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International Law Institutional Law
by
Jan Klabbers

Introduction

International organizations, it is often said, are strange creatures. On the one hand, they are created by their member states and are supposed to exercise powers conferred upon them by those member states. On the other hand, they are also treated as having an existence of their own. The tension between these two poles informs much of the law of international organizations or, as it is often also referred to, international institutional law. Those who feel that organizations are mere vehicles for their member states are not inclined, for example, to recognize organizations as being responsible for their own actions in their own right or as being legitimately entitled to privileges and immunities; those who accept the relative independence of international organizations will be more inclined to do so. The field of international institutional law is usually said to be made of organizations established by states and exercising public power. Most observers agree that private entities are excluded from its scope, as are entities set up within a single legal order. Most observers also agree that international institutional law qualifies as a separate field within international law, with its own journals, textbooks, and university chairs. Whether the field actually recognizes common rules, applicable to all organizations, is debated. International institutional law is characterized by a high dose of functionalism. It is built around the idea that organizations are created to exercise tasks or functions that their member states cannot perform alone or sometimes might be reluctant to perform on their own. As an explanatory device, this has proved rather fruitful. Functionalism can help explain, for example, why organizations are often said to be in need of immunity from suit (suits would interfere with their functions) or why they have certain powers but not others (because certain powers can be deemed necessary for their functioning). Yet as a normative matter, this functionalist approach has so far proven less useful in that it makes it difficult to control organizations. After all, if they do only whatever is necessary for their functions, then control, strictly speaking, becomes unnecessary. They might exercise public power but do so at the behest of member states, so if things go wrong, then the member states attract blame. Nonetheless, political and moral debate about organizations suggests that organizations can be blameworthy in their own right. When the United Nations (UN) failed to intervene in the Rwandan genocide, many held the UN itself responsible rather than its member states. Hence since the late 1980s, a new approach to organizations is taking shape, focusing on control and grouped together under the label “constitutionalism,” aiming to come to terms with a perceived legitimacy deficit. The label may not be very accurate, but it neatly sums up the ambition: controlling international organizations by means of (quasi-)constitutional doctrines, such as the holding that international organizations are bound to respect fundamental human rights. It is arguable that fundamental notions have not received the attention they deserve owing to the dominance of functionalist theory about the legal framework of surrounding international organizations. As long as the functionalist route was followed, further theory was considered unnecessary. It is one thing, for example, to claim that organizations enjoy legal personality under international law, but it is not at all settled whence this personality stems, what its consequences are, or indeed what the very term “personality” signifies. And much the same applies to other key notions. There is widespread disagreement as to how organizations acquire their powers and in particular on the scope of the doctrine of implied powers. By the same token, there is widespread disagreement on whether the privileges and immunities of international organizations (which shield them from the reach of domestic law) mean that domestic law has no role to play whatsoever in the life of the organization. There is disagreement on what constitutes an international organization and on the legal effects of instruments adopted by international organizations, and deep divisions still remain on how best to control them. Indeed, on a deeper level a fundamental difference reigns on how organizations relate to their member states. Are they but vehicles for their members, or do they have a life of their own, symbolized perhaps in the work of the international civil service—the bureaucracy—under the leadership of a director general or a secretary-general? The law wavers a bit between both conceptions; the international bureaucracy plays an important role, but so do the member states.

General Overviews

International organizations on most counts outnumber states by a considerable margin, and unlike states, they do not have a comprehensive set of tasks or capacities. As a result, it is no exaggeration to claim that no two organizations are alike, and this in turn implies that much general work on organizations takes the form of comparisons or enumerations of things that many organizations have in common or, as the case may be, where they differ. The most comprehensive account is provided in Schermers and Blokker 2003, a magisterial work of reference. Sands and Klein 2009 also provides a rather comprehensive account and offers a more synthetic approach on some common issues, such as legal personality and financing. Such a synthetic approach aims to “synthesize” insights gained from the comparative study of the legal frameworks of a variety of organizations. Most work on international institutional law is functionalist in orientation, meaning that it works on the assumption that organizations exercise functions conferred upon them by their member states and should stay within those functions. A rather different, more “organic” approach, focusing on organizations as independent organs separate from states, is the posthumously published Seyersted 2008. Claude 1984 is a classic study by a political scientist who, with a keen eye, draws attention to the tense relationship between the organization and its member states (suggesting that the law develops in a tug of war between the two), whereas Hurd 2011 offers a useful overview of the work of some of the more relevant international organizations. Kirgis 1993 is a very useful collection of cases and materials compiled and edited for an American audience and so draws heavily on US examples and cases.

  • Claude, Inis L., Jr. Swords into Plowshares: The Problems and Progress of International Organization. 4th ed. New York: McGraw-Hill, 1984.

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    Arguably the first study to systematically view the position of international organizations as resulting from a tug of war between the organization and its member states. The tug of war influences the law but knows no winners: neither the membership nor the organization is in full control. Written by a political scientist, this is a classic study and a good read.

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  • Hurd, Ian. International Organizations: Politics, Law, Practice. Cambridge, UK: Cambridge University Press, 2011.

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    Offers brief overviews of the activities and main characteristics of a number of important international organizations, ranging from the World Trade Organization (WTO) and the United Nations (UN) to the World Bank and the African Union. Suitable for classroom use and often insightful. Discusses not so much international institutional law as the role of international organizations in global governance.

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  • Kirgis, Frederic L., Jr. International Organizations in Their Legal Setting. 2d ed. St. Paul, MN: West, 1993.

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    Collection of US-style cases and materials compiled and written by one of the (surprisingly few) leading US international institutional law scholars. Excellent in its own right and very useful in the materials it collates but by definition somewhat limited by its US orientation.

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  • Sands, Philippe, and Pierre Klein. Bowett’s Law of International Institutions. 6th ed. London: Sweet and Maxwell, 2009.

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    Continues Derek W. Bowett’s classic textbook, first published in 1964. Combines a reasonably comprehensive overview of individual organizations with a more synthetic approach and does so very well. Coauthored by a seasoned practitioner (Sands) and one of the leading French-speaking academics (Klein).

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  • Schermers, H. G., and Niels M. Blokker. International Institutional Law. 4th ed. Leiden, The Netherlands: Martinus Nijhoff, 2003.

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    Offers by far the most comprehensive and detailed account of the law. Not very suitable as a textbook but unsurpassed as a work of reference; contains everything you always wanted to know and quite a few things you never even thought of. The one book guaranteed to be on the bookshelf of every international organizations lawyer and deservedly so. Put Leiden University on the map as the epicenter of functionalism.

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  • Seyersted, Finn. Common Law of International Organizations. Leiden, The Netherlands: Martinus Nijhoff, 2008.

    DOI: 10.1163/ej.9789004166998.i-606Save Citation »Export Citation »E-mail Citation »

    By one of the few writers to depart from the paradigmatic functionalist dogma; aims instead to treat institutional law as a common law system, growing from case to case, with much attention for the impact of organizations on domestic law.

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Textbooks

Although quite a few of the general international law textbooks devote a chapter to international organizations, the discipline also generates textbooks of its own. That is possibly a good thing too, as the law is too vast and complicated to be discussed in a mere twenty or thirty pages. While early textbooks tended to be highly comparative and inductive in nature (comparing a variety of organizations with each other in the hope of distilling common elements), the current crop offers a more synthetic and deductive approach, discussing and describing topics and finding illustrations from the law and practice of organizations. The largest and most detailed of these is Amerasinghe 2005, although it is not always theoretically consistent. It sometimes treats member states as inherent parts or organs of organizations but sometimes also as third parties. Klabbers 2009 and White 2005 are a bit more compact, as is the fine recent German textbook (Ruffert and Walter 2009), which succinctly points out that much international law (be it on maritime issues or human rights, space utilization or the use of force) emerges from organizations.

