JOBNAME:Brolmann PAGE:1 SESS:5 OUTPUT:ThuAug1616:33:582007 THE INSTITUTIONAL VEIL IN PUBLIC INTERNATIONAL LAW This book deals with the nature of international organisations and the tension between their legal nature and the system of classic, state-based international law. This tension is important in theory and practice, particularlywhenorganisationsarebroughtundertheruleofinternational law and have to be conceptualised as legal subjects. The position is complicated by what the author terms ‘the institutional veil’, comparable to the corporate veil found in corporate law. The book focuses on the law of treaties, as this pre-eminently ’horizontal’ branch of international law brings out the problem particularly clearly. The first part of the book addresses the legal phenomenon of international organisations, their legal featuresasindependentconcepts,thehistoryofinternationalorganisations and of legal thought in respect of them, and the development of contem- porary law on international organisations. The second part deals with the practice of international organisations and treaty-making. It discusses treaty-making practice within organisations, judicial practice in interpreta- tion of organisations’ constitutive treaties, and the practice of treaty- making by organisations. The third and final part analyses the process by which international organisations have been brought under the rule of the written law of treaties, offering a practical application of the conceptual framework as previously set out. Part three is at the same time an analytic overview of the drafting history of the 1986 Vienna Convention on the LawofTreatiesbetweenStatesandInternationalOrganisationsorbetween International Organisations. This is a profound and penetrating examina- tion of the character of international organisations and their place in international law, and will be an important source for anyone interested in the future role of organisations in the international legal system. ColumnsDesignLtd / Job:Brolmann2ndProofs / Division:01_Prelims /Pg.Position:1/ Date:18/6 JOBNAME:Brolmann PAGE:2 SESS:5 OUTPUT:ThuAug1616:33:582007 Hart Monographs in Transnational and International Law Series Editor: Craig Scott, Professor of Law, Osgoode Hall Law School of York University, Toronto The objective of this series is to publish high-quality scholarship in public internationallawandprivateinternationallaw,aswellasworkthatadopts ′transnationallaw′asitsthematic,theoreticalordoctrinalfocus.Theseries strives to be a leading venue for work of the following sort: * critical reappraisals of foundational concepts and core doctrinal principlesofbothpublicandprivateinternationallaw,andtheiroperation in practice, including insights drawn from general legal theory; * analysis and development of conceptions of ’transnational law’, including in relation to the role of unofficial law and informal processes in transnational regulation and in relation to theories and studies of ’governance’ in transnational spheres; and * empirical studies of the emergence, evolution and transformation of international and/or transnational legal orders, including accounts and explanations of how law is constructed within different communities of interpretation and practice. The series will also be home to monographs that explore the interactions between the ever-integrating fields of public and private international law. Of special interest are explorations of the extent to which these interactions are structured by higher-order principles and policies, on the one hand, and by politics and the exercise of various forms of power, on the other hand. The series is open to work not only by law scholars but also by scholars from cognate disciplines. Titles in this series Volume 1: Terrorism and the State: Rethinking the Rules of State Responsibility Tal Becker Volume 2: Transnational Law and Local Struggles: Mining, Communities and the World Bank David Szablowski ColumnsDesignLtd / Job:Brolmann2ndProofs / Division:01_Prelims /Pg.Position:2/ Date:18/6 JOBNAME:Brolmann PAGE:3 SESS:7 OUTPUT:ThuAug1616:33:582007 The Institutional Veil in Public International Law International Organisations and the Law of Treaties CATHERINE BRÖLMANN ColumnsDesignLtd / Job:Brolmann2ndProofs / Division:01_Prelims /Pg.Position:1/ Date:19/6 JOBNAME:Brolmann PAGE:4 SESS:9 OUTPUT:FriAug1714:10:112007 PublishedinNorthAmerica(USandCanada) byHartPublishing c/oInternationalSpecializedBookServices 920NE58thAvenue,Suite300 Portland,OR97213-3786 USA