INTERNATIONAL
ORGANIZATIONS
LAW REVIEW
International Organizations Law Review 5 (2008) 1–23
www.brill.nl/iolr
The Paradox of International Institutional Law
Jan Klabbers
Professor of International Organizations Law, University of Helsinki;
Director, Academy of Finland Centre of Excellence in Global Governance Research
I
The question whether there really exists such a thing as a discipline – or
sub-discipline – of international institutional law provokes a host of subsequent questions. If a sub-discipline, then what is it a sub-discipline of? If it
does exist as a separate discipline or sub-discipline, does it include EU law?
Does it only cover the institutional bits and pieces of EU law? Has EU law
itself become a separate discipline or sub-discipline? And if the latter, does
that mean it is a sub-discipline of the law of international organizations?
Questions galore, and the answers will remain difficult to find, dependent
perhaps more on the perspective adopted by those trying to formulate an
answer than by anything “out there in the real world.” In a sense, therewith
the question whether there is a sub-discipline or discipline of international
institutional law is Begriffsjurisprudenz par excellence, and thus perhaps
not particularly interesting. What makes it interesting though, is precisely
that asking the question invites some further questions, and invites some
soul-searching into the heart of the discipline – if, indeed, a discipline is
what it is.
As a matter of academic sociology (the sociology of science, if you will), it
would seem obvious that there is a (sub-)discipline of international institutional law. There are, after all, professors with chairs in the discipline; there
are not very many of these, and they seem to be concentrated foremost in
© Koninklijke Brill NV, Leiden, 2008
DOI: 10.1163/157237408X326138
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Klabbers / International Organizations Law Review 5 (2008) PP
the Netherlands,1 but still, the fact that there can be such chairs to begin
with would suggest some unity, some sense of a discipline hanging together
(this is one important aspect) without being reducible to another (this is a
second important aspect).2 One would be hard put to find a chair in, say,
customary international law; this is usually subsumed under international
law generally. One would also be hard pressed to find a chair in, e.g.,
maritime delimitation; while there are people specializing in this, they will
usually do so within the framework of a chair in the Law of the Sea.
So, if chairs are the sociological yardstick, then a separate discipline can
be said to exist. Likewise, there exists a journal specialized in the topic.
Admittedly, it is a young journal, only about to enter its fifth year, and it
too has a strong connection to the Netherlands,3 but still: the existence of a
journal often enough marks the coming of age of a sub-discipline; in which
case one may have to draw the somewhat awkward conclusion that such
1)
This includes Niels Blokker at Leiden University, and Pieter Jan Kuyper at the University
of Amsterdam (both chairs are part time). And hot off the press: Utrecht University, it seems,
has also created a special chair for the law of international organizations, to be occupied
by Ige Dekker. When I was a student, during the mid-1980s in Amsterdam, the chair in
EU law also covered international institutional law, and additionally the Faculty employed
a full-time lecturer in the topic. I currently hold a chair in international institutional law,
nominally full-time but for a limited duration. This owes much to university management:
the external funding on which it is based was granted for a five-year period. Moreover, it
temporarily replaces a previous full-time chair in international law, and is thus perhaps best
seen as a clever financing move: it does not mean (for better or worse) that I can spend my
time doing only institutional law, although, admittedly, much of my research has more or
less naturally developed in that direction.
2) In the German-speaking world, chairs in public law may explicitly include international
institutional law. This can be seen, again, as an indication of there being a separate discipline
within public law.
3) The International Organizations Law Review was first published in 2004, and was created as the result of an inspired meeting, over a few beers, between Niels Blokker, Ramses
Wessel and the undersigned in Café Luxembourg in Amsterdam, sometime in the summer
of 2002. Blokker and Wessel function as its editors in chief, whereas the present author
is its book review editor. It ought to be noted though that a journal called International
Organization has existed since the late 1940s: it started out being devoted to the study of
international organizations (including legal aspects), but has increasingly distanced itself
from that mission and for some decades already refers to itself as a journal on international
political economy.
Klabbers / International Organizations Law Review 5 (2008) PP
3
disciplines as the history of international law,4 or international criminal law,5
or international environmental law,6 or even the curious one of international
dispute settlement,7 all matured before international institutional law. This,
however, is belied to some extent by yet another indicator: the separate existence of specialized textbooks. For here, international institutional law can
boast a tradition going back to the 1960s, something neither international
criminal law, nor international environmental law, much less international
legal history, can claim for themselves. The first textbooks specializing in
international institutional law go back to the early 1960s, with Bowett’s being perhaps the most relevant of the lot; the first textbooks on international
criminal law, by contrast, only started to appear in the new millennium,8
having been preceded by about a decade by textbooks on international
environmental law.9
4)
The Journal of the History of International Law was first published in 1999.
5)
There are at least two journals specializing in the matter: the International Criminal Law
Review (since 2001), and the Journal of International Criminal Justice since 2003. Moreover,
while not nominally devoted to international criminal law, Criminal Law Forum has done
a lot to pave the way for the two more specialized journals. One may perhaps also mention
the recently revived Yearbook of International Humanitarian Law, although purists might
insist on the distinction between international criminal law and international humanitarian
law.
6)
Think Review of European Community and International Environmental Law, published
since 1992; think Yearbook of International Environmental Law, published since 1990.
7)
The awkwardly named The Law and Practice of International Courts and Tribunals was
established some two years earlier than IOLR, in 2002. For a fine analysis of this particular
new branch, see Thomas Skouteris, “The New Tribunalism: Strategies of (De)Legitimation
in the Era of International Adjudication”, 17 Finnish Y.B. Int’l L. __ (forthcoming).
8) See, e.g., Kriangsak Kittichaisaree, International Criminal Law (2001); Antonio Cassese,
International Criminal Law (2003).