  • Amerasinghe, Chittharanjan F. Principles of the Institutional Law of International Organizations. 2d ed. Cambridge, UK: Cambridge University Press, 2005.

    DOI: 10.1017/CBO9780511614224Save Citation »Export Citation »E-mail Citation »

    Its somewhat unwieldy title notwithstanding, this is a very good, functionalist overview of the law by a former World Bank lawyer. Especially good on the law of the international civil service and generally well informed if theoretically not always equally consistent.

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  • Klabbers, Jan. An Introduction to International Institutional Law. 2d ed. Cambridge, UK: Cambridge University Press, 2009.

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    Compact yet comprehensive overview of the law written from a critical perspective and with a keen eye for the politics involved. Used in classrooms across the world, it offers not just an exposition of the law but also a critique of the underlying functionalist theory.

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  • Ruffert, Matthias, and Christian Walter. Institutionalisiertes Völkerrecht. Munich: Beck, 2009.

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    Intelligently conceived, compact textbook that distinguishes itself from many others by suggesting that much of contemporary international law is unthinkable without the work of international organizations. Hence the authors can speak of international law as “institutionalized,” and they provide a fine overview of some of the resulting law.

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  • White, Nigel D. The Law of International Organisations. 2d. ed. Manchester, UK: Manchester University Press, 2005.

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    Offers a fine overview of the law from a perspective inspired by the nonfunctionalist approach of Finn Seyersted. The first edition paid relatively little attention to institutional matters (and quite a bit to the substantive activities of some organizations); the second edition is geared more toward discussing institutional aspects alone.

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Major Judicial Decisions

Given the fact that international organizations have come to affect well-nigh all aspects of everyday life, it should be no surprise that their activities sometimes lead to legal issues, which may even result in litigation. As is generally the case in international law, international institutional law often develops through the cases. Of particular importance for international institutional law has been the Reparation for Injuries Suffered in the Service of the United Nations opinion (International Court of Justice 1949), which laid the foundation for thoughts that remain valid about the personality of international organizations and, more particularly, for the so-called implied powers doctrine. The Certain Expenses of the United Nations case (International Court of Justice 1962) addressed the question of whether expenses incurred by the United Nations for activities that are not directly based on the UN Charter are to be regarded as expenses of the United Nations, and in the process, the International Court of Justice (ICJ) said a few things of relevance with respect to the relationship between organs of the United Nations and the scope of the United Nations’ powers. In the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 case (International Court of Justice 1971), the ICJ discussed such things as the decision-making process in the Security Council and confirmed the binding nature of decisions taken by the Security Council under Chapter VII of the UN Charter, while in the Legality of the Threat or Use of Nuclear Weapons opinion (International Court of Justice 1996) it aimed to flesh out a division of labor between the United Nations and its specialized agencies. Many would agree finally that the Van Gend and Loos v. Nederlandse Administratie der Belastingen case (Court of Justice of the European Union 1963) is the single most important decision of the Court of Justice of the European Union, without which the history of European integration would have taken a dramatically different course.

  • Court of Justice of the European Union. “Van Gend and Loos v. Nederlandse Administratie der Belastingen.” European Court Reports 1 (1963).

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    In this decision the Court of Justice of the European Union established that the European Union (EU) formed a new legal order between international and domestic law; this new order directly affected legal and natural persons within member states. While traditionally the effect of international law in domestic orders depended on domestic constitutions, the effect of EU law derived not from domestic constitutional fiat but from EU law.

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  • International Court of Justice. “Reparation for Injuries Suffered in the Service of the United Nations.” ICJ Reports (1949): 174–220.

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    In this report the ICJ held that international organizations could profitably be seen as legal persons, although not quite on the same footing as states and without the exact same set of rights. The UN moreover enjoyed a power to bring claims on behalf of its employees on the theory that such a power, even if not expressly granted in the UN Charter, could nonetheless be implied—without it the UN could not give effect to its purposes.

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  • International Court of Justice. “Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter).” ICJ Reports (1962): 151–181.

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    Holding that peacekeeping expenses incurred on the basis of General Assembly actions should be regarded as expenses of the organization, the ICJ in this advisory opinion clarified that even if actions are ultra vires one organ of the organization, they may still be within the powers of the organization at large. Determining whether an organ acts intra vires (within the powers) rests, first, upon that organ itself.

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  • International Court of Justice. “Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970).” ICJ Reports (1971): 16–66.

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    In this advisory opinion, while claiming that it could not review acts of UN organs, the ICJ in essence reviewed the legality of action taken against South Africa and found it to be valid and binding upon UN member states (and curiously creative of obligation on nonmembers as well) despite not having been taken in full conformity with the letter of the UN Charter.

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  • International Court of Justice. “Legality of the Threat or Use of Nuclear Weapons.” ICJ Reports (1996): 226–267.

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    Asked by the World Health Organization (WHO) whether nuclear weapons would be legal, the ICJ in this advisory opinion declined to answer, holding that within the UN family matters of security were not part of the WHO’s mandate. Curious and largely unsuccessful attempt to come to terms with global governance by adopting a model derived from national government.

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Theory and History

International organizations lawyers have traditionally shied away from all too theoretical concerns, and admittedly little was considered necessary as the discipline as a whole embraced the logic of (legal) functionalism almost from the start. Many political scientists moreover adhere to realist premises, which posit hardly any role for international organizations. While this is changing, as witnessed by a recent history of international organizations (Reinalda 2009), such theorizing as has been done has been limited to either developing functionalism (see Reinsch 1911, Virally 1974) or, from the political science field, applying constructivist approaches to explain the rise and workings of international organizations (see Barnett and Finnemore 2004). Moreover, to the extent that lawyers have sought to explain the emergence and further development of the law of international organizations, they have typically done so in a historical narrative either by following a mainstream approach (Mangone 1954) or by adopting more critical perspectives (Kennedy 1987, Klabbers 2001). More recently, attempts have been made to capture the dynamics of international organizations in legal terms (Blokker 2004, Klabbers 2005).

  • Barnett, Michael, and Martha Finnemore. Rules for the World: International Organizations in Global Politics. Ithaca, NY: Cornell University Press, 2004.

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    Excellent study of the activities (and inactivity) of international organizations through the prism of organizational sociology, viewing international organizations (International Monetary Fund, UN High Commissioner for Refugees, UN) as bureaucracies. Especially the discussion of the UN’s inaction during much of the 1990s is highly instructive.

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  • Blokker, Niels M. “International Organizations and Their Members.” International Organizations Law Review 1 (2004): 139–160.

    DOI: 10.1163/1572374043242448Save Citation »Export Citation »E-mail Citation »

    Translated inaugural address by a leading international organizations lawyer affiliated with Leiden’s functionalist school; discusses ever-problematic relations between organizations and their member states and suggests that they depend on each other. Available online by subscription.

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  • Kennedy, David. “The Move to Institutions.” Cardozo Law Review 8 (1987): 841–988.

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    Lengthy, iconic article locates the “move to institutions” in the break from war to peace that followed World War I, and in critical legal studies fashion, sees the creation of international organizations as a cultural achievement more than anything else.

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  • Klabbers, Jan. “The Life and Times of the Law of International Organizations.” Nordic Journal of International Law 70 (2001): 287–317.

    DOI: 10.1163/15718100120296601Save Citation »Export Citation »E-mail Citation »

    Article is less concerned with the move to institutions but instead sketches the development of some of the main doctrines of international institutional law in discussing the relevant case law and discussions in the literature.

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  • Klabbers, Jan. “Two Concepts of International Organization.” International Organizations Law Review 2 (2005): 277–293.