Tel:+15032873093ortoll-free:(1)8009446190 Fax:+15032808832 E-mail:[email protected] Website:www.isbs.com ©CatherineBrölmann2007 CatherineBrölmannhasassertedherrightundertheCopyright,DesignsandPatentsAct 1988,tobeidentifiedastheauthorofthiswork. Allrightsreserved.Nopartofthispublicationmaybereproduced,storedinaretrieval system,ortransmitted,inanyformorbyanymeans,withoutthepriorpermissionofHart Publishing,orasexpresslypermittedbylaworunderthetermsagreedwiththeappropriate reprographicrightsorganisation.Enquiriesconcerningreproductionwhichmaynotbe coveredbytheaboveshouldbeaddressedtoHartPublishingattheaddressbelow. HartPublishing16cWorcesterPlace,Oxford,OX12JW Telephone:+44(0)1865517530Fax:+44(0)1865510710 E-mail:[email protected] Website:http://www.hartpub.co.uk BritishLibraryCataloguinginPublicationData DataAvailable ISBN-13:978-1-84113-634-9(hardback) TypesetbyColumnsDesignLtd,Reading PrintedandboundinGreatBritainby TJInternationalLtd,Padstow,Cornwall ColumnsDesignLtd / Job:Brolmann2ndProofs / Division:01_Prelims /Pg.Position:2/ Date:17/8 JOBNAME:Brolmann PAGE:5 SESS:8 OUTPUT:ThuAug1616:33:582007 For J. and H. ColumnsDesignLtd / Job:Brolmann2ndProofs / Division:01_Prelims /Pg.Position:3/ Date:16/8 JOBNAME:Brolmann PAGE:6 SESS:6 OUTPUT:ThuAug1616:33:582007 ColumnsDesignLtd / Job:Brolmann2ndProofs / Division:01_Prelims /Pg.Position:4/ Date:18/6 JOBNAME:Brolmann PAGE:1 SESS:4 OUTPUT:ThuAug1616:34:132007 Acknowledgments Many people have contributed to the completion of this book, both in an academic and in a personal context. The basis of this book is a PhD project; I confirm my heartfelt gratitude to the persons named in the preface of the edition concluding that project. In relation to the present book some names have to be mentioned in particular.IamindebtedtoJanKlabbers,foragenerousexchangeofideas on treaties and organisations over the years; and to Susan Marks for valuable advice on conceptualisation and on final drafting of the text. I am especially grateful to Niels Blokker, Martti Koskenniemi, André Nollkaemper and Nigel White, for acute comments and critical observa- tions to the text at various stages. The making of this book has furthermore benefitted from the opportu- nities of academic collaboration with Malgosia Fitzmaurice, and from the valuable insights on publication of Erika de Wet. I thank my colleagues of the International Law Department of the Universiteit van Amsterdam for stimulating discussions; and the Lauter- pacht Centre for Research in International Law of the University of Cambridge, as well as Queen Mary College of the University of London, for offering the archetypal research environment during a period of writing. Many thanks go to Murat Aydemir for his friendship and advice on matters including academic law and cultural analysis. Finally, I thank Janne Nijman for a substantive intellectual and personal contribution to this book. Amsterdam 1st September 2006 ColumnsDesignLtd / Job:Brolmann2ndProofs / Division:02_acknowledmentsHARTcmb /Pg.Position:1/ Date:16/8 JOBNAME:Brolmann PAGE:2 SESS:3 OUTPUT:ThuAug1616:34:132007 ColumnsDesignLtd / Job:Brolmann / Division:02_acknowledmentsHARTcmb /Pg.Position:2/ Date:18/4 JOBNAME:Brolmann PAGE:1 SESS:8 OUTPUT:FriAug1714:16:492007 Summary Contents List of Abbreviations xv 1 Introduction 1 Part One International Organisations as International Legal Actors 9 2 The Nature of International Organisations 11 3 Conceptions of a New Legal Actor 35 4 The United Nations Era 65 Concluding Remarks to Part One Part Two International Organisations and Treaty Practice 99 5 International Organisations as a Forum for Treaty-making 101 6 Constitutive Treaties of International Organisations 113 7 Treaty-Making by International Organisations 125 Concluding Remarks to Part Two Part Three International Organisations and the Conventional Law of Treaties 141 8 Towards a Codified Law of Treaties for International Organisations 143 9 The 1986 Vienna Convention: Preliminary Questions and Procedural Aspects 181 10 The 1986 Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations 197 Concluding Remarks to Part Three 11 The Invisible Continent: Concluding Remarks 251 Annexes Annex I. Table of comparison: Articles 1986 Convention and Articles 1969 Convention 274 Annex II. Table of comparison: Articles 1986 Convention and draft Articles 1982 274 Annex III. Articles of the 1969 Convention marked as ‘problematic’ for the purpose of the 1986 Vienna Conference 275 ColumnsDesignLtd / Job:Brolmann2ndProofs / Division:SummaryContents /Pg.Position:1/ Date:17/8