The Concept and Nature of International Institutional Law
International institutional law is a body of law that dares to make a systematic study of the institutional problems which arise or may arise in all or most international organizations. International institutional law has to be distinguished from the general law of international organizations, as the former is limited in scope to the institutional aspects of the said organizations.
A writer named Jenks described the law governing the structure and general operations of public international organizations as the ‘personal law of the organization that governs its corporate life.’ He writes :
If a body has the character of an international body corporate, the law governing its corporate life must necessarily be international in character; it can not be the territorial law of the headquarter of the body corporate or any other municipal legal system as such with out destroying its international character. The law governing its corporate life will naturally cover such matters as the membership of the body, its competence, the composition and mutual relations of its various organs, their procedure, the rights and obligations of the body and its members in relation to each other, financial matters, the procedure of constitutional amendment, the rules governing the dissolution or winding up of the body and the disposal of its assets in such a contingency. It may also cover the mutual relations of the body, its members and its various organs in respect of matters involving third parties.
From the above reading, it can conclusively be inferred that the law governing the corporate aspects of international organizations is inevitably international in character, and hence it is international law in essence. As it has been said above, international institutional law focuses on the institutional and related law of public international organizations. To be specific, it normally covers such subjects as the interpretation of texts, membership, budgeting, international personality and capacities of the organization in issue.
When a study is made into international institutional law, a focus is bound to be made on the international organization that is being the focal point of the study. Each organization has its own features deserving a separate treatment of its own. In connection with this, Amerasinghe:
There are still no general rules or principles relating to international bodies corporate to which we can automatically turn when in search of their personal law. We have no recognized body of such rules or principles even as regards the existing types of international body corporate; as regards possible further types of international body corporate we are entirely in a realm of speculation. For the existing types we have the constituent instrument of each of the bodies concerned, amplified somewhat by its constitutional practice, and calling for interpretation in accordance with the general principles of treaty interpretation recognized by international law.
The theme of the above quotation suggests that there is no ‘law’ of international organizations but there are ‘laws’ of international organizations. One author stated that since the law governing each organization is to be found in or flows from its constitution, and constitutions are individualized instruments, there can be no general law nor general principles of applicable to all or several organizations.
Though each international organization has its own unique features in terms of its institutional operations and the law applicable to it, it does not mean that there is nothing in common between international organizations of different characters. To use the words of. Amerasinghe, uniformity or similarities exist; for instance, in the general principles which apply (e.g. in interpretation) as a result of the application of conventional law (e.g. privileges and immunities), in customary international law which applies (e.g. responsibility of and to organizations) as a result of the applications of general principles of law ( e.g. ultavires and employment relations) and because there are (may be ) similarities in constitutional texts of different international organizations.
The followings are the significant and distinctive features of international institutional law in general:
- the constitutional texts and law creating practices of any organizational will establish law for that particular organization which law will not necessarily and as such be binding on other organizations (e.g. amendment and structure of organs);
- where constitutional texts are similar, the interpretation or development by practice of those texts by one organization may, however, provide precedents or guidelines for another organization ( e.g. membership);
- In some areas customary international law as being generally applicable will govern (e.g. responsibility of and to organizations and interpretation of texts.);
- there are general principles of law which are applied across the board in certain areas (e.g. the doctrine of ultra vires and employment relations);
- certain presumptions and implied principles (sometimes flowing from relevant judicial decisions) will apply as general law in the implementation and interpretation of organizational constitutional law( e.g. international personality, liability vis-à-vis third parties of members of an organization for its obligations); and
- In some areas general conventional law may be relevant to the operation of all or most. Organizations (e.g. immunities and privileges).
With all the above background, we can embark up on looking at the African Union law as part of the international institutional law.