EXECUTIVE SUMMARY

Universities are created with various legal status. Some are private, some are public (regional or national), and a few are intergovernmental. This last group concerns less than 20 institutions globally, and it is not well understood but those who are not familiar with the rules of international law.

For the first time, an article documents the existence of all the intergovernmental universities in existence and documents their legal status and degree-granting authority. This article is specifically written to correct the errors and mischaracterization contained in a report authored by Eyal Ben Cohen of Verifile Accredibase in 2011.

INTRODUCTION AND QUESTIONS

The International Universities Bureau (the Permanent Secretariat of the International Association of Universities at the UNESCO House) publishes a list of universities for each country, based on the information submitted by “the National Competent Bodies,” which are in most cases the National UNESCO Commission of the UNESCO Member States and the Permanent Delegations to UNESCO.

These national institutions are the ones included in the World Higher Education Database (WHED).

In addition to the purely national institutions listed in the WHED, the master list (“List of Universities of the World”) has a category called “regional / international institutions” historically included 5 entries, also validated with the National Competent Bodies:

• EUCLIDE (Pôle Universitaire EUCLIDE)
• European University Institute
• IMO International Maritime Law Institute
• United Nations University
• World Maritime University

These institutions are (2013) being transferred to the entry of their respective headquarters state, according to a process agreed upon by the United Nations Secretariat and the UNESCO-based IAU. Following the headquarters relocation of EUCLID from Bangui to Banjul (Gambia), the transfer process is being completed during the UNESCO General Assembly of November 2013.

However, interesting questions have been raised regarding these unusual, intergovernmental, institutions. Because these institutions are transnational in nature and governed by international law, the following questions may be asked – questions which are typically applicable to national universities but not always to international ones.

(A) Which country or countries has/have chartered or licensed these institutions to grant degrees?
(B) For each country, what is the evidence of the relevant Charter or License?
(C) For each country, what is the evidence of that country's listing of the institution(s) with UNESCO as a chartered degree giver?
(D) If the answer to (A) is "none," explain how the institution has gained degree granting status and provide appropriate documentation.
(E) If the answer to (A) is "none," explain what is the oversight body responsible for the granting of degrees by the institution(s)?
(F) If the institution claims to be a degree granter under a multi-national agreement, (a) state which nations are parties to this agreement; (b) provide a copy of the agreement and (c) provide evidence of a Charter or equivalent formal authorization to issue degrees in the same form as is used for other universities in at least one of those nations;
(G) Provide evidence that the multi-national agreement has the legal effect of establishing a degree granting entity with powers and rights equivalent to those of that nation’s other chartered degree-granters under the laws of at least one of the nations that signed it
(H) Provide evidence that all degrees issued by the institution are valid for use in all of the member nations of the multinational agreement or, if authorization/charter is claimed for only one nation, that nation.

AN “INTERNATIONAL / REGIONAL INSTITUTION”

The legal status and degree-granting authority of an international university needs to be understood and evaluated in relationship with and comparison to the other institutions that belong to this category, not in relationship to purely national (public or private) institutions. Incidentally, it is on account of this particular status that IAU does not include the “regional / international institutions” in the WHED database, because WHED is a purely national database.

This paper will therefore discuss, perhaps for the first time in a systematic manner, the legal status and degree-granting authority of these international universities by providing answers to the above questions for some of the institutions concerned.

This paper will also discuss the University of Peace, even though its Headquarters State (Costa Rica) seems to have opted to register it under its national entry. It will also review the case of the University of Central Asia (treaty published by the United Nations as UNTS I-37742), the University of Hamadan (UNTS I-13750), the Franco-Italian University, the Franco-German University (UNTS I-36482), Foundation University (UNTS-35898) and the Academy of European Law.

The University of the South Pacific and the University of the West Indies were established by an act of the British Crown, and are not considered international universities, even though they enjoy the support of several participating governments.

“GOVERNED BY INTERNATIONAL LAW”

International universities are, at least in most cases, like States and intergovernmental organizations, subject of international (not domestic or national) law.
“Treaties” (in their proper technical definition) are agreements among States that are binding upon them because they created “rights and obligations” and are “governed by international law” as well as by the Vienna Convention on the Law of Treaties of 1969:

“treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. (Article 2)

In this specific sense, treaties must be distinguished from instruments that have no legal effect (non-binding instruments) and the difference is always obvious from the text itself, as explained in Anthony Aust’s Modern Treaty Law and Practice (Appendix F/G:

“treaty = creates rights and obligations under international law”	“Not governed by international law = less than treaty status”
‘article’	‘paragraph’
‘agree’	‘accept’ ‘approve’ ‘decide’
‘agreement’ or ‘undertaking’	‘arrangement’ or ‘understanding’
‘authoritative’ or ‘authentic’	‘equally valid’
‘clause’	‘paragraph’
‘conditions’	‘provisions’
‘continue in force’	‘continue to have effect’
‘Done’	‘signed’
‘enter into force’	‘come into operation’ or ‘come into effect’
‘mutually agreed’	‘jointly decided’
‘obligations’	‘commitments’
‘Parties’	‘Governments’ or  ‘Participants’
‘Preamble’	‘Introduction’
‘rights’, ‘have the right’	‘benefits’, ‘be permitted to’
‘shall’ ‘undertake to’ ‘agree to’ or  ‘undertake’	‘will’ or  ‘decide’
‘terms’	‘provisions’
‘undertake’	‘carry out’

For instance, the Organization for Security and Co-operation in Europe was established by a non-binding text that is not governed by international law, which is why the OSCE does not have international legal personality.

Further, there are two aspects of these intergovernmental agreements that must be noted: (1) States (legally represented by their governments) can only be bound by their Head of State, Head of Government (Prime Minister), or Minister of Foreign Affairs. In addition, the accredited ambassador to an international organization (when the agreement is negotiated in that context) can also act on behalf of the State. Other Ministers and officials require permission by these so-called “big three” which is why either full powers or the mention “duly authorized thereto” is required for them upon signature but not for the “big three;” (2) generally speaking, these agreements are legally binding on the State parties regardless of domestic legislation, except for conflict with the country’s constitution (Article 27 and 46 of the Vienna Convention). In most cases, national constitutions provide that intergovernmental agreements have force of law equal or superior to domestic legislation.

Finally, all intergovernmental agreements having legal effect should be registered by the States (or one of the States or a depositary) in application of Article 102 of the United Nations Charter which reads:
“1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.
2.  No party to any such treaty or international agreement, which has not been registered in accordance with the provisions of paragraph 1 of this Article, may invoke that treaty or agreement before any organ of the United Nations.”

CATEGORIZING INTERNATIONAL UNIVERSITIES

As we shall see, not all “international universities” have the same legal status under international law.

The United Nations University, for instance, does not technically have a legal personality that is separate from the United Nations organization, which is why the “Agreement regarding the Headquarters of the United Nations University” was signed by the United Nations and Japan (not UNU and Japan).

Likewise, the World Maritime University does not technically have a legal personality that is separate from the International Maritime Organization, which is why the “Agreement regarding the World Maritime University” was signed by the IMO and Sweden (not WMU and Sweden).

The following table gives a summary (sorted by year of establishment) of the legal status of the institutions identified as falling in this broad category:

Institution	Est.	ILP?	Legal Status	Parent IGO	Charter	HQ
European University Institute	1972	Yes	Intergovernmental university	Self	Agreement between several EU Member States (no UNTS)	Italy*
United Nations University	1973	No	Autonomous institution within the UN	United Nations	UN GA Resolution	Japan*
University of Hamadan	1973	Yes	Intergovernmental university	Self	Agreement between France and Iran (UNTS)	Iran
Eastern and Southern African Management Institute (ESAMI)	1979	Yes	Intergovernmental organization and international university	Self	Agreement establishing the ESAMI	Tanzania*
University of Peace	1980	Yes	Intergovernmental organization and international university	Self	Agreement between several UN Member States (UNTS)	Costa Rica*
École Supérieure Multinationale des Télécommunications	1981	Yes	Intergovernmental organization and international university	Self (UNDP project)	Agreement between several AU Member States (no UNTS)	Senegal*
World Maritime University	1983	No	Institution within the IMO	International Maritime Organization	IMO GA Resolution	Sweden*
IMO International Maritime Law Institute	1988	No	Unclear, probably Institution within the IMO	IMO	Agreement between Malta and IMO (no UNTS)	Malta*
Academy of European Law	1992	No	Public Foundation	Not an IGO	International Statutes (no UNTS)	Germany
Franco-German University	1997	Yes	Network of Universities	Self	Agreement between France and Germany (partial UNTS)	France and Germany
Franco-Italian University	1998	No	Bi-national institution	Self	Agreement between France and Italy (no UNTS)	France and Italy
University of Central Asia	2001	Unclear	International university	Self (sponsored by Aga Khan Foundation)	Agreement between 3 UN Member States (UNTS)	Tajikistan, the Kyrgyz Republic, and Kazakhstan
African Virtual University	2003	Yes	Intergovernmental organization and international university	World Bank (sponsor)	Agreement between 8 AU Member States (no UNTS)	Kenya*
South Asian University	2007	Yes	International non-profit university	SAARC	Agreement between 8 UU Member States (no UNTS)	India
EUCLID (Euclid University)	2008	Yes	Intergovernmental organization and international university	Self	Agreement between several UN Member States (UNTS)	Central African Republic, Gambia*
Foundation University	2010	Undocumented	Binational institution	Self	Agreement between Turkey and Germany (partial UNTS)	Turkey