9)
The first of these was Alexandre Kiss & Dinah Shelton, International Environmental Law
(1991), followed by Particia W. Birnie & Alan Boyle, International Law and the Environment (1992), and Philippe Sands, Principles of International Environmental Law (1995). The
same does not apply to international legal history, if at least one wishes to consider Arthur
Nussbaum, A Concise History of the Law of Nations (1947) as a textbook, or Gerald Mangone,
A Short History of International Organizations (1954) (mark the topic!). There are perhaps
good grounds for not doing so, in that these mainly do history rather than historiography;
the closest equivalent in international legal history to a legal-dogmatic textbook, however,
would have to be a historiography of international law. The newest new thing, incidentally,
would appear to be international investment law: the first textbook has only recently seen
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Klabbers / International Organizations Law Review 5 (2008) PP
The above suggests that there is something a bit ambivalent about regarding the law of international organizations as a separate discipline: if it
exists as such, to begin with, it would seem to have followed a path different
from that of other sub-disciplines of international law: a path marked by
fits and starts rather than the fairly linear development followed by other
sub-disciplines, where the appearance of specialized textbooks and specialized journals has typically been very close in time.10
What I will explore in the following is the (perhaps provocative) idea that
while there are textbooks, chairs and a journal, there might not be a real
discipline of international institutional law: it might be that what we usually
refer to as international institutional law simply does not exist. That is not
to say that it is pointless to write textbooks or to have a specialized journal,
or to teach it as a separate discipline: I will make a case that it is very useful
to keep doing these things – and not only to keep my publisher happy.
II
Before proceeding, there is the small matter of terminology to be decided.
Most people would seem to use the terms “international institutional law”
and “law of international organizations” interchangeably, and historically,
surely, doing so is utterly defensible. Still, it would seem that at present,
the two evoke a small, but relevant distinction: “law of international organizations” concentrate on entities that can be classified as international
organizations, and is therewith, arguably, narrower in conception than
“international institutional law.” The latter would allow as legitimate topics for study such entities as Conferences of the Parties or Meetings of the
Parties under environmental agreements, or organizations of colorful history and uncertain membership such as Interpol, or even entities whose
organizational qualities are not beyond doubt: the old GATT comes to
the light. See Rudolf Dolzer & Christoph Schreuer, Principles of International Investment
Law (2008).
10) An
exception, at first sight, has been international economic law, where the leading
specialized journal (the Journal of International Economic Law) is fairly young, while the
discipline as such has been systematized in textbooks and similar texts for quite a few decades.
A partial explanation might be, however, the coincidence of the creation of the WTO and
a growing dissatisfaction with the declining quality of what used to be the leading journal,
the Journal of World Trade. In other words: there was a journal; it just was not considered to
be very good anymore.
Klabbers / International Organizations Law Review 5 (2008) PP
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mind, as does, for rather different reasons, the OSCE; whether all these
can plausibly be included under the heading “law of international organizations” seems doubtful. In what follows, I will continue to use the terms
interchangeably; the terminological question will make a cameo appearance
towards the end, though.
If there is such a thing as a separate discipline, it decidedly got off to a
slow start. Accepting the proposition that in one form or another, international organizations started to see the light during the middle third of
the nineteenth century, it would take until the 1920s before the “turn to
institutions” came to be recognized as such by international lawyers.11 Writing before the First World War, e.g., Van Eysinga, not the least important
international lawyer of his generation, still simply subsumed the international administrative unions under the heading of treaties when discussing
the treaties entered into by the Netherlands.12
Likewise, the PCIJ needed a few years to come to terms with the idea
that there might be something special about international organizations. Its
first opinions on international organizations invariably involved the powers
of the ILO and invariably boiled down to the suggestion that the scope of
powers of the ILO was merely a matter of treaty interpretation, not one
demanding some refined theory of international organizations. It was only
during the mid-1920s that the World Court started to sensitize itself to the
idea that there might be something specific about international organizations, something that could not quite adequately be captured by thinking
of them simply as treaties.13
By the same token, the numerous lectures given at the Hague Academy
during 1920s and 1930s – a decent barometer for what international lawyers
hold to be relevant – reveal fairly little appreciation of there being something special about international organizations.14 Some of the lectures were
11)
See David Kennedy, “The Move to Institutions”, 8 Cardozo L. Rev. 841 (1987).
12)
See Jhr. W.J.M. Van Eysinga, Ontwikkeling en inhoud der Nederlandsche Tractaten sedert
1813 (1916). He later became a judge at the PCIJ, and in that capacity pioneered a notion of
international public law in his classic dissent in The Oscar Chinn Case, [1934] Publ. PCIJ,
Series A/B, no. 63.
13)
See Jan Klabbers, “The Life and Times of the Law of International Organizations”, 71
Nordic J. Int’l L. 287 (2001).
14) Methodological
note: what follows aims to establish general trends; it does not aspire to
be comprehensive, much less exhaustive. In other words, it is perfectly possible that I missed
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Klabbers / International Organizations Law Review 5 (2008) PP
devoted to specific international organizations (the League of Nations of
course,15 the ILO,16 some more specific entities such as the ICRC17); some
of the lectures were devoted, rather, to the substance of the work of certain
organizations (river law being an important example,18 or the League’s
mandate system19); but all in all, there is little sense of institutional law as
a separate discipline.
To this, there were two notable exceptions, or maybe three. The Italian scholar Rapisardi-Mirabelli presented a Théorie Générale des Unions
Internationales, which still looks remarkably appropriate, as early as 1925;
second, there were various lectures devoted to the international civil service.
Apparently, this was seen as the ultimate in synthesizing: the only general
issue that could meaningfully be discussed about international organizations was the circumstance that they attracted the services of individuals
who could not plausibly be classified as domestic bureaucrats anymore.20
And third, in particular in the latter part of the 1930s, with Nazism casting
one or two relevant lectures, and maybe ascribed to others a relevance which, perhaps, would
not be entirely warranted. In addition (but by no means fatal to my enterprise here), it is not
always certain that the publication year of a lecture was also the year in which the lecture
was given; a good example is formed by Bruno Simma, “From Bilateralism to Community
Interest in International Law”, 250 Recueil des Cours (1994/VI). The lectures themselves had
been given in 1997.
15)
See, e.g., Walther Schücking, “Le développement de pacte de la Société des Nations”, 20
Recueil des Cours 349 (1927/V); Giorgio del Vecchio, “La Société des Nations au point de
vue de la philosophie du droit international”, 38 Recueil des Cours 651 (1931/IV).
16) See,
e.g., Ernest Mahaim, “L’Organisation permanente du travail”, 4 Recueil des Cours 65
(1924/III).
17) See, e.g., Eugène Borel, “L’Organisation internationale de la Croix-Rouge”, 1 Recueil des
Cours 573 (1923/I).
