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MART I NU S
N IJH O FF .. . . .
P U B L IS H R S InternationalOrganizationsLaw Review 5 (2008) 151-173 ,.b-.ioh

The Paradox of International Institutional Law

Jan Klabbers
Professor of International Organizations Law, University of Helsinki;
Director, Academy of Finland Centre of Excellence in Global Governance Research

The question whether there really exists such a thing as a discipline - or

sub-discipline - of international institutional law provokes a host of subse-
quent questions. If a sub-discipline, then what is it a sub-discipline of? If it
does exist as a separate discipline or sub-discipline, does it include EU law?
Does it only cover the institutional bits and pieces of EU law? Has EU law
itself become a separate discipline or sub-discipline? And if the latter, does
that mean it is a sub-discipline of the law of international organizations?
Questions galore, and the answers will remain difficult to find, dependent
perhaps more on the perspective adopted by those trying to formulate an
answer than by anything "out there in the real world." In a sense, therewith
the question whether there is a sub-discipline or discipline of international
institutional law is Begriffijurisprudenzpar excellence, and thus perhaps
not particularly interesting. What makes it interesting though, is precisely
that asking the question invites some further questions, and invites some
soul-searching into the heart of the discipline - if, indeed, a discipline is
what it is.
As a matter of academic sociology (the sociology of science, if you will), it
would seem obvious that there is a (sub-)discipline of international institu-
tional law. There are, after all, professors with chairs in the discipline; there
are not very many of these, and they seem to be concentrated foremost in

© Koninklijke Brili NV, Leiden, 2008 DOI: 10. 1163/157237408X326138

152 Klabbers /International OrganizationsLaw Review 5 (2008) 151-173

the Netherlands,' but still, the fact that there can be such chairs to begin
with would suggest some unity, some sense of a discipline hanging together
(this is one important aspect) without being reducible to another (this is a
second important aspect).2 One would be hard put to find a chair in, say,
customary international law; this is usually subsumed under international
law generally. One would also be hard pressed to find a chair in, e.g.,
maritime delimitation; while there are people specializing in this, they will
usually do so within the framework of a chair in the Law of the Sea.
So, if chairs are the sociological yardstick, then a separate discipline can
be said to exist. Likewise, there exists a journal specialized in the topic.
Admittedly, it is a young journal, only about to enter its fifth year, and it
too has a strong connection to the Netherlands, 3 but still: the existence of a
journal often enough marks the coming of age of a sub-discipline; in which
case one may have to draw the somewhat awkward conclusion that such

') This includes Niels Blokker at Leiden University, and Pieter Jan Kuyper at the University
of Amsterdam (both chairs are part time). And hot off the press: Utrecht University, it seems,
has also created a special chair for the law of international organizations, to be occupied
by Ige Dekker. When I was a student, during the mid-I98os in Amsterdam, the chair in
EU law also covered international institutional law, and additionally the Faculty employed
a full-time lecturer in the topic. I currently hold a chair in international institutional law,
nominally full-time but for a limited duration. This owes much to university management:
the external funding on which it is based was granted for a five-year period. Moreover, it
temporarily replaces a previous full-time chair in international law, and is thus perhaps best
seen as a clever financing move: it does not mean (for better or worse) that I can spend my
time doing only institutional law, although, admittedly, much of my research has more or
less naturally developed in that direction.
2) In the German-speaking world, chairs in public law may explicitly include international
institutional law. This can be seen, again, as an indication of there being a separate discipline
within public law.
3) The InternationalOrganizationsLaw Review was first published in 2004, and was cre-
ated as the result of an inspired meeting, over a few beers, between Niels Blokker, Ramses
Wessel and the undersigned in Caf6 Luxembourg in Amsterdam, sometime in the summer
of 2ooz. Blokker and Wessel function as its editors in chief, whereas the present author
is its book review editor. It ought to be noted though that a journal called International
Organizationhas existed since the late 1940s: it started out being devoted to the study of
international organizations (including legal aspects), but has increasingly distanced itself
from that mission and for some decades already refers to itself as a journal on international
political economy.
 Klabbers / InternationalOrganizationsLaw Review 5 (2008) 151-173

disciplines as the history of international law, 4 or international criminal law,

5

or international environmental law,6 or even the curious one of international

dispute settlement, 7 all matured before international institutional law. This,
however, is belied to some extent by yet another indicator: the separate exist-
ence of specialized textbooks. For here, international institutional law can
boast a tradition going back to the i96os, something neither international
criminal law, nor international environmental law, much less international
legal history, can claim for themselves. The first textbooks specializing in
international institutional law go back to the early i96os, with Bowett's be-
ing perhaps the most relevant of the lot; the first textbooks on international
8
criminal law, by contrast, only started to appear in the new millennium,
having been preceded by about a decade by textbooks on international
environmental law.9

4) The Journalof the History of InternationalLaw was first published in 1999.

5) There are at least two journals specializing in the matter: the InternationalCriminalLaw
Review (since 2ooi), and the JournalofInternationalCriminalJustice since 2003. Moreover,
while not nominally devoted to international criminal law, CriminalLaw Forum has done
a lot to pave the way for the two more specialized journals. One may perhaps also mention
the recently revived Yearbook of InternationalHumanitarianLaw, although purists might
insist on the distinction between international criminal law and international humanitarian
law.
6) Think Review of European Community and InternationalEnvironmentalLaw, published

since 1992; think Yearbook ofInternationalEnvironmentalLaw, published since 199o.

7) The awkwardly named The Law and Practice of InternationalCourts and Tribunals was
established some two years earlier than IOLR, in 2002. For a fine analysis of this particular
new branch, see Thomas Skouteris, "The New Tribunalism: Strategies of (De)Legitimation
in the Era of International Adjudication", 17 Finnish YB. Int' L. __ (forthcoming).
8) See, e.g., Kriangsak Kittichaisaree, InternationalCriminalLaw (2oo1); Antonio Cassese,
InternationalCriminalLaw (2003).
9) The first of these was Alexandre Kiss & Dinah Shelton, InternationalEnvironmentalLaw
(i99i), followed by Particia W Birnie & Alan Boyle, InternationalLaw and the Environ-
ment (I992), and Philippe Sands, Principles ofInternationalEnvironmentalLaw (1995). The
same does not apply to international legal history, if at least one wishes to consider Arthur
Nussbaum, A ConciseHistory ofthe Law ofNations (1947) as a textbook, or Gerald Mangone,
A Short History of InternationalOrganizations(954) (mark the topic!). There are perhaps
good grounds for not doing so, in that these mainly do history rather than historiography;
the closest equivalent in international legal history to a legal-dogmatic textbook, however,
would have to be a historiography of international law. The newest new thing, incidentally,
would appear to be international investment law: the first textbook has only recently seen
154 Klabbers / InternationalOrganizationsLaw Review 5 (2008) 151-173

