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Published online by Cambridge University Press: 07 July 2009
Interdependency and the need to cooperate between states will continue to give increasing responsibilities to intergovernmental organizations that seek to benefit their membership by the management of international or regional problems of whatever kind. Simultaneous to this development, jurisdiction of international organization as a branch of public international law will require further research. As the scope of activities of international organizations will expand, the development of the law of international organizations must focus on the delicate balance of jurisdictions of organizations and their member states. The latter may be willing to subject themselves to the jurisdiction of an international organization but it is also their legitimate interest that the organization observes its purposes and powers. Constitutional interpretation and dispute settlement should safeguard such interests.
3. For a discourse on the process of globalization and ample literature on this subject see Malanczuk, P., ‘Globalization and the Future Role of Sovereign States’, in International Economic Law with a Human Face, Weiss, F. et al. , eds. (The Hague, Kluwer Law International 1998) pp. 45–65.Google Scholar
4. Jurisdiction of international organization is understood as the exercise and enjoyment of functions and rights based on the constituting treaty and international personality. Cf., Reparation for Injuries Suffered in the Service of the United Nations. Advisory Opinion, ICJ Rep. (1949) p. 174.
5. IMF's Constitution is called ‘Articles of Agreement of the International Monetary Fund’. The Articles of Agreement of the IMF and World Bank were both adopted at the Bretton Woods Conference (1–22 July 1944) and entered into force on 27 December 1945 in a joint ceremonial meeting.
6. 8 ILM (1969)p. 679Google Scholar; also in Trb. (1972) 51. For a discussion on the drafting of Arts. 31 and 32 of the Convention see Sinclair, I., The Vienna Convention on the Law of Treaties (Manchester, Manchester University Press 1973) pp. 69–75.Google Scholar
7. The Court consistently followed the principles and rules applicable in general to the interpretation of treaties, albeit a treaty having certain special characteristics. Cf., Certain Expenses of the United Nations, Advisory Opinion, ICJ Rep. (1962) p. 157. See also Lauterpacht, E., ‘Development of the Law of International Organization by Decisions of International Tribunals’, IV Recueil (1976) pp. 383–478Google Scholar. Amerasinghe, C.F., ‘Interpretation in Open International Organizations’, 65 BYIL (1995) pp. 175–209Google Scholar. Tetsuo, Sato, Evolving Constitutions of International Organizations (The Hague, Kluwer Law International 1997).Google Scholar
8. ‘Object’ and ‘purpose’ should not mistakenly be held to have the same meaning. ‘Object’ is the focus of attention or something that produces the interest of a treaty. An object may exist irrespective of the purposes of a treaty, but a purpose must be related to one or more objects. The meaning of ‘object’ comes clear in Art. 61 of the Vienna Convention explaining what happens once an object (permanently) disappears.
9. South West Africa Cases, Preliminary Objections, ICJ Rep. (1962) p. 336; Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), ICJ Rep. (1991) p. 69.
10. Generally, the approach taken by international courts and tribunals is to minimize the importance of supplementary means in the process of interpretation, cf., Amerasinghe, op. cit. n. 7, at pp. 200–202. For a discussion on the greatest reluctance of the Court to apply supplementary means of interpretation, see in McHugo, J., ‘The Judgments of the International Court of Justice in the Jurisdiction and Admissibility Phase of Qatar v. Bahrain: an Example of the Continuing Need for “Fact-Scepticism”’, 28 NYIL (1997) pp. 171–196CrossRefGoogle Scholar. According to McHugo, the ICJ even preferred to rely on the ordinary meaning, even if disputable, rather than to take recourse to the travaux préparatoires.
11. Lauterpacht, op. cit. n. 7, at p. 420.
12. Interpretation of Peace Treaties (second phase), Advisory Opinion, ICJ Rep. (1950) p. 229; South West Africa, Second Phase, Judgement, ICJ Rep. (1966) p. 48, para. 91.
13. Amerasinghe, op. cit. n. 7, at p. 203. Emphasis added.
14. Lauterpacht, op. cit. n. 7, at p. 460.
15. ICJ Rep. (1955) p. 106.
16. Lauterpacht, op. cit. n. 7, at p. 465.
17. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras with Nicaragua intervening), 11 September 1992, ICJ Rep. (1992) p. 585.