18) See, e.g., Jean Hostie, “Le statut international du Rhin”, 28 Recueil des Cours 105 (1929/
III).
19) See, e.g., Giulio Diena, “Les mandates internationaux”, 5 Recueil des Cours 211 (1924/IV);
Henri Rolin, “La pratique des mandates internationaux”, 19 Recueil des Cours 493 (1927/IV);
Norman Bentwich, “Le système des mandats”, 29 Recueil des Cours 115 (1929/IV).
20)See,
e.g., Paul Négulesco, “Principes du droit international administratif ”, 51 Recueil des
Cours 579 (1935/I); Åke Hammarskjöld, “Les immunités des personnes investies de fonctions
internationales”, 56 Recueil des Cours 107 (1936/II). The latter, incidentally, exercised great
influence on the development of international law as registrar of the PCIJ. The story is welltold in Ole Spiermann, International Legal Argument in the Permanent Court of International
Justice: The Rise of the International Judiciary (2005).
Klabbers / International Organizations Law Review 5 (2008) PP
7
an ever-larger shadow over Europe, there is a notable increase in attention
for the very idea of international organization.21
Perhaps more telling still is that the leading international law scholars
of the 1920s and 1930s, to the extent that they appeared before the Hague
Academy to begin with (which such greats as Huber and Anzilotti never
did) were busy doing other things: Kelsen, of course, was theorizing general
international law and law generally;22 Verdross occupied himself most of
all with the question where international law came from, and whether (by
extension) something approximating a system of public law would be a
possibility – but without looking deeply at institutions as harbingers of this
public law.23 McNair was busy writing on the law of treaties,24 as was, in a
different form, Jules Basdevant.25 And while McNair realized that treaties
establishing international organizations may be qualitatively different from
contractual arrangements between states, he would never really get around
to exploring this in depth, although he arguably came close in his analysis of
the public, objective nature of the Mandate while on the bench of the ICJ
–but that was two decades later.26 Lauterpacht, finally, like Kelsen perhaps,
was more concerned with synthesizing general international law and positing
21)
See, e.g., Charles Dupuis, “Les antecedents de la Société des Nations”, 60 Recueil des Cours
1 (1937/II); Pitman B. Potter, “Développement de l’organisation internationale (1815-1914)”,
64 Recueil des Cours 71 (1938/II).
22) See Hans Kelsen, “Les rapports de système entre le droit interne et le droit internationale
public”, 14 Recueil des Cours 227 (1926/IV); Hans Kelsen, “Théorie générale du droit international public: problèmes choisis”, 42 Recueil des Cours 117 (1932/IV).
23) See
Alfred Verdross, “Le fondement du droit international”, 16 Recueil des Cours 247
(1927/I); Alfred Verdross, “Les principes généraux du droit dans la jurisprudence internationale”, 52 Recueil des Cours 191 (1935/II).
24) See Arnold D. McNair, “La terminaison et la dissolution des traités”, 22 Recueil des Cours
459 (1928/II); Arnold D. McNair, “L’Application et l’interprétation des traités d’après la jurisprudence brittannique”, 43 Recueil des Cours (1933/I); Arnold D. McNair, “Les effets de la
guerre sur les traités”, 59 Recueil des Cours 523 (1937/I). Note also that McNair’s monumental
The Law of Treaties (1961) was first published in 1930.
25) See Jules Basdevant, La conclusion et la redaction des traités et des instruments diploma-
tiques autres que les traités, 15 Recueil des Cours 535 (1926/V).
26)See
International Status of South-West Africa, advisory opinion, [1950] ICJ Rep. 128
(McNair J., concurring).
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Klabbers / International Organizations Law Review 5 (2008) PP
it as a unified, coherent system27 – and perhaps it is fair to say that during
the 1920s and 1930s, it was only logical that this particular mission be given
great priority: the Russian revolution and Hitler’s rise may have been taken,
after all, as fundamental challenges to international law. Indeed, most of the
above-mentioned also offered a general course on international law to the
Hague Academy, typically addressing the law of peace – as if to underline
that the unity of international law was of the greatest concern.28
Whatever the reasons during the 1920s and 1930, the general pattern continued for a while after the Second World War. While the ICJ helped flesh
out the law of international organizations in classic opinions (no textbook is
complete without discussing Reparation for Injuries, Effect of Awards, the two
Admissions cases, Certain Expenses and the IMCO Maritime Safety Committee
opinion), scholars followed somewhat hesitantly, at least if the barometer
of the Hague Academy is followed. Like before the war, there were lectures
devoted to individual organizations: NATO,29 the financial institutions,30
the Council of Europe,31 and, most challenging perhaps, the ECSC;32 there
were quite a few lectures addressing the UN, including what is still by far the
27) Lauterpacht’s magnum opus (one of them, at any rate) was The Function of Law in the
International Community, and was published in 1933. Before the Hague Academy, he too
never focused on international organizations. His two specialized lectures dealt with justiciability and interpretation of treaties. See Hersch Lauterpacht, “La théorie des différends non
justiciables en droit international”, 34 Recueil des Cours 493 (1930/IV); Hersch Lauterpacht,
“Les travaux préparatoires et l’interprétation des traités”, 48 Recueil des Cours 709 (1934/
II).
28) See
Alfred Verdross, “Règles générales du droit international law de la paix”, 30 Recueil
des Cours 271 (1929/V); Jules Basdevant, “Règles générales du droit de la paix”, 58 Recueil des
Cours 471 (1936/IV); Hersch Lauterpacht, “Règles générales du droit de la paix”, 62 Recueil
des Cours 95 (1937/IV).
29) See
II).
A.L. Goodhart, “The North Atlantic Treaty of 1949”, 79 Recueil des Cours 183 (1951/
30) See
Camille Gutt, “Les accords de Bretton Woods et les institutions qui en sont issues”,
72 Recueil des Cours 67 (1948/I).
31)
See Max Soerensen, “Le Conseil de l’Europe”, 81 Recueil des Cours 117 (1952/II).
32) The
ECSC was the topic of a special thematic session, resulting in a thematic volume
(90 Recueil des Cours (1956/II)), with contributions by Max Kohnstamm, “The European
Coal and Steel Community”; M.J. de Soto, “Les relations internationals de la Communauté
européenne du charbon et de l’acier”; and Henri Rieben, “De la cartellisation des industries
lourdes européennes à la Communauté européenne du charbon et de l’acier”.
