1.1 Introduction
There is a standard joke about two economists being stranded on an uninhabited island with nothing but a can of beans. After a while they get hungry, and realize that they cannot open the can, their only source of food. They fiddle around for a day or two and, with despair growing, one of them has a Eureka moment. She turns to the other and says, ‘let’s assume that we have a can opener and take it from there’.Footnote 1
Rewarding as it may be to make jokes at the expense of the ‘dismal science’, it should also be recognized that economists are not alone in using assumptions – academic disciplines generally work on that basis.Footnote 2 Scientists, including legal scientists and social scientists, assume certain basic ‘facts’ about people and institutions in order to allow for further reflection, to allow for modelling, to allow for theory-building, to allow for prediction. Economists may assume such things as ‘perfect competition’ or ‘zero transaction costs’; many International Relations scholars assume that states are the only actors of relevance and that those states are solely interested in power,Footnote 3 and international lawyers will often assume that treaties are based on a ‘meeting of the minds’.
The use of assumptions is not problematic in and of itself, but there is always a risk that those assumptions become their own truths: they move from being heuristic devices to representations of reality and sometimes all the more forcefully so for having been leading assumptions for many generations. The problem then is not with the assumption but with its ossification: disciplinary assumptions need to be re-examined every now and then, both in order to see whether they still hold (‘is perfect competition still a reasonable assumption in today’s economy?’) and with a view to gauging their effects: it is perfectly possible, as we will see, that a fundamental assumption generates all manner of thinking that leads a discipline astray. Put differently, the assumption may represent an earlier ‘sliding doors’ moment, sending an entire discipline down a path that academically proves to be not very fruitful, having generated a belief rather than understanding.
One of the fundamental assumptions on which the law of international organizations is constructed is the assumption that international organizations only and exclusively interact with their member states.Footnote 4 Member states set up international organizations and give them tasks, the performance of which in turn is expected to serve these same member states. This has been the assumption since international organizations were first set up, beginning with the early nineteenth century river commissions: these would do tasks for their member states, on behalf of those member states, on assignment of those member states, and for the benefit of those member states. There was no world around the organization and its member states – the external world simply did not exist. The river commissions were conceived as administrative agencies which just happened to transverse several states, without an external world and even, so to speak, without an internal world. The first river commissions consisted of representatives of member states who would meet every now and then, decide on things and then go home again.Footnote 5 These representatives formed their own administration – there was no international civil service just yet, not even in the form of seconded national civil servants. The Rhine Commission, for example, was set up as an annual conference, with the relevant legal instrument providing that the national commissioners (one per member state) would meet once a year in Mainz, on 1 November.Footnote 6
Much the same applied to the public unions set up in the late nineteenth and early twentieth century: while these may have had a small administration of their own (in contrast to the river commissions, and still usually composed of civil servants seconded from the administration of the host state), they were nonetheless conceived as administrative agencies which just happened to transverse several states. Hence, there was a transboundary element, but otherwise they were not fundamentally different from a national or local administrative agency – an agent doing things for its principal. While the principal was a collective rather than a singular principal, the key factor resided in the nature of that principal–agent relationship: excluding the outside world.
This situation could not but affect the law of international organizations. The law is built around this assumption that only the principal/agent relationship is of any relevance: where states set up agencies to do things for them and on their instructions, it stands to reason that this became the dominant dynamic. To put it graphically, international organizations law is constructed in a vacuum, a vacuum drawn around the relationship between the organization and its member states. Nothing else is able to intervene. This vacuum not only affects the law as it stands but has a broader effect: it also affects the theory underpinning the legal framework. In this framework, the external world – external to the relationship between the organization and its member states –simply does not exist.
The absence of an outside world on this basic level of political thought has serious consequences. If there is no outside world, then there is no relationship to third parties and, thus, it follows that organizations cannot be held accountable for their acts towards that outside world, that is, towards third parties. This is precisely what can be observed. International organizations can be controlled, but only by their member states, with the help of the ultra vires doctrine (not very useful, as it happens), or by the unprincipled voting of member states or even by attempts to withdraw or to withhold funding: these can all be seen as mechanisms to hold the organization accountable, however unprincipled perhaps, but only by member states. International organizations cannot in any meaningful way be held to account by outsiders, whether courts and tribunals or even the court of public opinion, and this finds its origin in precisely the vacuum assumption.
Of course, a certain amount of patchwork can be done and has been done: there is the virtual accountability that can benefit from the International Law Commission’s articles on the responsibility of international organizations (ARIO) or the Global Administrative Law approach, but, while these may sometimes work in practice, they are theoretically problematic. They may sometimes work in practice: a court may hold that the ARIO represent the law or that some organization or other should have been held to a commitment it had entered into, but the theory is problematic. It is problematic in that the two main elements of the internationally wrongful act (the international obligation and the attributability of the actFootnote 7) are by no means self-evident, and this in turn finds its cause in the circumstance that the law grew up thinking that international organizations only affected their member states and would not affect third parties. Consequently, they could do no wrong towards third parties. It was only since the moment they actually started to affect third parties negatively, most emblematically with the International Tin Council crisis of the 1980s, that international organizations law devoted attention to the topic. But the structures of the law, one might say, cannot accommodate third party responsibility, and this, in turn, is traceable to the vacuum assumption.Footnote 8
Much the same applies with respect to the position of staff members: these have no place in the theory of international organizations law, as the latter is based on the vacuum assumption. Again, practice has found solutions, ever since the Italian Court of Cassation held, in the early dispute between Mr Profili and the Rome-based International Institute of Agriculture, that the Italian judicial order lacked jurisdiction over staff disputes.Footnote 9 As a result, the rights of staff members often find protection in especially established international administrative tribunals. Again though, this tends to be random and ad hoc: it may work but is an odd fit with the system. This calls for a re-thinking of the underlying assumptions.
1.2 The Silent Dog
Historically, the vacuum is visible in the long-standing absence of international organizations explicitly being granted international legal personality. Given the overwhelming popularity of the idea that international legal personality depends on the wishes and intentions of their member states as expressed in the constituent instrument or related instruments, the virtual non-existence of international legal personality is striking – and telling.Footnote 10
Going through the constitutions of the classic public unions, one notable element is that they all lack international legal personality and, even as recently as two decades ago, it was noted that ‘an express provision on international personality is comparatively rare’.Footnote 11 This absence of explicit provision applies, for instance, to the 1875 Meter Convention, establishing the Bureau International des Poids et Mesures. It also applies to the Universal Postal Union (UPU) and the pioneering International Telegraphic Union (ITU). The latter was established in 1865 in Paris, in the rudimentary form of a regulatory convention without much institutional provisions, but already agreeing on the need to revise the regime regularly, and agreeing on the date and place of the next meeting.Footnote 12 This next meeting was to be held in 1868, in Vienna, and it was here that a small administrative secretariat (known as the Bureau Internationale des Administration Télégraphiques) was created. This was given the mandate to take measures ‘propres à faciliter, dans un intérêt commun, l’exécution et l’application de la Convention’ and to that end empowered to centralize information relating to telegraphy, edit telegraphic rates, collect statistics, conduct studies and produce a publication.Footnote 13
As this brief summation indicates, the ITU, like other international organizations, was envisaged to serve its member states – nothing more. And, in this light, the absence of such qualities as international legal personality makes sense. International legal personality was rarely considered necessary or useful in order to allow the organization to act on the international plane, for the excellent reason that the organization was never expected to act on that international plane – so why endow it with something it does not need and is expected never to be in need of?
There was one seeming exception though, popular for a few years and in particular in Italian legal circles. Thus, there are some writings from the 1930s and even some case-law on international legal personality, but on closer scrutiny this does little to undermine the point that international legal personality was rarely, if ever, explicitly granted, and was rarely, if ever, explicitly granted because it was considered unnecessary to engage in activities on the international plane. The idea informing this Italian approach was different: international legal personality was not something that an organization was explicitly endowed with, but rather something that followed from institutional design. If the organization was considered sufficiently autonomous from its member states, it was considered to possess international legal personality. Decisive was thus not an explicit grant of personality, in this view, but whether the organization would have some independence vis-à-vis its member states.