18. Under Art. 96(2) of the UN Charter the ICJ may give advisory opinions to specialized agencies on ‘legal questions arising within the scope of their activities’, after being authorized by the UN General Assembly.
19. Legality of the Use by a State of Nuclear Weapons in Armed Conflict. Advisory Opinion of the ICJ of 8 July 1996. ICJ Rep. (1996) p. 75. For a comment see Bekker, P.H.F. in 91 AJIL (1997) pp. 134–138Google Scholar. Quotes below are taken from the Advisory Opinion.
20. Many treaty regimes have their own procedures for changing the law, such as opting-out systems and majority decision-making. For a discussion see Fitzmaurice, M.A., ‘Modifications to the Principles of Consent in Relation to Certain Treaty Obligations’, 2 Austrian Review of International & European Law (1997) pp. 275–317.CrossRefGoogle Scholar
21. de Witte, B., ‘Rules of Change in International Law: How Special is the European Community?’, 25 NYIL (1994) p. 299, at p. 306CrossRefGoogle Scholar. Simma, B., ‘Consent: Strains in the Treaty System’, in Macdonald, R.St.J. and Johnston, D.M., eds., The Structure and Process of International Law, (The Hague, Martinus Nijhoff 1983) p. 485, at p. 494 et seq.Google Scholar
22. Hence, it is unclear whether the practice relating to Art. 27 UN Charter according to which abstentions by permanent members of the Security Council are not understood as preventing a nonprocedural decision, are the result of interpretation or some sort of amendment. The opinion of the ICJ is not entirely clear; see Legal Consequences for States of the Continued Presence of South Africa in Namibia, Advisory Opinion, ICJ Rep. (1971) p. 16, para. 22. Simma argues that the practice must be seen as an interpretation of Art. 27(3), by giving an ordinary meaning to ‘concurring votes’ in the light of object and purposes of the Charter. See Simma, B., The Charter of the United Nations - A Commentary, Simma, B., ed. (Oxford, Oxford University Press 1994) p. 449.Google Scholar
23. South West Africa, Second Phase, Judgment, ICJ Rep. (1966) p. 48, para. 91.
24. For references see Simma, op. cit. n. 22, at pp. 450–451.
25. For arguments see Simma, ibid.
26. Simma, ibid., at p. 451. Emphasis added.
27. Gold, J., Interpretation: The IMF and International Law (The Hague, Kluwer Law International 1996) p. 178.Google Scholar
28. Based on the closing sentence of Art. I of the Articles: ‘The Fund shall be guided in all its policies and decisions by the purposes set forth in this Article.’
29. Art. VIII of the Agreement Between the United Nations and the International Monetary Fund of 15 November 1947. In Selected Decisions and Selected Documents of the International Monetary Fund (1991) (hereinafter: Selected Decisions) pp. 535–541.Google Scholar
30. Gold, op. cit. n. 27, at p. 244
31. Advisory Opinion, op. cit. n. 19, para. 29.
32. Remarks of Managing Director Michel Camdessus before the UN ECOSOC on 11 July 1990. Printed in IMF Survey (30 July 1990) p. 235.Google Scholar
33. Statement made by Stanley, Fisher, First Deputy Managing Director, 26 IMF Survey (23 June 1997) p. 185.Google Scholar
34. Polak, J.J., ‘The Changing Nature of IMF Conditionality’, Essays in International Finance, No. 184 (1991) p. 19.Google Scholar
35. Summary Proceedings of the 1994 Annual Meeting of the IMF Board of Governors, Washington D.C. IMF, p. 32Google Scholar. A similar argument is brought forward by Martin, Feldstein, ‘Refocusing the IMF’, 77 Foreign Affairs (1998) No. 2.Google Scholar
36. Art. XV Sect. 1.
37. The SDR serves as basket of five currencies: Deutsche mark, French franc, Japanese yen, Pound sterling and American dollar. For a discussion on the future role of the SDR see the report of the ‘Seminar on the Future of the SDR’, in IMF Survey (1 April 1996).Google Scholar
38. For an overview see Selected Decisions (1991) pp. 381–387.Google Scholar
39. For a discussion see Edwards, R.W., International Monetary Collaboration (Dobbs Ferry, Transnational Publishers 1985) pp. 197–200.Google Scholar
40. Art. XVIII Sect. 2(b). The quota of a member determines the extent of participation in the Fund and derived from the quota calculations are made for the amount of the subscription, the voting right, the upper limit of access to the Fund's resources and the share in SDR allocations.