    DOI: 10.1163/157237405775093717Save Citation »Export Citation »E-mail Citation »

    Briefly analyzes international organizations in discussing their roles both as between states and as functional actors in their own right, applying a framework borrowed from the British political philosopher Michael Oakeshott, with societas (society) and universitas (the world) as rival forms of social organization. Available online by subscription.

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  • Mangone, Gerard J. A Short History of International Organizations. New York: McGraw-Hill, 1954.

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    Well-written overview of how organizations first came on the scene and how they developed over time. Solid rather than spectacular and not quite as short as its title would suggest.

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  • Reinalda, Bob. Routledge History of International Organizations: From 1815 to the Present Day. London: Routledge, 2009.

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    Detailed, straightforward overview of the emergence and development of international organizations in context by a Dutch political scientist. Focuses on diplomatic and social history rather than intellectual history.

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  • Reinsch, Paul S. Public International Unions, Their Work and Organization: A Study in International Administrative Law. Boston: McGinn, 1911.

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    This is arguably the first systematic account of a functionalist approach to international organizations, providing the framework for well-nigh all later work. The book is built around two articles published in the American Journal of International Law (1907 and 1909, respectively) and reads in part like a textbook avant la lettre.

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  • Virally, Michel. “La notion de fonction dans la théorie de l’organisation internationale.” In Mélanges offerts à Charles Rousseau: La communauté internationale. Edited by Suzanne Bastid, 277–300. Paris: Pedone, 1974.

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    Arguably the seminal functionalist manifesto by a leading French-speaking international lawyer explaining how international organizations law uses the notion of function to explain some of the pertinent legal doctrines.

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International Organizations in International Law

International organizations occupy a peculiar place in the framework of international law. They are, on the one hand, creations of international law, yet they are also creative of international law and may well be considered bound by international law, as the International Court of Justice (ICJ) held in its Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt opinion (International Court of Justice 1980). This peculiar position presents all sorts of theoretical and practical puzzles. It is, for instance, debated how organizations fit into the horizontal, consent-based international legal order (Brölmann 2007, suggesting the fit is far from perfect, or, if they can be said to have obligations under international law, where exactly those obligations stem from (Wouters 2010, displaying a full array of theories: obligations can stem not only from consent but also from moral considerations. Organizations may also have broader effects on international law. Their practice may qualify as practice relevant for the formation of customary law (Cahin 2001). They contribute to the development of international law (Higgins 1963), and admission of states by an organization such as the UN is a decent indicator of that state being recognized by the world community at large (Dugard 1987). Whether the law of international organizations is best seen as a subdiscipline within international law is a question tentatively answered in Klabbers 2008, suggesting that the field lacks an object. All organizations have their own regimes, and their common issues are regulated by international law.

  • Brölmann, Catherine M. The Institutional Veil in Public International Law: International Organisations and the Law of Treaties. Oxford: Hart, 2007.

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    Rich conceptual study of the position of international organizations in the international legal order in particular with respect to the law of treaties, arguing that behind the organizations the member states always shine through and therewith problematizing the notion of organizations as independent actors.

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  • Cahin, Gérard. La coutume international et les organizations internationals: L’incidence de la dimension institutionelle sur le processus coutumier. Paris: Pedone, 2001.

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    Thorough review of the role played by international organizations in the making of international customary law.

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  • Dugard, John. Recognition and the United Nations. Cambridge, UK: Grotius, 1987.

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    Fine study detailing how admission to the UN is regarded as collective recognition of statehood by the international community but cannot be construed as individual recognition by each and every single member state.

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  • Higgins, Rosalyn. The Development of International Law through the Political Organs of the United Nations. Oxford: Oxford University Press, 1963.

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    Classic study by a leading international lawyer of how the UN has contributed to the further development of international law. Written at Yale Law School, the work shows the influence of the New Haven approach to international law and its insistence that law is a matter of process rather than strict rules.

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  • International Court of Justice. “Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt.” ICJ Reports (1980): 73–98.

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    This decision held that organizations are subjects of international law and thus bound by treaties to which they are parties and by “general” international law. It has been hotly debated ever since whether “general” consists of all customary international law or whether the dictum suggests merely that organizations are bound by the general rules on the making and application of international law.

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  • Klabbers, Jan. “The Paradox of International Institutional Law.” International Organizations Law Review 5 (2008): 151–173.

    DOI: 10.1163/157237408X326138Save Citation »Export Citation »E-mail Citation »

    Argues that international institutional law does not quite make up a separate, independent academic discipline or subdiscipline. Instead, each organization has its own legal order, and to the extent that they act outside their own legal order, international law would apply.

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  • Wouters, Jan, ed. Accountability for Human Rights Violations by International Organisations. Antwerp, Belgium: Intersentia, 2010.

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    Useful if somewhat unbalanced collection of articles on the human rights obligations of international organizations. Offers various theories concerning the basis of obligation of international organizations under international law, but its best asset consists of a number of detailed case studies involving human rights issues within a variety of organizations.

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Legal Personality

It is often thought that organizations cannot work, or cannot be seen as independent actors, without legal personality in both domestic law (of their member states) and international law. Whether this “threshold” view of personality is cogent is sometimes questioned; Klabbers 2005 suggests that personality comes closer to political recognition and importantly a right to be free from interference. While domestic personality is decided by the domestic legal order concerned, as Marston 1997 illustrates, international legal personality has been more controversial. The leading approach suggests that personality fully depends on the will of the member states; others suggest that personality depends on the legal system, in this case international law. If an organization can be said to exist, it can be said to be an international legal person (Seyersted 1963). Intermediate positions combine the two, suggesting either that the notion of personality is not all that helpful, preferring instead to attribute a soul to institutions (Bederman 1996), or that personality is best presumed and possibly rebutted (Klabbers 1998). This would make far more sense of the case law (which suggests by and large that the performance of international acts helps constitute personality rather than have personality function as a threshold) and would also make the absence of a personality clause in many constituent documents intelligible.

  • Bederman, David J. “The Souls of International Organizations: Legal Personality and the Lighthouse at Cape Spartel.” Virginia Journal of International Law 36 (1996): 275–377.

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    Wonderful historical analysis to illuminate the idea that “personality” is perhaps a misguided metaphor to describe international organizations. Rich in historical detail and in theoretical reflection.

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  • Klabbers, Jan. “Presumptive Personality: The European Union in International Law.” In International Law Aspects of the European Union. Edited by Martti Koskenniemi, 231–253. The Hague: Martinus Nijhoff, 1998.

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    Discusses the weaknesses of theorizing about the legal personality of international organizations as either depending on the will of members or being automatic on being regarded as an organization and holds that practice reveals a presumptive approach. Organizations are presumed to possess international legal personality, but this can be rebutted in light of material evidence, such as the absence of international activity or ambition.

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  • Klabbers, Jan. “The Concept of Legal Personality.” Ius Gentium 11 (2005): 35–66.

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    Not limited to international organizations only, the author discusses legal personality not so much as a threshold for being able to perform legal acts but rather as grants of recognition of the political relevance of the actor concerned with the legal effect of protecting the actor from outside interference.

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  • Marston, Geoffrey. “The Personality of International Organisations in English Law.” Hofstra Law and Policy Symposium 2 (1997): 75–115.

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    Detailed and knowledgeable discussion of the legal personality of international organizations in English law. While the technical details are limited to the UK setting, the author’s insights, for example, relating to the problems of collective agency, are not.

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  • Seyersted, Finn. Objective International Personality of Intergovernmental Organizations: Do Their Capacities Really Depend upon the Conventions Establishing Them? Copenhagen: Munksgaard, 1963.

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    Passionate plea for the proposition that the legal personality of international organizations is automatically granted as soon as their “organizationhood” is established: if they qualify as organizations, then their personality follows. Brilliantly conceived and thought provoking but difficult to reconcile with functionalism and consequently often ignored. Suffers from the serious problem that international law has no clear criteria to establish “organizationhood.”

