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The Enforcement Authority of International Institutions

Published online by Cambridge University Press:  06 March 2019

Volker Röben

Extract

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One of the most striking features of international institutional law that emerges from the several cases studies collected in this issue is that enforcement authority is now vested in international institutions alongside the more familiar types of public authority almost as a matter of course. Enforcement of international law by international institutions needs to be distinguished from other closely related concepts of public authority that are in turn the subject of closer studies collected in this issues. As discussed by von Bogdandy, Dann and Goldmann, international institutions often dispose of an implementation authority which in turn is subject to a branch of international institutional law. The responsibilities and indeed the authority of international institutions do not stop at the mere implementation of their legal base. However, enforcement involves a categorically different exercise of public authority. It concerns the interaction with another subject of law. Insofar as enforcement essentially empowers an international institution to confront States it deeply interferes with the sovereign's conduct, and its very existence may seem counterintuitive.

Type
Cross-cutting Analyses
Information
German Law Journal , Volume 9 , Issue 11: Special issue - The Exercise of Public Authority by International Institutions , 01 November 2008 , pp. 1965 - 1986
Copyright
Copyright © 2008 by German Law Journal GbR 

References

1 See von Bogdandy, Dann & Goldmann, in this issue.Google Scholar

2 See Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements 311 (1995).Google Scholar

3 See von Bogdandy, Dann & Goldmann, in this issue.Google Scholar

4 Obviously, the terminological designation given to the several mechanisms is not of primary importance and may be subject to debate.Google Scholar

5 de Wet, in this issue.Google Scholar

6 Farahat, in this issue.Google Scholar

7 von Bogdandy & Goldmann, in this issue.Google Scholar

8 See most recently, S/RES/1822 (2008).Google Scholar

9 See Friedrich, in this issue.Google Scholar

10 See Windsor, in this issue.Google Scholar

11 Moravcsik, Andrew, Disciplining Trade Finance: The OECD EXport Credit Arrangement, 43 International Organization 173 (1989).Google Scholar

12 See Brunnée, J, Enforcement Mechanisms in International Law and International Environmental Law, 3 Environmental Law Network International Review 3, 11 (2005) (“non-complying parties are most likely to be states with genuine capacity limitations.”).Google Scholar

13 See Klabbers, Jan, Compliance Procedures, in International Environmental Law 995, 990 (2007) (giving examples). See also Friedrich, in this issue (considering Implementation Assistance provided by FAO to States under the Code of Conduct for Responsible Fisheries).Google Scholar

14 See Klabbers, Jan, Compliance Procedures, in International Environmental Law 995 (Daniel Bodansky, Jutta Brunnée & Ellen Hey eds., 2007).Google Scholar

15 However, the threat of sanctions such as export restrictions is not excluded should the Party fail to meet the commitments indicated by the MOP, see Klabbers (note 14), at 997.Google Scholar

16 See Láncos, in this isssue.Google Scholar

17 In the recent past, several more such regimes have come into existence. A recent example from 2005 is the so-called Liability Annex (VI) to the 1991 Protocol on Environmental Protection in Antarctica, which, e.g., puts the Antarctic Treaty Secretariat in charge of the contingency funds. See Bederman, D. J. & Keskar, S. P., Antarctic Environmental Liability: The Stockholm Annex and Beyond, 19 Emory International Law Review 1383 (2005).Google Scholar

18 See Less, in this issue.Google Scholar

19 This is, of course, a somewhat idiosyncratic way of looking at the mandate of the ICHEI. For a detailed analysis, see Less, in this issue.Google Scholar

20 Available at: http://www.unfccc.de/cop7/documents/accords_draft.pdf. The legal status of the Marrakech Accords is a decision of the COP/MOP, not a separate international treaty. This does not, however, affect its bite since the Accords will be treated as having the same legal quality as the KP itself.Google Scholar

21 For discussion, see Láncos, in this issue.Google Scholar

22 The procedure established under the Cartagena Protocol on Biosafety includes rules on the admissibility of submissions, admissible information, and on the measures that can be taken against the Party concerned. See Dec. UNEP/CBD/BS/COP-MOP/1/15 (14 April 2004), Annex.Google Scholar

23 See Fuchs, in this issue.Google Scholar

24 See Zacharias, in this issue.Google Scholar

25 General Conditions IBRD, Art. VII; also OP 13.50.Google Scholar

26 See Röben, Volker, Managing Risks to Global Stability, in International Law Today: New Challenges and the Need for Reform? 51 (Doris König, Peter-Tobias Stoll, Volker Röben & Nele Matz-Lück eds., 2008).Google Scholar