41. On this ‘link’ with development see Ferguson, T., The Third World and Decision Making in the International Monetary Fund (London, Pinter Publishers 1988) pp. 124–135.Google Scholar
42. Art. XVIII.
43. See e.g., statements made by Japan, Malaysia and the UK in Summary Proceedings of the 1994 Annual Meeting of the IMF Board of Governors, Washington D.C. IMF.
44. Quote from the G-7 communique at the Halifax Summit, 15–17 June 1995. Excerpts of the communique were printed in IMF Survey (3 July 1995).
45. Summary Proceedings, op. cit. n. 43, at p. 39.
46. Cf., IMF Survey (August 1994) p. 22.Google Scholar
47. The text of the amendment appeared in Summary Proceedings of the 1997 Annual Meeting of the IMF Board of Governors, pp. 277–280.
48. On the particular interpretation this purpose see: Gold, J., ‘To Contribute Thereby To (…) Development (…)’, 10 Columbia Journal of Transnational Law (1971) pp. 267–302.Google Scholar
49. This, however, has not prevented the IMF from creating special facilities (operational outside the Fund's General Resources) to meet the needs of developing countries. These facilities, such as the Structural Adjustment Facility and the Enhanced Structural Adjustment Facility, are financed through administered accounts consisting of profits gained from gold reserve sales or through loans and subsidies from member countries. Generally, programmes under these facilities are designed to remove obstacles to growth. The legal bases of these facilities were created through amendments which may explain the poor consistency with the Funds purposes. The relevant provisions in the IMF Articles are discussed in Denters, E., Law and Policy of IMF Conditionality (The Hague, Kluwer Law International 1996) p. 45.Google Scholar
50. James, H., International Monetary Cooperation Since Bretton Woods (Oxford, Oxford University Press 1996) pp. 143–144.Google Scholar
51. Memorandum to the Executive Board of the International Monetary Fund and the Board of Executive Directors of the World Bank of 30 March 1989. Whereas this document is referred to as ‘guidelines’, the accompanying letter (Doc. SM/89/54, 31 March 1989) states that ‘the President of the World Bank and the Managing Director have reached agreement on the attached text.’
52. The Keynes and White Plans were the most important contributions at the Bretton Woods Conference. Both plans appeared in Horsefield, J.K., The International Monetary Fund 1945–1965 Volume III: Documents (Washington DC., IMF 1969), pp. 3 et seq.Google Scholar
53. ‘Preliminary Draft Proposal for a United Nations Stabilization Fund and a Bank for Reconstruction and Development of the United and Associated Nations (April 1942)’. In Horsefield, op. cit. n. 52, at p. 39.
54. Report of the Netherlands delegation to the Bretton Woods conference, 1944. Unpublished, pp. 23–25.
55. Gold, J., Membership and Nonmembership in the International Monetary Fund (Washington D.C., IMF 1974) pp. 90Google Scholar et seq. Occasionally, however, the Fund has departed from this rule when considering applications for membership. A criterion for membership continued to be the ability to perform obligations imposed by the IMF Articles.
56. Art. IV IMF Articles. ‘Obligation Regarding Exchange Arrangements’.
57. Guitián, M., ‘The Unique Nature of the Responsibilities of the IMF’, IMF Pamphlet Series, No. 46 (1992).Google Scholar
58. A state that has given up its own currency in exchange for a single currency to be shared by more countries makes an important contribution to international monetary stability by reducing the number of currencies and consequently the number of exchange rates. If X IMF members would decide to share a single currency the number of currencies would be decreased by X minus 1. This argument could be carried further. If the community of states would decide to adopt a single currency to be used by all states, there would not be exchange rates and the IMF would be redundant. There would, however, be a need for a global monetary authority managing international liquidity and controlling inflation.
