Advanced Introduction to the Law of International Organizations


By
Jan Klabbers

Edward Elgar, 2015
132 pp
ISBN 978-1-78254-094-6 (hardcover)
ISBN 978-1-78254-427-2 (paperback)

Reviewed by Gian Luca Burci (Graduate Institute of International and Development Studies, Geneva)


Jan Klabbers has become a household name among international lawyers for his prolific, insightful and original scholarship on the law of international organizations. His books and articles are written in an accessible and highly readable style that, however, never trivializes or oversimplifies the complexity of some of the issues characterizing his subject matter. It is fair to say that some of his publications have become classics alongside the work of the few other international English-writing legal scholars that have focused their scholarship on the law of international organizations such as Wilfred Jenks, Derek Bowett, Finn Seyersted, and Henry Schermers and Niels Blokker.

The book under review is published in the Elgar Advanced Introductions series, that includes work by other well-known international legal scholars such as Robert Kolb, Dinah L. Shelton and Michael Trebilcock. Addressed to a non-specialist, and possibly non-legal, audience, they fill a gap in the current literature by providing the essentials for the understanding and further development of discreet areas of international law and relations.

Klabbers’s successful book, An Introduction to International Organizations Law (hereafter Introduction), published in its third edition in 2015,[1] has been complemented by the volume reviewed here. Even though it is entitled Advanced Introduction, it is much more concise and addressed to an audience with less or no general knowledge about the phenomenon of international organization. As a consequence, its style is understandably more descriptive and the treatment of its topics more cursory and selective than was the case with the Introduction. Still, it introduces at times concepts and issues not dealt with squarely in the Introduction. For instance, it engages in a discussion on ‘administration’ to describe non-treaty-based normative functions, such as those exercised by the Security Council under Chapter VII of the UN Charter, and on ‘secondary law’, addressing questions of legal existence, validity and scope of application of decisions of international organizations.

The leitmotiv of much of Klabbers’s scholarship on international organizations for several years (he himself calls it an ‘obsession’[2]) has been the critique of functionalism as the dominant theory underpinning the establishment and understanding of international organizations, their powers, functions and institutional features such as their privileges and immunities. Klabbers posits that functionalism – as originally theorized in its ‘pure’ form by two early and relatively obscure American scholars, Paul S. Reinsch and Francis B. Sayre – is a normative theory that recognizes the raison d’être of international organizations in the discharge of functions entrusted to them by their member states in the collective interest of the relevant community. The explanatory value of functionalism is therefore fundamentally limited to the relationship between the organizations and their members; it is unable as such to explain or provide a credible basis for the internal functioning of the organizations and their interactions with actors and stakeholders other than their members. Based as it is on an allegedly unrealistic and artificially apolitical vision of organizations as both agents of their member states and at the same time distinct legal persons with their own will, functionalism projects an image of international organizations as intrinsically benign and positive creatures pursuing the common good and, as such, not in need of control or strict limits for their activities, and protected by the strong legal shield of their immunities. The inability of legal functionalism to provide an explanatory narrative and normative tools to control and secure the accountability of organizations no longer perceived as unconditionally benign and non-political, leads Klabbers to explore other avenues, from global administrative law to constitutionalist theories and a virtue ethics approach to leadership in international organizations. This long-standing engagement with functionalism has found its most elaborate expression in a long ‘Foreword’ that Klabbers published in the European Journal of International Law in 2015.[3] This in turn has generated a lively debate and a range of critical views in the same journal[4] as well as in the on-line blog EJIL:Talk![5]

Klabbers’s aforementioned approach to international organizations and their law also permeates the volume under review, even though its introductory and descriptive nature somehow dilutes the theoretical propositions compared, for example, with the discussion in the EJIL Foreword. The book is structured in three parts following Klabbers’s critique of the strengths and weaknesses of functionalism: first, the relations between international organizations and their member states; second, the internal functioning of organizations with particular regard to the creation of subsidiary organs; and third, accountability and external relations, addressing in large part the relations between organizations and stakeholders other than member states. The book unsurprisingly begins with an introduction framing the treatment of its general topic in the context of functionalist theories and policies, and ends with an invitation to ‘rethink’ and reconceptualize the law of international organizations along with the role that functionalism can safely play in their activities. The problem here, which reflects similar considerations from Klabbers’s earlier work, is that possible alternative or complementary theories and approaches are proposed and compared rather than analyzed in detail. The result is that the reader, in particular one using this volume for a first introduction to international organizations law, emerges with a healthy distrust of functionalism and an eagerness to explore alternative ways to theorize and make sense of international organizations, but without a clear sense of direction. Maybe that is inevitable at a time of transition and introspection, and Klabbers’s critical scholarship in general can help generate more research.

Klabbers does a good job of introducing the topic by stressing the taxonomical complexity of defining and categorizing international organizations, and how they can represent extremely diverse groups and interests, thus defying the traditional and homogeinizing vision of organizations as always representing an abstract general notion of ‘common good’. The subsequent chapters merge effectively theoretical elaboration, description of current law and practice, and a wealth of fairly up to date examples largely drawn from international and regional court cases . The book follows a logical sequence, reviewing the ‘legal existence’ of organizations (including their dissolution) and the features and incidents of membership before moving to an analysis of the normative functions of international organizations, internal structural and regulatory issues (including a short section on the international civil service besides the establishment of subsidiary organs as mentioned above) and concluding with the more problematic aspects of responsibility and accountability as well as the ever-evolving practice of competition, coordination and inter-organizational relations. From the latter perspective, Klabbers introduces further elements of complexity by mentioning innovative inter-organic relations such as the G20’s request to the OECD to facilitate the negotiation of a multilateral instrument on double taxation with participation extended to a large number of countries outside the organization (at 110). Also the proliferation of public-private partnerships with elaborate international governance arrangements (at 111), and the delegation of powers to international bodies – such as secretariats of environmental conventions – otherwise formally devoid of legal personality problematizes the very concept of international organization as an international legal person expressing a distinct will.

Digressing from the focus on functionalism and its alternatives, Klabbers’s treatment of its subject makes it clear to the reader that the law of international organizations is characterized by a constant tension between a search for stability in the structure, functioning and working assumptions of international organizations, and on the other hand the equally constant search for flexibility, adaptation to evolving political and practical circumstances, and innovation. Having experienced this tension from the inside as the former Legal Counsel of WHO, I wish that this particular dimension of the life of international organization had been more explicitly addressed in the book. Major examples in my view concern the shifting assumptions on the financing of international organizations and on the status and terms of employment of the international civil service. Assessed contributions for most organizations are stagnant or declining while the push towards voluntary financing – often from non-state sources such as big philanthropic foundations – is constantly increasing with a consequent influence of the specific agendas of powerful donors on policies and activities. In the case of the international civil service (at least within the UN system), the constant erosion in the terms and stability of employment and the growing pressure to adopt corporate models of management imported from the private sector arguably undermine long-held principles guaranteeing the independence and neutrality of international civil servants. These developments, reflected in the internal law of entire groups of organizations such as the ‘UN family’, not only justify Klabbers’s doubts on functionalism but may herald the end of international organizations as we know them.

The chapter on standard-setting (at 57–70) gives an excellent overview of such a diverse field in constant evolution. The focus of the analysis is on rule-making by organizations, with particular regard to the innovative normative processes introduced by technical agencies such as ICAO, IMO and WHO as well as on the dynamic relations between norms belonging to different normative and institutional contexts, for example the legal force that Codex Alimentarius standards acquire under the WTO Agreement on Sanitary and Phytosanitary Measures. One point worth noting is Klabbers’s description of the binding powers of the Security Council under Chapter VII of the Charter as a form of ‘administration’, i.e. ‘the application of pre-existing law by an administrative body’ (at 60). Defining the Security Council and its enforcement functions as ‘administration’ is somehow puzzling, in particular since the Council – leaving aside its occasional and problematic self-attribution of legislative or quasi-judicial functions – is designed in the Charter’s framework as a ‘policeman’ entrusted with exceptional powers to maintain international security, whether or not its decisions also uphold international law. At the same time, it is true that the Council has since the end of the cold war acted more and more as an enforcer of central values of the international community protected by specific legal rules such as basic human rights, humanitarian law, the protection of the most vulnerable populations and international criminal law. Still, I would not define those functions as administrative. [6]

