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Published online by Cambridge University Press: 17 January 2008
One of the better qualities of Karel Wellens's recent monograph on remedies against international organizations is that, at least nominally, his is a lengthy plea for a constitutional approach towards international organizations.1 Whereas traditionally international lawyers (and much of international law perhaps as well) would approach organizations from a functional perspective,2 in Wellens's view such an approach is no longer advisable, if it ever was: it would fail to do justice to, eg, human rights considerations, as it would often be open to organizations to argue that its functional interests ought to prevail over human rights considerations.3
1 See Wellens, KRemedies Against International Organizations (CambridgeCUP 2002).CrossRefGoogle Scholar
2 See, eg,Schermers, HG and Blokker, NMInternational Institutional Law (3rd edn Dordrecht Martinus Nijhoff 1995) at 9–10, under explicit reference to Virally, M ‘La notion de fonction dans la théorie de l'organisation internationale’ in Bastid, S et al. Mélanges offerts à Charles Rousseau: la communauté internationale (ParisPedone 1974) 277–300.Google ScholarTraces of a functional necessity approach can also be found in Virally's, earlier L'Organisation mondiale (ParisArmand Collin 1972).Google Scholar
3 See Wellens, , above n 1, at 14–16. See also the seminal paper by Singer, M ‘Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns’ 36 Virginia Journal of International Law (1995) 53–165.Google Scholar
4 Indeed, he often resorts to the very type of functional necessity reasoning he would so much like to get rid of. See Wellens, , above n 1, eg, at 219. In all fairness though, it would seem that his main ambition was to present an analytical model for remedies rather than establish a full-fledged constitutional approach to international organizations and their activities.Google Scholar
5 See Klabbers, JAn Introduction to International Institutional Law (CambridgeCUP 2002), 36–9.CrossRefGoogle Scholar
6 The most sophisticated of such attempts is probably Bekker, PThe Legal Position of Intergovernmental Organizations: A Functional Necessity Analysis of Their Legal Status and Immunities (DordrechtMartinus Nijhoff 1994).Google Scholar
7 See also Klabbers, ‘The Changing Image of International Organizations’ in Coicaud, JM and Heiskanen, V (eds) The Legitimacy of International Organizations (TokyoUnited Nations University Press 2001) 221–55.Google Scholar
8 Organizations may well be constitutional without a written constitution; see, eg, Weiler, JHH 'In Defence of the Status Quo: Europe's Constitutional Sonderweg’ in Weiler, JHH and Wind, M (eds) European Constitutionalism Beyond the State (CambridgeCUP 2003) 7–23.Google Scholar
9 It is probably no coincidence that a number of authors have started to argue, without casting it in overly theoretical terms, that organizations are also bound by general international law (and thus subject to external limits on their activities). See, eg, Skogly, SThe Human Rights Obligations of the World Bank and International Monetary Fund (LondonCavendish 2001)Google Scholarand Darrow, MBetween Light and Shadow: The World Bank, The International Monetary Fund, and International Human Rights Law (OxfordHart Publications 2003). Others have argued that specific organs ought to be subjected to judicial review, thus again displaying a constitutional approach of sorts.Google ScholarSee, eg, Bedjaoui, MThe New World Order and the Security Council: Testing the Legality of Its Acts (DordrechtKluwer 1994).Google Scholar
10 See, eg, Jennings, WIThe Law and the Constitution (3rd ednLondonUniversity of London Press 1943).Google ScholarFor a critical analysis of the rule of law, see Loughlin, MSwords & Scales: An Examination of the Relationship Between Law & Politics (OxfordHart Publications 2000).Google Scholar
11 The Court first developed this in joined cases 21–24/72, International Fruit Company v Produktschap voor Groenten en Fruit [1972] ECR 1219, and has kept it limited to situations in which the Member States had conferred exclusive powers on the EC.Google Scholar
12 For a lucid analysis, see Brölmann, CM ‘A Flat Earth? International Organizations in the System of International Law’ (2001) 70 Nordic Journal of International Law 319–40.CrossRefGoogle Scholar
13 This may help explain why the present paper adopts the broad working definition of a constitutional approach as having something to do with placing limits on the possible range of activities of international organizations. Which precise limits it concerns, where those limits themselves stem from, and who gets to apply them, are all questions which will have to await answers.Google Scholar
14 Judgment No 2232. The Tribunal's judgments are easily accessible at <http://www.ilo.org/public/english/tribunal> (last visited 6 Oct 2003).+(last+visited+6+Oct+2003).>Google Scholar
15 See, eg, Watson, GR ‘Constitutionalism, Judicial Review, and the World Court’ (1993) 34 Harvard International Law Journal 1–45.Google ScholarOn judicial review and constitutionalism more generally, see Ely, JHDemocracy and Distrust: A Theory of Judicial Review (CambridgeMA Harvard University Press 1980).Google Scholar
16 Then again, the Lockerbie case never lived up to its promise and was withdrawn from the ICJ in 09 2003.Google Scholar
17 The CWC is helpfully reproduced in (1993) 32 International Legal Materials 800.Google ScholarFor a useful overview of the OPCW (including its institutional aspects), see Myjer, EPJ ‘The Organization for the Prohibition of Chemical Weapons: Moving Closer Towards an International Arms Control Organization? A Quantum Leap in the Institutional Law of Arms Control’ in Myjer, EPJ (ed) Issues of Arms Control and the Chemical Weapons Convention (The HagueMartinus Nijhoff 2001) 61–139.Google Scholar
18 See Mahley's, Ambassador Opening Statement to the Conference of States Parties, 21 Apr 2002, available at the website of the US Department of State: <http://www.state.gov>. A more detailed paper outlining Bustani's activities can be found at the same site as a fact sheet titled ‘Preserving the Chemical Weapons Convention: The Need for a New Organization for the Prohibition of Chemical Weapons’ (OPCW) Director-General (dated 1 Apr 2002) (last visited 6 Oct 2003)..+A+more+detailed+paper+outlining+Bustani's+activities+can+be+found+at+the+same+site+as+a+fact+sheet+titled+‘Preserving+the+Chemical+Weapons+Convention:+The+Need+for+a+New+Organization+for+the+Prohibition+of+Chemical+Weapons’+(OPCW)+Director-General+(dated+1+Apr+2002)+(last+visited+6+Oct+2003).>Google Scholar