A RECENT CASE: EUCLID

To illustrate the information presented above, a recent case may be considered, since it led to the precise formulation of the questions presented in the introduction.

EUCLID (Euclid University, Pôle Universitaire Euclide) was established, “defined” and “constituted” as an international intergovernmental organization by joint means of two intergovernmental agreements approved by the duly authorized representatives of the Participating States in 2008. The “constitutive text” granted the institution international legal personality with a specific legal status and mandate (Article I) as well as Statutes (III).

The initial agreement which is EUCLID’s legal charter entered into force on 16 April 2008, upon second definitive signature, and the first two Participating States (Saint Vincent and the Grenadines + Sierra Leone ) have further formally indicated in writing that both this initial agreement and a revised agreement are “governed by international law” and “eligible for registration under Article 102 of the UN Charter” in order to confirm this date of entry into force under international law for registration with the United Nations under Article 102 cited above.

The updated intergovernmental agreement (revised to clarify “legal personality” as “international legal personality” and to ensure EUCLID’s eligibility for protection under Article 6ter of the Paris Convention) entered into force in 2009, upon second definitive signature. As is normative, the EUCLID headquarters agreement was then negotiated with a Participating State (in this case the Central African Republic), in accordance with the Statutes (II.2) and likewise filed as treaty with United Nations.

To date, 8 States are parties to the Updated Framework Agreement and have (a) either directly confirmed treaty status of their approval of both agreements with the General Counsel of the United Nations, Ms Patricia O’Brien, as part of a request for confirmation during the registration process for both instruments (UN request of May 2010), in accordance with the practice of the UN Secretariat-General, or (b) issued a letter, protocol or instrument of adoption (based on the UN-provided model ) that specifies the same. In addition, 3 States (Benin, Uganda, and Vanuatu) are only parties to the initial agreement but did not participate in the joint treaty filing under the Article 102 procedure of the United Nations, which is without prejudice to their status as EUCLID Participating States under international aw.

Accordingly, both instruments have been registered with and published by the United Nations Secretariat General under reference LA 41 TR/16092008 and UNTS Registration Numbers I-49006 / I-49007.

EUCLID is therefore technically speaking an “international intergovernmental organization,” having international legal personality together with a university mandate and statutes governed by international law. Another way to express this summary is that the multinational agreements pertaining to EUCLID are recognized as having the legal effect of ‘defining,’ ‘constituting,’ and ‘chartering’ such an institution.

DEGREE-GRANTING INSTITUTIONS?

Having clarified the legal context and provided specific information on the so-called “international universities,” we are now in a position to provide adequate answers to the questions mentioned in the introduction to this paper, we will demonstrate that the same overall legal status and procedures apply. Before doing so, let us list the institutions that are (either explicitly or implicitly) degree-granting:

Institution	Degree-granting	Comments
European University Institute	Yes	Explicit in constitutive text
United Nations University	Yes, since 2010	Explicit United Nations General Assembly Resolution
University of Hamadan	Yes	No mention in the agreement but implicit in the intention
Eastern and Southern African Management Institute (ESAMI)	Yes	Agreement not publicly available but appears to be explicit
University of Peace	Yes	No mention in the agreement but implicit in the intention
École Supérieure Multinationale des Télécommunications	Yes	Agreement not publicly available
World Maritime University	Yes	Explicit in IMO GA Resolution
IMO International Maritime Law Institute	Yes	Agreement not publicly available
Academy of European Law	Yes	Operates under German Law
Franco-German University	Yes	Explicit in constitutive text
Franco-Italian University	Unclear	Not implied in constitutive text
University of Central Asia	Yes	Explicit in constitutive text
African Virtual University	No	Not implied in constitutive text
South Asian University	Yes	Explicit in constitutive text
EUCLID (Euclid University)	Yes	Explicit in constitutive text
Foundation University	Yes	Agreement not publicly available

Even though it would be of interest to study every single one of the institution in great details, we will provide detailed answers to questions A-H only for some of the universities listed above: