Unity, Diversity and the Fragmentation of International Law: How Much Does the Multiplication of International Organizations Really Matter?

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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 impor-
tantly,rival or competing activities must be of normative significance.This essay pro-
poses 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
....................................................................................................................................................................
Chinese Journal of International Law (2006),Vol.5,No.2,341–370 doi:10.1093/chinesejil/jml022
￿
Mario Prost,McGill Major Fellow in International and Comparative Law;Ph.D.candidate,McGill University;
LL.M.,Universite´ Paris 1 (Panthe´on-Sorbonne) (email:mario.prost@mcgill.ca).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.
#The Author 2006.Published by Oxford University Press.All rights reserved.
Advance Access publication 12 June 2006
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entered its post-ontological era’’.
1
International lawyers,in his view,have become emanci-
pated 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 inter-
national 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 speci-
ficity,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 lawmight be circumvented as an inescap-
able 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 inter-
national 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 codi-
fication’’,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 ne´cessite´ de remettre quelques pendules a`l’heure,15.2 Revue Que´be´coise de Droit International (2002),
117.
6 Gilbert Guillaume,La Cour internationale de Justice:quelques propositions concretes a`l’occasion du cinquan-
tenaire,100 RGDIP (1996),323,331.
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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 fas-
cination 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 foun-
dations 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 insti-
tutional 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 inthe fact that international lawyers,having long fought for the recognition
of ‘‘their’’ lawas ‘‘real’’ law,are nowconcerned 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 assump-
tion.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 unlim-
ited 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 compe-
tences.Normally,IOs are designed to deal with some specific class of issues,limited some-
times 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 ge´ne´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.
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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 fromthe 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 co-
ordination which lawyers,among others,need to address.Yet,the overlap of a few insti-
tutions 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 secur-
ity.In Africa,for example,the Organization of African Unity (nowAfrican 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 over-
lapping 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 multipli-
cation 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 reservations
15
and State
11 The number of IOs varies according to the parameters used to operate the selection.The figure for public inter-
national 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,UNDoc 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
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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 over-
lapping 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 inter-
national law’s unity.This will only become a concern insofar as IOs have the capacity to exer-
cise 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 dis-
order 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 incon-
sistent 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 Inter-
national (2006;forthcoming).
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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 deter-
mine 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 acertainconsensus over its historical origins,its
definition,as well as its possible legal typologies,a profoundandlong-runningdisagreement exists
as tothe true meaning andsignificance of the institutional phenomenonininternational 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.Tra-
ditionally,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’’,charac-
terized by greater equality and equity.
20
Reference can also be made to the attitude of ‘‘social-
ist’’ 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) scholar-
ship 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 Abi-
Saab (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,Neorealismand 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.
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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 examin-
ation of the meaning and significance of institutionalization as regards the unity of inter-
national 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 concen-
tration 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 policy-
making 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 nation-
State 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 dichot-
omous 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);Chit-
tharanjan 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.
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Accordingly,IOs are best described as ‘‘intermediate societies’’ which stimulate co-operation
between their members but never truly transcend State sovereignty.The fundamental struc-
ture 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 systemas in the sense that,follow-
ing Proudhon’s definition of anarchy,there exists no law of subordination on the inter-
national 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 contro-
versial.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’’’.
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primary subjects.
35
Some commentators,stressing this legal innovation,have gone so far as to
hail a new‘‘formof government’’
36
endowed with ‘‘quasi-legislative’’ competence.
37
It is necess-
ary,however,to go beyond this somewhat bare formula and attempt to define howexactly 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 delibera-
tion.When States join together in an international organization,they create a settled insti-
tutional 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 depen-
dent on the ad hoc arrangements to which sovereigns might consent,upon finding a conver-
gence 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 insti-
tutional activity capable of embracing equally continuous preoccupations.Detached from
national administrations,the organizations’ organs constitute a structure in which inter-
national 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 histori-
cally 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),Inter-
national 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,Organ-
ization 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.
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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 uncer-
tainties.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 import-
ance 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 nego-
tiation.They also have a more positive and active impact upon collective deliberation.In par-
ticular,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 disagree-
ment 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 long-
standing 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 gen-
erally 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 develop-
ment.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 Inter-
national 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,Franc¸ois 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).
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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 UNGeneral Assembly,for instance,estab-
lished 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 Programhas,since
1990,published annual reports on Human Development which have popularized a multi-
dimensional,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 develop-
ment.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 newconsensus and a newunderstand-
ing 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
paradigmof 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.
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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 rede-
finition 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.Fromthis perspective,by offering new tools and means of classi-
fications 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 con-
tinuous mobilization of human resources.
56
The remark is not purely anecdotal.Permanent
mobilization of international agents encourages the development of a coherent body of tech-
nical 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 frompolitical 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 narrownational inter-
ests,and are normally free to operate the organization without political interference fromthe
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 Develop-
ment (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 GATTet de l’OMC
(2005),191–6.
56 A.LeRoy Bennett,International Organizations:Principles and Issues,6th edn (1995),438–9.
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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 dia-
logue 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 col-
lective 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 pre-
dictability in international social relations.