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Membership

International organizations are composed of member states, which raises questions as to how states can become members and how membership can be lost. The topic rose to prominence during the period between the two world wars, when aggressor states could all too easily evade League of Nations sanctions by simply withdrawing. It is sometimes held that the possibility of withdrawal (in the covenant’s very opening article, no less) constituted a fatal design flaw in the drafting of the League of Nations Covenant. While the topic is of great theoretical significance in that it is the members that constitute the organization, relatively little has been written about it, perhaps a result of the relative scarcity of practice. There have been some celebrated instances of withdrawal (the aforementioned League of Nations cases and the United Kingdom and the United States withdrawing from the UN Educational, Scientific, and Cultural Organization during the 1980s), but expulsion is decidedly rare, with the main example often cited that of the expulsion of the Union of Soviet Socialist Republics (USSR) from the League of Nations after the USSR invaded Finland in 1939. Whereas both Singh 1958 and Magliveras 1999 provide solid overviews of law and practice, including the use of credentials procedures to make a point, Grant 2009 offers an intriguing argument for screening of prospective member states. Weiler 1985 discusses what states can do to give effect to their dissatisfaction with an organization short of actually withdrawing.

  • Grant, Thomas D. Admission to the United Nations: Charter Article 4 and the Rise of Universal Organization. Leiden, The Netherlands: Martinus Nijhoff, 2009.

    DOI: 10.1163/ej.9789004173637.i-334Save Citation »Export Citation »E-mail Citation »

    Technically masterful study of the criteria for admission to the United Nations amounting to a plea for closer scrutiny of candidates in affirming that widespread admission has diluted the organization. Sings from the liberal hymn sheet and argues in particular for a league of democracies.

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  • Magliveras, Konstantinos. Exclusion from Participation in International Organisations: The Law and Practice behind Member States’ Expulsion and Suspension of Membership. The Hague: Kluwer Law International, 1999.

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    Provides an in-depth discussion of expulsion and suspension. If the work sometimes seems a bit rarefied, this is due largely to the scarcity of relevant practice. Usefully discusses also how credentials procedures are used—or abused—as substitutes for expulsion or suspension, as with respect to South Africa during the 1970s.

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  • Singh, Nagendra. Termination of Membership of International Organisations. London: Stevens, 1958.

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    Classic discussion of withdrawal and expulsion from membership, discussing, for example, whether the power to decide rests with the organization; perhaps best known for the author’s expressed conviction that the role of international organizations resides in nothing less than the “salvation of mankind.”

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  • Weiler, J. H. H. “Alternatives to Withdrawal from an International Organization: The Case of the European Economic Community.” Israel Law Review 20 (1985): 282–298.

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    Seminal article devoted to the possibilities of “voice” and “exit” in European Community law but capable of more general application. Demonstrates that member states have quite a few means at their disposal to frustrate and sabotage the work of organizations short of withdrawing.

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Powers and Their Acquisition

At least under the theory of functionalism, the heart of institutional law is made up by the question of their powers or competences. After all, under functionalism organizations are supposed to exercise tasks for which they have been granted powers, either expressly or implicitly. The Permanent Court of International Justice (PCIJ) first confirmed this in the mid-1920s in the Jurisdiction of the European Commission of the Danube between Galatz and Braila case (Permanent Court of International Justice 1927) and the scope of the implied powers doctrine was broadened considerably in the Reparation for Injuries report of the International Court of Justice (see International Court of Justice 1949 cited under Major Judicial Decisions). Political scientists have been interested in the ways organizations acquire their powers since the 1990s, and the most popular theory at present is the principal–agent model (Pollack 2003, Bradley and Kelley 2008). The underlying idea, in line with functionalism, is that the collective principals assign functions to their agents; these agents then have some discretion in exercising those functions. The model has some attractions, but it is strongly based on rationalist assumptions and has difficulty in understanding the creation and work of judicial bodies—these, after all, can hardly be said to perform a delegated task. More specifically, legal work has been done by Dan Sarooshi. Sarooshi 1999 posits a theory of delegation while Sarooshi 2005 further conceptualizes how delegation may be achieved. This is of obvious relevance in light of the circumstance that the UN Security Council, not possessing armed forces of its own, will almost, by definition, have to delegate responsibilities in maintaining peace and security. Yet, how far can delegation go? And if member states delegate powers to an organ that then delegates those powers back to the member states, doesn’t this result in a nontransparent exercise of public power? Where delegation of powers is the standard construction among lawyers and political scientists alike, Seyersted 2008 (cited under General Overviews) argues for recognition of the inherent powers of international organizations: Organizations can engage in any activity, regardless of its purpose (as long as the activity itself is legal under international law) unless positively prohibited. Thus, based on this line of thought, an economic organization could engage in military activities, within the limits of international law, unless the organization’s own rules prohibit it from doing so.

  • Bradley, Curtis A., and Judith G. Kelley, eds. Special Issue: The Law and Politics of International Delegation. Law & Contemporary Problems 71 (2008).

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    Special issue of venerable journal devoted to principal–agent analysis, containing work by lawyers and by political scientists. Some very useful contributions, including the editors’ opening article on the concept of delegation.

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  • Permanent Court of International Justice. “Jurisdiction of the European Commission of the Danube between Galatz and Braila.” Publications of the Permanent Court of International Justice, series B, no. 14 (1927): 1–70.

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    Discussing the role of the Danube Commission, the Permanent Court of International Justice famously held in this advisory opinion that the commission could exercise such functions as had been granted to it. By equating functions and powers and recognizing the idea of organizations exercising conferred powers, the Permanent Court gave functionalism its stamp of approval.

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  • Pollack, Mark A. The Engines of European Integration: Delegation, Agency, and Agenda Setting in the EU. Oxford: Oxford University Press, 2003.

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    Oft-cited work on principal–agent analysis arguing that even the supranational European Union (EU) can be understood as the result of delegation. The delegation is either informed by functionalist concerns or, as in the case with the European Parliament, by concerns about the legitimacy of European governance.

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  • Sarooshi, Danesh. The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of Its Chapter VII Powers. Oxford: Oxford University Press, 1999.

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    Technically accomplished, award-winning study of double delegation: delegation of tasks by member states to the UN and its Security Council and further delegation by the Security Council to others, including member states. Upholds the maxim delegatus non potest delegare (no delegated powers can be further delegated) but never quite resolves the ensuing theoretical problem: If creating an organization amounts to delegation, how can further delegation be justified?

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  • Sarooshi, Danesh. International Organizations and Their Exercise of Sovereign Powers. Oxford: Oxford University Press, 2005.

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    Brief conceptual (and award-winning) study of the various legal techniques by which states can assign powers to organizations. Distinguishes principal–agent models, delegation, and transfer of powers. Note though that Danesh Sarooshi’s principal–agent model is substantively stricter than that prevailing among political scientists and some lawyers, which leaves more discretion to the agent (and would be called delegation by Sarooshi).

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Financing

Important as the financing of international organizations is (no money equals no action, after all), relatively little general studies have appeared. Such work as is being done is usually hidden in a chapter or subchapter of a monograph on a particular organization, and it is typically descriptive rather than analytical. Attention to the topic moreover tends to come in waves. Writings occur after politicians threaten to withhold funding and in the light of some real or perceived crisis. With this in mind, quite possibly the leading study (despite its limitation to the UN) is Alvarez 1991, positing the illegality of unilateral withholdings by member states. Ehlermann 1982 addresses various ways of guaranteeing income, focusing in particular on the way the European Union (EU) receives its so-called own resources (as opposed to compulsory contributions from member states), while Woods 2006 documents how the richer nations benefit from lending money through the financial institutions to poor states.