The above suggests that there is something a bit ambivalent about re-
garding the law of international organizations as a separate discipline: if it
exists as such, to begin with, it would seem to have followed a path different
from that of other sub-disciplines of international law: a path marked by
fits and starts rather than the fairly linear development followed by other
sub-disciplines, where the appearance of specialized textbooks and special-
ized journals has typically been very close in time."
What I will explore in the following is the (perhaps provocative) idea that
while there are textbooks, chairs and a journal, there might not be a real
discipline of international institutional law: it might be that what we usually
refer to as international institutional law simply does not exist. That is not
to say that it is pointless to write textbooks or to have a specialized journal,
or to teach it as a separate discipline: I will make a case that it is very useful
to keep doing these things - and not only to keep my publisher happy.

II
Before proceeding, there is the small matter of terminology to be decided.
Most people would seem to use the terms "international institutional law"
and "law of international organizations" interchangeably, and historically,
surely, doing so is utterly defensible. Still, it would seem that at present,
the two evoke a small, but relevant distinction: "law of international or-
ganizations" concentrate on entities that can be classified as international
organizations, and is therewith, arguably, narrower in conception than
"international institutional law." The latter would allow as legitimate top-
ics for study such entities as Conferences of the Parties or Meetings of the
Parties under environmental agreements, or organizations of colorful his-
tory and uncertain membership such as Interpol, or even entities whose
organizational qualities are not beyond doubt: the old GATT comes to

the light. See Rudolf Dolzer & Christoph Schreuer, Principlesof InternationalInvestment
Law (zoo8).
o) An exception, at first sight, has been international economic law, where the leading
specialized journal (the Journalof InternationalEconomic Law) is fairly young, while the
discipline as such has been systematized in textbooks and similar texts for quite a few decades.
A partial explanation might be, however, the coincidence of the creation of the WTO and
a growing dissatisfaction with the declining quality of what used to be the leading journal,
theJournalofWorld Trade. In other words: there was a journal; it just was not considered to
be very good anymore.
 Klabbers / InternationalOrganizationsLaw Review 5 (2008)151-173

mind, as does, for rather different reasons, the OSCE; whether all these
can plausibly be included under the heading "law of international organi-
zations" seems doubtful. In what follows, I will continue to use the terms
interchangeably; the terminological question will make a cameo appearance
towards the end, though.
If there is such a thing as a separate discipline, it decidedly got off to a
slow start. Accepting the proposition that in one form or another, inter-
national organizations started to see the light during the middle third of
the nineteenth century, it would take until the I92os before the "turn to
institutions" came to be recognized as such by international lawyers." Writ-
ing before the First World War, e.g., Van Eysinga, not the least important
international lawyer of his generation, still simply subsumed the interna-
tional administrative unions under the heading of treaties when discussing
the treaties entered into by the Netherlands.'2
Likewise, the PCIJ needed a few years to come to terms with the idea
that there might be something special about international organizations. Its
first opinions on international organizations invariably involved the powers
of the ILO and invariably boiled down to the suggestion that the scope of
powers of the ILO was merely a matter of treaty interpretation, not one
demanding some refined theory of international organizations. It was only
during the mid-192os that the World Court started to sensitize itself to the
idea that there might be something specific about international organiza-
tions, something that could not quite adequately be captured by thinking
3
of them simply as treaties.
By the same token, the numerous lectures given at the Hague Academy
during i92os and 1930s - a decent barometer for what international lawyers
hold to be relevant - reveal fairly little appreciation of there being some-
thing special about international organizations. 4 Some of the lectures were

"x See David Kennedy, "The Move to Institutions", 8 Cardozo L. Rev. 841 (1987).
x) See Jhr. W.J.M. Van Eysinga, Ontwikkeling en inhoud der Nederlandsche Tractaten sedert
1813 (1916). He later became a judge at the PCIJ, and in that capacity pioneered a notion of
international public law in his classic dissent in The Oscar Chinn Case, [1934] Publ. PCIJ,
Series A/B, no. 63.
See Jan Klabbers, "The Life and Times of the Law of International Organizations", 71
'3)
Nordicj. Int'lL. 287 (zooI).
14)Methodological note: what follows aims to establish general trends; it does not aspire to
be comprehensive, much less exhaustive. In other words, it is perfectly possible that I missed
156 Klabbers / InternationalOrganizationsLaw Review 5 (2008) 151-173

devoted to specific international organizations (the League of Nations of

course, 5 the ILO, 16 some more specific entities such as the ICRC7); some
of the lectures were devoted, rather, to the substance of the work of certain
organizations (river law being an important example,' 8 or the League's
mandate system 9 ); but all in all, there is little sense of institutional law as
a separate discipline.
To this, there were two notable exceptions, or maybe three. The Ital-
ian scholar Rapisardi-Mirabelli presented a Thorie Gdndrale des Unions
Internationales,which still looks remarkably appropriate, as early as 1925;
second, there were various lectures devoted to the international civil service.
Apparently, this was seen as the ultimate in synthesizing: the only general
issue that could meaningfully be discussed about international organiza-
tions was the circumstance that they attracted the services of individuals 2 °
who could not plausibly be classified as domestic bureaucrats anymore.
And third, in particular in the latter part of the 193os, with Nazism casting

one or two relevant lectures, and maybe ascribed to others a relevance which, perhaps, would
not be entirely warranted. In addition (but by no means fatal to my enterprise here), it is not
always certain that the publication year of a lecture was also the year in which the lecture
was given; a good example is formed by Bruno Simma, "From Bilateralism to Community
Interest in International Law", 25o Recueildes Cours (I994/VI). The lectures themselves had
been given in 1997.
"5) See, e.g., Walther Schiicking, "Le d6veloppement de pacte de la Soci&6 des Nations", 20