The chapter on accountability wraps up the preceding overview in summarizing the historical development of the discourse on the responsibility and accountability of international organizations and the most intractable conceptual and legal difficulties in finding effective legal tools to enforce them. The 1962 Certain Expenses advisory opinion by the International Court of Justice,[7] and the failure of the creditor of the International Tin Council in enforcing the responsibility of its members after its insolvency, starkly brought to bear the difficulty in applying the notion of ultra vires activities and in finding alternative avenues of redress in case the organization was unwilling or unable to acknowledge its responsibility or honour its obligations. The 1980 ICJ advisory opinion on the WHO–Egypt controversy[8] made things even more complex through its acknowledgement that a state could at the same time be legally inside the organization (as one of its members) as well as outside (in this case as the counterpart of the host agreement for a WHO regional office). Klabbers expresses some justified skepticism on the 2011 Articles on the Responsibility of International Organizations adopted by the International Law Commission; the articles, based as they are to a large measure on the previous articles on state responsibility, fail to embody the ‘public law paradigm’ (at 89) that could have recognized the responsibility of institutions exercising public power to those affected by it. The articles also leave unanswered (and it couldn’t be otherwise given their focus on secondary rules) the question about the primary rules of international law applicable to international organizations and do not address satisfactorily the possibility of concurring responsibility of organizations and their member states, a possibility denied by the European Court of Human Rights in the infamous Behrami and Saramati cases.[9] Confronted with these complex problems not solved or solvable through a legal approach based on functionalist theories, it is not surprising that Klabbers relies on the ‘alternative attempts’ (at 92) mentioned above.

In conclusion, Klabbers’s book is highly recommended, and not only for inexperienced readers, as a substantive, critical and convincing introduction to an inherently complex, fragmented and at times confusing topic. If the book does not eventually provide conclusive answers to the questions it poses at the outset about the theories and paradigm underpinning international organizations, it offers more than enough to lead non-specialists to delve more deeply into the field.

[1] Jan Klabbers, An Introduction to International Organizations Law (3rd ed, Cambridge University Press, 2015).

[2] See the EJIL Talk exchange between Klabbers, ‘The Transformation of International Organizations Law’, EJIL:Talk! (18 August 2015) <www.ejiltalk.org/the-transformation-of-international-organizations-law>; Ian Johnstone, ‘Are Functionalism’s Flaws Fatal?’, EJIL:Talk! (20 August 2015) <www.ejiltalk.org/reply-to-klabberss-article>; and Alison Duxbury, ‘Is International Institutional Law Transforming?’, EJIL:Talk! (19 August 2015) <www.ejiltalk.org/is-international-institutional-law-transforming>.

[3] Jan Klabbers, ‘The Transformation of International Organizations Law’, 26 European Journal of International Law (2015) 9-82.

[4] E.g. Laurence Boisson de Chazournes, ‘Functionalism! Functionalism! Do I Look Like Functionalism?’, 26 European Journal of International Law (2015) 951-956.

[5] E.g. Johnstone, supra note 2.

[6] For a recent contribution to this debate, see Ian Johnstone, ‘The Security Council and International Law’ in Sebastian von Einsiedel, David M. Malone and Bruno Stagno Ugarte (eds), The UN Security Council in the 21st Century (Lynne Rienner 2016).

[7] Certain Expenses of the United Nations (Article 17, Paragraph 2 of the Charter) (Advisory Opinion), ICJ Reports (1962) 151.

[8] Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion), ICJ Reports (1980) 73.

[9] Behrami and Behrami v. France; Saramati v. France, Germany and Norway, Application nos. 71412/01 and 78166/01, European Court of Human Rights, Grand Chamber, Decision of 2 May 2007.