Klabbers / International Organizations Law Review 5 (2008) PP
9
best survey of the UN’s treaty practice despite dating back to 1954,33 but as
was the case before 1939, there was not much synthesis. Going through the
many, many volumes of the Recueil des Cours, one never gets the sense that a
discipline of international institutional law was developing, at least not until
the late 1950s and even then only sparingly and intermittently. That said,
some topics did present themselves in more or less synthetic fashion. Jenks
discussed coordination problems between international organizations, but
that covered a law between organizations rather than a law of international
organizations.34 Lalive, in turn, explicitly included international organizations in a general course on immunities.35 Other than that, though, at best
the early 1950s demonstrate some interest in common institutions,36 while
Eagleton’s discussion of responsibility explicitly presumed that organizations
themselves could not be held responsible.37
Arguably the first attempt at synthesis started only in the late 1950s,
when Arnold Tammes published his lectures on decisions of international
organizations as a source of law. This was the first sustained attempt to make
sense of the normative output of international organizations, and Tammes’
great insight was that non-binding decisions struck a compromise between
state sovereignty and majority decision-making: while many international
organizations allow for decisions or resolutions to be taken by majority vote,
the price to pay is that such decisions, typically, are non-binding.38
33)
See Shabtai Rosenne, “United Nations Treaty Practice”, 86 Recueil des Cours 275 (1954/
II).
34) See
C. Wilfred Jenks, “Co-ordination: a new problem of international organization: a
preliminary survey of the law and practice of inter-organizational relationships”, 84 Recueil
des Cours 151 (1950/II).
35)
See Jean-Flavien Lalive, “L’immunité de jurisdiction des états et des organizations internationales”, 84 Recueil des Cours 205 (1953/III). The first course limited to the immunities
of organizations alone was taught three decades later. See Christian Dominicé, “L’immunité
de jurisdiction et d’exécution des organisations internationales”, 187 Recueil des Cours 145
(1984).
36) See Emile Giraud, “Le secretariat des institutions internationales”, 79 Recueil des Cours 369
(1951/II), followed a decade later by Marcel Prélot, “Le droit des assemblées internationales”,
104 Recueil des Cours 471 (1961/III).
37) See
Clyde Eagleton, “International Organization and the Law of Responsibility”, 76
Recueil des Cours 319 (1950/I).
38) He had laid the foundation for this already seven years earlier when he published a book,
in Dutch, on aspects of international organization (the word ‘law’ was still missing from
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Klabbers / International Organizations Law Review 5 (2008) PP
Two years later, courses were taught at The Hague by Dupuy père, outlining relations between various international organizations,39 and a certain
Boutros Boutros-Ghali, discussing equality of states and international
organizations,40 a topic that, at the time, was considered quite de rigueur
among promising international lawyers.41 Slowly but surely, something of
a minor tradition built up, with later lectures at The Hague including Finn
Seyersted on private parties and international organizations,42 Balladore Pallieri on the internal law of international organizations,43 Riccardo Monaco
on a general theory of international organizations,44 Eric Suy on observers
and international organizations,45 and perhaps most important of all in terms
of the discipline qua discipline, Elihu Lauterpacht’s insightful lectures on
the development of the law of international organizations.
Monographs, lengthy “monographic” articles, and textbooks on institutional law also started to appear from the late 1950s, early 1960s onwards. In
the Netherlands, the above-mentioned Arnold Tammes published a capita
the title, and note the singular form). See A.J.P. Tammes, Hoofdstukken van internationale
organisatie (1951) (its first part addresses decision-making in great detail).
39) See René-Jean Dupuy, “Le droit des relations entre les organizations internationales”, 100
Recueil des Cours 457 (1960/II).
40)See
Boutros Boutros-Ghali, “Le principe d’égalité des états et les organizations internationales”, 100 Recueil des Cours 1 (1960/II).
41) It
had been the topic of the doctoral dissertation of Bengt Broms, who later sat once
on the ICJ as an ad hoc judge, and for many years has been one of the members of the
Iran-US Claims Tribunal. See Bengt Broms, The Doctrine of Equality of States as Applied in
International Organizations (Doctoral thesis, University of Helsinki, 1959). Kooijmans, later
appointed to the ICJ, also devoted his doctoral work to the equality of states, albeit less
specifically referring to international organizations. See P.H. Kooijmans, The Doctrine of the
Legal Equality of States: An Inquiry into the Foundations of International Law (1964). See also
Tammes, supra note 38 (containing a lengthy discussion of how the idea of state equality
plays out in international organizations).
42) See
Finn Seyersted, “Applicable Law in Relations between Intergovernmental Organizations and Private Parties”, 122 Recueil des Cours 427 (1967/III).
43) See G. Balladore Pallieri, “Le droit interne des organizations internationales”, 127
des Cours 1 (1969/II).
Recueil
44)See
Riccardo Monaco, “Les principes régissant la structure et le fonctionnement des
organisations internationales”, 156 Recueil des Cours 79 (1977/III).
45) See
Eric Suy, “The Status of Observers in International Organizations”, 160 Recueil des
Cours 75 (1978/II).
Klabbers / International Organizations Law Review 5 (2008) PP
11
selecta work as early as 1951,46 and was followed, in 1957, by the doctoral dissertation of Henry G. Schermers,47 comparing the structures of the various
specialized agencies. The period between the late 1950s and the mid-1960s
witnessed the first monographs on such things as the treaty-making powers
of international organizations generally,48 the responsibility of international
organizations generally,49 the powers and legal personality of international
organizations,50 issues of membership,51 the legal effects of international
decisions,52 the amendment of constituent treaties,53 and the privileges and
immunities of international organizations.54
And in the English language, the first general textbooks came out only in
the 1960s: Derek Bowett first published his Law of International Institutions
in 1964, and provoked Thomas Franck, reviewing it in the Harvard Law
Review, to the following classic understanding of IO law:
The law of, or about, international organizations is essentially constitutional law. This is true not only because it is descriptive of the internal
46)See Tammes,
47)See
supra note 38.
H.G. Schermers, De gespecialiseerde organisaties: hun bouw en inrichting (1957).