The argument is sometimes traced to an Italian public law author called Guido Fusinato, writing on the International Institute of Agriculture (IIA) in 1914,Footnote 14 and was most explicitly endorsed in the classic Profili case, decided in 1931. Mr Profili had been working for the IIA, based in Rome, and upon being dismissed he sued the IIA for compensation. Both the court of first instance and the court of appeal argued they had the jurisdiction to decide, as the IIA was not a subject of international law – it was not a state. The Court of Cassation, however, begged to differ. It characterized the IIA as an autonomous organization, ‘removed from the interference of any one State of the Union’. Thus, the IIA was ‘free, as regards its internal affairs, from interference by the States composing the Union’. Though the IIA could have subjected itself to some other legal order, for example, with a view to settling labour disputes, it had not done so, with the result that the IIA legal order was considered to be ‘self-contained’, to use a word that later gained some traction, and should be in a position to decide on its own labour disputes.Footnote 15
Several points are noteworthy. First, on the substance of the dispute, the Court’s solution was awkward: it would mean that staff could only complain to the very authorities with whom they had a dispute. Not surprisingly, therefore, Profili is often seen as having provided impetus to the creation of international administrative tribunals. Second though, and more important for the present purposes, the notion of ‘international legal personality’ at stake in Profili was radically different from how that notion is commonly used. In common usage, international legal personality means something like having the possibility to engage in international affairs, and this is very clearly how it is used in the Articles on the Responsibility of International Organizations (ARIO);Footnote 16 in Profili, this was not of concern at all to the Court of Cassation, which used the phrase as a shorthand for ‘autonomy’ or, indeed, ‘self-contained’.
The semantic confusion was eventually put to rest in 1949, when the ICJ suggested in Reparation for Injuries that international legal personality was a threshold for acting internationally.Footnote 17 In Reparation, the idea of personality as ‘autonomy vis-à-vis member states’ is completely absent. Instead, the ICJ is at pains to repeat that the UN is engaged in all sorts of activities on the international plane which can only be explained on the basis of the UN having international legal personality – such as the conclusion of treaties.Footnote 18 Throughout the opinion, the possibility of being active on the international plane is the topic of discussion when it comes to international personality, and this is even explicitly distinguished from the Profili approach. Where the UN, it is true, ‘occupies a position in certain respects in detachment from its Members’,Footnote 19 it also goes further, and is expressly endowed with tasks on the international plane. In the end, the Court concludes, the UN ‘could not carry out the intentions of its founders if it was devoid of international personality’.Footnote 20
The very structure of argument in Reparation confirms as much. While the Court was not asked about personality but merely about whether the UN could bring a legal claim against a state, it nonetheless felt that it could not answer the questions before it without first addressing personality. Tellingly, it started by first enquiring into whether it could bring international legal action against a member state.Footnote 21 One might have thought that this could be decided as an internal organizational matter (this, after all, is what the Italian Court of Cassation had suggested in Profili), but the Court held otherwise: to invoke international law presupposes international personality, even vis-à-vis a member state. And this allowed it later to hold a fortiori that the UN possessed international personality, allowing it to act against non-members. On this point, the Court famously found that ‘fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality …’,Footnote 22 that is, personality opposable also against non-members, including the right to bring claims. The logic is clear: international legal personality functions as a threshold condition without which acts under international law are impossible, and is a status granted by the member states of the organization, either expressly (‘Organization X shall have international legal personality’) or implicitly, for example, by having the organization engage in acts on the international plane.Footnote 23
So, with minor exceptions revolving around a different and inward-focused concept of international personality, the law for decades was clear. International organizations were never considered to need international legal personality: where there is no outside world to engage with, there is no need to establish legal facilities for such engagement either. It was only once the newly created United Nations lost staff in a setting involving a non-member state that the question of acting internationally seriously arose, forcing the International Court of Justice to come to terms with the international legal personality of the UN in its Reparation opinion. And, even then, explicit grants of personality under international law remained rare: even the EEC could only be seen to have international legal personality after the poorly reasoned (nay, non-reasoned) decision of the ECJ in ERTA.Footnote 24 It was only the messy discussion surrounding the ostensible international legal personality of the EU, after Maastricht, which opened our eyes, with many arguing that, in the absence of a positive provision, the EU actually lacked international legal personality.Footnote 25 Surely, it cannot be the case that a newly created EU with a foreign and security policy and a nascent immigration policy would be devoid of international legal personality? That would be a ridiculous, dysfunctional outcome: it would either mean that the EU would be unable to act internationally (rendering its foreign and security policy a dead letter) or that the concept of international legal personality would be meaningless – neither outcome was considered plausible. So, once the EU’s international legal personality had been confirmed, it became more common to endow organizations specifically with international legal personality, starting perhaps with the World Trade Organization.