59. For discussions on the law of the ESCB see Smits, R., The European Central Bank – Institutional Aspects (The Hague, Kluwer Law International 1996).Google Scholar
60. Art. 105a of the TEU.
61. Art. 12 ESCB Protocol.
62. Art. 11.6 and Art. 12.1 ESCB Protocol.
63. Art. 14.3 ESCB Protocol.
64. Arts. 6.2, 30 and 31 ESCB Protocol.
65. Cf., Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1.
66. Art. 43.2 ESCB Protocol.
67. Art. 1 09 TEU.
68. Vienna Convention on the Law of Treaties, Art. 61. This condition would give reason to withdraw from a treaty. More specifically, the law of treaties recognizes that the disappearance of the treaty field of action may occur if ‘performance would, even if possible, be absurd, inappropriate and meaningless, because there is no longer any sphere or field of action to which the treaty relates, or in which performance can take place’, as argued by G. Fitzmaurice as Special Rapporteur of the International Law Commission on the Draft Convention of the Law of Treaties, Yearbook of the ILC (1956) Vol. II, para. 101Google Scholar. See also Reuter, P., Introduction to the Law of Treaties (London, Pinter Publishers 1989) p. 79Google Scholar. However, the Vienna Convention would not need to be invoked by an IMF member as the IMF Articles provide for withdrawal without any further explanation or condition. Procedures for withdrawaL from membership are explained in Art. XXVI. Section 1 stipulates: ‘Any member may withdraw from the Fund at any time by transmitting a notice in writing to the Fund at its principal office. Withdrawal shall become effective on the date such notice is received.’
69. Gold, J., Exchange Rates in International Law and Organization (Washington DC., American Bar Association 1988) p. 518.Google Scholar
70. The Board of Governors consists of one Governor and one Alternate appointed by each member. The members of the Board exercise weighted voting rights and meet annually. Most international organizations require Statehood for membership, i.e., the United Nations, Council of Europe, Organization of American States, Organization of African Unity, International Labour Organization, World Health Organization, United Nations Educational, Scientific and Cultural Organization, International Civil Aviation Organization and other specialized agencies.
71. Schedule A of the IMF Articles. See further J. Gold, op. cit. n. 55, at p. 48. At the Bretton Woods conference, non-State entities participated which were not fully independent then, such as the Philippine Islands. Nevertheless, ‘The Philippine Commonwealth’ could be included in the list of original IMF members, as membership was open to countries. The Philippine Republic was formally proclaimed on 4 July 1946.
72. Ibid., p. 469.
73. Cf., Art. VIII Sect. 5 (vi).
74. As stated in the ‘Introduction’ of the Balance of Payments Statistics Yearbook.
75. Balance of Payments Manual (1977) Chapter 2, para. 37.Google Scholar
76. Cf., the headings of paragraphs in the Treaty on European Union.
77. Art. 26.3: ‘For analytic and operational purposes, the Executive Board shall draw up a consolidated balance sheet of the ESCB, comprising those assets and liabilities of the national central banks that fall within the ESCB.’
78. Art. 5 ESCB Protocol.
79. Also see the conclusion of Smits, op. cit. n. 59, at p. 443.
80. ‘The principal office of the Fund shall be located in the territory of the member having the largest quota (…).’ Art. XIII Sect. 1 Articles.
81. On ‘Quota formulas’ see Roncesvalles, O. and Tweedie, A., ‘Augmenting the IMF's Resources’, 28 Finance and Development (12 1991) No. 4, pp. 26 et seq.Google Scholar
82. Art. IV Sect. 3.
83. Expressed by Brazil in Summary Proceedings of the 1977 Annual Meeting of the IMF Board of Governors, p. 91.
84. Comments by India in Summary Proceedings of the 1978 Annual Meeting of the IMF Board of Governors, p. 73. See also the comments of Bangladesh, ibid., p. 176: ‘We urge the Fund to set appropriate guidelines and to establish clearly defined institutional procedures related to these of the Fund's resources (…) guidelines should limit the performance criteria to aggregate variables, paying due regard to the considerations of growth of the member countries, and should also be responsive to the prevailing economic and social conditions.’