48) See Karl Zemanek, Das Vertragsrecht der internationalen Organisationen (1957); Hungdah
Chiu, The Capacity of International Organizations to Conclude Treaties, and the Special Legal
Aspects of the Treaties so Concluded (1966).
49)Somewhat
ahead of time, one might say, in light of the later emergence of the topic as
one suitable for research and perhaps regulation, is Konrad Ginther, Die völkerrechtliche
Verantwortlichkeit internationaler Organisationen gegenüber Drittstaaten (1969).
50) See
Bernard Rouyer-Hameray, Les compétences implicates des organizations internationales
(1962); Finn Seyersted, Objective International Personality of Intergovernmental Organizations:
Do Their Capacities Really Depend on the Conventions Establishing Them? (1963).
51)
See Nagendra Singh, Termination of Membership of International Organisations (1958).
52) See Obed Y. Asamoah, The Legal Significance of Declarations of the General Assembly (1966);
Jorge Castaneda, Legal Effects of United Nations Resolutions (1969); see also the late 1960s
discussion between Richard A. Falk and Nicholas G. Onuf, arguably the most jurisprudentially informed, as reproduced in Jan Klabbers, International Organizations 297-313 (2005).
Closely related is Edward Yemin, Legislative Powers in the United Nations and Specialized
Agencies (1969).
53) See Ralph Zacklin, The Amendment of the Constitutive Instruments of the United Nations
and Specialized Agencies (1968).
54) See Kuljit Ahluwalia, The Legal Status, Privileges and Immunities of the Specialized Agencies of the United Nations and Certain Other International Organizations (1964); C. Wilfred
Jenks, International Immunities (1961).
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Klabbers / International Organizations Law Review 5 (2008) PP
rules governing the operation of institutions and societies, but because it is
treated by lawyers in a manner different from other law – treated as being
capable of growth.55
Franck then went on to illustrate this by means of Reparation for Injuries,
in which the ICJ, as is well known, formulated the notion of implied powers
and did so in fairly broad manner.
Bowett’s work was followed, almost a decade later, by the first edition
of Schermers’ monumental International Institutional Law, and for a long
time, until the mid-1990s really, those two works dominated the world of
higher legal education. Law students were typically taught with the help of
Bowett, or Schermers or, if they were lucky (although they may not have
quite realized it at the time), both.56
III
Franck was right in designating the law of international organizations as
constitutional, as being “capable of growth”: there is little in institutional
law that is truly and really fixed, immutable. Another way of expressing
the same point is to say that international institutional law does not tap
into moral sentiments in quite the same way as other branches of international law do. People may lose sleep over Darfur, but not over whether EU
should have implied powers.57 People may fret about climate change, or
torture, or even trade, but not about the visa waiver for spouses of delegates
to international organizations or even over the binding nature of General
Assembly resolutions.
In short, and by contrast to other branches of public international law –
with the possible exception of the law of treaties – international institutional
law is pure form, without substance: all rules (if any) are residual – except
insofar as they relate to external action. Genocide may be prohibited “even
55) See Thomas M. Franck, “D.W Bowett’s The Law of International Institutions”, 77 Harv.
L. Rev. 1565, 1565 (1963-1964) (book review).
56) This
applies, more or less, to the present author, whose took a course on international
institutional law for which the compulsory reading included Bowett as well as the synoptic
Dutch version (still coming in at some 300 pages) of Schermers. See H.G. Schermers, Inleiding tot het internationale institutionele recht (2d edn, 1985).
57) The
one exception to this is formed by the legal advisors of international organizations:
they may lose sleep over questions of implied powers, while the rest of us fret about Darfur.
Klabbers / International Organizations Law Review 5 (2008) PP
13
without conventional obligation” as the ICJ once held, but surely refusing
to grant privileges and immunities to an international organization in a
Headquarters agreement is perfectly okay, if not terribly practical perhaps.
There is a doctrine of implied powers but, it would be odd to speak of the
rule of implied powers, precisely because it would seem odd to even think
of implied powers as a rule; surely, organization X cannot claim a right to
be granted implied powers; indeed, as the curious example of the WTO
suggests, organizations cannot even claim a right to have any powers to
begin with.58
Also quite remarkable is that proposals to limit the application of implied
powers go, by and large, unnoticed: few have pointed out that the ill-fated
Treaty establishing a Constitution for Europe and the 2007 Lisbon Reform
Treaty both put a stop to implied powers59 – which once more would suggest that one cannot meaningfully think of a right, under international
institutional law, to be vested with powers. Likewise, it may be customary
(in the everyday sense of the term) to grant privileges and immunities to
organizations, but there is no customary rule to this effect or, if there is, it
is a rule of such abstraction as to offer little guidance on the precise scope
of privileges and immunities.
The basic idea, then, is that all organizations have their own legal order,
and these orders are, to invoke a tired old phrase, to a fairly large extent
self-contained. Surely, organizations look at each other for guidance, and
a solution that holds good with respect to organization B may, mutatis
mutandis, also be useful for organizations C, D and E. But C, D and E are
and remain at liberty to choose different solutions and create different rules,
as also suggested, among others, by article 5 of the 1969 Vienna Convention on the Law of Treaties. In other words, there are various laws (legal
orders) of international organizations, but no such thing as a coherent body
58) The
oddity of thinking in such terms is reflected in the language used: can one meaningfully speak of a right to have a power? And if one were to have such a right, would the
right also cover the mode of acquisition, be it agency, delegation, or transfer? Useful work
on the latter trichotomy has been done by Dan Sarooshi, International Organizations and
their Exercise of Sovereign Powers (2005).
59) See
the new Article 3a TEU: “In accordance with Article 3b, competences not conferred
upon the Union remain with the Member States.” To be on the safe side, Article 3b, paragraph 2, repeats this almost verbatim: “Competences not conferred upon the Union in the
Treaties remain with the Member States.” The Lisbon Treaty can be found in Official Journal
C 306/12, 27 December 2007.
14
Klabbers / International Organizations Law Review 5 (2008) PP
of international institutional law, in much the same way as states too are
self-contained or, using yet another label, sovereign.