By the same token, few international organizations had been given treaty-making powers: since there was no expectation of engagement with the outside world, there was no need for legal tools such as treaty-making competences to facilitate or channel such engagement either. As noted, though, the UN was in fact engaged in some treaty-making, something the ICJ inductively used as a justification for a finding of international personality.
Still, the first academic studies on treaty-making by international organizations only started to appear in the 1950s, for only after World War II did the realization sink in that the possibility of systematic contact with the outside world could be needed.Footnote 26 And it is likewise no surprise that few international organizations have well-developed procedures in their constituent documents with respect to treaty-making – the main exception (and not very representative) is the EU. For, while it is the case that many international organizations nowadays conclude treaties, with few of them is there a clear legal basis for doing so, and with even fewer is there a procedure outlined. It is usually highly uncertain which organ can conclude treaties on behalf of an organization; how consent is to be formed within the organization; whether the organization needs unanimity or majority on the part of its member states, et cetera. Such matters are rarely, if at all, regulated in the constitutions of international organizations, once more signifying that international organizations were never expected to enter regularly into international relations – the vacuum assumption.
Moreover, it became clear that, in some cases, even member states acting in a different capacity could constitute that outside world: peacekeeping, e.g., usually presupposes a mission agreement between the UN and one of its member states (the host state) and, likewise, headquarters agreements typically involve a member state as a treaty partner rather than merely as a member state – a situation which the International Court of Justice had great difficulties coming to terms with in 1980.Footnote 27
In the latter case, it became clear that such a headquarters agreement is not solely a matter internal to the organization, but also implicates general international law. In the case at hand, the WHO could not terminate its agreement with Egypt at will; Egypt’s position was protected under general international law through the pacta sunt servanda principle, despite the fact that Egypt was also a member state of the WHO. Egypt was both member state and third party (i.e., outside world), and this proved too difficult for the Court to handle. It found a pragmatic way to solve the dispute before it, allowing for termination upon respecting a period of notice, but found no principled answer.
Even the one seeming early exception, the League of Nations, proves the rule. It is not the case that the League was given international legal personality – it was not. Nor was it endowed with explicit treaty-making powers – it was not. But at least there was a glimpse of the outside world visible, possibly as a result of the broad mandate of the League and the idea that it could play a central role in international affairs. That there was an outside world is visible in the security provisions of the Covenant, occasionally envisaging a threat by a non-member state. It is dimly visible in the Article 8 Covenant, which recognizes the dangers posed by private enterprise producing weapons. It is visible in the Article 17 Covenant, addressing disputes with non-members or even amongst non-member states. And it is visible in Article 24, suggesting that the existing international bureaux shall be placed in relationship with the League. Then again, Article 20, the supremacy clause, does its best to exclude the outside world, noting that the League of Nations Covenant shall abrogate conflicting treaties, though only in relations between members inter se.
This latter point is interesting, for it suggests that the structure of international law, based as it is on sovereign states, offered no other available avenues: the League cannot decide on the legal position of non-members and thus cannot abrogate treaties to which non-members are parties; at best, it can declare such treaties inapplicable as far as its member states are concerned.Footnote 28 Profili too suggests a world in which only states can act on the international plane and be subjects of international law. Alternative possibilities can only be discussed once the thought to do so has arisen – the unthinkable first has be thought prior to being capable of being reflected in legal instruments. The very structure of international law, revolving around states, created what may loosely be called a ‘path dependency’: it steered thinking into one direction rather than another.