85. Communiqué of 22 September 1978 of the Group of 24, reprinted in de Vries, M. Garritsen, The International Monetary Fund 1972–1978, Vol. III (Washington D.C., International Monetary Fund 1985) pp. 654–657.Google Scholar
86. Gold, J., ‘IMF Conditionallity’, IMF Pamphlet Series, No. 31 (1979) p. 15.Google Scholar
87. For a discussion see de Vries, M. Garritsen, The International Monetary Fund 1972–1978, Vol. I (Washington D.C., International Monetary Fund 1985) pp. 500–506.Google Scholar
88. Gold, J., ‘Political considerations are prohibited by Articles of Agreement when the Fund considers requests for use of resources’, IMF Survey (23 May 1983) p. 146.Google Scholar
89. Gold, op. cit. n. 86, p. 23.
90. The Guidelines were built on the Declaration on Partnership for Sustainable Global Growth by the Interim Committee, adopted on 29 September 1996. The Declaration promotes ‘good governance in all its aspects, including by ensuring the rule of law, including the efficiency and accountability of the public sector, and tackling corruption, as essential elements of a framework within which economies can prosper.’
91. According to Guideline 9 of the 1979 Guidelines.
92. For a commendable account see Dell, S., ‘On Being Grandmotherly: the Evolution of IMF Conditionally’, Essays in International Finance. Princeton University, No. 144 (1981)Google Scholar. See also Denters, op. cit. n. 49, at pp. 68–93.
93. Guidelines, paras. 9–10.
94. 1979 Guidelines on conditionality, para. 7. Italics mine.
95. Adopted by the Negotiating Conference on 20 November 1997. Cf. also the Revised Recommendation on Combating Bribery in International Business Transactions, adopted by the Council of the OECD on 23 May 1997, c(97)123/FINAL; printed in 36 ILM 1016 (1197).
96. Active bribery is understood as giving or promising a bribe, whereas passive bribery refers to the behaviour of an official who receives a bribe.
97. UNGA Res. 51/191 of 16 December 1996.
98. 1997 Guidelines, para. 10.
99. Ibid., para. 13.
100. Ibid., para. 20.
101. Developing countries (in the G-24) emphasize ‘the need to avoid the application of conditionalities based on subjective judgments in these areas (i.e., governance and the reduction of corruption) and to ensure uniformity of treatment of members based on objective criteria.’ IMF Survey, 6 October 1997, p. 307Google Scholar. See also the report of the conference ‘Good Governance for Africa: Whose Governance’, organized by the Universiteit van Limburg and the European Centre for Development Policy Management, Maastricht, November 1995. Also available at www.oneworld.org/ecdpm/pubs/govahk.htm.
102. Cf., UNDP's policy document Governance for Sustainable Human Development, (New York, UN 1997)Google Scholar. Also available at http://magnet.undp.org.policy.
103. The inaptitude of ‘good governance’ as a condition for development assistance is also reflected in the Lome IV-bis Convention in which human rights, democratic principles and the rule of law ‘constitute an essential element’ of the Convention. In contrast ‘good governance’ only applies as ‘a particular aim of cooperation operations’. Art. 5, Lome IV-bis Convention, in The Courier No. 155, (January-February 1996). For comments see Arts, K., ‘Principles of Cooperation for Development in ACP-EC Relations’, in Denters, E. and Schrijver, N., eds., Reflections on International Law from the Low Countries in Honour of Paul De Waart (Dordrecht, Kluwer Academic Publishers 1997) pp. 86–97Google Scholar; and King, T., ‘Human Rights in the Development Policy of the European Community: Towards a European World Order?’, 28 NYIL (1997) p. 51.CrossRefGoogle Scholar
104. The Group of Seven communique appeared in IMF Survey (25 July 1994) p. 242Google Scholar. The G-7 agreed to discuss the Bretton Woods institutions in Halifax in the summer of 1995. In Halifax only initial proposals were made to prepare multilateral institutions for the challenges of the next century, IMF Survey (3 July 1995) p. 203.Google Scholar