  • Alvarez, José E. “Legal Remedies and the United Nations à la Carte Problem.” Michigan Journal of International Law 12 (1991): 229–311.

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    Seminal piece discusses in particular to what extent member states can use the power of the purse to hold organizations to their mandates; holds that “punishing” organizations for their policies by withholding funding is politically inspired and legally not to be tolerated. Clear, concise, and well written.

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  • Ehlermann, Claus-Dieter. “The Financing of the Community: The Distinction between Financial Contributions and Own Resources.” Common Market Law Review 19 (1982): 571–589.

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    Discusses the European Union’s so-called own resources system of acquiring income and contrasts it to the more traditional practice of insisting on member state contributions. Useful and informative but struggles to come to terms with the circumstance that even in a system of “own resources” the member states play a pivotal role.

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  • Woods, Ngaire. The Globalizers: The IMF, the World Bank, and Their Borrowers. Ithaca, NY: Cornell University Press, 2006.

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    Excellent study of the financial institutions by a leading political economist. While not devoted to financing alone, this study makes the sobering point that the money-contributing member states make a bundle by lending money to poor states.

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Privileges and Immunities

This is one of the classic topics within international institutional law and one on which much has been written. From a functionalist perspective (Bekker 1994), international organizations should be granted such privileges and immunities as are necessary to facilitate their functioning. These may include immunities from prosecution for the organization and its staff; inviolability of premises, archives, and correspondence; and tax exemptions for the organization and its staff. While part of this is regulated by means of general conventions, to some extent it also forms part of regulation between the organization and its host state (Muller 1995). One difficult question emerging is that when the organization is immune, does this also mean that it operates in a legal vacuum? In other words, is there some default law that can be looked at for guidance, and if so, what law is this? Generally, one might hold international law to have some application here, but international law cannot be expected to govern such things as workplace relations in all their details. Few staff regulations will provide rules on, say, whether supervisors have access to emails written by their staff. Practice would suggest that, despite the existence of immunities, the law of the host state has a role to play, if only by default in such matters (Reinisch 2005). Domestic law cannot be completely swept aside in matters such as environmental regulation or labor regulation. The flip side of functionalism might well be that organizations end up being able with impunity to engage in all sorts of acts that bear but a tangential relationship to their functions. Surely, functionalism should not serve as a reason to engage in suspect hiring practices, sexual harassment, or human rights violations (Singer 1995). The European Court of Human Rights has picked up on this concern and has put something of a procedural check in place in the case Waite and Kennedy v. Germany (European Court of Human Rights 1999). More generally, though, courts prove to be reluctant to engage in proceedings involving international organizations (Reinisch 2000).

  • Bekker, Peter H. F. The Legal Position of Intergovernmental Organizations: A Functional Necessity Analysis of Their Legal Status and Immunities. Dordrecht, The Netherlands: Martinus Nijhoff, 1994.

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    The most sophisticated discussion of privileges and immunities from a functionalist perspective focusing on the idea of “official acts.” Indeed, so sophisticated as to conclude that a purely functionalist analysis, as such, will rarely be able to provide clear-cut answers—much depends on how the notion of “official acts” is interpreted and by whom.

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  • European Court of Human Rights. “Waite and Kennedy v. Germany, 18 February 1999.” International Law Reports 118 (1999): 121.

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    Confronted by claim from European Space Agency employees that the organization’s immunity from prosecution impeded their human right to have access to justice, the European Court of Human Rights held that if an organization itself offers a system of protection (e.g., in the form of a staff tribunal), employees’ human rights are prima facie respected.

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  • Muller, A. S. International Organizations and Their Host States. Dordrecht, The Netherlands: Martinus Nijhoff, 1995.

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    Useful and systematic functionalist study of relations between organizations and their host states. Sometimes pushes functionalism to the extreme: Can organizations really claim a legal entitlement to privileges and immunities in the absence of any agreement?

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  • Reinisch, August. International Organizations before National Courts. Cambridge, UK: Cambridge University Press, 2000.

    DOI: 10.1017/CBO9780511494437Save Citation »Export Citation »E-mail Citation »

    Excellent study of how national courts deal with international organizations, suggesting that immunities law is one way by which courts can justify their reluctance to address claims involving international organizations, a reluctance typically manifesting a desire to protect the independence of organizations. Critical of the dominant functionalist perspective.

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  • Reinisch, August. “Accountability of International Organizations according to National Courts.” Netherlands Yearbook of International Law 36 (2005): 119–167.

    DOI: 10.1017/S0167676805001194Save Citation »Export Citation »E-mail Citation »

    Pioneering article in its suggestion that the national law of the host state may play a role in the everyday life of international organizations, the existence of immunities notwithstanding.

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  • Singer, Michael. “Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns.” Virginia Journal of International Law 36 (1995): 53–165.

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    One of the first articles ever to question the functionalism underlying the recognition of privileges and immunities of international organizations, holding that it displays a bias against the human rights of staff members. Compulsory reading; article set the tone for later critiques of functionalism.

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Law Making

Possibly the main external effect of international organizations has to do with whether they can serve as law-making agencies. While it is clear that organizations may provide useful services when it comes to the conclusion of treaties, it is less clear whether their own instruments can and do have legal effects and, if so, whether their legal effect derives from the legal instruments concerned or whether their legal effects require the regular customary law-making process in order to materialize. Early studies (Tammes 1958) realized that the adoption of nonbinding instruments by majority vote was the price the world community had to pay to sovereignty: a majority vote could typically be expected only if the resulting instrument would be nonbinding. Nonetheless, practice suggests that certain nonbinding instruments may, over time, acquire legal effects, with the Universal Declaration of Human Rights perhaps the most prominent example. Some observers have, perhaps not with full cogency, aimed to explain this by suggesting that the UN General Assembly possesses law-making powers (Asamoah 1966); others, inspired by behavioral research, look to whether such instruments have “normative ripples.” If the instruments are adhered to, they must be considered binding; if they are not adhered to, then they are not binding, thus doing away with any theory of sources of law or the legal basis of obligation (Alvarez 2005). Much depends on what the organization’s documents specify with respect to law making and indeed how law making is defined. Within the European Union (EU), it is noncontroversial that regulations are binding on member states and others; the more curious instrument is the directive, characterized as it is by creating an obligation of ends but not of means (Prechal 2006). Within the UN, much debate centers on whether the Security Council, when exercising its enforcement discretion, can “legislate” (Happold 2003), with the main question being whether the Security Council has been given the legal power to engage in general legislation. More generally, questions are posed as to whether opting out techniques or reporting procedures can be regarded as bridging the divide between sovereignty and law making in the common interest: How do these relate to the often posited need to be based on the consent of states (Buergenthal 1969, Klabbers 2009)? A plausible argument can be made moreover that organizations sometimes engage in norm setting even without adopting legislative or quasi-legislative instruments (Bogdandy and Goldmann 2008).

  • Alvarez, José E. International Organizations as Law-makers. Oxford: Oxford University Press, 2005.

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    Rich and detailed study of the ways international organizations contribute to the making of international law. While the overall theory that law emerges when instruments have “normative ripples” could have been more convincing, this study is monumental in its eye for detail and comprehensiveness of coverage.

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  • Asamoah, Obed Y. The Legal Significance of the Declarations of the General Assembly of the United Nations. The Hague: Martinus Nijhoff, 1966.

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    Representative of popular opinion when voicing the desire to see General Assembly resolutions treated as legally binding, invoking a law-making power that somehow had been granted to the General Assembly. To a large extent a child of its time, manifesting the hopes and aspirations of newly independent states in the global legal order.

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  • Bogdandy, Armin von, and Matthias Goldmann. “The Exercise of International Public Authority through National Policy Assessment.” International Organizations Law Review 5 (2008): 241–298.