1.3 The Vacuum in Action
The vacuum assumption was, to be sure, never a very accurate description of sociological reality. In real life, international organizations occasionally used to engage the outside world (e.g., the International Commission of Cape Spartel Lighthouse joined a convention in the 1930sFootnote 29) and, while explicit grants of international legal personality to international organizations have long been very rare, as the Profili case indicates this has not stopped courts on occasion from reading international legal personality into the constitutions: an ‘implied grant’, derived from the posited autonomy of the organization vis-à-vis its member states.Footnote 30
This reflects, on one level, the fundamentally ambivalent nature of international organizations: they are simultaneously vehicles for member states (agents for their principals) and autonomous, independent actors. The dominant thinking has always stressed the first approach (and this still colours much of the thinking in International Relations scholarshipFootnote 31), but on occasion the second has shone through and is, arguably, shining through more strongly in recent decades.Footnote 32 But, for all this, the law has struggled to follow suit. Increased autonomy (autonomy from the member states, that is) implies a fundamental re-orientation of the principal–agent relationship, and entails that legal doctrine come to terms with the increased importance of those parts of organizations where the member states have little traction, in particular the secretariats. After all, typically member states are represented in the other organs (the plenary, the executive where such exists, and various sub-organs and sub-committees), but not so much in the secretariats. Hence, any shift towards the exercise of independent authority by secretariats can be seen (absent strict delegation by plenary or member states acting collectively to the secretariat) as a shift away from member states’ authority. Organizational sociology and related scholarshipFootnote 33 have started to think about this, but international lawyers have thus far been hard-pressed to think about what this means for international organizations law.Footnote 34
If it is clear that international organizations act on the international level, albeit often without a clear mandate, it is also abundantly evident that they do affect the outside world, in manifold ways. They allocate material costs and benefits to companies and industries, for example, and help regulate markets;Footnote 35 they set standards for the protection of individuals;Footnote 36 they affect the space for exercises of authority by local government;Footnote 37 they collaborate and compete with each other.Footnote 38 But this merely means that there was, and still is, a wide gap between the legal framework and social reality – regardless of how exactly that social reality is described.
Since the law is based on underlying frames which assume the vacuum described in Section 1.1, the law as it stands has few structural possibilities to come to terms with the role of any actor that is not a member state. Whether it concerns the position of non-member states, other international organizations, individuals or companies, cities or other actors, the law is structurally unable to address matters related to the position of these others. And this, in turn, has profound ramifications when it comes to discussing inclusive governance by international organizations, public–private partnerships involving international organizations, the legal protection of staff members against the organization they work for or the accountability of international organizations towards third parties.
So, what to do? A more realistic account of the law of international organizations would have to start by lifting the vacuum assumption. It was probably never all that realistic to begin with, and surely has been by-passed by developments. After all, no doubts exist about the international legal personality of international organizations. There are (muted) debates still ongoing about whence this personality springs, but not about the possibility of personality, and drafters of constituent documents can end all uncertainty by explicitly endowing their creatures with personality. For better or worse: if the constitution of an international organization provides that the organization ‘shall have international legal personality’, then the matter is effectively closed – even if the organization never actually acts on the international level.Footnote 39 What seemed tricky a century ago has become respectable since – it is just that the theory has lagged behind.
Likewise, the capacity of international organizations to conclude treaties is not in doubt, and was recognized, if still necessary, by the conclusion of the 1986 Vienna Convention on the Law of Treaties with or between International Organizations.Footnote 40 After all, such a convention would be unthinkable in a world where international organizations lack treaty-making powers. What is often in doubt are the specific treaty-making powers of international organizations: not all have been granted such powers, and there is an understanding (another assumption perhaps) that they cannot conclude treaties without a proper competence to do so. This competence, moreover, is usually assumed to be limited to the function(s) granted to the organization concerned.
Again, practice has found pragmatic answers. Where a proper treaty-making power is lacking or where the organization wants to engage in collaboration beyond its proper competences, often resort is had to the instrument of the Memorandum of Understanding (MoU). Such MoUs are supposed to be non-legally binding and, thus, so the argument probably goes (it is rarely made explicit), neither require a proper legal basis nor a specific treaty-making competence. Hence, MoUs allow international organizations to engage in all manner of arrangements with states, both member states and third states, as well as other parties, and the landscape of organizational agreements is filled with all sorts of arrangements for which no proper legal basis can be discerned. Not all of these are of great salience. Surely, an agreement between the International Labour Organization (ILO) and the World Trade Organization (WTO) to co-organize a seminar on the relationship between labour issues and trade is not to be considered of great significance: it creates few, if any, obligations or legitimate expectations (whether in law or otherwise),Footnote 41 and will be seen by many to perform a useful task. So why bother?
There is one seemingly curious exception to be found in quite a few constitutions of international organizations, and that is a clause that the organization concerned is given the power to cooperate with organizations working in the same or similar policy-domains. An example is article 10 UPU, added, it seems, in 1964:
Afin d’assurer une coopération étroite dans le domaine postal international, l’Union peut collaborer avec les organisations internationales ayant des intérêts et des activités connexes.Footnote 42
A similar clause can be found in quite a few organizational instruments but does not signify a deep realization of there being a world outside the member states; instead, it actually taps into the vacuum assumption, and possibly even strengthens it. It does so by highlighting the need for functional cooperation, as it is invariably limited to collaboration in the same or related policy domains. There is a bureaucratic logic at work here: those with expertise in postal matters can learn from (or teach) those in related domains and so enhance the quality of their own work, and perhaps the old functionalist dream has proved inspirational too, hoping for collaborative spill-over leading to universal peace.Footnote 43 But it stops far short from accepting that organizations have effects outside the universe of member states. Yet this is precisely where collective action would be needed and is actively taking place: not so much between the WTO and the World Customs Organization (active in broadly the same policy domain), but rather between the WTO and the ILO, or the WTO and environmental organizations, or the ILO and the International Maritime Organization (IMO) when it comes to labour issues at sea, or the ILO and International Organization for Migration (IOM) on migrant labour. It is this kind of cooperation which requires a proper legal basis.
This requirement partly follows ideational considerations: where the rule of law is cherished, it seems inconsistent to exclude the work of international organizations. But there is more to it: the requirement of a proper legal basis for inter se cooperation between organizations follows from the same general logic which so dominates the law of international organizations. The idea is, after all, that the member states instruct the organization – the member states delegate powers and tasks. While it is perfectly acceptable to do so while leaving some discretion to the agent, nonetheless the agent should not be in a position to make up its own instructions, for instance to collaborate with entities active in different domains. Or rather, put differently, in a situation where the agent largely decides on his or her own powers, the very principal/agent model may need reconsideration.
1.4 Beyond the Vacuum
A proper understanding of international organizations law, it would seem, needs to break through the vacuum assumption. As it is, the thinking underpinning international organizations law is better seen as ideology than as theory.Footnote 44 And yet, academic theories are usually expected to have some explanatory value – to be more than ideology. As it stands, the dominant functionalist theory has very little explanatory value and has zero explanatory value when it comes to addressing matters that cannot be directly traced to the relation between the organization and its member states.Footnote 45
So, the vacuum needs to be pierced – that much is clear. Any decent theory of international organizations would have to start by describing the twenty-first century reality that international organizations interact not just with their member states but also with others. It is obvious, for example, that organizations often need to interact with states beyond the circle of members. If the Organization for Economic Cooperation and Development (OECD) wants to have any chance of success with its global tax initiative (the Base Erosion and Profit Shifting initiative), it will need to enlist non-OECD members: its 38 member states cannot on their own create a universal regime. Likewise, UN sanctions demand the cooperation of non-member states and others (such as the EUFootnote 46), something actually envisaged in the UN Charter (Article 2, §6) and given a voice by the ICJ in its Namibia opinion, holding that it was ‘incumbent’ on all states – not just UN-members – to give effect to Security Council resolutions.Footnote 47
International organizations also collaborate with each other, often, as mentioned, through MoUs, and often without a proper legal basis. In some cases, this takes the form of joint ventures – think Codex Alimentarius Commission, Intergovernmental Panel on Climate Change or World Food Programme. More often it assumes ad hoc forms or temporary forms of cooperation (e.g., during crises) but, nonetheless, the lack of attention in the literature is striking.Footnote 48
Perhaps most interesting of all is the cooperation with the private sector. This can take several forms. In particular in the medical field this takes the form of so-called public–private partnerships: entities set up with both international organizations and corporations or private foundations as participants – examples include GAVI, the Alliance and the Global Fund, both involving the World Health Organization as well as the Bill and Melinda Gates Foundation.Footnote 49 The recent COVAX initiative again involved the private sector, while much of the fund-raising is outsourced to the Coalition for Epidemic Preparedness Initiatives (CEPI), a foundation based in Oslo.
