Institutional Law

by

Jan Klabbers

• LAST REVIEWED: 23 March 2012
• LAST MODIFIED: 23 March 2012
• DOI: 10.1093/obo/9780199796953-0002

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.

  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.

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

  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.

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

  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.

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

  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).

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

  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.

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

  DOI: 10.1163/ej.9789004166998.i-606

  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.