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ORGANIZATIONS
LAW REVIEW
www.brill.nl/iolr
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
DOI: 10.1163/157237408X326138
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 Caf 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
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)
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. Intl 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
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
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. Intl 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
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)
16) See,
Klabbers / International Organizations Law Review 5 (2008) PP
21)
See, e.g., Charles Dupuis, Les antecedents de la Socit des Nations, 60 Recueil des Cours
1 (1937/II); Pitman B. Potter, Dveloppement de lorganisation internationale (1815-1914),
64 Recueil des Cours 71 (1938/II).
22) See Hans Kelsen, Les rapports de systme entre le droit interne et le droit internationale
public, 14 Recueil des Cours 227 (1926/IV); Hans Kelsen, Thorie gnrale du droit international public: problmes choisis, 42 Recueil des Cours 117 (1932/IV).
23) See
459 (1928/II); Arnold D. McNair, LApplication et linterprtation des traits daprs la jurisprudence brittannique, 43 Recueil des Cours (1933/I); Arnold D. McNair, Les effets de la
guerre sur les traits, 59 Recueil des Cours 523 (1937/I). Note also that McNairs monumental
The Law of Treaties (1961) was first published in 1930.
25) See Jules Basdevant, La conclusion et la redaction des traits et des instruments diploma-
tiques autres que les traits, 15 Recueil des Cours 535 (1926/V).
26) See
International Status of South-West Africa, advisory opinion, [1950] ICJ Rep. 128
(McNair J., concurring).
27) Lauterpachts 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 thorie des diffrends non
justiciables en droit international, 34 Recueil des Cours 493 (1930/IV); Hersch Lauterpacht,
Les travaux prparatoires et linterprtation des traits, 48 Recueil des Cours 709 (1934/
II).
28) 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 lEurope, 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 Communaut
europenne du charbon et de lacier; and Henri Rieben, De la cartellisation des industries
lourdes europennes la Communaut europenne du charbon et de lacier.
Klabbers / International Organizations Law Review 5 (2008) PP
best survey of the UNs 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
Eagletons 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
See Jean-Flavien Lalive, Limmunit de jurisdiction des tats 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 Dominic, Limmunit
de jurisdiction et dexcution 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 Prlot, Le droit des assembles internationales,
104 Recueil des Cours 471 (1961/III).
37) See
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
10
Two years later, courses were taught at The Hague by Dupuy pre, 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 Lauterpachts 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 Ren-Jean Dupuy, Le droit des relations entre les organizations internationales, 100
40) See
Boutros Boutros-Ghali, Le principe dgalit des tats 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
Recueil
44) 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
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 vlkerrechtliche
Verantwortlichkeit internationaler Organisationen gegenber Drittstaaten (1969).
50) See
51)
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).
12
55) See Thomas M. Franck, D.W Bowetts 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
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
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 Bowetts 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 artificiality61 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 NATOs 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).
Whites 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
62) For
(2003).
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. Intl 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
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 members
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 ECs 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
66) For
a critique, with references, see Jan Klabbers, Constitutionalism Lite, 1 Intl 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 Valentines day, on the apparent theory that adultery thrives in
the vicinity of red tulips.
18
the ILAs 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
Klabbers / International Organizations Law Review 5 (2008) PP
19
72) See
20
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 Intl 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 Clichs, in
Hannah Arendt and Education: Renewing our Common World 175, 186 (Mordechai Gordon
ed., 2001).
22
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.