It can also simply involve the acceptance of private donations by international organizations: UNHCR depends on voluntary donations for some 10 per cent of its annual budget (large donors include Proctor and Gamble), while the Bill and Melinda Gates Foundation is one of the most generous contributors to the WHO. The 2022 meeting of the Conference of the Parties to the Kyoto Protocol, moreover (known as COP 27) was sponsored by none other than Coca-Cola, involved in activities often considered environmentally harmful, such as the large-scale use of plastics.
It can also be the case that an organization itself operates on the market and sells products and services. This can be fairly innocent, such as the Christmas cards sold for UNICEF, but can also take on more serious forms: a prime example is that of the IOM offering its services in the field of migration management to member states or, as some would have it, doing the dirty work that its members do not want to do themselves.Footnote 50
It also needs to be acknowledged that the decisions of international organizations can have distributive effects. This helps explain why the tobacco lobby was actively targeting the WHO around the turn of the millennium: the WHO was about to sponsor its 2003 Framework Convention on Tobacco Control – to date the only convention concluded under its auspices.Footnote 51 Likewise, pharmaceutical companies know the route to the WHO and complain that the WHO is either too quick in announcing a public health emergency of international concern or not quick enough – depending on whether their vaccines are ready to be marketed. By the same token, telecommunications operators participate in some of the work of the ITU,Footnote 52 whereas energy companies tend to be represented at meetings of the International Atomic Energy Agency.
The long and the short is that international organizations no longer live in a vacuum, if they ever did. The vacuum assumption, holding that the only relevant concern is the relationship between the organization and its member states, needs to be lifted. It may have had some plausibility a century and a half ago – it is not immediately obvious, for example, why the Bureau International des Poids et Mesures (BIPM) should interact with others. The BIPM is the textbook example, perhaps, of the international organization as a purely administrative agency, engaged in a limited task. But, leaving the BIPM aside, international organizations have always affected third parties and will continue to do so – and of course the standardization work of the BIPM also affects third parties: that is its very point. In such a setting, any theory of international organizations law needs to take this into account.
There are additional elements that a plausible theory should bear in mind.Footnote 53 It should take note of the fact that international organizations are not just ‘international’, but are also ‘organizations’, and function much like other organizations: they regulate, they monitor and manage and they distribute costs and benefits. Such a theory should start with the function, rather than end with it: all organizations have a telos,Footnote 54 even states – although in states the function aligns with the community (the nation), something absent in international organizations.Footnote 55 It should be historically sensitive, and take into account such events as the decolonization process or the Cold War and its end.Footnote 56 It should draw on insights from institutional economics, from ethnography, from public administration and organizational sociology and other academic disciplines. And it should not forget its legal character: the world around us is influenced by existing legal structures and in turn influences those structures.Footnote 57 One cannot understand the work of international organizations without at least a basic understanding of international organizations law: of how the implied powers doctrine operates, how functional necessity affects the operation of privileges and immunities,Footnote 58 how financing takes place, et cetera. Without an understanding of how international organizations are legally structured, the understanding of their work can only be distorted – and, by the same token, a law ultimately based on the vacuum assumption is incapable of generating a solid understanding of international organizations themselves.
1.5 Finally
The chapters in this volume can be divided into three groups. A first group discusses the interactions – or aspects thereof – between international organizations and their various partners. These can be non-member states (Fernando Lusa Bordin, Chapter 2), other international organizations (René Urueña, Chapter 3), consultancy firms (Hans-Wolfgang Micklitz and Evgenia Ralli, Chapter 4), cities (Helmut Philipp Aust, Chapter 5) or professional associations (Rebecca Schmidt, Chapter 6). A second group discusses aspects of this kind of relationships, in particular with a view to their role in creating and shaping markets (Elisabetta Morlino, Chapter 7), their market activities (Ukri Soirila, Chapter 8), private sector funding of international organizations (Tleuzhan Zhunussova, Chapter 9) and the distributive or redistributive effects of the work of international organizations (Sebastian Machado, Chapter 10). Finally, a third group aims to connect the worldly activities of international organizations to broader issues: the theory of private law (Orfeas Chasapis Tassinis, Chapter 11), organizational praxis (Eelco Szabó, Chapter 12) and ramifications of governance (Dimitri van der Meerssche, Chapter 13). A brief epilogue by the editor concludes the volume.
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