This is reflected in the teaching of international institutional law, and in
particular in the way the classic textbooks were structured: these often took
the form of a summation, an exposition one after the other, of individual
international organizations, on the sound principle that no two of them
are alike. Yet, the same authors almost intuitively realized that a mere serial
discussion would strongly suggest the absence of unity, and thus, once again
driven more by intuition, it seems, than by any grand theoretical design,
would have their descriptions accompanied by more synthetic, comparative studies on aspects of the law (such things as treaty-making powers, or
personality, or responsibility). The classic example – one would be tempted
to speak of the textbook example – is Bowett’s textbook which, to this day,
combines a serial description with a synthetic approach. Others, however,
have increasingly opted for synthesis, as if to press home the thought that
there is something holding the discipline together; that there is, to borrow
a subtitle, “unity in diversity.”60 What that something is, however, remains
to be spelled out.
IV
The frontier of international institutional law, it might be said, resides in
the borderline between the internal legal order of the organization and the
external world. When organizations enter the world, they lose their “wonderful artificiality”61 and start to behave in ways that are undistinguishable
from how states behave, and it is here that people may start to fret and
lose sleep: not over whether the UN has implied powers, but over whether
somehow the UN contributes to genocide in Darfur. Perhaps the best example hereof was NATO’s controversial interventions in various parts of
60)This refers, of course, to H.G. Schermers & Niels M. Blokker, International Institutional
Law: Unity in Diversity (4th edn, 2003). Other works oozing a synthetic approach, in alphabetical order, are C.F. Amerasinghe, Principles of the Institutional Law of International
Organizations (2d edn, 2005); Jan Klabbers, An Introduction to International Institutional
Law (2002); and Nigel D. White, The Law of International Organisations (2d edn, 2005).
White’s first edition is less successful in this respect.
61) I
borrow the term from Martti Koskenniemi, “The Wonderful Artificiality of States”, 88
ASIL Proc. 22 (1994).
Klabbers / International Organizations Law Review 5 (2008) PP
15
Yugoslavia, which spawned a huge amount of commentary on whether or not
such an intervention would be acceptable under international law or from
a moral point of view,62 but generated next to nothing on the undeniable
circumstance that in intervening, NATO may have overstepped the limits
of its own legal order: after all, as traditionally understood, NATO was not
supposed to act in areas outside the territories of its member states.63 By
the same token, the one issue that generated some intrigue amongst international lawyers with respect to the Bosnia crisis was the question whether
in imposing an arms embargo upon both Bosnia and Serbia, the Security
Council had somehow contributed (as Bosnia claimed) to the commission
of genocide. This was not regarded as a matter of vires or powers, or whether
the UN Charter imposes limits to possible Security Council action taken
under Chapter VII; instead, it had to do with the effect of UN actions,
however well-intentioned, on the external world. It is precisely at this point
that the organizational cocoon is left behind, and the organization might
be called upon to face the music.
This is also, however, where legal debate enters into problems. Judging the
activities of international organizations in the real world presupposes that the
discipline has somehow found applicable yardsticks; that it has developed
a set of standards (external to the organization) against which the activities
of international organizations can be tested. Yet, such a set of standards is
a long way off: the discipline may claim, following the ICJ in 1980, that
international organizations are subjects of international law, and thus also
subject to international law,64 but it remains unclear which international
law, and why: there is no plausible theory of obligation.
Perhaps the most attractive option would be to suggest that the entire
corpus of international law (or at least general international law) is binding
upon international organizations, but this is far from unproblematic. Not
only would the question arise which bits and pieces of international law can
qualify as “general,” it would also mean that, in sharp contrast to the creation
62)For
(2003).
a discussion of that debate, see Anne Orford, Reading Humanitarian Intervention
63) The
only fairly close example that comes to mind is a brief intervention by Ige Dekker
and Eric Myjer, “Air Strikes on Bosnian Positions: Is NATO also Legally the Proper Instrument of the UN?”, 9 Leiden J. Int’l L. 411 (1996).
64)See
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt,
advisory opinion, [1980] ICJ Rep. 73, para. 37.
16
Klabbers / International Organizations Law Review 5 (2008) PP
of obligations for states, the institution of consent would lose all utility. Yet,
the question presents itself: if states can only be bound through their consent,
why should it be different for other actors, such as international organizations? One possible answer might be that they are composed of states, and
that typically, if all member states are bound, this binding force extends
to organizations, but that stumbles across the formidable objection that it
would make nonsense of the “distinct will” of international organizations:
if truly distinct from its member states, then they cannot be seen (save in
highly unique circumstances perhaps65) to have taken over their member
states’ individual organizations – and if so, it would seem plausible to argue
(flowing from the same distinct will) that the member states as such are no
longer under those obligations.
As a result, the literature is replete with eventually somewhat unsatisfactory statements holding the World Bank and the International Monetary
Fund bound by human rights because human rights are morally desirable;
or holding the Security Council bound to limits because an unfettered
Security Council is – rightly – perceived as an unhappy prospect. In other
words, the absence of a plausible theory of obligation is met by a moralist
response: organizations are bound by certain norms of international law
because the opposite would be undesirable, perhaps even unthinkable. The
most serious form this takes is the form of constitutionalism, suggesting
openly that organizations are not supposed to transgress certain values because those values are deemed to be universally shared, or at least universally
desirable. Typically, this includes human rights, most of all perhaps civil and
political rights, which curiously have fairly little relevance in the context of
international organizations. After all, few organizations (one hopes, at least)
engage in such things as torture, and while it might be desirable to have
freedom of expression when it comes to the acts of international organizations, few people would claim that international organizations can be held
to an “emerging right to democratic governance” on the part of those whom
65) The
European Court of Justice held, plausibly, that the EC had succeeded its member’s
position within the old GATT. See Cases 21/72-24/72, International Fruit Company and
others, [1972] ECR 1219. The same reasoning was rather less plausibly applied by the Court
of First Instance with respect to the EC’s position within the UN in case T-315/01, Kadi v.
Council and Commission, [2005] ECR II-3649, and has been abandoned by Advocate General
Maduro in his opinion to case C-402/05 P, Kadi v. Council and Commission (opinion of 16
January 2008, not yet published).