Recueil des Cours 349 (9z 7 /V); Giorgio del Vecchio, "La Socit6 des Nations au point de
vue de la philosophie du droit international", 38 Recueildes Cours 651 (I 9 3 I/IV).
16) See, e.g., Ernest Mahaim, "'Organisation permanente du travail", 4 Recueildes Cours 65
(I924/III).
'7) See, e.g., Eugene Borel, "IOrganisation internationale de la Croix-Rouge", i Recueides
Cours 573 (1923/I).
i8) See, e.g., Jean Hostie, "Le statut international du Rhin", 28 Recueil des Cours 105 (1929/
III).
'9) See, e.g., Giulio Diena, "Les mandates internationaux", 5 Recueildes Cours21I (I924/IV);
Henri Rolin, "La pratique des mandates internationaux", 19 Recueildes Cours493 (192 7 /IV);
Norman Bentwich, "Le syst~me des mandats", 29 Recueil des Cours 115 (1929/IV).
1o) See, e.g., Paul Ndgulesco, "Principes du droit international administratif", 51Recueil des
Cours 579 (1935/I); Ake Hammarskjold, "Les immunit~s des personnes investies de fonctions
internationales", 56 Recueil des Cours 107 (936/I). The latter, incidentally, exercised great
influence on the development of international law as registrar of the PCIJ. The story is well-
told in Ole Spiermann, InternationalLegalArgument in the PermanentCourtofInternational
Justice: The Rise of the InternationalJudiciary (2005).
 Klabbers / InternationalOrganizationsLaw Review 5 (2008) 151-173

an ever-larger shadow over Europe, there is a notable increase in attention

for the very idea of international organization.2
Perhaps more telling still is that the leading international law scholars
of the I92os and 193Os, to the extent that they appeared before the Hague
Academy to begin with (which such greats as Huber and Anzilotti never
did) were busy doing other things: Kelsen, of course, was theorizing general
international law and law generally;22 Verdross occupied himself most of
all with the question where international law came from, and whether (by
extension) something approximating a system of public law would be a
possibility - but without looking deeply at institutions as harbingers of this
public law.23 McNair was busy writing on the law of treaties, 4 as was, in a
different form, Jules Basdevant2 5 And while McNair realized that treaties
establishing international organizations may be qualitatively different from
contractual arrangements between states, he would never really get around
to exploring this in depth, although he arguably came close in his analysis of
the public, objective nature of the Mandate while on the bench of the ICJ
-but that was two decades later.26 Lauterpacht, finally, like Kelsen perhaps,
was more concerned with synthesizing general international law and positing

21) See, e.g., Charles Dupuis, "Les antecedents de laSocit6 des Nations", 6o Recueildes Cours
i(I937/II); Pitman B. Potter, "D~veloppement de l'organisation internationale (1815-1914)",
64 Recueildes Cours 71 (1938/1I).
2) See Hans Kelsen, "Les rapports de syst~me entre le droit interne et le droit internationale

public", 14 Recueil des Cours 227 (1926/1V); Hans Kelsen, "Th6orie g~n~rale du droit inter-
national public: problmes choisis", 42 Recueildes Cours 117 (1932/IV).
23) See Alfred Verdross, "Le fondement du droit international", I6 Recueil des Cours 247

(927/1); Alfred Verdross, "Les principes g6ndraux du droit dans lajurisprudence interna-
tionale", 52 Recueildes Cours 191 (1935/II).
24) SeeArnold D. McNair, "La terminaison et la dissolution des trait6s", 22 Recueildes Cours
459 (I928/II); Arnold D. McNair, "UApplication et l'interpr~tation des traits d'aprs laju-
risprudence brittannique", 43 Recueildes Cours (1933/I); Arnold D. McNair, "Les effets de la
guerre sur les trait~s", 59 Recueildes Cours 523 (1937/I). Note also that McNair's monumental
The Law of Treaties (1961) was first published in 1930.
25) See Jules Basdevant, La conclusion et la redaction des traits et des instruments diploma-
tiques autres que les trait6s, I5Recuei des Cours 535 (19 26/V).
26) See International Status of South-West Africa, advisory opinion, [1950] ICJ Rep.
128
(McNair J., concurring).
158 Klabbers / InternationalOrganizationsLaw Review 5 (2008) 151-173

it as a unified, coherent system 27 - and perhaps it is fair to say that during

the 192OS and 1930s, it was only logical that this particular mission be given
great priority: the Russian revolution and Hitler's rise may have been taken,
after all, as fundamental challenges to international law. Indeed, most of the
above-mentioned also offered a general course on international law to the
Hague Academy, typically addressing the law of peace - as if to underline
that the unity of international law was of the greatest concern.28
Whatever the reasons during the 192os and 1930, the general pattern con-
tinued for a while after the Second World War. While the ICJ helped flesh
out the law of international organizations in classic opinions (no textbook is
complete without discussing Reparationfor Injuries,Effect ofAwards, the two
Admissions cases, CertainExpenses and the IMCO MaritimeSafety Committee
opinion), scholars followed somewhat hesitantly, at least if the barometer
of the Hague Academy is followed. Like before the war, there were lectures
2 9 30
devoted to individual organizations: NATO, the financial institutions,
the Council of Europe, 3I and, most challenging perhaps, the ECSC; 32 there
were quite a few lectures addressing the UN, including what is still by far the

27) Lauterpacht's magnum opus (one of them, at any rate) was The Function ofLaw in the
InternationalCommunity, and was published in 1933. Before the Hague Academy, he too
never focused on international organizations. His two specialized lectures dealt with justicia-
bility and interpretation of treaties. See Hersch Lauterpacht, "La thforie des diffdrends non
justiciables en droit international", 34 Recueildes Cours 493 (193o/IV); Hersch Lauterpacht,
"Les travaux pr~paratoires et l'interprdtation des traits", 48 Recueil des Cours 709 (1934/
II).
2) See Alfred Verdross, "R~gles g~ndrales du droit international law de la paix", 30 Recueil
des Cours z71 (i92 9 /V); Jules Basdevant, "R~gles g~n~rales du droit de la paix", 58 Recueildes
Cours 471 ( 9 36/IV); Hersch Lauterpacht, "R~gles g~ndrales du droit de la paix", 62 Recueil
des Cours 95 (19 37 /V).
29) See A.L. Goodhart, "The North Atlantic Treaty of 1949", 79 Recueil des Cours 183 (1951/

