Legal Personality of International Organizations in the Absence of a Constituent Legal Instrument The Case of the OSCE

İçindekiler

PREFACE 7
TEŞEKKÜR 9
ACKNOWLEDGEMENTS 11
İÇİNDEKİLER 13
ABBREVIATIONS 17
BIBLIOGRAPHY 23
PART I:
INTERNATIONAL ORGANIZATIONS
A- Introduction 39
B- A Brief History of International Organizations 41
C- Definition 47
a) The Work of the International Law Commission 48
b) International Instruments 50
c) Literature 52
D- Classification 57
E- Legal Personality Under International Law 63
a) Traditional Approach: States Only 66
b) Contemporary Approach: Non-State Actors As Well 70
c) Theories of International Legal Personality of
International Organizations 74
i. Will Theory 74
ii. Objective Theory 81
iii. Theory of Presumptive Personality 86
F- Legal Personality of International Organizations Under Domestic Law 101
a) Relationship Between International and Domestic Legal Personalities of International Organizations 103
b) Basic Modalities of Implementing International Rules in National Plane 105
c) International Obligations Regarding Domestic Legal Personality of International Organizations 109
i. Treaty Norms 109
ii. Custom 111
d) Legal Standing of International Organizations Before National Courts: Dualist and Monist Schools at Work 112
G- Powers of International Organizations 121
a) Attributed Powers 122
b) Implied Powers 126
c) Inherent Powers 132
Concluding remarks 140
H- Manifestations of International Legal Personality-Specific Capacities 141
a) Privileges and Immunities Accorded to International Organizations 143
i. Legal Basis for According Privileges and
Immunities 144
ii. Legal Sources of Privileges and Immunities 149
1) Treaty Law 149
2) Customary Law 154
3) National Laws 158
iii. United Nations Convention on Privileges and Immunities in General 160
b) Treaty-Making Capacity of International Organizations 164
i. International Law Commission’s Work on the Law of Treaties 166
ii. Relationship Between International Legal Personality and the Treaty-Making Capacity 171
c) International Responsibility of International
Organizations 175
i. Relevance of Principles of State Responsibility 178
ii. Work of the International Law Commission on Responsibility of International Organizations 180
1) Elements of an Internationally Wrongful Act 182
2) Rules of Attribution of Conduct to an International Organization 183
3) Breach of an International Obligation 184
4) Responsibility of an International Organization in Connection with the Act of a State or Another International Organization 186
5) Legal Consequences for Member States of the
Non-Fulfilment by International Organizations of Their Obligations Toward Third Parties 189
iii. Work of the International Law Association on Accountability of International Organizations 198
I- Conclusions 200
PART II:
THE ORGANIZATION FOR SECURITY AND CO-OPERATION IN EUROPE
A- A Brief History of the OSCE 203
a) The Helsinki Process 205
b) The Helsinki Final Act 207
c) Institutionalization of the OSCE 209
B- Legal Nature of the Founding Documents of the OSCE and
of the OSCE Commitments 218
a) Politically Binding Commitments as Opposed to Legally Binding Obligations 218
b) Consensus Rule in Decision-Making 231
C- Efforts to Strengthen the Legal Status of the OSCE 239
a) The Rome Council Decision 240
b) Convention on the International Legal Personality, Legal Capacity and Privileges and Immunities of the OSCE 245
c) Statute of the OSCE 250
d) Other Options Under Consideration 251
e) Model Standing Arrangement 256
D- Legal Status of the OSCE and its Specific Capacities 258
a) Privileges and Immunities of the OSCE 259
b) Treaty-Making Capacity of the OSCE 266
i. Agreement on the Kosovo Verification Mission
of the Organization for Security and Cooperation in Europe 269
ii. Legal Arrangements Concluded by the OSCE 274
iii. Headquarters Agreement Concluded with Austria 279
c) International Responsibility of the OSCE 283
i. Draft Articles on Responsibility of International Organizations 284
ii. International Legal Personality and Legal System
of the OSCE as Determinative of its International Responsibility 286
iii. The Duty of Care of the OSCE 295
E- Theories Tested in the Case of the OSCE 303
a) Will Theory 303
b) Objective Theory 306
c) Theory of Presumptive Personality 311
F- Conclusions 314
TABLE OF CASES 319