlying public international law. The answer to this question largely determines the relevance of the debate on the legality and legitimacy of the pronouncement of a non liquet by an international court. This debate was recently provoked by the Advisory Opinion of the International Court of Justice on the Legality of the Threat and Use of Nuclear Weapons. In this opinion, the Court held that it could not definitively conclude whether the threat or use of nuclear weapons was contrary to international law in an extreme circumstance of self-defence in which the survival of a state is at stake. Nevertheless, some authors have argued that, since international law contains a closing rule stating that the absence of a prohibition is equivalent to the existence of a permission (or vice versa), the Court had in fact decided the legality of nuclear weapons. By virtue of this closing rule, the pronouncement of a non liquet would be impossible. In our analysis, we have taken issue with this view and claim that there are no a priori reasons for the acceptance of a closing rule underlying international law. It is possible indeed that a legal system is simply indifferent towards a certain type of conduct. Moreover, even if a closing rule would be assumed, this rule would be of no help in determining the legality or illegality of the threat and use of nuclear weapons, since the Court asserted that the current state of international law and the facts at its disposal were insufficient to enable it to reach a definitive conclusion. Nothing follows from this assertion, except the assurance that international law cannot definitively settle the question of the legality of the threat or use of nuclear weapons: to be permitted or not to be permitted, that is still the question. Hamlets dilemma precisely.

Identities of states in international organizations

In academic debates on the responsibility of international organizations and their member States the different identities of States play a crucial role. However, apart from the difficulty to clearly separate ‘State’ and ‘member State’ identities, it is even more complex to distinguish between the different roles ‘member States’ may have in the framework of international organizations. As a general introduction to this special forum, this essay aims to clarify the different identities and roles States may have in relation to international organizations, especially in the context of the responsibility of international organizations. As the subsequent contributions reveal, the law on the international responsibility of international organizations takes account of the possible responsibility of their members. By mapping the different identities States may have in different settings, this contribution argues that such differentiations may be crucial for the further development of adequate international rules on the responsibility of international organizations and their members.

Necessity Across International Law: An Introduction

Necessity plays a significant role in any legal system as unpredictable or extraordinary situations can require the adoption of measures departing from the normally applicable law in order to protect basic values and fundamental interests. International law is not an exception. The admissibility of the adoption of measures on grounds of necessity has been accepted by international courts and tribunals, in state practice, including international conventions, as well as in doctrine.