II).
30) See Camille Gutt, "Les accords de Bretton Woods et les institutions qui en sont issues",
72 Recueil des Cours 67 (1948/I).
3) See Max Soerensen, "Le Conseil de l'Europe", 81 Recueildes Cours 17 (1952/I).
32) The ECSC was the topic of a special thematic session, resulting in a thematic volume
(9o Recueil des Cours (1956/I1)), with contributions by Max Kohnstamm, "The European
Coal and Steel Community"; M.J. de Soto, "Les relations internationals de la Communaut6
europ~enne du charbon et de l'acier"; and Henri Rieben, "De la cartellisation des industries
lourdes europennes la Communaut6 europ~enne du charbon et de l'acier".
 Klabbers / InternationalOrganizationsLaw Review 5 (2008) 151-173

best survey of the UN's treaty practice despite dating back to 1954,33 but as
was the case before 1939, there was not much synthesis. Going through the
many, many volumes of the Recueildes Cours, one never gets the sense that a
discipline of international institutional law was developing, at least not until
the late 195os and even then only sparingly and intermittently. That said,
some topics did present themselves in more or less synthetic fashion. Jenks
discussed coordination problems between international organizations, but
that covered a law between organizations rather than a law of international
organizations. 34 Lalive, in turn, explicitly included international organiza-
tions in a general course on immunities. 35 Other than that, though, at best
the early 195OS demonstrate some interest in common institutions, 36 while
Eagleton's discussion of responsibility explicitly presumed that organizations
37
themselves could not be held responsible.
Arguably the first attempt at synthesis started only in the late 195os,
when Arnold Tammes published his lectures on decisions of international
organizations as a source of law. This was the first sustained attempt to make
sense of the normative output of international organizations, and Tammes'
great insight was that non-binding decisions struck a compromise between
state sovereignty and majority decision-making: while many international
organizations allow for decisions or resolutions to be taken by majority vote,
8
the price to pay is that such decisions, typically, are non-binding.3

33) See Shabtai Rosenne, "United Nations Treaty Practice", 86 Recueil des Cours 275 (1954/
II).
34) SeeC. Wilfred Jenks, "Co-ordination: a new problem of international organization: a
preliminary survey of the law and practice of inter-organizational relationships", 84 Recueil
des Cours 51 (195oII).
35) See Jean-Flavien Lalive, "Limmunit6 de jurisdiction des 6tats et des organizations inter-
nationales", 84 Recueil des Cours 205 (1953/II). The first course limited to the immunities
of organizations alone was taught three decades later. See Christian Dominic,, "Limmunit6
de jurisdiction et d'ex&ution des organisations internationales", 187 Recueil des Cours 145
(1984).
36) See Emile Giraud, "Le secretariat des institutions internationales", 79 Recueildes Cours 369
(1951/11), followed a decade later by Marcel Prdlot, "Le droit des assembl6es internationales",
104 Recueil des Cours 471 (i96I/III).
37) SeeClyde Eagleton, "International Organization and the Law of Responsibility", 76
Recueil des Cours 39 (195o1).
38)He had laid the foundation for this already seven years earlier when he published a book,
in Dutch, on aspects of international organization (the word 'law' was still missing from
160 Klabbers / InternationalOrganizationsLaw Review 5 (2008) 151-173

Two years later, courses were taught at The Hague by Dupuypre, outlin-
ing relations between various international organizations, 39 and a certain
Boutros Boutros-Ghali, discussing equality of states and international
organizations, 40 a topic that, at the time, was considered quite de rigueur
among promising international lawyers.4' Slowly but surely, something of
a minor tradition built up, with later lectures at The Hague including Finn
Seyersted on private parties and international organizations, 4' Balladore Pal-
lieri on the internal law of international organizations, 43 Riccardo Monaco
on a general theory of international organizations," Eric Suy on observers
and international organizations, 45 and perhaps most important of all in terms
of the discipline qua discipline, Elihu Lauterpacht's insightful lectures on
the development of the law of international organizations.
Monographs, lengthy "monographic" articles, and textbooks on institu-
tional law also started to appear from the late 195os, early I96Os onwards. In
the Netherlands, the above-mentioned Arnold Tammes published a capita

the title, and note the singular form). See A.J.P. Tammes, Hoofdstukken van internationale
organisatie(951) (its first part addresses decision-making in great detail).
39) See Ren6-Jean Dupuy, "Le droit des relations entre les organizations internationales", 100
Recueil des Cours 457 (I96O/II).
40) See Boutros Boutros-Ghali, "Le principe d'6galit6 des 6tats et les organizations interna-
tionales", 0ooRecueil des Cours i (I96O/II).
4I) It had been the topic of the doctoral dissertation of Bengt Broms, who later sat once
on the ICJ as an ad hoc judge, and for many years has been one of the members of the
Iran-US Claims Tribunal. See Bengt Broms, The Doctrine of Equality ofStates as Applied in
InternationalOrganizations(Doctoral thesis, University of Helsinki, 1959). Kooijmans, later
appointed to the ICJ, also devoted his doctoral work to the equality of states, albeit less
specifically referring to international organizations. See PH. Kooijmans, The Doctrineof the
Legal Equalityof States: An Inquiry into the FoundationsofInternationalLaw (1964). See also
Tammes, supra note 38 (containing a lengthy discussion of how the idea of state equality
plays out in international organizations).
42) See Finn Seyersted, "Applicable Law in Relations between Intergovernmental Organiza-

tions and Private Parties", 122 Recueil des Cours 427 (1967/111).
43) See G. Balladore Pallieri, "Le droit interne des organizations internationales", 127 Recueil
des Cours i (1969/11).
-) See Riccardo Monaco, "Les principes r~gissant la structure et le fonctionnement des
organisations internationales", 156 Recueil des Cours79 (1977/Ill).
45) See Eric Suy, "The Status of Observers in International Organizations", 16o Recueil des
Cours 75 (1978/11).
 Klabbers / InternationalOrganizationsLaw Review 5 (2008) 151-173

selecta work as early as 1951,46 and was followed, in 1957, by the doctoral dis-
sertation of Henry G. Schermers, 47 comparing the structures of the various
specialized agencies. The period between the late 195OS and the mid-196os
witnessed the first monographs on such things as the treaty-making powers
of international organizations generally,48 the responsibility of international
organizations generally,49 the powers and legal personality of international
organizations, 50 issues of membership, 5' the legal effects of international
decisions, 52 the amendment of constituent treaties, 53 and the privileges and
54
immunities of international organizations.
And in the English language, the first general textbooks came out only
in the i96os: Derek Bowett first published his Law ofInternationalInstitu-
tions in 1964, and provoked Thomas Franck, reviewing it in the Harvard
Law Review, to the following classic understanding of 10 law: "The law
of, or about, international organizations is essentially constitutional law.
This is true not only because it is descriptive of the internal rules govern-

46) SeeTammes, supra note 38.

