Unity, Diversity, Accountability: The Ambivalent Concept of International Organisation
Klabbers, Jan, Melbourne Journal of International Law
This article explores the concept of international organisation, starting from the observation that many of these entities seem to exist and that few seem to be alike. This raises issues of cognition: how to establish whether an entity is indeed an international organisation? The question is all the more relevant in light of the suggestion, sometimes heard, that international law ought to treat different (groups of) organisations in different ways. Having first established the enormous variety of international organisations in existence, the article presents an overview of attempts by international institutional lawyers to differentiate between organisations, followed by an excursion into the relevant judicial decisions. Whereas the literature remains content with discussing formal characteristics, the courts suggest that a public task is one of the core elements of international organisation. This discrepancy is further discussed and it is concluded that the law of international organisations cannot include a public task as an essential element of the concept of international organisation, as this criterion is too fluid and too general to be of much use. In the end, the discipline cannot but uphold a single formalastic conceptualisation of international organisation.
CONTENTS I Introduction II International Organisations in Their Infinite Variety III Classifying International Organisations: The Literature IV International Organisations before Courts and Tribunals V What Public Interest? VI By Way of Conclusion
When, in the mid-1990s, international organisations started to administer territory on a more or less regular basis, discussions quickly ensued in relation to their possible privileges and immunities. After all, international organisations and their staff are typically immune from prosecution; yet, to the extent that administering territory includes the performance of law enforcement tasks, granting immunity from prosecution to individuals engaged in law enforcement would be difficult to reconcile with the rule of law, whatever the precise conception of the rule of law. (1) Surely, so the argument went, police officials should not be above the law, nor should they be seen to be above the law. Hence, in the end, this discussion involved a plea for recognition of differences--legally relevant differences--among international organisations: with some, immunity from suit ought not to apply or ought to apply in ways that are different from other organisations. (2)
This particular discussion has died down to some extent, but there have been other occasions where it has been argued that international organisations are too varied to be given the same treatment. The financial institutions sometimes make a profit out of their activities, typically benefiting their shareholders, who are usually industrialised Western states. (3) Some organisations engage in military or paramilitary activities--for instance in the fight against piracy--and may even end up killing people, as the North Atlantic Treaty Organization demonstrated in the late 1990s in its humanitarian intervention on behalf of Kosovo. All this has led to a flurry of activities relating to the possible responsibility or accountability of international organisations under international law, but here too some organisations aim to escape the standard format, suggesting that they are in a different position from most other organisations and therefore that different rules should apply to them. The European Union repeatedly made such a claim during discussions on the International Law Commission's Draft Articles on the Responsibility of International Organizations, (4) and similar claims were made by some of the financial institutions. (5)
In short, there seems to be a constant tension in international institutional law between two approaches. The first and dominant approach holds that even though there is great variety among international organisations in terms of their tasks and structures, nonetheless the law treats them (and should treat them) all alike. …