Klabbers / International Organizations Law Review 5 (2008) PP
17
their activities affect: we may have a right to a democratic and transparent
Canada or Finland or Colombia, but it is less obvious that we have a right
to democracy within the WTO, or transparency when it comes to Security
Council sanctions.66
But apart from this turn to morality, highlighted by the constitutionalism literature, the discipline (or the disciplinarians, perhaps) has resorted
to two other strategies to overcome the absence of a plausible theory of
obligation. One has been, since the mid-1980s, to shift focus somewhat and
turn to issues of responsibility: the thought has somehow gained a foothold
that if we can develop a decent system of responsibility, then somehow a
theory of obligation will not be necessary, as if one could hold organizations somehow accountable or responsible for improper behavior, and that
it would be self-evident in all circumstances what would constitute such
improper behavior.
And indeed, in some circumstances to ask for the source of obligation
would seem facetious: surely, UN peacekeepers cannot engage in prostitution rings or torture people under its authority; surely, the IMF cannot lend
money to a project to develop nuclear weapons; surely, the WTO cannot
demand market access in the field of primary education; surely, NATO
cannot bombard Belgrade under any circumstances other than self-defense.
Or can it? While some things may seem clear to most of us (the prostitution rings come to mind67), other examples are far less self-evident; as a
result, it may become next to impossible to judge whether an organization
engaged in improper behavior and therewith, arguably, in illegal behavior
as well, and as much was recognized (somewhat between the lines perhaps)
by the International Law Association’s final report on accountability of
international organizations, which by no means accidentally devoted an
enormous amount of energy to the development of internal standards to
66)For
a critique, with references, see Jan Klabbers, “Constitutionalism Lite”, 1 Int’l Org. L.
Rev. 31 (2004).
67)Then
again, how clear are such things ever? The daily paper Helsingin Sanomat carried
a small item on 12 February 2008, reporting that in Saudi Arabia, florists are prohibited
from selling red tulips for Valentine’s day, on the apparent theory that adultery thrives in
the vicinity of red tulips.
18
Klabbers / International Organizations Law Review 5 (2008) PP
the activities of organizations, and to mechanisms for actually holding them
accountable.68
Alternatively, international lawyers have devoted considerable time
and energy into the development of what is sometimes referred to as
global administrative law. The main idea here69 is to devise mechanisms,
often borrowed from domestic administrative law, in order to control the
behavior of international institutions. If a state’s handling of refugee applications can be tested against the Refugee Convention and standards of
proper administration, then surely the same must apply when the UNHCR
itself handles refugee applications.70 If the setting of standards for testing
chemicals is done by the OECD, then surely it should be done transparently
and democratically.71 Again, though, it turns out impossible to circumvent
the question of obligation: there is no legally convincing reason to hold
UNHCR – not being a party – bound to the Refugee Convention or to
administrative standards of proper behavior; there is no legally convincing
reason to suggest standard-setting within the OECD should be transparent and democratic. And even if there were, the OECD is a fairly small
organization, whose standards radiate far beyond its proper membership
– so much for democracy.
In the end then, in the pronounced absence of a theory of obligation,
all that is available is a set of moral sentiments: it goes without saying that
standard-setting within the OECD should not be arbitrary, should respect
the interests of third parties and the OECD’s own “stakeholders” alike,
should allow for the participation of those affected, and should be transparent. It goes without saying that refugee screening by UNHCR should
respect standards of sound administration and the Refugee Convention;
68) Indeed,
the ILA’s report contains probably the most far-reaching proposals to date. See
Final Report of the Committee on Accountability of International Organizations, in ILA,
Report of the Seventy-first Conference 164 (2004).
69)To some extent, that is: global administrative law has other concerns as well, and is prob-
ably best seen as an attempt to come to terms with the highly important issue of how to
control governance that takes place without formal institutions. The seminal piece – almost
a manifesto – is Benedict Kingsbury, et al., “The Emergence of Global Administrative Law”,
68 Law & Contemp. Probs 1 (2005).
70)See
Mark Pallis, “The Operation of UNHCRs Accountability Mechanisms”, 37 N.Y.U.
Int’l L. & Pol. 869 (2005).
71) See James Salzmann, “Decentralized Administrative Law in the Organization for Economic
Cooperation and Development”, 68 Law & Contemp. Probs 189 (2005).
Klabbers / International Organizations Law Review 5 (2008) PP
19
those are binding on UNHCR “even without any conventional obligation,”
to invoke the ICJ’s phrase.72
And indeed, it sounds (again) facetious to make a distinction between
states and international organizations in connection with the scope of their
respective obligations under international law: surely, if something represents general international law for states, then surely, the same must apply
to international organizations. After all, so the argument goes, when acting
externally, they represent public authority: if the public authority of states
is subjected to limits, the same must apply to international organizations
which, moreover, are creatures of those very states. In other words, when
acting externally, international organizations are really the alter egos of states:
for refugees, it would hardly seem to matter whether their applications are
handled by states or by UNHCR, as long as they are handled properly. In
yet other words, when acting externally, states and international organizations are well-nigh indistinguishable from one another: they both represent
public authority; they both work through and with bureaucracies; they both
can only work on the basis of rules or guidelines, however called, and it
would make perfect sense to suggest that those rules or guidelines are the
same for states and organizations alike.
In the end, then, two propositions present themselves. First, to the extent
that the law of an international organization covers only the internal legal
order and is really residual (each organization is sui generis and has its own
legal order), there cannot be said to exist any international institutional
law. Second, the more active and successful organizations become, the less
their existence will be seen as a specific branch of law; instead, they will
be subjected to general public international law, even without a plausible
theory of obligation.
The paradox of international institutional law, in the end, may well be
this: they may depend on being form for their pure survival – as soon as
contents are poured in, people may start to think of alternatives. As soon
as organizations become more than debating clubs, as soon as they exercise
public authority, it becomes possible and plausible to wonder whether they
do a good job, or whether someone else would have done a better. When
organizations start to administer territory, or impose and monitor sanctions
72) See
Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, advisory opinion, [1951] ICJ Rep. 15, 23.
20
Klabbers / International Organizations Law Review 5 (2008) PP
regimes, or regulate markets, or set standards, discussions will start about
how they do so, and whether they do so well enough to merit further support. They operate, so to speak, on the market of legitimacy, and legitimacy,
however precisely conceptualized, is a scarce resource.73
And when this happens, the organization loses its character as organization and becomes something else – whatever the “something else” may be.