47)See H.G. Schermers, Degespecialiseerdeorganisaties:hun bouw en inrichting(1957).

48)See Karl Zemanek, Das Vertragsrecbtder internationalenOrganisationen(1957); Hungdah
Chiu, The Capacity ofInternationalOrganizationsto Conclude Treaties, and the Special Legal
Aspects ofthe Treaties so Concluded (1966).
49)Somewhat ahead of time, one might say, in light of the later emergence of the topic as
one suitable for research and perhaps regulation, is Konrad Ginther, Die volkerrechtliche
VerantwortlichkeitinternationalerOrganisationengegeniiberDrittstaaten(1969).
50) See Bernard Rouyer-Hameray, Les compitences implicates des organizationsinternationales

(1962); Finn Seyersted, Objective InternationalPersonalityofIntergovernmentalOrganizations:

Do Their CapacitiesReally Depend on the Conventions EstablishingThem? (1963).
51)See Nagendra Singh, Termination ofMembership of InternationalOrganisations(1958).
52) SeeObed Y.Asamoah, The LegalSignificance ofDeclarationsofthe GeneralAssembly (1966);

Jorge Castaneda, Legal Effects of United Nations Resolutions (1969); see also the late I96OS
discussion between Richard A. Falk and Nicholas G. Onuf, arguably the most jurispruden-
tially informed, as reproduced in Jan Klabbers, InternationalOrganizations297-313 (2005).
Closely related is Edward Yemin, Legislative Powers in the United Nations and Specialized
Agencies (1969).
See Ralph Zacklin, The Amendment of the Constitutive Instruments of the United Nations
53)
and SpecializedAgencies (i968).
54) See Kuljit Ahluwalia, The Legal Status, Privileges and Immunities of the Specialized Agen-
cies of the United Nations and Certain Other InternationalOrganizations(1964); C. Wilfred
Jenks, InternationalImmunities (i96i).
162 Klabbers / InternationalOrganizationsLaw Review 5 (2008) 151-173

ing the operation of institutions and societies, but because it is treated by

lawyers in a manner different from other law - treated as being capable
of growth.""5
Franck then went on to illustrate this by means of Reparationfor Injuries,
in which the ICJ, as is well known, formulated the notion of implied powers
and did so in fairly broad manner.
Bowett's work was followed, almost a decade later, by the first edition
of Schermers' monumental InternationalInstitutionalLaw, and for a long
time, until the mid-i99os really, those two works dominated the world of
higher legal education. Law students were typically taught with the help of
Bowett, or Schermers or, if they were lucky (although they may not have
6
quite realized it at the time), both.5

III
Franck was right in designating the law of international organizations as
constitutional, as being "capable of growth": there is little in institutional
law that is truly and really fixed, immutable. Another way of expressing the
same point is to say that international institutional law does not tap into
moral sentiments in quite the same way as other branches of international
law do. People may lose sleep over Darfur, but not over whether the EU
should have implied powers. 57 People may fret about climate change, or
torture, or even trade, but not about the visa waiver for spouses of delegates
to international organizations or even over the binding nature of General
Assembly resolutions.
In short, and by contrast to other branches of public international law -
with the possible exception of the law of treaties - international institutional
law is pure form, without substance: all rules (if any) are residual - except
insofar as they relate to external action. Genocide may be prohibited "even

55)See Thomas M. Franck, "D.W Bowett's The Law of International Institutions", 77 Harv.
L. Rev. 1565, 1565 (1963-1964) (book review).
56 This applies, more or less, to the present author, whose took a course on international
institutional law for which the compulsory reading included Bowett as well as the synoptic
Dutch version (still coming in at some 300 pages) of Schermers. See H.G. Schermers, Inlei-
ding tot het internationaleinstitutionelerecht (2d edn, 1985).
57) The one exception to this is formed by the legal advisors of international organizations:
they may lose sleep over questions of implied powers, while the rest of us fret about Darfur.
 K/abbers / InternationalOrganizationsLaw Review 5 (2008) 151-173

without conventional obligation" as the ICJ once held, but surely refusing
to grant privileges and immunities to an international organization in a
Headquarters agreement is perfectly okay, if not terribly practical perhaps.
There is a doctrine of implied powers but, it would be odd to speak of the
rule of implied powers, precisely because it would seem odd to even think
of implied powers as a rule; surely, organization X cannot claim a right to
be granted implied powers; indeed, as the curious example of the WTO
suggests, organizations cannot even claim a right to have any powers to
begin with.58
Also quite remarkable is that proposals to limit the application of implied
powers go, by and large, unnoticed: few have pointed out that the ill-fated
Treaty establishing a Constitution for Europe and the 2007 Lisbon Reform
Treaty both put a stop to implied powers59 - which once more would sug-
gest that one cannot meaningfully think of a right, under international
institutional law, to be vested with powers. Likewise, it may be customary
(in the everyday sense of the term) to grant privileges and immunities to
organizations, but there is no customary rule to this effect or, if there is, it
is a rule of such abstraction as to offer little guidance on the precise scope
of privileges and immunities.
The basic idea, then, is that all organizations have their own legal order,
and these orders are, to invoke a tired old phrase, to a fairly large extent
self-contained. Surely, organizations look at each other for guidance, and
a solution that holds good with respect to organization B may, mutatis
mutandis, also be useful for organizations C, D and E. But C, D and E are
and remain at liberty to choose different solutions and create different rules,
as also suggested, among others, by article 5 of the 1969 Vienna Conven-
tion on the Law of Treaties. In other words, there are various laws (legal
orders) of international organizations, but no such thing as a coherent body

58) The oddity of thinking in such terms is reflected in the language used: can one mean-
ingfully speak of a right to have a power? And if one were to have such a right, would the
right also cover the mode of acquisition, be it agency, delegation, or transfer? Useful work
on the latter trichotomy has been done by Dan Sarooshi, InternationalOrganizationsand
their Exercise ofSovereign Powers (2005).
59) See the new Article 3a TEU: "In accordance with Article 3b, competences not conferred
upon the Union remain with the Member States." To be on the safe side, Article 3 b, para-
graph 2, repeats this almost verbatim: "Competences not conferred upon the Union in the
Treaties remain with the Member States." The Lisbon Treaty can be found in Official Journal
C 3o6/I2, 27 December 2007.
164 Klabbers / InternationalOrganizationsLaw Review 5 (2008) 151-173

of international institutional law, in much the same way as states too are
self-contained or, using yet another label, sovereign.
This is reflected in the teaching of international institutional law, and in
particular in the way the classic textbooks were structured: these often took
the form of a summation, an exposition one after the other, of individual
international organizations, on the sound principle that no two of them
are alike. Yet, the same authors almost intuitively realized that a mere serial
discussion would strongly suggest the absence of unity, and thus, once again
driven more by intuition, it seems, than by any grand theoretical design,
would have their descriptions accompanied by more synthetic, compara-
tive studies on aspects of the law (such things as treaty-making powers, or
personality, or responsibility). The classic example - one would be tempted
to speak of the textbook example - is Bowett's textbook which, to this day,
combines a serial description with a synthetic approach. Others, however,
have increasingly opted for synthesis, as if to press home the thought that
there is something holding the discipline together; that there is, to borrow
a subtitle, "unity in diversity."6° What that something is, however, remains
to be spelled out.