    DOI: 10.1163/157237408X412907Save Citation »Export Citation »E-mail Citation »

    Makes the point that even nondeontic activities (such as the Organisation for Economic Co-operation and Development’s Programme for International Student Assessment, ranking school performances without issuing recommendations or otherwise setting standards) may be regarded as manifestations of public authority and adopts a methodology to address such manifestations in legal terms.

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  • Buergenthal, Thomas. Law-making in the International Civil Aviation Organization. Syracuse, NY: Syracuse University Press, 1969.

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    Rich and engaged study on law making in one of the less politicized organizations. Highly critical of all too facile assumptions.

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  • Happold, Matthew. “Security Council Resolution 1373 and the Constitution of the United Nations.” Leiden Journal of International Law 16 (2003): 593–610.

    DOI: 10.1017/S0922156503001304Save Citation »Export Citation »E-mail Citation »

    Emblematic article written out of dismay at the law-making role assumed by the Security Council suggesting that such a role is inconsistent with the UN Charter and also otherwise undesirable.

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  • Klabbers, Jan. “Law-Making and Constitutionalism.” In The Constitutionalization of International Law. By Jan Klabbers, Anne Peters, and Geir Ulfstein, 81–125. Oxford: Oxford University Press, 2009.

    DOI: 10.1093/acprof:oso/9780199543427.001.0001Save Citation »Export Citation »E-mail Citation »

    Jurisprudentially informed study aims to reconcile the demands of law making in a globalizing world with the need for consent by interested parties and finds something of a solution in the notion of presumptive law. Some instruments, including instruments adopted within international organizations, can be presumed binding unless the opposite can be proven.

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  • Prechal, Sacha. Directives in European Community Law. 2d ed. Oxford: Oxford University Press, 2006.

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    Fine study of the curious notion of directives by a former law professor, now a judge at the Court of Justice of the European Union. Portrays the myriad aspects of the complicated relationship among European Union (EU) member states as manifested in directives with great clarity and eye for detail.

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  • Tammes, A. J. P. “Decisions of International Organs as a Source of International Law.” Recueil des Cours 94 (1958): 265–363.

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    Classic contribution on the legal effects of instruments adopted by organizations, known in particular for observing that the cost of accepting majority voting is a dilution of binding force. This is still significant in that it is still the main compromise between majority decisions and unanimity.

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Treaty Making

If international organizations wish to interact with the external world, they will typically have to do so by concluding treaties. This raises sometimes intricate issues about the treaty-making powers of international organizations: Do they have them to begin with? And if so, are they limited to certain classes of treaties only, as functionalism would suggest (an organization with functions on topic X cannot expect a power to conclude treaties on topic Y)? Most organizations will have at least the power to conclude a headquarters agreement with their host state; this may well be one of the few truly inherent powers they possess. The general position in the literature, reflected in Chiu 1966, is that organizations have a capacity to conclude treaties based on general international law but that their powers to conclude specific treaties—on specific topics, that is—may still be limited. To a large extent, the study of the treaty-making practices of international organizations is limited, not surprisingly, to the practice of the European Union (EU), as the EU is by far the most active organization when it comes to concluding treaties. Rosenne 1954 is an exception, a rare example of discussing the treaty practice of an organization other than the EU. The EU boasts a complicated system of external powers and can and does conclude treaties on a host of topics (Koutrakos 2006, Verweij 2004). This raises some specific legal questions, for instance, on the characteristics of treaties concluded by the EU and its member states together (Heliskoski 2001) or even on the EU’s participation in international organizations (Frid 1995).

  • Chiu, Hungdah. The Capacity of International Organizations to Conclude Treaties and the Special Legal Aspects of the Treaties So Concluded. The Hague: Martinus Nijhoff, 1966.

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    The classic discussion in English of the capacity of international organizations to conclude treaties under international law. Based on solid analysis of the legal practice (treaty-making practice) of a wide array of international organizations.

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  • Frid, Rachel. The Relations between the EC and International Organizations: Legal Theory and Practice. Dordrecht, The Netherlands: Martinus Nijhoff, 1995.

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    Fine overview of the practice of the EU (then as European Community) as a member or stakeholder in a variety of international organizations. Sometimes theoretically ambivalent but authoritative reviews of practice.

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  • Heliskoski, Joni. Mixed Agreements as a Technique for Organizing the International Relations of the European Community and Its Member States. The Hague: Kluwer Law International, 2001.

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    The leading study of “mixity” in English by a Finnish government lawyer; subtle and technically highly accomplished.

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  • Koutrakos, Panos. EU International Relations Law. Oxford: Hart, 2006.

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    Excellent overview of the law relating to the external relations of the EU, from its external relations powers to the legal effect of treaties in the EU legal order and much, much more.

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  • Rosenne, Shabtai. “United Nations Treaty Practice.” Recueil des Cours 86 (1954): 281–443.

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    Masterful discussion and analysis of the treaty practice of the UN. Empirically outdated, this is still a model for others to emulate in terms of its being systematic and thoughtful.

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  • Verweij, Delano. The European Community, the European Union, and the International Law of Treaties. The Hague: TMC Asser, 2004.

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    Useful if sometimes erratic overview of the EU’s treaty practice. Plea for recognition of a special position for the EU within the law of treaties fails to convince in that it would elevate the EU to a position above and beyond international law.

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Responsibility and Accountability

The hottest topic in international institutional law since the late 1980s is the control over the acts of international organizations. On the idea that organizations are not merely exercising nondiscretionary delegated powers but are exercising public authority, the thought has gained ground that, in doing so, some form of control ought to be available. This was quite novel, as earlier generations of institutional lawyers felt that organizations could do no wrong as long as they would stick to their functions. And in the event that they would transgress these functions, their member states would be to blame for not exercising sufficient control. Hence early scholarship focused on responsibility of member states, denying the possibility of organizations carrying responsibility in their own right (Eagleton 1950). Philosophically, the question of whether international organizations possess moral agency has yet to be answered (Erskine 2003). It is by no means self-evident that collective agencies, as opposed to individual human beings, can be considered as morally relevant actors. Perhaps not entirely surprisingly, as soon as it seemed plausible that organizations themselves could engage in wrongful acts (the International Tin Council litigation proved instrumental here, see Sadurska and Chinkin 1990), the first instinct of the international legal community was to shield member states against ascriptions of responsibility (Institut de Droit International 1995–1996). However, this was soon seen as leading to possibly unjust situations, resulting in proposals concerning secondary or indirect responsibility of member states for the acts of international organizations (Hirsch 1995) in addition to discussion of the responsibility of organizations (Klein 1998, International Law Commission 2002–). While the International Law Commission (ILC) aims, following traditional international law models, to devise a regime on responsibility for internationally wrongful acts, others have adopted a broader approach in focusing on the possible accountability of organizations. Following this line of thought, organizations may be held legally accountable for disrespecting rules that are not necessarily part of international law. Thus International Law Association 2004 opens up the possibility of accountability for violation of good governance standards, as does Wellens 2002, whereas the Global Administrative Law project (Kingsbury, et al. 2005) posits a set of administrative standards borrowed in part from domestic administrative traditions. This finds some criticism and further elaboration and refinement, self-consciously located within an international law framework, in von Bogdandy, et al. 2010. Moreover, as Harlow 2002 makes clear, accountability is not necessarily limited to legal redress or judicial review, although it is often conceptualized as such. In short, a considerable debate is ongoing concerning whether organizations can be held responsible under international law, whether the broader notion of legal and political accountability might be more appropriate, and if responsibility or accountability is deemed desirable, how organizations could possibly be held responsible or accountable in accordance with which norms.

  • Bogdandy, Armin von, Rüdiger Wolfrum, Jochen von Bernstorff, Philipp Dann, and Matthias Goldmann, eds. The Exercise of Public Authority by International Institutions: Advancing International Institutional Law. Berlin: Springer, 2010.

