Mid Semester Evaluation for International Organization Law (IUP) Class A and Class B

Dear sudents of IOL,

I wish to send my deepest apologies for sending this very VERY late. You may have already seen your grades, but I will display them again at the end of this post. Now I understand that many of you might want to ask further as to why you got such grades. I wish to ask you to read this post first before you come up to me. I do not wish to explain the same things twice.

Evaluate yourself first and then come to me if you still have questions. If you end up meeting me and the questions you ask indicate that you did not read this post (inter alia, you ask questions which can be answered by reading this post), it meant that you have not read this post or did not read it properly. In such a case, expect a point deduction. So be careful.

These are the evaluation of the questions of the mid semester exams, and after that you will find your grades (you may have already seen them, but I’ll just put it up here anyways).

QUESTION EXPLANATIONS

Question 1: “International Organization Law” vs “International Institution Law”

Explanation

In “international institutional law” the core topics are limited to only the institutional makeup of an international organisation, whereas in “international organisation law” not only do we study the institutional makeup, but also the legal principles used in the establishment and operation of the organisation. This latter study is also open to a comparative perspective, thereby juxtaposing one international organisation with another to see common principles in their legal regimes and practice. Full marks will be given to those who, in addition to the above, mention how Schermers and Blokker explain that comparative study is essential in improving the structure and functioning of international organisations.

Common Mistakes

The typical mistake made by students include merely saying that “IOL is more broad than IIL” without explaining to what extent is IOL broader and why is it preferable (while sometimes broader words are less preferable than more specific ones).

Other mistakes include the use of the word “makeup”, many of you do not seem to understand what the word means or even how to use it in a sentence (or both).

Many students did not mention Schermers and Blokker’s proposition, thus making good answers still incomplete.

Question 2: The Binding Nature of IO Decisions to Members and Non-Members

Explanation

The easy answer to the question is for members it depends on the constitutive instrument (it can be binding and can be non-binding), and not binding for non-members due to the principle of pacta tertiis nec nocent nec prosunt. Although it is very helpful for students to provide examples, such as how WTO and UN Security Council Chapter 7 Resolutions can be binding, while UN General Assembly resolutions are non-binding.

It is helpful also for students to point out that resolutions of an IO can be binding to non-members, in case of the UN Security Council or other resolutions which may reflect customary international laws.

Common Mistakes

Quite a number of students answer that it depends on whether or not the IO is a supranational organization. If it is then it is binding for members, then if otherwise then no. I cannot rule out this answer because there is some truth in it. Supranational IOs may indeed pass binding resolutions. However, this answer cannot give full scores either because there are various examples of non-Supranational IOs passing binding resolutions (i.e. the UN and the WTO).

Other mistakes say that resolutions can be binding for non-members if they consent to it. Well, technically yes they can be bound because of their consent, but that does not make the resolution binding. Some even mention ratification, which is only available in international treaties and not towards IO resolutions.

Question 3: Supranational vs Intergovernmental Organization

Explanation

Among the key differences are: horizontal relations between states in intergovernmental against a vertical organization-state relation in a supranational; the existence of a communal law above domestic law in the latter; in addition supranational organizations tend to rely on autonomous budgets and binding dispute settlement procedure.

Students may substitute breadth for depth in answers, but full marks require comparison, and relevant, specific examples.

Common Mistakes

The most common reason full marks were not awarded was a lack of clear examples to substantiate their answer.

A number of students omit a comparison between the two types, which constitute a minor mistake.

Students mentioning the UN without analysis of its mixed nature (SC and GA) also bars full marks.

Question 4: Making Claims against IOs

Explanation

This is also a very simple question requiring a simple answer: find forums that do not require jurisdiction. Negotiations and even mediation is possible. More creative answers can point to Arbitration.

Common Mistakes

Many students mention the ICJ as an alternative, which is just not true. ICJ can only deal with state to state disputes.

Other students mention waiver, which is not entirely incorrect because it is not entirely impossible. Although, if they even agree to make the waiver in the first place, why wont they just negotiate? Not to mention that waiver of immunity usually speaks of immunity of persons, which is a different case. This only answers disputes arising due to the conduct of particular individuals representing the IO, but not disputes arising out of the IO’s decisions and possible implications it may have.

The worst answers to this question explain how claims CAN indeed be made against IOs, as if the question was whether or not claims can be made. These students assumed that the question was “can a claim be made against an international organization?” Unfortunately that was not the question. Rather, the question is HOW.

The above mistake, as some answers indicate, seems to be because the question says “may a claim be made against an international organization?”. However, this is a case of either serious recklessness or awful English reading skills, because the full sentence was “How, then, may a claim be made against an international organization?” (with emphasis)

Question 5: Absence of Unilateral Withdrawal Clause in ASEAN

Explanation

Full marks require students to show they understand the debate around unilateral withdrawal (and thus to have at least read the relevant chapters of Amerasinghe’s book), and then present a logical opinion in ASEAN context.

There are scholars who view that unilateral withdrawals are supposed as legal absent clauses prohibiting it, and vice versa; the debates centered on the application of the relevant VCLT clauses (ie. Art 54). Students should bear in mind or show they are aware of this in their answers.

The opinion aspect require students to demonstrate a consistent and clear line of reasoning to their arguments; there are no wrong answers only those poorly argued. ASEAN’s goals and organization structure are key contexts to base your arguments.

Common Mistakes

The opinions of law students require legal basis. The most common mistake is a lack of awareness on the legality of unilateral withdrawal with or without a specific clause. Lacking this legal context, the value of opinions are reduced and judged on their own internal logic.

Thus, the most common mistake is that students do not show what contribution that a unilateral withdrawal clause generally have, or the effects of its absence.

Another common theme is a lack of reasoning/internal logic in recommendation, ie. the assumption of mass withdrawal without assessing how such a clause facilitates such action, or a deeper insight into ASEAN’s context.

THE GRADES