If the function of IOs is essentially limited to the organization of dialogue,their multipli-
cation 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 inter-
national community.And more organization will permit the achievement of certain objec-
tives 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 Abi-
Saab (ed.),Le concept d’organisation internationale (1980),55.
60 Max Weber,E
´
conomie 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.
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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 nor-
mativity.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’ auto-
nomy prevailed for a time,although it has now been replaced by a project aimed at system-
atizing 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 asses-
sing the extent of such personality,is,however,of limited interest when undertaking an analy-
sis 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 expres-
sing 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.
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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 par-
ticularly 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 organ-
izations,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 typi-
cally 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 min-
isterial 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 the
´
orie
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 Activi-
ties 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 WTOshall provide the forum
for negotiations among its Members concerning their multilateral trade relations [...];3.The WTO shall
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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 oper-
ational 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 func-
tions 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.
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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 inter-
national 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 pur-
poses,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 con-
tributes 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 organ-
isations 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).
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‘‘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 techni-
cal 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 peremp-
tory 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 com-
munity of states as a whole’’ as a norm from which no derogation is permitted.
80
It is of sig-
nificance 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 inter-
ests 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 import-
ance,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,
79 On the variety of resolutions’ legal effects,see Marko Divac O
¨
berg,The Legal Effects of Resolutions of the UN
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.
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not the rule.Despite the lack of uniformlegal regime concerning IOs,there exists a presump-
tion in international law that their resolutions are ‘‘soft’’ as opposed to ‘‘hard’’ law.This pre-
sumption 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 terminol-
ogy 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 fewconstitutive instruments which do define,in texto,the legal effect of the
organization’s resolutions.The ILOConstitution,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 pol-
itical,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 Assem-
bly 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
Law:Achievements and Prospects (1991),241,259–60.See also O
¨
berg,above n.79,881.
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 e´clate´,in:Le droit international a`l’heure de sa codification:e´tudes en l’honneur de
Roberto Ago (1987),53,55–6.
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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,res-
olutions 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 ‘‘declara-
tory’’ 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 defi-
nition,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 restate-
ment 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 develop-
ment of international law.Resolutions will most often cover the three aspects of the international legal
process,and a resolution will rarely be purely declaratory.
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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 crystalliza-
tion 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 uniformpractice 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 norma-
tive phenomenon that spontaneously surfaced outside of the organization.As such,resol-
utions 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 auton-
omous 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 customis 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 fromactions,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 customthan 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
Relations,137 Rec des Cours (1972),419,473–6;and O
¨
berg,above n.79,898–900.
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.
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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 fromthe 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 deco-
lonization,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 treaty-
making 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 Jime´nez de Are´chaga,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:WilliamE.Butler (ed.),International
Law and the International System (1987),47,51–9;and Sands and Klein,above n.27,288–92.
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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 instru-
ment,such as when the General Assembly ‘‘affirms that genocide is a crime under inter-
national 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 Con-
tinental 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 unani-
mity or quasi-unanimity,
112
rather than simple
113
or qualified
114
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 inter-
national 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;Jime
´
nez de Are
´
chaga,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.
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agreed,with a few exceptions,
116
that where adoption occurred with a sufficiently represen-
tative majority,with no dissension fromthose 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 judi-
cial 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 represent-
ing 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 pro-
visions 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 resol-
utions 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:WilliamE.Butler (ed.),International Lawand 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.
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evidence of a customary rule proscribing the threat or use of nuclear weapons,as the resol-
utions 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 emer-
gence 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 recep-
tion 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 res-
olution 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 customas 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 Pro-
fessor 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 Bindsche-
dler (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.
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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 binding
132
and directly applicable in the territory of the Member
States.
133
Moreover,the adoption of community legislation by way of majority has,with suc-
cessive 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 regard-
ing 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 deter-
mine 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 dom-
estic 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
´
Franc¸aise 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,ACritical 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.
366 Chinese JIL (2006)
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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 insti-
tutions 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 terri-
tory’’.
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 commu-
nity acts on the basis of domestic constitutional principles—a position which is hardly com-
patible 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 con-
firmed 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 inter-
State 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 pre-
supposes,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 val-
idity 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 accuse
´
e 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.
Prost and Clark,Unity,Diversity and the Fragmentation of International Law 367
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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 influ-
encing 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 newmodalities,their mutual relations without disappearing as sovereign entities
or renouncing to their coexistence as entities superioremnon recognoscentes.
144
They embody a
process of reformand modernization of the international system,but their action is not revo-
lutionary 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 multi-
plication,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.
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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 demon-
strated that IOs possess no real autonomous legal power,it is imperative to refrain fromMan-
ichean 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 fed-
eralism.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,infor-
mation 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 Exer-
cise 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 UNSecur-
ity Council,the United States have undertaken an unprecedented diplomatic effort to obtain a UNmandate 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.
Prost and Clark,Unity,Diversity and the Fragmentation of International Law 369
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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 anar-
chistic 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 organiz-
ation 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.
370 Chinese JIL (2006)
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