IV
The frontier of international institutional law, it might be said, resides in
the borderline between the internal legal order of the organization and the
external world. When organizations enter the world, they lose their "won-
derful artificiality 6' and start to behave in ways that are undistinguishable
from how states behave, and it is here that people may start to fret and
lose sleep: not over whether the UN has implied powers, but over whether
somehow the UN contributes to genocide in Darfur. Perhaps the best ex-
ample hereof was NATO's controversial interventions in various parts of

60) This refers, of course, to H.G. Schermers & Niels M. Blokker, InternationalInstitutional
Law: Unity in Diversity (4 th edn, 2003). Other works oozing a synthetic approach, in al-
phabetical order, are C.F. Amerasinghe, Principlesof the InstitutionalLaw of International
Organizations(2d edn, 2005); Jan Klabbers, An Introduction to InternationalInstitutional
Law (zoo2); and Nigel D. White, The Law of InternationalOrganisations(2d edn, 2oo5).
White's first edition is less successful in this respect.
6) Iborrow the term from Martti Koskenniemi, "The Wonderful Artificiality of States", 88
ASIL Proc. 22 0994).
 Klabbers /International OrganizationsLaw Review 5 (2008) 151-173

Yugoslavia, which spawned a huge amount of commentary on whether or not

such an intervention would be acceptable under international law or from
a moral point of view, 62 but generated next to nothing on the undeniable
circumstance that in intervening, NATO may have overstepped the limits
of its own legal order: after all, as traditionally understood, NATO was not
supposed to act in areas outside the territories of its member states. 63 By
the same token, the one issue that generated some intrigue amongst inter-
national lawyers with respect to the Bosnia crisis was the question whether
in imposing an arms embargo upon both Bosnia and Serbia, the Security
Council had somehow contributed (as Bosnia claimed) to the commission
of genocide. This was not regarded as a matter of vires or powers, or whether
the UN Charter imposes limits to possible Security Council action taken
under Chapter VII; instead, it had to do with the effect of UN actions,
however well-intentioned, on the external world. It is precisely at this point
that the organizational cocoon is left behind, and the organization might
be called upon to face the music.
This is also, however, where legal debate enters into problems. Judging the
activities of international organizations in the real world presupposes that the
discipline has somehow found applicable yardsticks; that it has developed
a set of standards (external to the organization) against which the activities
of international organizations can be tested. Yet, such a set of standards is
a long way off: the discipline may claim, following the ICJ in i98o, that
international organizations are subjects of international law, and thus also
subject to international law, 64 but it remains unclear which international
law, and why: there is no plausible theory of obligation.
Perhaps the most attractive option would be to suggest that the entire
corpus of international law (or at least general international law) is binding
upon international organizations, but this is far from unproblematic. Not
only would the question arise which bits and pieces of international law can
qualify as "general," it would also mean that, in sharp contrast to the creation

62) For a discussion of that debate, see Anne Orford, Reading Humanitarian Intervention
(2003).
63) Theonly fairly close example that comes to mind is a brief intervention by Ige Dekker
and Eric Myjer, "Air Strikes on Bosnian Positions: Is NATO also Legally the Proper Instru-
ment of the UN?", 9 Leiden j Int'l L. 411 (1996).
See Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt,
64)
advisory opinion, [I98O] ICJ Rep. 73, para. 37.
166 Klabbers / InternationalOrganizationsLaw Review 5 (2008) 151-173

of obligations for states, the institution of consent would lose all utility. Yet,
the question presents itself. if states can only be bound through their consent,
why should it be different for other actors, such as international organiza-
tions? One possible answer might be that they are composed of states, and
that typically, if all member states are bound, this binding force extends
to organizations, but that stumbles across the formidable objection that it
would make nonsense of the "distinct will" of international organizations:
if truly distinct from its member states, then they cannot be seen (save in
highly unique circumstances perhaps"5) to have taken over their member
states' individual organizations - and if so, it would seem plausible to argue
(flowing from the same distinct will) that the member states as such are no
longer under those obligations.
As a result, the literature is replete with eventually somewhat unsatisfac-
tory statements holding the World Bank and the International Monetary
Fund bound by human rights because human rights are morally desirable;
or holding the Security Council bound to limits because an unfettered
Security Council is - rightly - perceived as an unhappy prospect. In other
words, the absence of a plausible theory of obligation is met by a moralist
response: organizations are bound by certain norms of international law
because the opposite would be undesirable, perhaps even unthinkable. The
most serious form this takes is the form of constitutionalism, suggesting
openly that organizations are not supposed to transgress certain values be-
cause those values are deemed to be universally shared, or at least universally
desirable. Typically, this includes human rights, most of all perhaps civil and
political rights, which curiously have fairly little relevance in the context of
international organizations. After all, few organizations (one hopes, at least)
engage in such things as torture, and while it might be desirable to have
freedom of expression when it comes to the acts of international organiza-
tions, few people would claim that international organizations can be held
to an "emerging right to democratic governance" on the part of those whom