27 See Wolfrum, in this issue.Google Scholar

28 See Smrkolj, in this issue.Google Scholar

29 See Kaiser, in this issue.Google Scholar

30 See Feinäugle, in this issue.Google Scholar

31 See Schuler, in this issue.Google Scholar

32 See Friedrich, in this issue.Google Scholar

33 For instance, international registration by WIPO bestows upon the applicant the exclusive right to prevent unauthorized third parties from using the trademark in the territories of the designated contracting parties; the enforcement of which right, however, would have to take place in the national courts.Google Scholar

34 See Kaiser, in this issue.Google Scholar

35 See Feinäugle, in this issue.Google Scholar

36 It is obvious that the mere fact that an international institution finds a State to be in violation of its international obligations will in itself often enforce that obligation.Google Scholar

37 See Schöndorf-Haubold, in this issue.Google Scholar

38 See Schuler, in this issue.Google Scholar

39 Decision 24/CP.7 Annex, Art. XV.Google Scholar

40 Decision 25/CP.7 plus annex, adopted at the eighth plenary meeting of the Conference of the Parties to the UNFCCC (Doc. FCCC/CP/2001/13/Add.3 [21 January 2002], at 64–77). Similarly, the Montreal Protocol's non-compliance procedure was adopted by that Protocol's MOP (Doc. UNEP/OzL.Pro.10/9 [3 December 1998], Annex II).Google Scholar

41 See Friedrich, in this issue.Google Scholar

42 See Farahat, in this issue.Google Scholar

43 Esty, Daniel C., Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 Yale Law Journal 1490, 1510 (2006).Google Scholar

44 See Wolfrum, in this issue.Google Scholar

45 See Láncos, in this issue.Google Scholar

46 Olav Schram Stokke, Jon Hovi & Ulfstein, Geir, Introduction and Main Findings, in Implementing the Climate Change Regime 1, 11 (Olav Schram Stokke & Geir Ulfstein eds., 2005); Láncos, in this issue.Google Scholar

47 This may still explain much of the workings of some of the most effective international institutions such as Interpol (see Bettina Schöndorf-Haubold, in this issue). Given the strong preference of competent national authorities for cooperating with each other through Interpol, the chance of being factually barred from further cooperation arguably makes any formal enforcement of the cooperative requirements superfluous.Google Scholar

48 Eberhard Schmidt-Aßmann, Das allgemeine Verwaltungsrecht als Ordnungsidee (2nd ed., 2004); see also Eberhard Schmidt-Aßmann, Die Herausforderung der Verwaltungsrechtswissenschaft durch die Internationalisierung der Verwaltungsbeziehungen, 45 Der Staat 315 (2006). The present paper owes much to this publication, which is itself firmly rooted in the German administrative law tradition. This assumes a primarily inductive, reality-driven reasoning, while complementarily inductive, constitutional-law driven reasoning is not excluded per se. Google Scholar

49 On the methodology applied here, see Adrian Vermeule, Mechanisms of democracy: institutional design writ small (2007).Google Scholar

50 See Pereira, in this issue.Google Scholar

51 See Friedrich, in this issue.Google Scholar

52 See, e.g., Duncan Snidal, Barbara Koremenos & Lipson, Charles, The Rational Design of International Institutions, 55 International Organization 761 (2001). I shall follow these assumptions for the purpose of this paper making abstraction from the rich literature on the identity and aspirations of institutions.Google Scholar

53 See, e.g., Barrett, Scott, An Economic Theory of International Environmental Law, in International Environmental Law 231, 249–52 (Daniel Bodansky, Jutta Brunnée & Ellen Hey eds., 2007).Google Scholar

54 See Barrett, Scott, An Economic Theory of International Environmental Law, in International Environmental Law 231, 252 (Daniel Bodansky, Jutta Brunnée & Ellen Hey eds., 2007).Google Scholar

55 See Weiler, Joseph, The European Court of Justice in the Arena of Political Integration, 31 Journal of Common Market Studies 417 (1993).Google Scholar

56 This implies a matter of public choice. The involvement of many particularly many developing countries in the treaty regime may have to be traded off with the set up of an effective system of sanctions approved by a smaller group of states. Of course, the trade off may change over time as the system matures.Google Scholar

57 Niklas Luhmann, Das Recht der Gesellschaft (2004).Google Scholar