19 See ‘US Initiative to Oust OPCW Director-General’ in (2002) 96 AJIL 711–12, at 711.CrossRefGoogle Scholar
20 See Bustani, In re, above n 14, para B.Google Scholar
21 Ibid, para C.
22 Ibid. This other organization, so the ILOAT clarified, is UNESCO, which decided in 1999 to insert such an explicit provision in the contract with its Director-General.
23 See In re Bustani, above n 14, para D.Google Scholar
24 This tension is perhaps most clearly visible with respect to the Secretary-General of the United Nations. For a brief discussion, see Klabbers, , above n 5, at 173–5.Google Scholar
25 See ‘The Role of the Director-General’, statement by US permanent representative Mahley, Donald A, 23 04 2002, available at <http://www.state.gov> (last visited 6 Oct 2003).+(last+visited+6+Oct+2003).>Google Scholar
26 Incidentally, the question of to whom staff rules etc apply does not seem to be a major preoccupation in studies of the employment law of international organizations. Cf eg, Amerasinghe, CFThe Law of the International Civil Service As Applied by International Administrative Tribunals, 2 vols (OxfordClarendon Press 1988)Google Scholarand Akehurst, MBThe Law Governing Employment in International Organizations (CambridgeCUP 1967).Google Scholar
27 See In re Bustani, above n 14, para 7.Google Scholar
28 Art VIII, para 46 CWC.Google Scholar
29 See In re Bustani, above n 14, para 8.Google Scholar
30 The Tribunal (above n 14, para 9) refers to Judgment No 605, In re Madureira (1984), in which it held that its jurisdiction would not normally cover housing disputes unrelated to employment terms, and Judgment No 967, In re Antal (1989), in which it held that choice of forum clauses are not lightly to be implied in employment contracts.Google Scholar
31 See In re Bustani, above n 14, para 10.Google Scholar
32 Ibid, para 13.
33 Ibid, para 14.
34 Ibid, para 16.
35 Ibid, para 17.
36 Ibid, paras 17–18 and dispositif.
37 There have been other clashes between Member States and Directors-General. These usually either fizzle out, or result in the person concerned not being reappointed (Boutros-Ghali comes to mind), or end with the Member State withdrawing. An example of the latter is the US withdrawal from UNESCO over American displeasure with the way UNESCO was run under M'Bow. For more details, see Franck, TMNation Against Nation: What Happened to the UN Dream and What the US Can Do About It (OxfordOUP 1985), at 265–6. The US only rejoined in the autumn of 2003 after almost two decades of absence.Google Scholar
38 When addressing jurisdiction though, it dismissed as ‘not applicable’ the OPCW's argument that precedent would suggest that the ILOAT has no jurisdiction to address the legality of decisions taken by legislative organs. See In re Bustani, above n 14, para 10. The OPCW had referred to Jugdment No 209, In re Lindsey (no 2), (1973).Google Scholar
39 Szasz has argued that occasionally political decisions may be challenged incidentally before administrative tribunals. See Szasz, PC ‘Adjudicating Staff Challenges to Legislative Decisions of International Organizations’, in Hafner, G et al. (eds) Liber Amicorum Professor Ignaz Seidl-Hohenveldern in Honour of his 80th Birthday (The HagueKluwer 1998) 699–720.Google Scholar
40 See In re Bustani, above n 14, para 10. See also above, n 36.Google Scholar
41 See Singh, NTermination of Membership of International Organisations (LondonStevens & Sons 1958), at vii.Google Scholar
42 See Klabbers, ‘The Life and Times of the Law of International Organizations’ (2001) 70 Nordic Journal of International Law 287–317.CrossRefGoogle Scholar
43 See, eg, Hirsch, MThe Responsibility of International Organizations Toward Third Parties: Some Basic Principles (DordrechtMartinus Nijhoff 1995);Google ScholarReinisch, A, International Organizations before National Courts (CambridgeCUP 2000)CrossRefGoogle Scholarand, in Dutch, Lawson, RHet EVRM en de Europese Gemeenschappen (DeventerKluwer 1999).Google Scholar
44 Others have generally advocated a more politically sensitive ‘culture of formalism’, on the thought that while politics will not readily accept being subjected to any rule of law, it is nonetheless important to avoid or counter decision-making of the type where the end justifies the means. See Koskenniemi, MThe Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (CambridgeCUP 2002), esp at 494–509.Google Scholar
45 The classic ultra vires doctrine is rather impotent when confronted with general acceptance of an act or activity by the membership of the organization. See Klabbers, , above n 5, esp at 241–3.Google Scholar