65) The European Court of Justice held, plausibly, that the EC had succeeded its member's
position within the old GATT. See Cases 21/72-24172, InternationalFruit Company and
others, [1972] ECR 1219. The same reasoning was rather less plausibly applied by the Court
of First Instance with respect to the ECs position within the UN in case T-3P5/oI, Kadi v.
CouncilandCommission, [2005] ECR 11-3649, and has been abandoned by Advocate General
Maduro in his opinion to case C-4oz/o5 P, Kadi v. Council andCommission (opinion of i6
January zoo8, not yet published).
 Klabbers / InternationalOrganizationsLaw Review 5 (2008) 151-173

their activities affect: we may have a right to a democratic and transparent

Canada or Finland or Colombia, but it is less obvious that we have a right
to democracy within the WTO, or transparency when it comes to Security
66
Council sanctions.
But apart from this turn to morality, highlighted by the constitutional-
ism literature, the discipline (or the disciplinarians, perhaps) has resorted
to two other strategies to overcome the absence of a plausible theory of
obligation. One has been, since the mid-I98os, to shift focus somewhat and
turn to issues of responsibility: the thought has somehow gained a foothold
that if we can develop a decent system of responsibility, then somehow a
theory of obligation will not be necessary, as if one could hold organiza-
tions somehow accountable or responsible for improper behavior, and that
it would be self-evident in all circumstances what would constitute such
improper behavior.
And indeed, in some circumstances to ask for the source of obligation
would seem facetious: surely, UN peacekeepers cannot engage in prostitu-
tion rings or torture people under its authority; surely, the IMF cannot lend
money to a project to develop nuclear weapons; surely, the WTO cannot
demand market access in the field of primary education; surely, NATO
cannot bombard Belgrade under any circumstances other than self-defense.
Or can it? While some things may seem clear to most of us (the prostitu-
tion rings come to mind 67), other examples are far less self-evident; as a
result, it may become next to impossible to judge whether an organization
engaged in improper behavior and therewith, arguably, in illegal behavior
as well, and as much was recognized (somewhat between the lines perhaps)
by the International Law Association's final report on accountability of
international organizations, which by no means accidentally devoted an
enormous amount of energy to the development of internal standards to

66) For a critique, with references, see Jan Klabbers, "Constitutionalism Lite", i Intl Org. L.
Rev. 31 (2004).
67) Then again, how clear are such things ever? The daily paper Helsingin Sanomat carried
a small item on 12 February 2008, reporting that in Saudi Arabia, florists are prohibited
from selling red tulips for Valentine's day, on the apparent theory that adultery thrives in
the vicinity of red tulips.
168 Klabbers / InternationalOrganizationsLaw Review 5 (2008) 151-173

the activities of organizations, and to mechanisms for actually holding them

68
accountable.
Alternatively, international lawyers have devoted considerable time
and energy into the development of what is sometimes referred to as
global administrative law. The main idea here 69 is to devise mechanisms,
often borrowed from domestic administrative law, in order to control the
behavior of international institutions. If a state's handling of refugee ap-
plications can be tested against the Refugee Convention and standards of
proper administration, then surely the same must apply when the UNHCR
itself handles refugee applications. 7° If the setting of standards for testing
chemicals is done by the OECD, then surely it should be done transparently
and democratically.71 Again, though, it turns out impossible to circumvent
the question of obligation: there is no legally convincing reason to hold
UNHCR - not being a party - bound to the Refugee Convention or to
administrative standards of proper behavior; there is no legally convincing
reason to suggest standard-setting within the OECD should be transpar-
ent and democratic. And even if there were, the OECD is a fairly small
organization, whose standards radiate far beyond its proper membership
- so much for democracy.
In the end then, in the pronounced absence of a theory of obligation,
all that is available is a set of moral sentiments: it goes without saying that
standard-setting within the OECD should not be arbitrary, should respect
the interests of third parties and the OECD's own "stakeholders" alike,
should allow for the participation of those affected, and should be trans-
parent. It goes without saying that refugee screening by UNHCR should
respect standards of sound administration and the Refugee Convention;

68")Indeed, the ILA's report contains probably the most far-reaching proposals to date. See
Final Report of the Committee on Accountability of International Organizations, in ILA,
Report ofthe Seventy-first Conference 164 (2004).
69) To some extent, that is: global administrative law has other concerns as well, and is prob-
ably best seen as an attempt to come to terms with the highly important issue of how to
control governance that takes place without formal institutions. The seminal piece - almost
a manifesto - is Benedict Kingsbury, et al., "The Emergence of Global Administrative Law",
68 Law & Contemp. Probs 1 (2005).
70) See Mark Pallis, "The Operation of UNHCRs Accountability Mechanisms", 37 N. YU.

Int'IL. & Pol. 869 (2005).

70) SeeJames Salzmann, "Decentralized Administrative Law in the Organization for Economic
Cooperation and Development", 68 Law & Contemp. Probs 189 (2005).
 Klabbers /International OrganizationsLaw Review 5 (2008) 151-173

those are binding on UNHCR "even without any conventional obligation,"

7
to invoke the ICJ's phrase.
And indeed, it sounds (again) facetious to make a distinction between
states and international organizations in connection with the scope of their
respective obligations under international law: surely, if something repre-
sents general international law for states, then surely, the same must apply
to international organizations. After all, so the argument goes, when acting
externally, they represent public authority: if the public authority of states
is subjected to limits, the same must apply to international organizations
which, moreover, are creatures of those very states. In other words, when
acting externally, international organizations are really the alter egos of states:
for refugees, it would hardly seem to matter whether their applications are
handled by states or by UNHCR, as long as they are handled properly. In
yet other words, when acting externally, states and international organiza-
tions are well-nigh indistinguishable from one another: they both represent
public authority; they both work through and with bureaucracies; they both
can only work on the basis of rules or guidelines, however called, and it
would make perfect sense to suggest that those rules or guidelines are the
same for states and organizations alike.
In the end, then, two propositions present themselves. First, to the extent
that the law of an international organization covers only the internal legal
order and is really residual (each organization is suigeneris and has its own
legal order), there cannot be said to exist any international institutional
law. Second, the more active and successful organizations become, the less
their existence will be seen as a specific branch of law; instead, they will
be subjected to general public international law, even without a plausible
theory of obligation.
The paradox of international institutional law, in the end, may well be
this: they may depend on being form for their pure survival - as soon as
contents are poured in, people may start to think of alternatives. As soon
as organizations become more than debating clubs, as soon as they exercise
public authority, it becomes possible and plausible to wonder whether they
do a good job, or whether someone else would have done a better. When
organizations start to administer territory, or impose and monitor sanctions

72) See Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, advisory opinion, [I951] ICJ Rep. 15, 23.
170 K/abbers / InternationalOrganizationsLaw Review 5 (2008) 151-173

regimes, or regulate markets, or set standards, discussions will start about

how they do so, and whether they do so well enough to merit further sup-
port. They operate, so to speak, on the market of legitimacy, and legitimacy,
73
however precisely conceptualized, is a scarce resource.
And when this happens, the organization loses its character as organiza-
tion and becomes something else - whatever the "something else" may be.
It may be the case, in other words, that organizations are at their best, their
purest, so to speak, when they do nothing, because only then do they offer a
platform for discussion, for debate, for politics. What I have called elsewhere
the "agora" function 74 may be crucial to the survival of organizations - and
for the law of international organizations.