    DOI: 10.1007/978-3-642-04531-8Save Citation »Export Citation »E-mail Citation »

    Excellent attempt to develop the global administrative law approach and embed it within an international legal framework. Truly lives up to its subtitle with its intelligent conceptualization and its inclusion of a host of relevant case studies.

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  • Eagleton, Clyde. “International Organization and the Law of Responsibility.” Recueil des Cours 76 (1950): 319–425.

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    One of the first discussions ever of the responsibility of international organizations under international law, all too rapidly perhaps slipping into a discussion of member state responsibility.

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  • Erskine, Toni, ed. Can Institutions Have Moral Responsibilities? Collective Moral Agency and International Relations. Basingstoke, UK: Palgrave Macmillan, 2003.

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    Fine collection of papers on the moral agency of collective bodies such as international organizations by a group of political theorists-cum-international relations scholars. Curiously seems to forget that states too are collective actors whose moral agency is the bedrock foundation of international law.

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  • Harlow, Carol. Accountability in the European Union. Oxford: Oxford University Press, 2002.

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    Classic study suggesting that accountability is more than judicial review alone and can also take place through parliamentary scrutiny or auditing. Outdated in some of the details but still packs a powerful conceptual punch and capable of inspiring studies outside the European Union (EU) context.

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  • Hirsch, Moshe. The Responsibility of International Organizations toward Third Parties: Some Basic Principles. Dordrecht, The Netherlands: Martinus Nijhoff, 1995.

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    Useful study coming out of the functionalist school of Leiden University. Strongly advocates the recognition of secondary and indirect responsibility of member states for the behavior of international organizations.

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  • Institut de Droit International. “The Legal Consequences for Member States of the Non-fulfilment by International Organizations of Their Obligations toward Third Parties.” Annuaire de l’Institut de Droit International (1995–1996).

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    Two authoritative reports by Dame Rosalyn Higgins (later president of the International Court of Justice) with ensuing discussion and resolution. Adopts the position that mere membership in an international organization does not result in member state responsibility for the acts of that organization. Focuses on member state responsibility rather than responsibility of the organization.

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  • International Law Association. “Accountability of International Organisations: Final Report.” In Report of the Seventy-First Conference: Berlin. By International Law Association, 164–241. London: International Law Association, 2004.

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    Attempt to capture the responsibilities of international organizations in the broader framework of legal “accountability” based on reports by Karel Wellens and Malcolm Shaw. Establishes lengthy set of so-called recommended rules and practices attempting to overcome the problem that the sources of the obligations resting on international organizations are not always clearly identifiable.

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  • International Law Commission. “Responsibility of International Organizations.” London: International Law Association, 2002–.

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    Ongoing valiant attempt by a UN body to formulate a responsibility regime for international organizations. Based on the work of a special rapporteur, Giorgio Gaja, the work is caught between having to emulate by and large the rules on state responsibility while realizing that organizations and states are different types of actors.

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  • Kingsbury, Benedict, Nico Krisch, Richard B. Stewart, and Jonathan B. Wiener, eds. Special Issue: The Emergence of Global Administrative Law. Law and Contemporary Problems 68.3–4 (2005).

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    Brilliantly conceived and executed special issue of a leading law journal detailing and illustrating the rise of global administrative law as a way to come to terms with the exercise of public authority on levels beyond the nation-state. While not beyond criticism (it relies heavily on Western administrative law concepts), this has quickly established itself as compulsory reading.

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  • Klein, Pierre. La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens. Brussels: Bruylant, 1998.

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    Meticulously researched and detailed study on responsibility of international organizations also covering domestic law. Strongly based on study of the relevant cases and discusses origins and consequences of responsibility.

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  • Sadurska, Romana, and Christine Chinkin. “The Collapse of the International Tin Council: A Case of State Responsibility?” Virginia Journal of International Law 30 (1990): 845–890.

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    Excellent early discussion of the Tin Council collapse from the perspective of the (far from self-evident at the time) tension between the organization and its member states. Ahead of its time.

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  • Wellens, Karel. Remedies against International Organisations. Cambridge, UK: Cambridge University Press, 2002.

    DOI: 10.1017/CBO9780511494451Save Citation »Export Citation »E-mail Citation »

    Somewhat idiosyncratic but pioneering study by one of the International Law Association’s rapporteurs on the accountability of international organizations. Characterized by its attempts to formulate and elaborate a more or less constitutionalist alternative to functionalism.

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Constitutionalism and the Rule of Law

Dissatisfied with the lack of control over international organizations and with the possibilities seemingly available within functionalist theory, many have launched ideas about the possible constitutionalization of international organizations and international law generally. One of the most enthusiastic proponents is Ernst-Ulrich Petersmann (Petersmann 1997), whose concept of constitutionalization owes much to the protection of rights. Mostly about the World Trade Organization (WTO), Petersmann’s work has been seriously analyzed in Cass 2005, who reached the conclusion that the WTO is not quite in the process of constitutionalization, regardless of how exactly that term is used. By contrast, it is widely accepted that the European Union (EU) is a constitutional legal order (Stein 1981), although the wisdom of trying to carve this in stone by adopting a formal constitution has given rise to some debate (Weiler and Wind 2003). Perhaps the most far-reaching claim has been made in Fassbender 1998, suggesting that the UN Charter is humanity’s constitution. It has also been suggested that when adopting sanctions against individuals, the UN Security Council and its sanctions committees are themselves bound to respect some form of constitutional thought in the form of the rule of law (Farrall 2007), while Klabbers 2004 worries that constitutionalism might be overambitious and ought to be replaced by a more modest and aretic “constitutionalism lite.” The contributions to Klabbers and Wallendahl 2011 systematically analyze the doctrines of international institutional law in light of the tension between traditional functionalism and constitutionalism. MacDonald and Johnston 2005 discusses global constitutionalism in general while carving out a special niche for the UN.

  • Cass, Deborah Z. The Constitutionalization of the World Trade Organization: Legitimacy, Democracy, and Community in the International Trading System. Oxford: Oxford University Press, 2005.

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    Subtle study of the WTO discussing and dismissing three distinct constitutionalization scenarios while in the process making clear that constitutionalization is always someone’s political project. Brutally honest moreover in rejecting her own conclusions drawn in an earlier article.

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  • Farrall, Jeremy Matam. United Nations Sanctions and the Rule of Law. Cambridge, UK: Cambridge University Press, 2007.

    DOI: 10.1017/CBO9780511494352Save Citation »Export Citation »E-mail Citation »

    Comprehensive and detailed review of the work of the UN Sanctions Committees since its inception; argues for recognition by the Security Council of the relevance of a thin concept of the rule of law. Jurisprudentially informed and great work of reference on the work of the various sanctions committees by a former UN official.

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  • Fassbender, Bardo. “The United Nations Charter as Constitution of the International Community.” Columbia Journal of Transnational Law 36 (1998): 529–619.

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    Influential article that argues that the UN Charter is a constitution not just for the United Nations but for the world community at large. Methodologically not flawless but interesting and thought provoking. Later book version under (almost) the same title adds little to the original article. Fassbender’s central thesis has found an endorsement of sorts in the work of the leading political philosopher Jürgen Habermas.

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  • Klabbers, Jan. “Constitutionalism Lite.” International Organizations Law Review 1 (2004): 31–58.

    DOI: 10.1163/1572374043242411Save Citation »Export Citation »E-mail Citation »

    Discusses some of the problems associated with a liberal version of constitutionalism in the law of international organizations and ends up arguing (however embryonic) in favor of an aretic approach, suggesting that virtuous leadership of organizations might help ensure that organizations refrain from engaging in wrongful acts.