It may be the case, in other words, that organizations are at their best, their
purest, so to speak, when they do nothing, because only then do they offer a
platform for discussion, for debate, for politics. What I have called elsewhere
the “agora” function74 may be crucial to the survival of organizations – and
for the law of international organizations.
V
All this could lead to the facile conclusion that if there is no separate discipline of international institutional law, it cannot and should not be taught
either. This, however, would be a mistake, for three reasons. The first of
these is obvious: in an age of globalization, few practicing lawyers will be
able completely to avoid “the international.” Typically, even a small-town
general practice, mostly busy with local bankruptcies, family-law issues and
inheritances, will be touched by international developments, and most of
those developments somehow take place by and within international organizations.75 In other words, even the small-town lawyer trying his hardest to
stay away from international trade, international tax, international shipping
or refugee law issues, will not be able to escape the reach of international
organizations completely.
Hence, legal education would be incomplete if it were not to devote
some time and energy to the activities of international organizations and
to the general doctrines that influence the work of those organizations.
The circumstance that there is no implied powers rule does not make the
73) The
best discussion I am aware of is Ian Hurd, After Anarchy: Legitimacy and Power in
the United Nations Security Council (2007).
74)See
Jan Klabbers, “Two Concepts of International Organization”, 2 Int’l Org. L. Rev. 277
(2005).
75) The
same applies, mutatis mutandis, to the law of treaties: few lawyers will be able to
have a decent career without ever encountering a treaty. Yet, interestingly, not many would
support the thesis that the law of treaties is a separate discipline.
Klabbers / International Organizations Law Review 5 (2008) PP
21
implied powers doctrine any less significant. Students will still need to be
introduced, by means of courses and textbooks, to how organizations typically function, how they relate to their members, the sort of things they
can do, and the sort of things they cannot do (or cannot legally do). If
legal education is thought to have any relationship to the future work-life
of lawyers, then that in itself provides ample justification for the teaching
of international institutional law, and for the writing of books which aim
to bring knowledge of the various doctrines together. All this may not add
up to a separate discipline, but is no less relevant for that.
Indeed, it may be the other way around: perhaps the absence of a distinct
discipline makes it all the more relevant that students are introduced to the
foundations and principles of international organizations and to the ways
lawyers are accustomed to work with them. If nothing else, students will
need an introduction to the rites of the profession, and that is something
substantive courses are unlikely to provide: a course on international trade
law may well cover substantive WTO law, but is unlikely to do much justice
to the institutional elements, as indeed half a century of collective experience in teaching EU law suggests. Likewise, a course on refugee law may
be expected to cover substance, but is unlikely to devote much attention to
institutional aspects; yet, it is precisely the institutions that do much of the
work and determine what the regime will look like in real life, so something
of value is lost when the institutional side of things is not covered.76
Second, though, and more intricate, there is another reason why we
should keep teaching international institutions, and should keep writing
textbooks. Part of academic education (any education, one would hope) is
not just to produce competent and skillful professionals, be they engineers,
architects, anthropologists, doctors or lawyers; part of the process is also to
train them in the basics of taking care of our common world.77 Classes in
76)For
an illustration as to just how important the institutional element can be, see Michael
Barnett & Martha Finnemore, Rules for the World: International Organizations in Global
Politics (2004).
77)Peter Euben once put it rather nicely: “Institutions of higher learning … are both the
end point of education and the beginning of politics. Our students are also our fellow citizens, who vote, are asked to defend their country, can sign binding contracts, and are tried
as adults.” Peter Euben, Hannah Arendt on Politicizing the University and Other Clichés, in
Hannah Arendt and Education: Renewing our Common World 175, 186 (Mordechai Gordon
ed., 2001).
22
Klabbers / International Organizations Law Review 5 (2008) PP
international institutional law are, in a word, classes in international civics:
at their best, they do not just contribute to the formation of competent
professionals, they also help create citizens, with a sense of respect for pluralism, for other people’s opinions, that sort of thing. These are, of course,
not to be measured: they do not show up on the rankings of law schools
or universities (or the PISA rankings of elementary and secondary school
pupils, come to think of it), and that is perhaps as it should be. As the poet
says, nothing measurable matters.78
Obviously, since much local governance is being replaced by global
governance, civics classes too should no longer focus on domestic institutions alone. International organizations are among the modalities of global
governance, so teachers have the responsibility to help introduce the young
into the ways those institutions work, and how they and their performance
could be improved: not just improvement in the technical sense of being
more effective and efficient, but also improvement in the sense of more
responsive and responsible, more transparent and more democratic. Our
students should recognize an implied powers argument as being more than
a technical legal argument relating to what organizations can do; it is only
when they grasp the politics behind an implied powers argument that they
are able to make up their minds as to whether it is desirable for that particular organization to have that particular power. In sum, part of an academic
education is, and should be, political education, and since international
organizations play a crucial role in global politics, there is every reason to
keep teaching the law of international organizations – whether it exists as
a separate discipline or not.
Third – and this is where the terminological question assumes some importance – it would seem that with the increasing recognition of the exercise
of public authority by international institutions, there is an increasing need
to think of ways and means to exercise control, both political and judicial,
over these exercises of public authority. It is here that the distinction between “law of international organizations” and “international institutional
law” may become relevant: the latter, being a broader, more comprehensive
concept, would seem the more natural term to use if the ambition is to
control public authority. Speaking of the “law of international organizations”
focuses too strongly on “who” exercises power, and might allow some to slip
78) e.e.
cummings, I believe.
Klabbers / International Organizations Law Review 5 (2008) PP
23
through the net; this is less obviously a risk with “international institutional
law,” which allows for a concentration not on actors, but on how public
authority is exercised.79
If it is, indeed, the case that there is no independent discipline just yet,
maybe the best chances for developing it would be to focus on institutions
rather than more formal organizations, and start thinking about how insights
from different traditions and different branches of law (administrative and
constitutional law, obviously, but also corporate law and contract law) can
best be employed to come to terms with the exercise of public authority
by international institutions. Limiting ourselves to only formal organizations seems to miss the point that much action takes place outside formal
channels, and maybe it is best to treat the circumstance that no separate
discipline exists just yet as an opportunity rather than a defect.
79)The
thought owes much to communications with Armin von Bogdandy and Matthias
Goldmann.