Unity, Diversity and the Fragmentation of International ...

# The Author 2006. Published by Oxford University Press. All rights reserved. Advance Access publication 12 June 2006

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Unity, Diversity and the Fragmentation of International Law: How Much Does the Multiplication of International Organizations Really Matter? Mario Prost and Paul Kingsley Clark

Abstract It seems to be presumed by many that the simple multiplication of international organizations (IOs) weakens the unity and integrity of international law. There is, in reality, nothing obvious in this assumption. First, there needs to be evidence of duplication or overlaps in the various competences of IOs. Second, it needs to be proven that, in the instances in which the activities of IOs do overlap, such overlap translates into competition, divergence or conflict. Last, and most importantly, rival or competing activities must be of normative significance. This essay proposes to address the preliminary question which, in fact, precedes and underpins all the others as regards the multiplication of IOs and international legal unity: how do IOs matter in the making of international law? IOs, we argue, are more shapers than makers of international law and their multiplication is therefore not a source of increased chaos in the international normative puzzle.

I. Introduction: paradoxical elements of the debate over unity Ten years ago, Thomas Franck, in his celebrated book on Fairness in International Law and Institutions, made the claim that, like any maturing legal system, ‘‘international law has

Mario Prost, McGill Major Fellow in International and Comparative Law; Ph.D. candidate, McGill University; LL.M., Universite´ Paris 1 (Pantheón-Sorbonne) (email: [email protected]). Paul Kingsley Clark, LL.M. candidate, Institute of Comparative Law, McGill University, LL.B. University of Leicester. The authors wish to thank Fre´de´ric Me´gret and Damien Nyer for their helpful comments on earlier drafts of this article.

.................................................................................................................................................................... Chinese Journal of International Law (2006), Vol. 5, No. 2, 341 –370

doi:10.1093/chinesejil/jml022

342 Chinese JIL (2006)

entered its post-ontological era’’.1 International lawyers, in his view, have become emancipated from the constraints of defensive ontology and need no longer feel obliged to justify and prove the existence of ‘‘their’’ law. With the reality and positivity of international law as an accepted proposition, Franck submits, they are now free to end the cycle of doubt and introspection that has for so long inhibited their discipline. No longer compelled to provide an apologia pro vita sua,2 international lawyers can engage in a critical reflection on its substance. This liberty was short-lived. After the passage of only 10 years, the legitimacy of international law is already back in the spotlight. Whilst it is no longer questioned in terms of its existence as a legal order worthy of the name, it is, nonetheless, challenged as regards its unity. Faced with the contemporary explosion of legal norms, increasing normative specificity, the proliferation of international organizations and the multiplication of international tribunals, some have highlighted the risk of ‘‘fragmentation’’ of international law into a more or less coherent set of ‘‘normative islands’’ constituted by partial, autonomous and perhaps even ‘‘self-contained’’ legal sub-systems. The question is in fact of such concern that the International Law Commission was instructed by the General Assembly in 2000 to address the ‘‘risks ensuing from fragmentation of international law’’.3 Beauty, as always, is in the eye of the beholder. Whilst the debate is generally framed in terms of ‘‘proliferation’’ and ‘‘fragmentation’’—rather negative terminology—some perceive the phenomenon as healthy and reflective of the maturity of international law. Diversity and pluralism, they feel, should not be regarded as threats but, rather, as developments inherent in the very nature of international law.4 The general mood, however, remains hesitant, one widely held concern being that international law’s lack of unity may inhibit its capacity to foster the peaceful regulation of international relations. In this respect, former ICJ President Guillaume expressed his concern that international law might be circumvented as an inescapable consequence of the proliferation of international tribunals.5 The danger, in his view, is at our doorstep. And this danger, he warns, is nothing short of ‘‘chaos in public international law’’.6 Faced with the uncertainties, conflicts and paradoxes inherent in modern international law and with the risk of its uncontrolled atomization into a sort of unmanageable legal ‘‘jungle’’, a large part of contemporary legal scholarship, it has been said, is therefore 1 Thomas Franck, 6 Fairness in International Law and Institutions (1995). 2 An apology for itself. See Louis Henkin, 3 International Law: Politics and Values (1995). 3 Even though, one may recall, its mandate covers the ‘‘progressive development of international law and its codification’’, not the maintenance of its unity. See Statute of the International Law Commission, Art.1. 4 See, e.g. Kalypso Nicolaidis and Joyce L. Tong, Diversity or Cacophony? The Continuing Debate over New Sources of International Law, 25 Mich JIL (2004), 1349, 1361; William W. Burke-White, International Legal Pluralism, 25 Mich JIL (2004), 963; Georges Abi-Saab, Fragmentation or Unification: Some Concluding Remarks, 31 NYU JIL and Pol (1999), 919, 925. 5 See Jonathan I. Charney, Is International Law Threatened by Multiple International Tribunals?, 271 Rec. des Cours (1998), 101. See also Julien Fouret and Mario Prost, La multiplication des juridictions internationales: de la nećessite´ de remettre quelques pendules a` l’heure, 15.2 Revue Que´bećoise de Droit International (2002), 117. 6 Gilbert Guillaume, La Cour internationale de Justice: quelques propositions concretes a` l’occasion du cinquantenaire, 100 RGDIP (1996), 323, 331.

Prost and Clark, Unity, Diversity and the Fragmentation of International Law 343

seized by a ‘‘postmodern anxiety’’ which is slowly replacing the classical ontological debate as to the very existence of international law.7 The debate about the unity of international law is full of paradoxes, and therein lies the fascination it exerts on its participants. Not only are opposite views voiced simultaneously;8 a great irony also lies at the very core of the whole issue. The ‘‘fragmentation’’ of international law did not arise out of some intrinsic weakness in a legal order which, based on unsteady foundations and paralyzed by the specter of sovereignty, is prevented from developing and slowly disintegrates. On the contrary, it actually arose from the unprecedented normative and institutional expansion of international law, often into new areas. It is because international law is in fact evolving and because institutions are being created to ensure its implementation and, occasionally, its enforcement that there now exists this growing concern for its unity. The irony, then, lies in the fact that international lawyers, having long fought for the recognition of ‘‘their’’ law as ‘‘real’’ law, are now concerned that there may be an excess of international law. In other words, the achievements of international law may institute its own downfall.9 This paradox is particularly apparent in relation to international institutions. It seems to be presumed, at the outset, that the simple multiplication of international institutions weakens the unity and integrity of international law much like the development of too many branches weakens the growth of a tree. Yet, there is nothing obvious in this assumption. The multiplication of international organizations will only affect the integrity of the international legal order if certain conditions are met. First, there needs to be evidence of duplication or overlaps in the various competences of international organizations (IOs). Indeed, as any good gardener would agree, a tree needs to be pruned only where branches rub together. Whilst conflicts of jurisdiction are somehow inherent and unavoidable in inter-state relations—States having general and virtually unlimited competences—they are not an obvious fact in inter-organizational relations. IOs, it is hardly worth recalling, are sectorial institutions, with narrow fields of activity. They are, to use the words of international regimes theoricians, sets of governing arrangements around which actor expectations converge in a given issue-area.10 Only exceptionally, such as in the instance of the United Nations, will an organization be granted general competences. Normally, IOs are designed to deal with some specific class of issues, limited sometimes by region, sometimes by subject-matter, and sometimes by both. Accordingly, conflicts

7 See Martti Koskenniemi and Paivi Leino, Fragmentation of International Law? Postmodern Anxieties, 15 Leiden JIL (2002), 553. 8 Some commentators have even expressed doubts as to whether fragmentation is actually occurring. Cassese, for instance, suggests that compartmentalization is receding through processes of ‘‘cross-fertilization’’ of different sectors of international law. International law, he submits, is thus becoming more integrated, at least at the normative level. See Antonio Cassese, International Law (2001), 45. On the diversity of opinions about fragmentation, see Matthew Craven, Unity, Diversity and the Fragmentation of International Law, 14 Finn YBIL (2003), 3, 3–6. 9 This paradox has led Weil to declare that international lawyers are ‘‘masochists among the masochists’’; see Prosper Weil, Le droit international en queˆte de son identite´: cours geńe´ral de droit international public, 251 Rec des Cours (1982), 12, 89. 10 See Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, in: Stephen D. Krasner (ed.), International Regimes (1983), 1.


of competence are in theory much more unlikely to happen between IOs than between States. This is, by no means, a denial of issues of overlapping activities which inevitably result from the existence of over 500 IOs today.11 Concrete instances of overlapping activities have been uncovered by commentators, such as between the UNDP and the World Bank in the area of development assistance or between the EU and Eurocontrol in the area of air safety and air traffic management.12 This leads to new issues of inter-organizational coordination which lawyers, among others, need to address. Yet, the overlap of a few institutions on certain subject-matters is less frequent, and in fact more desirable, than that of nearly 200 Sovereign States in all aspects of their international relations. Furthermore, even in those instances in which the activities of IOs do overlap, it still needs be proven that such overlap translates into competition, divergence or conflict. In itself, the overlap of competences is not necessarily a bad thing. There can be overlaps of competences without competition. In many instances, IOs which are simultaneously competent as regards the same issues act together and exercise their competences in common. In the area of peacekeeping, for instance, regional organizations have long been considered partners, not competitors, of the United Nations in its effort to maintain international peace and security. In Africa, for example, the Organization of African Unity (now African Union), the League of Arab States and the Organization of the Islamic Conference joined efforts of the United Nations regarding Somalia. The management of the crisis in the Balkans has also shown many instances of positive co-operation between various organizations which possessed overlapping competences. Joint efforts have been undertaken, in particular, by the United Nations, the European Community and the Organization on Security and Cooperation in Europe.13 The activity of international tribunals also illustrates how the overlapping of competences does not necessarily translate into disorder.14 One barely needs reminding that the multiplication of international tribunals has generated much concern as regards the coherence of the international legal order. In the absence of a genuine, hierarchically organized, judiciary, with a supreme court at its apex, some have expressed their fear of a judicial cacophony that would damage the unity of international law and undermine its effectiveness. These fears have been largely fueled by two well known cases of deviation from ‘‘general’’ international law by special tribunals, on issues of reservations15 and State 11 The number of IOs varies according to the parameters used to operate the selection. The figure for public international organizations, however, is certainly over 500 and probably under 700. See Chittharanjan F. Amerasinghe, Principles of the Institutional Law of International Organizations, 2nd edn (2005), 6. 12 See Niels Blokker, Proliferation of International Organizations: An Exploratory Introduction, in: Niels Blokker and Henry Schermers (eds), Proliferation of International Organizations (2001), 1, 16 –22. 13 As pointed out by Secretary General Boutros-Ghali in his Agenda for Peace. See 31 ILM (1992), 956, 970 –1. 14 International tribunals are judicial or arbitral organs of IOs created to settle disputes between their members. In certain instances, international tribunals are IOs in themselves. The International Criminal Court, for example, is an international organization of its own, endowed with an independent international legal personality. See Rome Statute of the International Criminal Court, UN Doc A/CONF. 183/9 (1998), Arts 1 and 4. On the ICC as an international institution, see Leila Nadya Sadat and Richard Carden, The New International Criminal Court: An Uneasy Revolution, 88 Geo LJ (2000), 381. 15 See Loizidou v. Turkey, 310 ECHR (ser. A) (1995), 29, in which the European Court of Human Rights has diverged from the ICJ in regard to reservations to its jurisdiction. See also the note on this case by Beate


responsibility.16 Yet, empirical studies show that, overall, the different international tribunals share a coherent understanding of international law.17 Complete uniformity, needless to say, is never possible. The fundamentals of general international law, however, tend to remain the same, regardless of which tribunal is deciding the issue.18 The risk of conflicting judgments is therefore merely a hypothetical problem and, here again, whilst there are instances of overlapping jurisdiction between tribunals which share the same competence to settle disputes on the basis of international law, this does not generally lead to disagreement or disorder. Last but certainly not least, even where overlapping activities tend to develop into rivalry or competition, such competition will not automatically have consequences in terms of international law’s unity. This will only become a concern insofar as IOs have the capacity to exercise a genuine and autonomous authority in the making of international law. Only if IOs act as some sort of autonomous law makers will their multiplication be a potential source of disorder and fragmentation. If, on the contrary, what IOs say or do has no normative impact, their unmanaged multiplication, while it might have consequences on the political plane (having competing strategies on the same issues might certainly be counter-productive), will not affect the content and integrity of international law. Put simply, if IOs do not matter, in terms of international legal normativity, there is in fact little to worry about as regards their detrimental effect upon the unity of the international legal order. Herein lies the great irony of the present debate: it needs first be demonstrated that IOs do matter in the making of international law, something that most lawyers would spontaneously recognize as positive and reflective of international law’s maturity, before contemplating the possibility that their multiplication might become a threat to the international legal order. This essay therefore proposes to address the preliminary question which, in fact, precedes and underpins all the others as regards the multiplication of IOs and international legal unity: how do IOs matter in the making of international law? This, of course, is not a new question. While some would contend that it has largely been answered, it seems, Rudolph, Loizidou v. Turkey (Merits), No. 40/1993/435/514, ECHR, 18 December 1996, 91 AJIL (1997), 532. 16 See Prosecutor v. Tadic, Judgement, Case No. IT-94 –1-A (App. Cham., 15 July 1999), 38 ILM (1999), 1518, in which the International Criminal Tribunal for the former Yugoslavia (ICTY), unlike the ICJ, found that a foreign State’s overall control (rather than effective control) of a military organization is sufficient to render that State responsible for all acts of the organization. See also the note on this case by Marco Sassoli and Laura Olson, Prosecutor v. Tadic ( Judgement), Case No. IT-94 –1-A, 38 ILM (1999), 1518; International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, 15 July 1999, 94 AJIL (2000), 571. 17 See, in particular, Jonathan I. Charney, Is International Law Threatened by Multiple International Tribunals? 271 Rec des Cours (1998), 101, 347. 18 In both the Loizidou and Tadic cases, notwithstanding what appears at first glance to be a result that is inconsistent with general international law, the two tribunals have in fact largely endorsed general principles and methods of international law. In Loizidou, the ECHR clearly adhered to the general international law on treaty interpretation and reservations as found in the Vienna Convention on the law of treaties. In Tadic, the strong language in which the ICTY criticized the ICJ’s holdings also tends to obscure the fact that both tribunals accepted and did not question that some degree of direction or control is always necessary to engage a State’s responsibility. See Jonathan Charney, above n.17, 160 – 3; and Christian J. Tams, Swimming with the Tide, or Seeking to Stem it? Recent ICJ Rulings on the Law of Self Defence, 18.2 Revue Quebecoise de Droit International (2006; forthcoming).


however, to resurface today in contemporary variations, notably in light of new concerns regarding the unity of international law. In addition, our ambition is not so much to determine whether or not IOs do matter in the making of international law, but rather, assuming that they do, to analyse how, and to what extent, they matter. Given the fluidity of the notion of the international organization, it is recognized at the outset that this task is difficult, if not impossible. Despite a certain consensus over its historical origins, its definition, as well as its possible legal typologies, a profound and long-running disagreement exists as to the true meaning and significance of the institutional phenomenon in international relations. The disagreement exists at a number of levels. First, as regards the nature of international organizations, there exists considerable divergence between States or groups of States. Traditionally, the attitude of ‘‘Western’’ States contrasts with the perception of ‘‘developing’’ nations. The former’s conception is of IOs as a means toward the establishment of a new peaceful international order—a projection onto the international plane of the occidental, i.e. liberal, political model.19 The latter views IOs as instruments for more radical change in international relations—a way to achieve a ‘‘new international economic order’’, characterized by greater equality and equity.20 Reference can also be made to the attitude of ‘‘socialist’’ countries, which have historically long expressed a more restrictive and conflictual view of IOs, as a reflection in the international plane of the class struggle.21 Second, there also exists significant disagreement in International Relations (IR) scholarship as to the concept of international organizations. Brief mention can be made here of the debate, originating in the 1960s, between ‘‘realist’’ scholars, for whom international organizations are simple emanations of State power with no real existence beyond their members’ self-interest,22 to ‘‘liberal’’ scholars who, without fundamentally departing from the instrumentalist perception of IOs, more readily conceive IOs as autonomous and influential actors.23 In the 1980s, the dispute was reframed in terms of ‘‘neo-realism’’ and ‘‘neo-liberalism’’.24 The focus has also moved away from formal international institutions, toward broader forms of institutionalized international behavior (international regimes).25 Nevertheless, this dichotomy essentially remains and continues to structure, 19 See Rosalyn Higgins, Interpre´tations occidentales du concept d’organisation internationale, in: Georges Abi-Saab (ed.), Le Concept d’organisation internationale (1980), 209. 20 See Mohammed Bedjaoui, Un point de vue du tiers monde sur l’organisation internationale, in: Georges AbiSaab (ed.), Le concept d’organisation internationale (1980), 223. 21 See Grigorii Morozov, La conception socialiste des organisations internationales, in: Georges Abi-Saab (ed.), Le concept d’organisation internationale (1980), 187. 22 On the premises of the realist scholarship, see in particular Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace (1948). 23 See, e.g. Ernst B. Haas, International Integration: The European and the Universal Process, 15 Int’l Org (1961), 366; and Ernst B. Haas, Beyond the Nation State: Functionalism and International Organization (1964). 24 See David A. Baldwin, Neorealism and Neoliberalism: The Contemporary Debate (1993). On ‘‘neo-realism’’, see the founding work of Kenneth Waltz, Theory of International Politics (1979). On ‘‘neo-liberalism’’, see the equally founding work of Robert Kehoane, The Demand for International Regimes, in: Stephen D. Krasner (ed.), International Regimes (1983); and After Hegemony (1984). 25 See Friedrich Kratochwil and John G. Ruggie, International Organization: A State of the Art on an Art of the State, 40 Int’l Org (1986), 753.


in political science scholarship, the discourse on IOs and their role in international relations.26 Accordingly, a complete and definitive understanding of the concept of international organization and its influence on the fundamental structure of the international legal order seems unattainable. This is especially apparent in view of the lack, in international legal scholarship, of a theoretical conception of IOs, a conception which has not been fully provided by the effort made to synthesize and systematize the most fundamental aspects of international institutional law.27 Consequently, this essay is, by no means, an attempt to offer an exhaustive and general theory of IOs, nor does it engage with organizational sociology in order, say, to illustrate how States influence decision making in IOs.28 Instead, it offers a more modest examination of the meaning and significance of institutionalization as regards the unity of international law. The aim is to display how the multiplication of IOs affects the traditional distribution of legal authority in international relations, and whether it favors its concentration or its dilution. Put differently, the key objective is to demonstrate whether, beyond the simple organization of dialogue among States, international institutions are themselves capable of embodying a genuine organization of power. This is a question which deserves particular attention today. Indeed, if IOs merely organize dialogue, their multiplication will essentially affect the stability, predictability or lisibility of policymaking structures and processes. If, on the other hand, they organize power and exercise a certain degree of autonomous legal authority, their multiplication might exacerbate the pre-existing polycentricity of international legal relations and increase the risks of fragmentation of international law. Assessing the extent to which IOs organize international relations requires questioning whether, beyond the mere stabilization of international deliberation (II), IOs have the power to surpass classical inter-State relations and make international law on their own (III). As will be demonstrated, the contribution of IOs is one of reform and modernization of the international system but is not revolutionary or subversive of the classical nationState system. The State continues to be the basic unit—the ‘‘atom’’—of the system.29 It retains most of the power to make law, even though it must share it with other States. 26 Regrettably, international relations theory has essentially framed the question of institutionalization as a dichotomous problem: do institutions matter or don’t they? The question as to how institutions matter has largely been neglected. See Lisa L. Martin, An Institutionalist View: International Institutions and State Strategies, in: T.V. Paul and John A. Hall (eds), International Order and the Future of World Politics (1999), 78, 79. 27 See Jan Klabbers, An Introduction to International Institutional Law (2002), 3– 7. On international institutional law, see Philippe Sands and Pierre Klein (eds), Bowett’s Law of International Institutions, 5th edn (2001); Chittharanjan F. Amerasinghe, Principles of the Institutional Law of International Organizations, 2nd edn (2005); Henry G. Schermers and Niels M. Blokker, International Institutional Law, 4th edn (2003); Daniel Dormoy, Droit des organisations internationales (1995); Mario Bettati, Le droit des organisations internationales (1987). 28 On the sociology of IOs, see Robert W. Cox and Harold K. Jacobson (eds), The Anatomy of Influence: Decision Making in International Organizations (1973). 29 Henkin, above n.2, 7. Contra Fernando Teson, The Kantian Theory of International Law, 92 Col LR (1992), 53. Teson argues that the validity of international law rests on ‘‘normative individualism’’ which makes individuals, rather than States, the primary normative units of international law.


Accordingly, IOs are best described as ‘‘intermediate societies’’ which stimulate co-operation between their members but never truly transcend State sovereignty. The fundamental structure of international legal relations thus remains essentially unchanged. In the end, we argue that as there is no real shift in the allocation of legal authority, the multiplication of IOs is not, in itself, a threat to the unity of international law.

II. The organization of dialogue: IOs and the stabilization of international deliberation International law is predicated upon the assumption that, lacking an instituted legislator, each State represents, in theory, an autonomous decision maker. The sovereign State, of course, is never a purely independent will. States may only exist in intimate relation with one another and, in itself, the existence of other sovereigns renders hollow the idea of the absolute sovereignty of any single State.30 All things considered, complete independence is therefore merely a legal fiction, and States cannot govern alone.31 However, international law making remains entirely predetermined by the decentralized and acephalous nature of the international community. In the absence of a superordinate authority, States have, in principle, full capacity to determine the object, purpose and scope of their legal obligations. Consequently, the international order has often been called an ‘‘anarchy of sovereignties’’, not so much in the sense of a purely lawless and disorderly system as in the sense that, following Proudhon’s definition of anarchy, there exists no law of subordination on the international plane. International law is thus essentially a lateral law of co-ordination. It is, to adopt Dupuy’s well known typology, a ‘‘relational law’’ (droit relationnel ).32 Yet, the emergence and proliferation (some even speak of ‘‘omnipresence’’33) of IOs may very well initiate a fundamental change in this regard, as they offer the prospect of an ordering, an organic adjustment, of the international milieu. IOs facilitate and structure co-operation and deliberation in time and space. Whilst it is clear that IOs are not ‘‘super-states’’,34 they are nonetheless distinct centers of action endowed with a certain autonomy. As we shall see, the question of the extent of this autonomy remains controversial. Yet, in those instances in which States have agreed to pool a portion of their sovereignty in respect of defined matters, IOs seem to exist above, or act in place of, their Member States. The classical ‘‘relational’’ law, dependent on the inter-subjective relations of its subjects, as well as restricted thereto in its sources may thereby develop into an ‘‘institutional’’ law (droit institutionnel ) characterized by the transcendence of its 30 David Kennedy, Theses about International Legal Discourse, 23 Germ YBIL (1980), 353, 361. 31 Anne-Marie Slaughter, Sovereignty and Power in a Networked World Order, 40 Stan JIL (2004), 283, 285. 32 Rene´-Jean Dupuy, Le droit international, 12th edn (2001), 23 –74. 33 On the ‘‘omnipresence’’ of IOs, see Amerasinghe, above n.27, 6 –9. 34 See Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, 172, 179, in which the ICJ held, regarding the United Nations, that ‘‘the Organization is an international person. That is not the same as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is a ‘super-state’’’.


primary subjects.35 Some commentators, stressing this legal innovation, have gone so far as to hail a new ‘‘form of government’’36 endowed with ‘‘quasi-legislative’’ competence.37 It is necessary, however, to go beyond this somewhat bare formula and attempt to define how exactly IOs have effectively affected the classical structure of international relations in the last 50 years.

II.A. Permanence and ‘‘co-tenancy’’: IOs and the coagulation of the international milieu The first notable contribution of IOs is undoubtedly permanence in negotiation and deliberation. When States join together in an international organization, they create a settled institutional framework which assembles on a permanent basis and whose existence is not dependent upon the vicissitudes of international diplomacy.38 This is, in itself, a considerable improvement. Historically, negotiation has been an essentially bilateral, secret and sporadic phenomenon, largely dependent on the unpredictable needs and constraints of international politics. Even the technique of international conferences, which, from Vienna to Versailles, set the tone for European diplomacy, proved to be of limited utility as it only allowed for a temporary and accidental, albeit periodical, collaboration on a limited number of issues.39 Classically, diplomacy has been a matter which rested in the hands of domestic organs: diplomatic and consular agents alone could administer the bilateral relations of their national State with a given foreign country.40 Multilateral diplomacy, for its part, was entirely dependent on the ad hoc arrangements to which sovereigns might consent, upon finding a convergence of interests. Traditional diplomatic relations therefore quickly proved inadequate in the administration of complex multilateral issues which increasingly reached beyond national borders and reflected States’ interdependence, rather than their independence. In IOs, the association of States becomes permanent and translates into a continuous institutional activity capable of embracing equally continuous preoccupations. Detached from national administrations, the organizations’ organs constitute a structure in which international relations of a new kind take place, as they are not only permanent but also collective. Co-operation no longer necessarily means private relationships between States. States are now part of an integrated regime, through which precarious inter partes equilibria are replaced by a sort of ‘‘co-tenancy’’ of each member with all the others.41 35 See Rene´-Jean Dupuy, La Communaute´ Internationale Entre le Mythe et l’histoire (1986), 75 – 199. It is worth stressing that, in Dupuy’s eyes, these two models of international law (relational and institutional) are not historically successive but rather engaged in a dialectical relationship. See Dupuy, above n.32, 59 –61. 36 Ian Brownlie, The UN as a Form of Government, in: James E.S. Fawcett and Rosalyn Higgins (eds), International Organizations: Essays in Honor of John McMahon (1974), 26. 37 Richard A. Falk, On the Quasi-Legislative Competence of the General Assembly, 60 AJIL (1966), 782. 38 While the plenary organs of IOs do not necessarily meet on a permanent basis, the activity of the Secretariat, for its part, is always permanent. 39 On international conferences, see Norman L. Hill, The Public International Conference: Its Function, Organization and Procedure (1929); Frederick S. Dunn, The Practice and Procedure of International Conferences (1929). See also Amerasinghe, above n.27, 2 –3; and Sands and Klein, above n.27, 1– 4. 40 Claude-Albert Colliard, Institutions Internationales, 4th edn (1967), 221 –34. 41 See Robert Kolb, Re´flexions de philosophie du droit international (2003), 329.


IOs are therefore a factor of coagulation of the international milieu. They incessantly induce co-operation between national delegations and allow for denser and more continuous relations, which are vital if members are to genuinely work together. Physical proximity, as well as the opportunity for continuous discussion, allows for issues to be addressed before disputes become too deeply entrenched for resolution. It becomes possible to focus upon such disputes and to specify the positions adopted by a particular State or group of States. By placing relevant matters on a common agenda, States can make demands, express concerns and seek the support of other members. In this sense, IOs facilitate the articulation and aggregation of national interests.42 Increased communication reduces uncertainties. Governments know their partners better and reciprocity operates more efficiently.43 It is a first step in the elaboration of common solutions to common problems, the importance of which is proving considerable.

II.B. Fixing collective parameters for co-operation IOs are not, however, solely the permanent and centralized locus of international negotiation. They also have a more positive and active impact upon collective deliberation. In particular, they play an essential role in ‘‘fixing the meaning’’ of the social context, the social objects and the notions upon which members will negotiate and deliberate.44 In other words, IOs provide States with mutually acceptable parameters for their co-operation. Experience has shown that, in many instances, it is the lack of prior agreement on the very object of negotiations which renders impossible the emergence of consensus. Actors tend to come to the negotiating table with their own agendas, each modeled according to a particular perception of the situation. Rival knowledges frequently lead to disagreement, and disagreement to inaction. This has been particularly evident as regards issues of development. As highlighted by numerous commentators, the development impasse might be best explained by the longstanding misunderstanding—according to some, the fundamental dispute—on the very notion of development.45 Classically, narrow economic perceptions have contrasted with more holistic conceptions of development. Industrialized countries, in particular, have generally insisted that economic growth in developing countries was all that was required, while developing countries, without fundamentally departing from the focus upon economic measures, have emphasized human dignity as the proper objective of the process of development. More recently, new tensions have emerged between the social and the environmental dimensions of development, which have hindered even further the progress towards general 42 Robert Gregg and Michael Barkun, The United Nations System and Its Functions (1968), 7–15. 43 Robert O. Keohane, Reciprocity in International Relations, 20 Int’l Org (1986), 1; and The Demand for International Regimes, in: Stephen D. Krasner (ed.), International Regimes (1983), 141, 161 –7. 44 Michael N. Barnett and Martha Finnemore, The Politics, Power and Pathologies of International Organizations, 53 Int’l Org (1999), 699, 711 – 12. 45 See, among many, François Perroux, A New Concept of Development (1983); Christian Comeliau, Pour un renouveau de l’e´tude du de´veloppement, 34 Rev Tiers Monde (1993), 687; David P. Forsythe, The United Nations, Human Rights, and Development, 19 Hum Rts Q (1997), 334; Sudhir Anand and Amartya K. Sen, Sustainable Human Development: Concepts and Priorities (1999).


consensus on the development agenda.46 These disputes as to the very essence of development forced international negotiation into deadlock. In the late 1970s, it became clear that developed and under-developed countries would no longer negotiate. The issue of development became so central and the confrontation so complete within the United Nations that some even feared for the future of the World Organization.47 As development theories proved increasingly inadequate, a universal understanding became necessary, which would encompass all of the various and competing dimensions of development. Several IOs, most notably the United Nations, played a central role in the renewal of the definition of development. The UN General Assembly, for instance, established the World Commission on Environment and Development in 1983 with a mandate to re-examine critical issues in the area of the environment and development and formulate realistic proposals for dealing with them. The Commission issued the seminal Brundlandt Report, named after its chairman, which introduced the concept of sustainable development into international politics.48 Similarly, the United Nations Development Program has, since 1990, published annual reports on Human Development which have popularized a multidimensional, intergenerational and people-centered approach to development.49 Mention should also be made of the Agenda for Development, produced by UN Secretary General Boutros-Ghali in 1994, which similarly emphasizes that development is a multidimensional enterprise which is much broader than the familiar concept of economic growth.50 It would be an overstatement to conclude that these elements truly revolutionized development. Much remains to be accomplished to turn creditworthy intentions into positive, concrete consequences.51 However, the work of IOs, and in particular that of the United Nations, has been a key element in the effort to forge a new consensus and a new understanding of development. Although some, as recently as a decade ago, predicted the ‘‘death’’ of development theory,52 sustainable development has emerged as a new conceptual matrix which provides the international community with what appears to be a mutually acceptable paradigm of development: a workable set of definitions of the problems to be addressed and the criteria for recognizing solutions. The ‘‘rebirth’’ of development culminated in 2002 with the World Summit on Sustainable Development where an estimated 45,000 participants,

46 See Joao Augusto and Araujo Castro, Environment and Development: The Case of the Developing Countries, 26 Int’l Org (1972), 401. 47 Robert F. Meagher, The United Nations Family: Challenges of Law and Development, 36 Harv ILJ (1995), Introduction, 273, 276. 48 World Commission on Environment and Development, Our Common Future (1987). 49 See among many Cristina N. Campanella, The United Nations’ New Approach to Human Development and Poverty, 17 NYL Sch J Hum Rts (2001), 951. 50 See Boutros Boutros-Ghali, The United Nations Family: Challenges to Law and Development, 36 Harv ILJ (1995), Foreword, 267. 51 See Thomas W. Wa¨lde, Natural Resources and Sustainable Development: From ‘‘Good Intentions’’ to ‘‘Good Consequences’’, in: Nico Schrijver and Friedl Weiss (eds), International Law and Sustainable Development: Principles and Practice (2004), 119. 52 See Sohail Inayatullah, Beyond Development and Towards Prama, 37 Development (1994), 24, 26.


including over 100 Heads of State and more than 22,000 government delegates,53 returned to the negotiating table on which they had turned their backs two decades earlier. Some have rightly stressed the striking contrast between the ostentations of the World Summit and the complete absence of legal instruments adopted on that occasion.54 This reflects the absence of simple means of achieving unity in globalization and sustainable development. This also reflects the fact that the success of sustainable development as a federating or unifying concept is limited by its incapacity to truly address and resolve the contradictions between economic, social and environmental development.55 However, one cannot escape the conclusion that, in areas such as development, IOs contribute to the redefinition and restructuring of collective knowledge on a set of highly controversial issues. In doing so, they provide analytical tools for the assessment and evaluation of specific social phenomena, as well as guidance for action in terms of both ends and means. By altering States’ perceptions and the context of their interaction, they facilitate the opening, or re-opening, of negotiations. From this perspective, by offering new tools and means of classifications for a shared comprehension of the world, IOs promote international co-operation and encourage agreement between their members. Last but not least, the creation of international organizations gives rise to a large and continuous mobilization of human resources.56 The remark is not purely anecdotal. Permanent mobilization of international agents encourages the development of a coherent body of technical expertise, necessary for the handling of contemporary challenges, the nature of which is often complex and multidimensional. Moreover, and this is of fundamental importance, international agents are agents of the organization, not of their national State. The work of international agents, of course, is never completely divorced from political considerations. It always reflects, at some level, certain social values or objectives. Yet international agents are, in principle, devoted to the collective interests of the organization over narrow national interests, and are normally free to operate the organization without political interference from the Member States. This was recently echoed in the clearest of terms by the International Labor Organization (ILO) administrative tribunal. In a case in which the head of a multilateral organization had been removed from his function in reaction to his refusal to meet the demands of a prominent Member State, the tribunal condemned the political interference exerted by States in the operation of the organization. It reaffirmed that ‘‘the independence of international civil servants is an essential guarantee, not only for the civil servants 53 Marie-Claire Cordonier Segger and Ashfaq Khalfan, Sustainable Development Law: Principles, Practices and Prospects (2005), 25 –43. 54 See Marc Pallemaerts, International Law and Sustainable Development: Any Progress in Johannesburg?, 12 Rev Eur Comm and Int’l Env L (2003), 1. 55 On the lack of clarity and conceptual rigor as one possible reason for sustainable development’s global success; see Bruna Simma, Foreword, in: Nico Schrijver and Friedl Weiss (eds), International Law and Sustainable Development (2004), vi. For a more skeptical point of view on sustainable development as a consensual concept which remains at the surface of things and avoids, rather than solves, the problems at hand, see Mario Prost, D’abord les moyens, les besoins viendront apres: commerce et environnement dans la ‘jurisprudence’ du GATT et de l’OMC (2005), 191 –6. 56 A. LeRoy Bennett, International Organizations: Principles and Issues, 6th edn (1995), 438 –9.


themselves, but also for the proper functioning of international organizations’’.57 International civil servants, and international organizations more generally, therefore belong to all members and to none in particular.58 For all of these reasons, IOs are essential fora for the socialization of international relations. Each international organization acts as a sort of barycentric nucleus, creating a field, not of gravity, but of solidarity between its members. It provokes, stimulates and disciplines the dialogue between States. In this sense, IOs form a ‘‘superstructure’’ that favors and promotes harmonization and co-ordination of national policies, whilst aiming at the institution of collective actions.59 In the end, to adopt the terminology of Weber’s analysis of bureaucracies,60 IOs ensure a certain degree of precision, permanence, discipline, rigor, continuity and predictability in international social relations. If the function of IOs is essentially limited to the organization of dialogue, their multiplication shall not be of concern to international lawyers. As coagulators of the international collectivity, IOs are agents of stability, not volatility. The uninhibited mushrooming of IOs might, at some point, increase the difficulties of attaining an integrated approach to complex and intertwined contemporary problems.61 Yet, insofar as IOs organize dialogue, more international organizations will mean more, and better, organization of the international community. And more organization will permit the achievement of certain objectives which would not normally be reachable through classical inter-State relations. One thinks, for example, of the foundational instruments in international human rights law, such as the Universal Declaration of Human Rights or the European Convention for the Protection of Human Rights and Fundamental Freedoms. In both instances, the General Assembly and the European Council, respectively, allowed for general mobilization as well as general deliberation regarding a set of principles which came to the fore by virtue of the Enlightenment and which, to some extent, had been present in State practice, but had never matured and emerged as legal norms.62 These two networks of communication helped to minimize the divergences concerning certain fundamental values and facilitated the development of consensus. As far as the organization of dialogue is concerned, the multiplication of IOs is therefore a trend which favors ‘‘political alchemy’’ between States and helps develop more and better international law. Yet, IOs might represent more than simple stabilizers of international deliberation. Once constituted by their founders, IOs, it is sometimes contended, become creatures which, much like Frankenstein’s monster, develop their own independent 57 See Ana Stanic, Bustani v. Organisation for the Prohibition of Chemical Weapons, 98 AJIL (2004), 810. 58 Niels Blokker, International Organizations and Their Members, 1 Int’l Org LR (2004), 139, 161. 59 Michel Virally, De´finition et classification des organisations internationales: approche juridique, in: Georges AbiSaab (ed.), Le concept d’organisation internationale (1980), 55. 60 Max Weber, Ećonomie et socie´te´ (1971), 297. 61 In 1974, already, Secretary-General Waldheim of the UN expressed his concern as to the coherence of the UN response to problems of international development and co-operation. See UN Doc. E/5524/Add.1, 2. 62 See Daniel Vignes, The Impact of International Organizations on the Development and Application of Public International Law, in: Ronald St J. MacDonald and Douglas M. Johnston (eds), The Structure and Process of International Law (1986), 809, 811.


personality. In terms of international legal normativity, this might come as a threat to the unity of international law. Indeed, if 600 new IOs are capable of expressing an independent will—one which is not only autonomous but also legally meaningful—this might make international law even more polycentric and relative than it already is. International law would thus become a legal puzzle of some 800 pieces, not just one of merely 200. As will become apparent, however, this concern is still more apparent than real. Not only are many IOs devoid of normative purposes; in those instances in which IOs are empowered with normative functions, the authority to make law also remains essentially in the hands of the Member States. This does not mean that IOs have no impact on international legal normativity. Again, IOs systematize interdependence, interaction and reciprocity between States and facilitate the making of international law. Yet, the authority of IOs never truly transcends that of their Member States and their independence, even where it leads to the making of international law, is highly constrained.

III. The organization of power: do IOs make international law on their own? The most fundamental question in the study of IOs remains, as it has long been, that of the autonomy of the organization in relation to its members. In IR scholarship, as mentioned earlier, this particular issue has, for more than half a century, represented the key bone of contention between the two mainstream schools of thought and has largely characterized the research on international institutions. In legal scholarship also, the issue of IOs’ autonomy prevailed for a time, although it has now been replaced by a project aimed at systematizing the most fundamental aspects of international institutional law. Such prevalence has, notably, given rise to an exaggerated emphasis upon the issue of IOs’ legal personality. Determining whether the organization possesses international legal personality, and assessing the extent of such personality, is, however, of limited interest when undertaking an analysis of the degree of independence and autonomy which the organization effectively enjoys. To say that the organization possesses international legal personality—a fact which is no longer debated—is a linear assertion which merely tells us that it is capable of possessing international rights and duties, and that it has the capacity to operate upon the international plane. It does not define the particular rights and duties that the organization possesses,63 neither does it tell us anything about the sociological reality of the organization and its autonomy. The decisive factor, for present purposes, is whether the organization is capable of expressing a truly autonomous will, i.e. one which is not only the sum of its members’ individual wills, and whether this independent will is binding on the Member States. Lacking such legal effect, the normative capacity of the organization will be subrogated to that of its members. On this issue, there remains, as we shall see, wide-ranging debate and if, generally, IOs do indeed possess some degree of normative capacity, it certainly seems premature to equate such normative power with genuinely autonomous law-making power. 63 Dapo Akande, International Organizations, in: Malcolm D. Evans (ed.), International Law (2003), 269, 273.


III.A. Normative versus operational organizations It must, first, be recalled that IOs are not innate legal beings which spontaneously come to life. They are entities created by States which stem from the desire of governments to organize collectively their co-operation in particular elements of their international relations. Accordingly, IOs are entirely defined by the function, or purpose, for which they have been created.64 In this regard, the world of international organizations is particularly fragmentary and heterogeneous. The functions and purposes of IOs vary greatly from one institution to another. Moreover, these functions can, within the same organization, vary in time according to the organization’s changing needs, or those of its members.65 In this respect, many IOs possess no normative purpose. Numerous organizations are in fact operational, aimed solely or principally at the provision of certain concrete operational services rather than developing regulations in a particular field. What matters, in those organizations, is not the making of legal norms but the realization of concrete work, often of a special and technical nature.66 Classic examples of such operational organizations are fluvial commissions, created to administer navigation on certain international watercourses. Their concrete work will typically involve maintaining the navigable conditions of watercourses, ensuring that navigation on the watercourses remains free, and providing pilotage of vessels on certain sections of the watercourses. In a more contemporary setting, financial institutions and international development banks have been set up to expedite economic growth through the development of trade and investments. Their activity essentially includes the financing of development projects, review of States’ investment proposals, provision of technical assistance and training in many disciplines, economic research and publication and only occasionally a contribution to the elaboration of international standards.67 Even the World Trade Organization (WTO), frequently described as ‘‘governing’’ world trade and often feared for its Faustian power, is in fact devoid of autonomous normative competences. The rules that it administers are adopted by governments in the form of ministerial decisions or international trade agreements. According to the Marrakech agreements, the organization is ‘‘only’’ aimed at facilitating multilateral trade negotiations, operating a system of trade rules, essentially by reviewing national trade policies, and, when necessary, settling trade disputes.68 Needless to say, this reading of the Marrakech agreements is 64 On the importance of ‘‘function’’ in the theory of IOs, see Michel Virally, La notion de fonction dans la theórie de l’organisation internationale, in: La Communaute´ Internationale: me´langes offerts a` Charles Rousseau (1974), 277. 65 On implied powers and evolutionary personality, see Manuel Rama-Montaldo, International Legal Personality and Implied Powers of International Organizations, 44 Brit YBIL (1970), 113. 66 See Colliard, above n.40, 716. 67 On the activities of international development banks, see Andres Rigo Sureda, The Law Applicable to the Activities of International Development Banks, 308 Rec des Cours (2004), 9. 68 Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, Legal Instruments: Results of the Uruguay Round, 1 ILM (1994), 1125, Art.III: ‘‘2. The WTO shall provide the forum for negotiations among its Members concerning their multilateral trade relations [. . .]; 3. The WTO shall


overly literal. There is, in practice, little doubt that the process of judicial interpretation of WTO agreements is constitutive as well as determinative of that body of law. Yet, many of the core functions of the WTO are theoretically not normative. As the previous example tends to illustrate, it is in fact very rare to find an organization which, in practice, can truly be considered purely operational or normative. These are useful descriptive concepts, but they sit at the two opposite ends of the continuum along which IOs do, in reality, exercise their functions. Any given organization’s mandate will likely cover multiple purposes, including both regulatory and administrative activities. It remains true, however, that in all those instances in which the organization exercises an operational function, it does not directly contribute to the normative development of international law. However autonomous the organization might be, its operational activities do not involve making law and do not, therefore, pose any threat to the unity of international law. It is necessary, however, to consider the instances in which IOs do exercise normative functions and to assess whether, given the object and legal effect of their decisions,69 they are capable of making international law autonomously. If IOs are autonomous law makers, their multiplication could conceivably lead to normative polyphony and increase the risks of fragmentation of international law.

III.B. The object of the decisions adopted by the organization The finding that an organization possesses normative competences is an insufficient basis upon which to conclude that it is making international law on its own. Underlying the expression ‘‘normative power’’ lie a multitude of normative acts, many of which do not take part in the genesis of general international law but rather in that of a special law, which concerns only the organization itself or some of its members. A significant number of IOs’ decisions, for example, are concerned with the ‘‘internal’’ regulation of the organization, i.e. norms relating only to its structure and functioning. These ‘‘organizational laws’’ deal with such diverse issues as rules of procedure, creation of subsidiary organs, membership, civil servants, finances, the organization’s headquarters or its official flag.70 It has been estimated, concerning the United Nations, that approximately half of the General Assembly’s resolutions are dedicated to the internal functioning of the world organization.71 By definition, this ‘‘internal’’ law is a lex specialis—a law that is specific to each organization.72 It has therefore little impact upon general international law. administer the Understanding on Rules and Procedures Governing the Settlement of Disputes [. . .]; 4. The WTO shall administer the Trade Policy Review Mechanism [. . .].’’ 69 The term ‘‘decision’’ is used generically and refers to all unilateral acts—resolutions, recommendations, decisions, declarations or opinions—adopted by IOs’ organs. 70 See Giorgio Balladore Pallieri, Le droit interne des organisations internationales, 127 Rec des Cours (1969), 7; Manuel Diez de Velasco Vallejo, Les organisations internationales (2002), 113 –16. 71 Philippe Cahier, L’ordre juridique interne des organisations internationales, in: Rene´-Jean Dupuy (dir.), Manuel sur les organisations internationales, 2nd edn (1998), 377, 390. Professor Castaneda, for its part, has estimated that approximately 4/5 of GA resolutions are aimed at developing the UN’s internal law; see Valeur juridique des re´solutions des Nations Unies, 129 Rec des Cours (1970), 205, 227. 72 Wilfred Jenks, The Proper Law of International Organizations (1962), 6–7; and Amerasinghe, above n.27, 15.


Of course, internal decisions can be very significant politically. This was the case, for instance, when the International Court of Justice decided in its 1962 advisory opinion that members of the minority are bound to contribute financially to peacekeeping operations endorsed by the majority.73 Nevertheless, such decisions are concerned with institutional and organizational matters and have only very limited impact on inter-State relations per se. It is of little importance, then, to categorize this ‘‘internal’’ law as deriving from international law or as constituting a truly independent legal order.74 In either case, it remains true to say that the normative power of the organization, when used for institutional purposes, is not a factor of international law’s fragmentation (or, equally, its unification). In addition, even when the normative power of the organization is pointing ‘‘outside’’, rather than ‘‘inside’’, of the organization, its decisions are not necessarily aimed at the Member States and their international relations. Notable examples include the regulation of transportations, postal communications or economic integration, where the norms adopted by the organization are intended for individuals or other private persons rather than States or international organizations. The instructions given by Eurocontrol, for example—an organization created in 1960 to manage civil aviation at the European level—are given directly to airplane crews, rather than to the Member States.75 In those instances, the organization gives assistance, in exercising its normative powers, to national legislators or individuals directly, and not to States in their mutual relations.76 It thus contributes to the development of regulations on issues that, essentially, are extraneous to public international law. Finally, when the decisions of the organization are indeed directed at States, it is not uncommon for them to be aimed at implementing the laws of the organization, as regards one State only or a limited group of States. This is frequently the case with European Commission and Security Council decisions. In both instances, the aim of the decision is generally not so much to elaborate a general rule of behavior for all the members of the organization, but rather to ensure the proper implementation of Community or UN law by one or more members. When, for example, the European Commission dismissed an action brought by Greece to depart from a European directive and use certain pollutants on its territory,77 or when the Security Council authorized the deployment of French troops in Ivory Coast and set out the mandate of Operation Unicorn,78 the decision of the organization, if indeed it has any repercussions outside the circle of its addressees, has no general normative significance. Such decisions do have legal effects. Yet, they are 73 Certain expenses of the United Nations, ICJR 1962 (20 July), 150. 74 On the debate about the ‘‘autonomy’’ of internal law, see, e.g. Cahier, above n.71, 382 –7; and Lazar Focsaneanu, Le droit interne de l’organisation des Nations Unies, AFDI (1957), 315, 321 –6. 75 International Convention Relating to Cooperation for the Safety of Air Navigation (13 December 1960), 523 UNTS, 117; Art.16. 76 Joe Verhoeven, Les activite´s normatives et quasi normatives, in: Rene´-Jean Dupuy (dir.), Manuel sur les organisations internationales, 2nd edn (1998), 413, 415. 77 Commission Decision 2475 of 17 December 2002 on a request from Greece for authorization to use heavy fuel oils with a maximum sulphur content of 3% by mass in parts of its territory, 2002 OJ (L4) 16. 78 SC Res. 1584, UN SC, UN Doc. S/RES/1584 (2005).


‘‘authorizing’’ or ‘‘empowering’’—rather than general ‘‘law making’’—effects.79 Whilst the decisions may indeed trigger substantive effects and be formally binding, they are sources of certain international rights and obligations, not of international law. It thereby becomes apparent that beyond the theoretical and general recognition of IOs’ ‘‘normative capacity’’, they essentially contribute, in practice, to the development of technical or special rules. This is not to say that such rules are unimportant, but with regard to rules of general international law, at least those of the most fundamental nature, IOs tend in fact to play a secondary and marginal role. Let us consider, for instance, the definition of peremptory norms of international law ( jus cogens) provided by the Vienna Convention on the Law of Treaties. Article 53 speaks of norms ‘‘accepted and recognized by the international community of states as a whole’’ as a norm from which no derogation is permitted.80 It is of significance that no mention is made of IOs in the 1969 Convention and likewise in the 1986 Convention, even though the latter covers the law of treaties between States and IOs or between IOs. This confirms, as Verhoeven suggests, that even though it is quantitatively important, the normative activity of IOs remains qualitatively secondary, as it cannot aspire to participate directly in the genesis of those norms that involve the fundamental interests of the international community.81 In sum, even where the organization is empowered with normative capacities, most of the norms it enacts will, in practice, be concerned with issues which, although not of minor importance, are often peripheral to the central public international law issue of inter-State relations. Thus, and before the issue of their legal effect is even addressed, those norms are only, given their object, of little interest to the issue of institutional fragmentation of international law.

III.C. The legal authority of the decisions adopted by the organization Nevertheless, there are instances in which an organization does possess normative capacities which point ‘‘outside’’ of the organization and aims, with its decisions, at all of its members. The prospect of normative disorder, of overlapping or conflicting norms of international law, then becomes more impending. It remains, however, dependent on the recognition of some degree of autonomous force behind the decisions of the organization which would render them binding. Lacking such legal effect, the proliferation of IOs and of their decisions will mainly affect the integrity and unity of international political schemes. This, certainly, is worthy of attention. However, it is one thing to concern oneself with issues of political co-ordination between autonomous actors. It is quite another to address the question of normative fragmentation of the international legal order. In this regard, it is largely accepted that IOs operate much more by persuasion than by coercion.82 The binding character of their decisions is habitually presented as the exception,

¨ berg, The Legal Effects of Resolutions of the UN 79 On the variety of resolutions’ legal effects, see Marko Divac O Security Council and General Assembly in the Jurisprudence of the ICJ, 16 EJIL (2006), 879. 80 Vienna Convention on the Law of Treaties, 5 May 1969, 1155 UNTS, 331, Art.53 (emphasis added). 81 Verhoeven, above n.76, 417. 82 Sands and Klein, above n.27, 280.


not the rule. Despite the lack of uniform legal regime concerning IOs, there exists a presumption in international law that their resolutions are ‘‘soft’’ as opposed to ‘‘hard’’ law. This presumption will only be reversed when the power to adopt formally binding decisions has been explicitly stated in the organization’s constitutive instrument. It cannot be inferred as one of the organization’s implicit powers.83 In principle, the decisions of IOs, at least those concerned with the ‘‘external’’ rules of the organization, are of an advisory, recommendatory or exhortative nature. They do not legally bind their addressees.84 Whether they are termed ‘‘resolutions’’ (the most frequent terminology which, therefore, will be used here), ‘‘recommendations’’, ‘‘declarations’’ or ‘‘opinions’’, they represent an ‘‘invitation’’ to adopt certain behavior, to take certain actions or to commit to certain abstentions, rather than a rigid command with direct binding authority.85 This is confirmed by the few constitutive instruments which do define, in texto, the legal effect of the organization’s resolutions. The ILO Constitution, for instance, provides that Member States are only bound to ‘‘consider’’ the recommendations of the organization, with ‘‘no further obligation’’, other than to bring them before the ‘‘competent national authorities’’.86 Even more illustrative of the absence of binding authority is the International Civil Aviation Organization (ICAO) Convention, which stipulates that ‘‘no contracting State shall be guilty of an infraction of this Convention if it fails to carry out [the organization’s] recommendations’’.87 The absence of direct binding authority goes some way to explaining the negative and somewhat simplistic perception that many have of resolutions, often perceived as merely political, if not moral, statements.88 This view is flawed, however, as it ignores the possibility that, although not intrinsically binding, resolutions can produce ‘‘extrinsic’’ legal effects, i.e. those which materialize in relation to other sources of international law.89 Resolutions can, in particular, play an important role in the stabilization, crystallization, progressive and perhaps—in exceptional circumstances—‘‘instant’’ development of customary law.90 83 Schermers and Blokker, above n.27, 823 –4. See also Krzysztof Skubiszewski, Resolutions of the General Assembly of the United Nations: Preliminary Expose´, 61 Ann Inst Dt Int’l (1985), 29, 33 –6. 84 See, on GA resolutions, Obed Asamoah, The Legal Effect of Resolutions of the General Assembly, 3 Col JIL (1964), 210, 214 –20. 85 Michel Virally, La valeur juridique des recommendations des organisations internationales, AFDI (1956), 66, 68. 86 Revised Constitution of the International Labor Organization, 9 October 1946, 15 UNTS, 35, Art.19. 87 Convention on International Civil Aviation, 7 December 1944, TIAS, 1591, Art.69. 88 See Virally, above n.85, 66. This perception has been largely endorsed by the ICJ in the South West Africa case: ‘‘. . . resolutions of the United Nations General Assembly [. . .] can be arrived at without the concurrence of the administering authority, yet when so arrived at—and subject to certain exception not here material—they are not binding, but only recommendatory in character. The persuasive force of Assembly resolutions can indeed be very considerable,—but this is a different thing. It operates on the political no the legal level: it does not make these resolutions binding in law’’; South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), ICJR (1966), 5, 50 –1. 89 See Michel Virally, Unilateral Acts of International Organizations, in: Mohammed Bedjaoui (ed.), International ¨ berg, above n.79, 881. Law: Achievements and Prospects (1991), 241, 259 –60. See also O 90 See Georges Abi-Saab, La coutume dans tous ses e´tats ou le dilemme du de´veloppement du droit international general dans un monde ećlate´, in: Le droit international a` l’heure de sa codification: e´tudes en l’honneur de Roberto Ago (1987), 53, 55 –6.


This has been confirmed by the International Court of Justice in its 1996 opinion regarding the Legality of the Threat or Use of Nuclear Weapons in which it was noted that ‘‘General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris’’.91 Even if they are not formally binding, resolutions are therefore an integral part of the international normative process and play, in practice, an increasing role in the genesis of international custom. Some even consider that they have taken over the entire field in contemporary customary law.92 Yet, however important resolutions might be in the contemporary customary process, it remains doubtful whether the legal authority really resides with IOs. In the declaration, the crystallization and the process of ‘‘instant’’ germination of custom, the autonomy of IOs is in fact mainly formal, while the power to make law—the genuine and substantive legal authority—tends to remain in the hands of the Member States. Again, this is, by no means, a denial of the role played by IOs in the channeling and modeling of States’ power. The fact remains, however, that where resolutions are regarded as constitutive, in whole or in part, of customary law, the inter-State dynamic is essentially preserved and the autonomy of IOs is generally constrained by the permanence, behind the veil of the organization, of the Member States.

III.C.i. Declaratory resolutions The preservation of the inter-State dynamic is particularly apparent in the case of ‘‘declaratory’’ resolutions (usually termed ‘‘declarations’’). Declarations settle, clarify and shed light upon pre-existing custom. But the pre-existing custom, though perhaps scattered, fluid and elusive thus far, is nonetheless already in existence. The resolution offers custom—by definition, a diffuse source—a higher degree of tangibility and therefore of practical efficiency.93 The declaration in itself, however, is the source of no new legal obligations, as it merely ‘‘defines’’, ‘‘formulates’’, ‘‘reformulates’’, ‘‘confirms’’, ‘‘clarifies’’ or ‘‘specifies’’—to use only some of the terms normally attached to declaratory resolutions—legal principles which were already binding as customary.94 As instruments for the interpretation or restatement of the law, declarations have no legal effect of their own. III.C.ii. Crystallizing or evidentiary resolutions When resolutions are not simply declaratory, but rather constitutive, in whole or in part, of an international custom, the inter-State logic is also essentially preserved. This is particularly true as regards ‘‘wise’’ custom (coutume sage), i.e. custom that respects the ‘‘traditional’’ chronology of the customary process whereby a general State practice is transformed into 91 Legality of the Threat or Use of Nuclear Weapons, ICJR (1996), 226, 254 –5. 92 Alain Pellet, La formation du droit international dans le cadre des Nations Unies, 6 EJIL (1995), 401, 416. 93 Blaine Sloan, General Assembly Resolutions Revisited (Forty Years Later), 58 Brit YBIL (1987), 39, 69. 94 On the legal nature of declarations, see Castaneda, above n.71, 315 –22; and Amerasinghe, above n.27, 186 –7. One shall avoid radical or categorical segregation between codification, cristallization and progressive development of international law. Resolutions will most often cover the three aspects of the international legal process, and a resolution will rarely be purely declaratory.


law by a psychological element of conviction, or opinio juris necessitatis, which expresses the view that the usage is required by, or consistent with, prevailing international law.95 It is widely considered, in relation to ‘‘wise’’ custom, that the resolutions of IOs can be of great evidentiary value, expressing the existence of opinio juris and facilitating the crystallization of an emergent custom.96 This has been acknowledged in practice,97 as well as in legal literature,98 despite significant uncertainty as to the degree of repetition and solemnity that is required for resolutions to be considered evidentiary of custom. Yet, the starting point of the customary process remains general and uniform practice and not the resolution as such. It is from the equilibrium of international forces at work on a given legal problem, from the convergence and succession of similar behaviors and from the accumulation and repetition of certain facts that custom progressively emerges. In this process, resolutions of IOs represent a sort of ‘‘legal realization’’ or ‘‘awakening’’ to a normative phenomenon that spontaneously surfaced outside of the organization. As such, resolutions do not impose new legal obligations that States have not already spontaneously begun to fulfill. Resolutions, again, represent useful evidentiary tools. They act as an anchor, a photographic developer for customs that have not yet reached their full maturity. Certainly, they are an expediting factor in the customary process,99 but, in the end, they are only a ‘‘stage’’ in the progressive development of international law.100 They are not autonomous or independent sources of customary law.

III.C.iii. The case of instant custom: resolutions as autonomous sources of international law? However, despite its methodological virtues and apparent simplicity, the representation of custom through the two constitutive elements (one material, one psychological) is largely artificial and does not convey the complex, diffuse and informal nature of customary norms and the process by which they are recognized.101 This explains the emergence of the hypothesis of ‘‘instant’’ customs, whereby custom is essentially based on the recognition, 95 On the difference between ‘‘wise’’ custom and ‘‘wild’’ custom, see Rene´-Jean Dupuy, Coutume sage et coutume sauvage, in: La communaute´ internationale: me´langes offerts a` Charles Rousseau (1974), 75. 96 Some have also suggested that resolutions might be constitutive of State practice. This hypothesis, however, raises several questions. Not only is it often difficult to separate opinions from actions, since what States do is sometimes what they say; it might also be difficult to establish whether the practice is that of the organization or that of its members. For the present study, it will be recalled that resolutions of IOs represent formal manifestations of the organization’s will. Accordingly, resolutions relate more naturally to the psychological element of custom than to its material element. See Sloan, above n.93, 72 –4; Skubiszewski, above n.83, 110 –15; Gaetano Arangio-Ruiz, The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly ¨ berg, above n.79, 898 – 900. Relations, 137 Rec des Cours (1972), 419, 473 –6; and O 97 See text accompanying n.91. 98 Contra Iain MacGibbon, Means for the Identification of International Law. General Assembly Resolutions: Custom, Practice and Mistaken Identity, in: Bin Cheng (ed.), International Law: Teaching and Practice (1982), 10, 22 –3. 99

See Skubiszewski, above n.83, 122 –3; and South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), ICJR (1966), 5, 291 (separate opinion of Judge Tanaka). 100 Suzanne Bastid, Observations sur une ‘‘e´tape’’ dans le de´veloppement progressif et la codification des principes du droit international, in: Recueil d’e´tudes de droit international en hommage a` Paul Guggenheim (1968), 132. 101 See Pierre-Marie Dupuy, Droit international public, 6th edn (2002), 320 –2.


formally expressed in certain international instruments, of a ‘‘need for law’’.102 In areas where legal rules have not yet developed, these ‘‘wild’’ customs (coutumes sauvages), to use Dupuy’s famous typology, would then contrast with ‘‘wise’’ customs, as they are based on a categorical proclamation of opinio juris, with practice being a mere evidentiary element rather than a constitutive element per se. Ideas, it seems, precede facts and even render them superfluous.103 Admittedly, solemn resolutions such as those emanating from the United Nations, have a decisive influence in the genesis of ‘‘instant’’ or ‘‘wild’’ customs.104 They are often regarded as their means of expression par excellence. Some even consider that, in relation to such issues as protection of the natural environment, international human rights, legal aspects of decolonization, the regulation of the seabed or outer-space activities, resolutions of IOs may be assimilated to a ‘‘new source’’ of international law.105 This is the opinion of Professor Sohn, for example, who wrote that in these areas, resolutions are ‘‘leading to the creation of new international law applicable to all States’’ and added that ‘‘this is not treatymaking but a new method of creating customary international law’’.106 If this theory is correct, it appears that resolutions will, in themselves, create new legal norms which will apply to all Member States. Much caution is needed, however, before drawing the conclusion that in such instances, the inter-State logic is truly surpassed to the benefit of a new and autonomous source of international law. Not only is there still a lack of consensus in legal literature as to the existence of ‘‘wild’’ custom, but it also seems that in assessing whether a resolution is indeed the ‘‘source’’ of a new custom, a great deal of attention is being paid to a set of elements which all have to do with the will or belief of Member States to be legally bound by the rules it proclaims.107 Those who, to a greater or lesser extent, believe that resolutions of IOs might be the ‘‘source’’ of customary norms agree, on the whole, that the fulfillment of three criteria is necessary to establish their normative significance. These criteria relate to the language of the resolution, declarations made by Member States at the time of its adoption and voting patterns.108 The first element—the nature of the language used in the resolution—is said to illuminate the intent of the Member States as to the legal significance of the resolution. A resolution can

102 Bin Cheng, United Nations Resolutions on Outer Space: ‘‘Instant’’ International Customary Law?, 5 Ind JIL (1965), 23, 35 –40. 103 Dupuy, above n.95, 84. 104 Constantin Economide`s, Les actes institutionnels internationaux et les sources du droit international, AFDI (1988), 131, 142 –5. 105 Krzysztof Skubiszewski, A New Source of the Law of Nations: Resolutions of International Organizations, in: Recueil d’e´tudes en hommage a` Paul Guggenheim (1968), 508. 106 Louis B. Sohn, The Development of the Charter of the United Nations: The Present State, in: Maarten Bos (ed.), The Present State of International Law and Other Essays (1973), 39, 52 (emphasis added). 107 See Arangio-Ruiz, above n.96, 478. 108 See Sloan, above n.93, 127 – 31; Eduardo Jimeńez de Arećhaga, International Law in the Past Third of a Century: General Course in Public International Law, 159 Rec des Cours (1978), 1, 31; Ingrid Delupis, The Legal Value of Recommendations of International Organizations, in: William E. Butler (ed.), International Law and the International System (1987), 47, 51 –9; and Sands and Klein, above n.27, 288 –92.


be mandatory or hortatory, declaratory or truly constitutive of legal obligations. It might, in other words, be a simple programmatic policy document or an authentic normative instrument, such as when the General Assembly ‘‘affirms that genocide is a crime under international law’’.109 Not all such instruments can, in fact, legitimately claim to possess the status of a legal norm. The International Court of Justice made it clear in the North Sea Continental Shelf case that ‘‘it would in the first place be necessary that the provision concerned should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law’’.110 Analysis of the terms of the resolution is therefore one important means of discovering whether there was an intention that the principles embodied therein be afforded this ‘‘fundamentally norm-creating character’’—an indispensable precondition to the formation of legal norms. It is the same intent which is searched for when examining the declarations that certain States might have made at the time of adoption of the resolution. It is common for States to make statements during debates in order to clarify their official position on particular issues. In doing so, it is not rare for them to indicate their view of the precise meaning and scope held by the resolution. A Member State might, for instance, declare that, even though it supports the adoption of a resolution, the latter constitutes only a ‘‘declaration of intent’’, or that it is ‘‘willing’’ to adopt the resolution and will ‘‘undertake to respect the principles’’ it embodies, but also considers that the resolution is not ‘‘law-making in the sense that a treaty is’’.111 In such an instance, provided that this feeling is shared by a sufficiently representative majority of the Member States, it will be presumed that the intent of the Member States was not to create law, but rather to co-ordinate their policies around certain general principles adopted collectively. Lastly, voting patterns are of key importance in measuring the degree of adhesion of Member States to a resolution. There remains significant disagreement as to whether unanimity or quasi-unanimity,112 rather than simple113 or qualified114 majority, is required for the resolution to be deemed ‘‘law-creating’’. It is also questioned, on a more theoretical level, whether use should be made of the notion of ‘‘consensus’’ (concerning the will of the international community as a whole, instead of that of its members taken individually) rather than the notion of ‘‘consent’’ (a sovereignty-centered conception of obligation).115 Among those who regard resolutions as an integral part of the international normative process, it is largely 109 GA Res 96 (I) on the Definition of Genocide, UN GAOR, 1st Sess (1946), 189. 110 North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), ICJR (1969), 3, 41 – 2. 111 See the various declarations made by France, Australia, the USSR and the United States about GA resolutions concerning outer-space activities in Bin Cheng, above n.102. 112 See Virally, above n.89, 260; Sloan, above n.93, 130 –1; Jimeńez de Arećhaga, above n.108, 30 –4. 113 See Taslim O. Elias, Modern Sources of International Law, in: Friedmann et al. (eds), Transnational Law in a Changing Society: Essays in Honor of Philip C. Jessup (1972), 34, 45 –52; and Africa and the Development of International Law (1972), 74 –5. 114 See Falk, above n.37. 115 Nicholas G. Onuf, Professor Falk on the Quasi-Legislative Competence of the General Assembly, 64 AJIL (1970), 349, 351 – 2.


agreed, with a few exceptions,116 that where adoption occurred with a sufficiently representative majority, with no dissension from those States with a particular interest in the issue, the resolution can be regarded as an element of the progressive development of international law. The relevance of these criteria has been confirmed in practice, in arbitral as well as in judicial proceedings. In the Texaco arbitration, the sole arbitrator, Rene´-Jean Dupuy, was appointed to rule on the legality of Libyan nationalizations, which necessitated a discussion of the relevance of several General Assembly resolutions. In appraising the legal significance of these resolutions, he decided to consider ‘‘the criteria usually taken into consideration, i.e., the examination of voting conditions and the analysis of the provisions concerned’’.117 With respect to the first resolution (Resolution 1803, concerning the ‘‘permanent sovereignty over natural resources’’), he noted that it had been ‘‘assented to by a great many States representing not only all geographical areas but also all economic systems’’.118 As regards Resolution 3281 (‘‘Charter of the Economic Rights and Duties of States’’), he found on the other hand that ‘‘there was no general consensus of the States with respect to the most important provisions and in particular those concerning nationalization’’.119 After having recalled that, in the absence of any binding force of the resolutions of the General Assembly, ‘‘such resolutions must be accepted by the members of the UN in order to be legally binding’’,120 the sole arbitrator decided to apply Resolution 1803—the only resolution which, he felt, appeared ‘‘to a large extent as the expression of a real general will’’.121 Finally, with respect to a third resolution, Dupuy took note of the ‘‘statements made by 38 delegates show[ing] clearly and explicitly what was the position of each main group of countries’’, and found a clear opposition from Western countries, with the result that he decided against applying the resolution to the case at hand.122 The International Court of Justice has, to a large extent, confirmed the Texaco ruling in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons. After having acknowledged that General Assembly resolutions can sometimes have a normative value, it indicated that ‘‘to establish whether this is true of a given (. . .) resolution, it is necessary to look at its content and the conditions of its adoption’’.123 The Court did not find 116 See Ingrid Detter, The Effect of Resolutions of International Organizations, in: Jerzy Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century: Essays in Honor of Krzysztof Skubiszewski (1996), 381, 391 –2. For Detter, the voting patterns are irrelevant, as States do not know the outcome of the voting at the time of deliberation, and cannot anticipate whether their position is going to be that of the majority. See also Grigorii I. Tunkin, The Role of Resolutions of International Organizations in Creating Norms of International Law, in: William E. Butler (ed.), International Law and the International System (1987), 5, 17 – 18. For Tunkin, resolutions can only be considered a source of law in so far as there exists a pre-existent customary principle according to which unanimous adoption of resolutions entails the genesis of a new norm of international law. This principle, he submits, is purely hypothetical and is nowhere suggested in practice. 117 Texaco Overseas Petroleum Company/California Asiatic Oil Company v. Libya, 17 ILM (1978), 1, para.83. 118 Ibid., para.84. 119 Ibid., para.85. 120 Ibid., para.86. 121 Ibid., para.88. 122 Ibid., para.85. 123 Legality of the Threat or Use of Nuclear Weapons, ICJR (1996), 226, 255.


evidence of a customary rule proscribing the threat or use of nuclear weapons, as the resolutions proclaiming the illegality of nuclear weapons had been adopted with substantial numbers of negative votes, particularly from nuclear powers. The Court confirmed, however, the need for a sufficiently ‘‘large’’ and ‘‘qualified’’ majority in order for the emergence of a customary norm to be properly demonstrated. It seems, in the end, that even where there is agreement on the hypothesis, which is in itself revolutionary,124 that resolutions of IOs can produce customary law despite their lack of formal binding force, the legal value of such resolutions will always depend upon their reception and acceptance by States as part of international law.125 Practice largely confirms that it is consensus at the time of the resolution’s adoption, rather than the nature of the powers conferred upon the organization by the constitutive instrument, which is the determining factor in measuring the normative authority of a given resolution. The legal effects of a resolution must have been desired by the originator in order for such effects to ‘‘materialize’’.126 Some commentators, reticent to the reintroduction of notions of ‘‘consent’’ and ‘‘will’’ at the heart of the customary process, prefer to speak of States’ ‘‘support’’, ‘‘opinion’’ or ‘‘views’’.127 The fact remains, nevertheless, that it is the ‘‘consensual factor’’ which essentially determines how international organizations carry out their normative functions.128 In the end, the power of the organization stands for its own power only as far as the formal aspect of its decisions is concerned. In their origin, the normative acts of IOs always come, in whole or in part, from the ‘‘will’’ or ‘‘consent’’ of the Member States.129 Some may argue, using Judge Alvarez’s formula, that IOs are like ‘‘ships which leave the yards in which they have been built, and sail away independently, no longer attached to the dockyard’’.130 The reality behind the metaphor, however, is that those ships still sail in waters that are under States’ jurisdiction. This reality is confirmed by State practice in the rare instances in which an organization is explicitly and constitutionally endowed with large normative prerogatives and has the power to adopt legally binding resolutions. Not only will the rule of unanimity preserve, in most 124 The hypothesis is revolutionary, as it no longer represents custom as spontaneous, unconscious and diffuse, but rather as conscious, stable and instantaneous; see Abi-Saab, above n.90, 60 –1. Robert Jennings goes a step further, suggesting that if custom is ‘‘instant, it is no longer custom but some new kind of law’’. ‘‘When Professor Cheng,’’ he wrote, ‘‘felt impelled to invent the paradox, ‘instant custom’, for the laws governing space, we should have taken the hint that perhaps it was instant because it was not custom’’, Robert Y. Jennings, What is International Law and How do We Tell It when We See It? 37 Schweitzerisches Jahrbuch fu¨r Internationales Recht (1981), 59, 71. 125 Bin Cheng, above n.102, 38. 126 Virally, above n.89, 256. 127 See, e.g. Gabriella Rosner Lande, The Changing Effectiveness of General Assembly Resolutions, 58 Proc Am Soc IL (1964), 162, 167. 128 Christian Dominice´, Valeur et autorite´ des actes des organisations internationales, in: Rene´-Jean Dupuy (ed.), Manuel sur les organisations internationales (1998), 441, 461. 129 Paul Reuter, Sur quelques limites du droit des organisations internationales, in: Festschrift fu¨r Rudolf Bindschedler (1980), 491, 501. 130 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJR (1951), 15, 53 (Dissenting Opinion of Judge Alvarez). Alvarez’s formula concerns multilateral conventions but applies, in extenso, to IOs created by them.


cases, the members’ sovereignty, but it also appears that when the organization does manage to secure a certain degree of decisional autonomy, it cannot exercise it in complete ignorance of its members’ sovereign interests. If it does, it has been shown that it will almost certainly be exposed to systematic ‘‘bypassing’’ or ‘‘withdrawal’’ strategies.131 Even in the most integrated systems, whenever States have the feeling that their own perspective no longer prevails within an organization, they tend to distance themselves from the institution and fall back on the tried and tested methods of traditional diplomacy. Here, the case of the European Union naturally comes to mind. It is now unanimously acknowledged that, in terms of international organizations, the European Union is clearly the exception which proves the rule. Community acts—regulations, directives and decisions—are legally binding132 and directly applicable in the territory of the Member States.133 Moreover, the adoption of community legislation by way of majority has, with successive constitutional amendments, become the standard method of deliberation.134 The European Union, therefore, seems to embody a truly supranational mode of operation and, consequently, an authentically subordinate organization of international relations. It is remarkable, however, that together with the creation of the European Union in 1992, at a level of integration never reached before, the Member States expressed discontent regarding the Community’s manner of exercising its competences. Because the generalization of majority voting was perceived by many members as a restriction on their capacity to determine freely their own policies and, in fine, as a restriction on their national sovereignty, the principle of ‘‘subsidiarity’’ was introduced in the new EC treaty as a means to preserve, at least minimally, their prerogatives.135 According to subsidiarity, it is now expected that ‘‘in areas which do not fall within its exclusive competence, the Community shall take action (. . .) only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States’’.136 Subsidiarity therefore limits the normative capacity of the Community by requiring, as a precursor to any action, consideration of whether domestic action by Member States themselves might be better suited to achieving the relevant aims and purposes. If domestic legislation can achieve the same goal as Community legislation, preference shall be given to the former. While primacy remains the privilege of Community Law, the priority of domestic law is thus formally recognized. This reliance upon the domestic dimension of Community Law has been confirmed to a large extent in the practice of certain Member States. For instance, in Carlsen et al. v. Ramussen, the Supreme Court of Denmark decided to subject Community law to the 131 Denys Simon, Organisations internationales et politiques des Etats, in: Les Organisations internationales contemporaines: crise, mutation, developement (Socie´te´ Française pour le Droit International, 1988), 107, 135 –44. 132 See Case 6/64, Flaminio Costa v. ENEL, 10 ECR (1964), 1141, 11059. 133 See Case 26/62, Van Gend en Loos, 9 ECR (1963), 1. See also Ian Ward, A Critical Introduction to European Law, 2nd edn (2003), 74 –6; or Denys Simon, Le syste`me juridique communautaire, 3rd edn (2001), 387 –91. 134 See Hans-Joachim Glaesner, Formulation of Objectives and Decision-Making Procedure in the European Union, 18 Fordham ILJ (1995), 765. 135 Koen Lenaerts and Piet Van Nuffel, Constitutional Law of the European Union (1999), 99. 136 Treaty Establishing the European Community (Consolidated Text), 25 March 1957, 325 OJ Art.5.


principles of Danish constitutional law. When determining whether or not a Community decision had been adopted ultra vires, it held that ‘‘Danish courts must rule that an EC act is inapplicable in Denmark if the extraordinary situation should arise that with the required certainty it can be established that an EC act which has been upheld by the EC Court of Justice is based on an application of the Treaty which lies beyond the transfer of sovereignty’’.137 Similarly, the German constitutional Court held in 1993 that ‘‘if (. . .) European institutions or authorities were to apply or extend the Union Treaty in some way which was no longer covered by the Treaty in the form which constituted the basis of the German law approving it, the resulting legal acts would not be binding on German sovereign territory’’.138 In limiting the direct applicability of EC Law to those circumstances to which Germany has specially agreed when ratifying the Maastricht Treaty, the German Court, like the Danish Court, reserves the right of domestic courts to judge the legality of community acts on the basis of domestic constitutional principles—a position which is hardly compatible with the principle of supremacy of community law.139 These precedents show that the ‘‘communitarization’’ of European law is a process over which Member States intend to retain a continuous and close control. This was recently confirmed by the diplomatic offensive launched by several governments against the European Court of Justice, accused of assuming, through ‘‘insidious means’’, excessive competences and ignoring the principle of subsidiarity.140 Even regarding the European Union, the most integrated organization of all, there is thus persistence, if not resurgence, of interState logic. No matter the degree of autonomy secured by the organization, it would appear that States remain permanently behind the veil of the organization which, and this is in no way an accusation of failure, only exceptionally surpasses the stage of confederation and asserts no real legal authority over, or aside from, its members. IOs, at this stage of development of the international legal community, are still largely incapable of instituting an emergence of a power which is truly separated from Sovereign States. Indeed, the institutional logic never eclipses the State logic. On the contrary, it presupposes, mirrors and to some extent magnifies the nation-State system.141 The sovereign State remains to this day the international institution par excellence, as it is essentially 137 Reprinted in Jan Klabbers, The Changing Image of International Organization, in: Jean-Marc Coicaud and Veijo Heiskanen (eds), The Legitimacy of International Organizations (2001), 221, 225 –6. 138 Maastricht Treaty 1992 Constitutionality Case, 98 ILR (1993), 197, 226. 139 According to the principle of supremacy, community law has general and absolute primacy over the law of the Member States. Even though no reference is made to the principle of supremacy in the constitutive treaty, the ECJ has consistently held that this principle is implied into the treaty. In a landmark case, it held that ‘‘the validity of a community measure or its effect within a Member State cannot be affected by allegations that it runs counter to [. . .] the constitution of that State or the principles of a national constitutional structure’’, Case 11/ 70, International Handelgesellschaft v. Einfuhr, ECR (1970), 1125. 140 See La Cour de justice est accuseé d’outrepasser ses compe´tences, Le Monde, 12 January 2006; from Austria, ‘‘New Thoughts’’ for EU ‘‘Top-down Approach’’ rejected by Schussel, International Herald Tribune, 2 January 2006; Austrian Presidency: Scussel Accuses EU Court of Extending Community Law into New Areas, Europe Information, 5 January 2006. 141 Stanley Hoffmann, International Organization and the International System, 24 Int’l Org (1970), 389, 390.


through the Sovereign State, and for its benefit, that most of international relations occur. The fundamental structure of the international community is therefore left largely intact by IOs. Needless to say, IOs affect this fundamental structure, but no radical change has yet occurred.142 The power to make international law essentially remains in the hands of its primary subjects. Whilst IOs play an essential role in contemporary law making by influencing the interests, beliefs, knowledge and environment of States, their autonomy in the fabric of legal norms is greatly constrained. Accordingly, since IOs do not make law on their own, their multiplication does not necessarily entail a greater dispersion or dissolution of the legal authority in, nor a threat to the unity of, international law.

IV. Conclusion: international organizations as intermediate societies The study of IOs often leads to ambiguous or ambivalent conclusions. This ambivalence arises from the fact that people and nations believe or want to believe in the benefits of IOs but tend to reaffirm, at the same time, their desire to retain their sovereign privileges, which are factors not so much of the world organization as of its ‘‘disorganization’’.143 Our conclusions are reflective of this ambivalence. For present purposes, the emphasis has been placed, on the one hand, upon the permanence of the inter-State logic behind the veil of the organization. IOs systematize interdependence, interaction and reciprocity between their members but never truly transcend them. IOs represent a means for States to organize, according to new modalities, their mutual relations without disappearing as sovereign entities or renouncing to their coexistence as entities superiorem non recognoscentes.144 They embody a process of reform and modernization of the international system, but their action is not revolutionary nor is it directed against that system. They domesticate international relations and stimulate the co-operation between their members, but never put States out of the running. IOs, in the end, represent, in Jacobson’s words, ‘‘networks of interdependence’’ which are created to make the inter-State system work better, not to overthrow it.145 As networks of interdependence, IOs are more ‘‘shapers’’ than ‘‘makers’’ of international law. Their multiplication, we argue, is therefore not a source of increased chaos in the international normative puzzle. Yet, finding that IOs are essentially an instrument of their members’ co-operation, an arena for the confrontation of sovereignties, does not mean that they exert no influence on international relations. Indeed, IOs, by their very existence, bring about constant dialogue and negotiation between their members. They are laboratories in which new techniques of co-operation and innovative institutional systems are being tested. They allow for the 142 Stanley Hoffmann, Organisations internationales et pouvoirs politiques des etats (1954), 13. 143 Inis Claude, Swords into Plowshares: The Problems and Progress of International Organization (1971), 39. 144 Gaetano Arangio-Ruiz, The Concept of International Law and the Theory of International Organization, 137 Rec des Cours (1972), 629, 681. 145 Harold K. Jacobson, Networks of Interdependence: International Organizations and the Global Political System (1979), 64.


replacement of ad hoc improvisation by continuous organic activity, of bilateral diplomacy by plurilateral diplomacy. They represent, most of all, a means by which any State can have an influence on other nations’ behavior, even though it might only be symbolic. This is why, for instance, Kiribati, Nauru and Tonga eventually joined the United Nations in 1999, even though this was, in their words, ‘‘a sacrifice of scarce resources’’. This costly decision was justified by the fact that these Pacific Islands could ‘‘no longer be mere bystanders’’ and needed to impact the decisions made elsewhere in the world which deeply affected their security and prosperity.146 In this perspective, IOs provide a forum where conceptions of sovereignty can be debated and contested.147 In the final analysis, it is particularly noteworthy that even though it has been demonstrated that IOs possess no real autonomous legal power, it is imperative to refrain from Manichean and absolutist visions of the world according to which there is no halfway point between anarchy of sovereignties and world federalism.148 It may very well be, indeed, that the most illuminating perspective from which to look at IOs is precisely to consider and explore this intermediate position between pure inter-subjectivity and supranational federalism. This is what Philip Allott seems to suggest when, writing about IOs, he speaks of ‘‘intermediate societies’’, capable of bridging the gap between domestic societies and the idea of an international society embracing humanity as a whole.149 It is in this middle course that IOs exercise their influence, using persuasion rather than coercion, co-operation rather than subordination, and working as both stabilizers and stimulators of international relations. Whilst IOs essentially contribute to the organization of dialogue, not power, it would be wrong to conclude that they are simply empty shells moved by the manipulation of their members. Without a doubt, an international organization needs its members to exist and function normally, and is dependent on their legal power. However, it can no longer be denied that Member States are now dependent upon the organization, its knowledge, information and collective legitimacy, to achieve their own objectives.150

146 See Schermers and Blokker, above n.27, 3. 147 See Dan Sarooshi, The Essentially Contested Nature of the Concept of Sovereignty: Implications for the Exercise by International Organizations of Delegated Powers of Government, 25 Mich JIL (2004), 1107. 148 See Michael Walzer, Governing the Globe, 47 Dissent (2000), 44. 149 Philip Allott, Intergovernmental Societies and the Idea of Constitutionalism, in: Jean-Marc Coicaud and Veijo Heiskanen (eds), The Legitimacy of International Organizations (2001), 69, 72. 150 See Robert Keohane and Joseph Nye, Transgovernmental Relations and International Organizations, 27 World Pol (1974), 39, 55. This is true of ‘‘micro-States’’ like Kiribati, Nauru and Tonga, but also of quasi-hegemonic States like the United States, as has been confirmed by the recent war in Iraq. Indeed, even though President Bush had clearly stated that American troops would invade Iraq with or without the authorization of UN Security Council, the United States have undertaken an unprecedented diplomatic effort to obtain a UN mandate for a military intervention against Saddam Hussain’s regime. Most noteworthy is the highly unusual ‘‘pleading’’ of US Secretary of State Colin Powell before the Security Council. This effort shows that, in the eyes of the United States—a country which has often been called a unilateralism ‘‘champion’’—the World Organization had the capacity to legitimize a war which it, on its own, could not legitimize. On the UN as a dispenser of collective legitimacy, see Inis L. Claude, Collective Legitimization as a Political Function of the United Nations, 20 Int’l Org (1966), 367.


If IOs are intermediate societies, their multiplication leads to intermediate conclusions. On the one hand, IOs favor the socialization of international relations and inflect their anarchistic trajectory. On the other hand, their unmanaged proliferation might become the source of new anarchy. But anarchy, as Wendt notoriously wrote, is what States make of it.151 In the anarchical world of IOs, there is no fatality. In itself, an international organization is neither simply an agent of legal unity nor one of legal atomization. In itself, it is also neither a source of anarchy nor a remedy against it. What matters is what States make of it, and what, in return, the organization makes of them.

151 Alexander Wendt, Anarchy is What States Make of It: The Social Construction of Power Politics, 46 Int’L Org (1992), 391.

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