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  • Klabbers, Jan, and Åsa Wallendahl, eds. Research Handbook on International Organizations Law: Between Functionalism and Constitutionalism. Cheltenham, UK: Edward Elgar, 2011.

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    Collection of articles self-consciously and systematically exploring the tension between functionalist and constitutionalist approaches to international institutional law.

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  • MacDonald, Ronald St. John, and Douglas M. Johnston, eds. Towards World Constitutionalism: Issues in the Legal Ordering of the World Community. Leiden, The Netherlands: Martinus Nijhoff, 2005.

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    Huge, sprawling, and somewhat uneven collection of articles discussing world constitutionalism in its infinite variety, tackling topics as diverse as Islamic political theory, US unilateralism, and judicial review in international law.

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  • Petersmann, Ernst-Ulrich. “How to Reform the UN System? Constitutionalism, International Law, and International Organizations.” Leiden Journal of International Law 10 (1997): 421–474.

    DOI: 10.1017/S0922156597000332Save Citation »Export Citation »E-mail Citation »

    One of many works by a German lawyer steeped in ordo-liberal thought about constitutionalizing international law by focusing on rights, in particular individual rights to engage in economic activities. Has attracted quite a bit of criticism for his normative stand, but the work is often characterized by a high level of technical skill.

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  • Stein, Eric. “Lawyers, Judges, and the Making of a Transnational Constitution.” American Journal of International Law 75 (1981): 1–27.

    DOI: 10.2307/2201413Save Citation »Export Citation »E-mail Citation »

    Emblematic work with instantly recognizable opening sentence. Argues that the EU has been constitutionalized by the court-sponsored introduction of direct effect, supremacy, and implied powers.

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  • Weiler, Joseph H. H., and Marlene Wind, eds. European Constitutionalism beyond the State. Cambridge, UK: Cambridge University Press, 2003.

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    Fine collection of articles by leading EU lawyers and theorists discussing the benefits, drawbacks, and dynamics of the EU’s (aborted) attempt to formalize the constitutionalization project long before begun by the EU’s court.

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Dissolution and Succession

While organizations are often established for an indefinite period of time, they do not necessarily exist forever. The League of Nations is the classic example of an organization that has been disbanded. Others that no longer exist include the former Soviet-driven Warsaw Pact and Comecon. Sometimes new organizations are built around or on foundations of existing ones. This arguably happened when the Organisation for European Economic Co-operation (OEEC) became the Organisation for Economic Co-operation and Development (OECD), the General Agreement on Tariffs and Trade (GATT) transmogrified into the World Trade Organization (WTO), and the European Union came to replace the European Community (which itself had come to replace the individual European Communities, of which the European Coal and Steel Community is no longer in existence). Issues that come to the fore concern the position of staff and what to do with archives and documents. Most complicated perhaps is whether promulgated law (including acquired rights) continues to be in force after an organization ceases to exist, while the more general theoretical question is whether succession is automatic or not. The communis opinio (common opinion) is that succession is not automatic (Chiu 1965). One of the very few general studies in English is Myers 1993, while a rare study of capture by one organization of another is Wessel 2001.

  • Chiu, Hungdah. “Succession in International Organisations.” International and Comparative Law Quarterly 14 (1965): 83–120.

    DOI: 10.1093/iclqaj/14.1.83Save Citation »Export Citation »E-mail Citation »

    Fine general overview by an excellent international lawyer suggesting that automatic succession is not supported by practice.

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  • Myers, Patrick R. Succession between International Organizations. London: Kegan Paul International, 1993.

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    A rare comprehensive study of succession between organizations in English. Discusses forms of succession, legal bases thereof, and effects.

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  • Wessel, Ramses A. “The EU as Black Widow: Devouring the WEU to Give Birth to a European Security and Defence Policy.” In The EU and the International Legal Order: Discord or Harmony? Edited by Vincent Kronenberger, 405–434. The Hague: TMC Asser, 2001.

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    Good solid discussion of what happens when one organization aspires to capture another. The title suggests something of the spirit in which the article is written.

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International Bureaucracy

Like states, international organizations are abstractions that have to act through real people: enter the international civil service. The law relating to the international civil service is an area for specialists and involves such issues as the nature of appointments, staff treatment generally, which tribunals exist to deal with such issues, and the procedures before those tribunals. The leading treatise is Amerasinghe 1994. Some might find the role of the bureaucracy in furthering (or obstructing) the goals of the organization more intriguing than the precise legal details, and indeed this turns out to be a topic about which more tends to be written than about the legal aspects per se. A well-considered argument against placing too strong an emphasis on such things as geographical representation of member states within the staff of international organizations is Weiss 1975, while Cain, et al. 2004 presents a whirlwind account of both the bliss and the frustration of working for the UN.

  • Amerasinghe, Chittharanjan F. The Law of the International Civil Service as Applied by International Administrative Tribunals. 2d ed. 2 vols. Oxford: Clarendon, 1994.

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    The leading treatise on the law relating to international civil servants. Comprehensive and detailed overview by former executive secretary of the World Bank’s tribunal and leading international institutional lawyer.

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  • Cain, Kenneth, Heidi Postlewait, and Andrew Thomson. Emergency Sex (and Other Desperate Measures): A True Story from Hell on Earth. London: Hyperion, 2004.

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    Exciting and very readable account of life in the trenches by three (former) UN employees. Compulsory reading for anyone with ambitions to become an international civil servant. Shamefully, the UN tried to suppress publication.

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  • Weiss, Thomas G. International Bureaucracy. Lexington, MA: Lexington Books, 1975.

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    Early, insightful, and subtle study by a young political scientist, now one of the leading UN scholars. Very readable and a lot less outdated than its publication date would suggest.

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Change

Legal rules are rarely carved in stone, and they may be expected to change over time. Normally, one would expect such change to take place by means of amendment of the instrument concerned following the procedures devised for such purposes (Zacklin 2005). In addition, it would be common to expect that decisions of international tribunals help shape the law (Lauterpacht 1976). Practice suggests, however, that change often also takes place through informal means, by member states agreeing that a different course of action is a good thing or agreeing to change the constitution without actually going through formal amendment procedures or even simply through what is colloquially known as “mission creep” (Kirgis 1995). Perhaps the most glaring example has been the North Atlantic Treaty Organization (NATO) transformation since the end of the Cold War (Bölingen 2007).

  • Bölingen, Stefan. Die Transformation der NATO im Spiegel der Vertragsentwicklung: Zwischen sicherheitspolitischen Herausforderungen und völkerrechtlicher Legitimität. Saarbrücken, Germany: DTM Verlag, 2007.

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    Useful if somewhat sterile study of how NATO has reinvented itself by means of the adoption of strategy documents with a keen disregard for the niceties often associated with the rule of law.

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  • Kirgis, Frederic L., Jr. “The Security Council’s First Fifty Years.” American Journal of International Law 89 (1995): 506–539.

    DOI: 10.2307/2204171Save Citation »Export Citation »E-mail Citation »

    Highly accomplished and at times disturbing overview of how the Security Council’s practice has come to depart from the legal provisions of the UN Charter through all sorts of informal processes.

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  • Lauterpacht, Elihu. “The Development of the Law of International Organizations by the Decisions of International Tribunals.” Recueil des Cours 152 (1976): 381–478.

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    Authoritative overview of the contribution of international courts to international institutional law by a scholar with vast practical experience. Still well worth reading.

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  • Zacklin, Ralph. The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies. Leiden, The Netherlands: Martinus Nijhoff, 2005.

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    One of the true classics of the discipline; a highly skillful study of the law and practice of amendment with already some attention for informal change. Originally published in 1968 (Leiden: A. W. Sijthoff) and indeed still very instructive.

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LAST MODIFIED: 03/23/2012

DOI: 10.1093/OBO/9780199796953-0002

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