Institutional Law

Jan Klabbers

in International Law

ISBN: 9780199796953
Published online March 2012 | | DOI:
Institutional Law

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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.

Article.  11415 words. 

Subjects: International Law ; International Courts and Tribunals ; Private International Law and Conflict of Laws ; Public International Law

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