V
All this could lead to the facile conclusion that if there is no separate disci-
pline of international institutional law, it cannot and should not be taught
either. This, however, would be a mistake, for three reasons. The first of
these is obvious: in an age of globalization, few practicing lawyers will be
able completely to avoid "the international." Typically, even a small-town
general practice, mostly busy with local bankruptcies, family-law issues and
inheritances, will be touched by international developments, and most of
those developments somehow take place by and within international organi-
zations. 75 In other words, even the small-town lawyer trying his hardest to
stay away from international trade, international tax, international shipping
or refugee law issues, will not be able to escape the reach of international
organizations completely.
Hence, legal education would be incomplete if it were not to devote
some time and energy to the activities of international organizations and
to the general doctrines that influence the work of those organizations.
The circumstance that there is no implied powers rule does not make the

73) The best discussion I am aware of is Ian Hurd, After Anarchy: Legitimacy and Power in
the UnitedNations Security Council (2007).
74) See Jan Klabbers, "Two Concepts of International Organization", 2 Int'l Org.L. Rev. 277
(2005).
75) The same applies, mutatis mutandis, to the law of treaties: few lawyers will be able to
have a decent career without ever encountering a treaty. Yet, interestingly, not many would
support the thesis that the law of treaties is a separate discipline.
 Klabbers I InternationalOrganizationsLaw Review 5 (2008) 151-173

implied powers doctrine any less significant. Students will still need to be
introduced, by means of courses and textbooks, to how organizations typi-
cally function, how they relate to their members, the sort of things they
can do, and the sort of things they cannot do (or cannot legally do). If
legal education is thought to have any relationship to the future work-life
of lawyers, then that in itself provides ample justification for the teaching
of international institutional law, and for the writing of books which aim
to bring knowledge of the various doctrines together. All this may not add
up to a separate discipline, but is no less relevant for that.
Indeed, it may be the other way around: perhaps the absence of a distinct
discipline makes it all the more relevant that students are introduced to the
foundations and principles of international organizations and to the ways
lawyers are accustomed to work with them. If nothing else, students will
need an introduction to the rites of the profession, and that is something
substantive courses are unlikely to provide: a course on international trade
law may well cover substantive WTO law, but is unlikely to do much justice
to the institutional elements, as indeed half a century of collective experi-
ence in teaching EU law suggests. Likewise, a course on refugee law may
be expected to cover substance, but is unlikely to devote much attention to
institutional aspects; yet, it is precisely the institutions that do much of the
work and determine what the regime will look like in real life, so something
76
of value is lost when the institutional side of things is not covered.
Second, though, and more intricate, there is another reason why we
should keep teaching international institutions, and should keep writing
textbooks. Part of academic education (any education, one would hope) is
not just to produce competent and skillful professionals, be they engineers,
architects, anthropologists, doctors or lawyers; part of the process is also to
train them in the basics of taking care of our common world. 77 Classes in

76)For an illustration as to just how important the institutional element can be, see Michael
Barnett & Martha Finnemore, Rules for the World: InternationalOrganizationsin Global
Politics (2004).
77) Peter Euben once put it rather nicely: "Institutions of higher learning ...are both the
end point of education and the beginning of politics. Our students are also our fellow citi-
zens, who vote, are asked to defend their country, can sign binding contracts, and are tried
as adults." Peter Euben, Hannah Arendt on Politicizingthe University and Other Clichis, in
Hannah Arendt and Education: Renewing our Common World 175, 186 (Mordechai Gordon
ed., 2oo0).
172 Klabbers/ InternationalOrganizationsLaw Review 5 (2008) 151-173

international institutional law are, in a word, classes in international civics:

at their best, they do not just contribute to the formation of competent
professionals, they also help create citizens, with a sense of respect for plu-
ralism, for other people's opinions, that sort of thing. These are, of course,
not to be measured: they do not show up on the rankings of law schools
or universities (or the PISA rankings of elementary and secondary school
pupils, come to think of it), and that is perhaps as it should be. As the poet
78
says, nothing measurable matters.
Obviously, since much local governance is being replaced by global
governance, civics classes too should no longer focus on domestic institu-
tions alone. International organizations are among the modalities of global
governance, so teachers have the responsibility to help introduce the young
into the ways those institutions work, and how they and their performance
could be improved: not just improvement in the technical sense of being
more effective and efficient, but also improvement in the sense of more
responsive and responsible, more transparent and more democratic. Our
students should recognize an implied powers argument as being more than
a technical legal argument relating to what organizations can do; it is only
when they grasp the politics behind an implied powers argument that they
are able to make up their minds as to whether it is desirable for that particu-
lar organization to have that particular power. In sum, part of an academic
education is, and should be, political education, and since international
organizations play a crucial role in global politics, there is every reason to
keep teaching the law of international organizations - whether it exists as
a separate discipline or not.
Third - and this is where the terminological question assumes some im-
portance - it would seem that with the increasing recognition of the exercise
of public authority by international institutions, there is an increasing need
to think of ways and means to exercise control, both political and judicial,
over these exercises of public authority. It is here that the distinction be-
tween "law of international organizations" and "international institutional
law" may become relevant: the latter, being a broader, more comprehensive
concept, would seem the more natural term to use if the ambition is to
control public authority. Speaking of the "law of international organizations"
focuses too strongly on "who" exercises power, and might allow some to slip

78) e.e. cummings, I believe.

 Klabbers / InternationalOrganizationsLaw Review 5 (2008) 151-173

through the net; this is less obviously a risk with "international institutional
law," which allows for a concentration not on actors, but on how public
79
authority is exercised.
If it is, indeed, the case that there is no independent discipline just yet,
maybe the best chances for developing it would be to focus on institutions
rather than more formal organizations, and start thinking about how insights
from different traditions and different branches of law (administrative and
constitutional law, obviously, but also corporate law and contract law) can
best be employed to come to terms with the exercise of public authority
by international institutions. Limiting ourselves to only formal organiza-
tions seems to miss the point that much action takes place outside formal
channels, and maybe it is best to treat the circumstance that no separate
discipline exists just yet as an opportunity rather than a defect.

79) The thought owes much to communications with Armin von Bogdandy and Matthias
Goldmann.