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Preface
This book resulted as a joint project from our teaching experience in the field
of the law of International Organisations in Jena, Münster and Munich. The Ger-
man version was first published in 2009, its second edition being currently in
print. Our core purpose is to analyse the interactions between the development
of the general law of International Organisations on the one hand and the grow-
ing institutionalisation of major substantive parts of public international law on
the other. The title “Institutionalised International Law” reflects this approach.
We believe that the law of International Organisations is best understood as “law
in action” in specific subject areas, such as international peace and security, pro-
tection of human rights, environment as well as trade and development. The
book should primarily be useful for students of international law and interna-
tional relations, as well as practitioners and interested lawyers.
The publication of this book was made possible by many helping hands. Most
of all, the linguistic support by Christopher P. Hunt (Jena) and Stefan Schäfer-
ling (Munich) was indispensable. We are very grateful towards them, as well as
towards Stefanie Hempel, Sophia Henrich, Tom Kuhfuß, Melanie Kühn, Susanne
Prater, Fabian Preger, Chun-Kyung Paulus Suh and Markus Vordermayer for
their tireless research and technical assistance. Of course, all remaining mistakes
are our own, and critical resonance is most welcome ([email protected]
muenchen.de or [email protected]).

Jena and Munich, August 2014 Matthias Ruffert
Christian Walter

V

§ 1
Concept and Theory of International Organisations
Introduction – About Working with this Book
Not that long ago, the law of International Organisations was considered a
subcategory of public international law of minor general interest. Some of its is-
sues were relevant for public international legal scholarship at large or for inter-
national economic law, such as the various forms of action the United Nations
Security Council could take or dispute resolution mechanisms within the World
Trade Organisation. On the other hand, scholars at the core of the law of Interna-
tional Organisations discussed procedural, budgetary and personal-questions the
general meaning of which was difficult to discern. Consequently, the law of In-
ternational Organisations held merely minor importance for academic teaching.
For several reasons, this perspective is one of the past:
First of all, the importance of the law of International Organisations for
the legal system at large has considerably grown. This may be illustrated by
some current issues: How is it possible that a company may lose its economic
potential after being enrolled in a sanctions list by a UN body without any op-
portunity for judicial review?
1
What effect does a decision by the UNESCO
World Heritage Committee to inscribe a monument in the “red list” have on the
local planning decision or on a local referendum as occurred in Dresden con-
cerning a bridge across the river Elbe (“Waldschlößchenbrücke”)?
2
How can de-
cisions by the International Panel on Climate Change (IPCC), a common expert
body instituted by the UN environmental programme UNEP and the World Me-
teorological Organisation WMO, on recommendations to reduce CO
2 emissions
be legitimate if such recommendations have a direct effect on national climate/
environmental policy including on measures e.g. for the generation of electrici-
ty, the renovation of buildings or individual transport?
3
These questions cannot
be dealt with with the proper academic precision without intensifying research
in the law of International Organisations.
Secondly, the subject is gaining more and more importance for the training
of law students. Some faculties offer special lectures or seminars on the subject.
Thirdly, the increase in importance causes an increased need for interdisci-
plinary research. International Organisations have long since been an eminent
object of research for social sciences such as political science and its sub-disci-
I.
1 → para 113 and para 439.
2 → para 114.
3 → para 693.
3
1
2
3
4

pline international relations.
4
Consequently, many students in lectures on the
law of International Organisations are IR-students.
The following book is designed to offer a basis for a scientifically sound
work on the law of International Organisations. It is addressed to law stu-
dents as well as to students of other subjects (political science and other social
sciences, history and other humanities). Above all, it aims at explaining current
legal questions concerning the law of International Organisations, and at ad-
vancing academic discussion. Furthermore, it tries to offer solutions for the
problems.
The law of International Organisations is part of the general development of
public international law, which is characterised by an enormous growth in inter-
and transnational forms of cooperation. While until the 1960 s the United Na-
tions were considered as the “International Organisation” (as opposed to the
supranational European Communities of the time),
5
a survey of the Union of In-
ternational Associations counts 246 organisations today which are complement-
ed by 1,717 international bodies
6
– a number that can neither be easily verified
nor understood. The common principles, rules and structures of these Interna-
tional Organisations form a distinct part of public international law that can be
separately analysed without having to sever the link to general public interna-
tional law.
7
On this basis, the textbook is divided into three parts. The first part looks at
the conceptual, historical and theoretical bases of the law of International Orga-
nisations, particularly at their relation to the general development of public inter-
national law as well as to new developments in legal scholarship and the social
sciences. The second part is devoted to questions covering all organisations, fol-
lowing the assumption that the law of International Organisations is developed
as an autonomous area of the law. The third part deals with selected areas of the
law of International Organisations. It is in this last part that the obvious interre-
lationship between the law of International Organisations and the substance of
public international law is illustrated. As international institutional law, it is the
backbone of substantive public international law and can by itself only be under-
stood by taking into account the substantive rules that describe the tasks of the
relevant organisations. This is also illustrated by the title of the book: “Institu-
tionalised International Law”.
We have chosen areas of substantive public international law together with
their institutional structures that hold substantial weight in international practice
and that are capable of serving as particularly important areas of reference for
the development of the law of International Organisations. These repercussions
4 Cf. e.g. Freistein/Leiniger, Internationale Organisationen, 2012.
5 Dicke, in: Völkerrecht und Internationales Privatrecht in einem sich globalisierenden interna-
tionalen System – Auswirkungen der Entstaatlichung transnationaler Rechtsbeziehungen, 2000,
317 f.
6 5 YIO (2005/2006), 33.
7 Amerasinghe, 33 ff.
§ 1 Concept and Theory of International Organisations
4
5
6
7
8

on the law of organisations in general and on the interrelationship between insti-
tutional and substantive law in particular should be at the core of studies of the
law of International Organisations and should not be replaced by accumulating
details of single organisations. What is decisive for the approach of this book is
the link between substantive and institutional questions and their treatment in
public international law. Important examples from organisations that could not
be dealt with in the third part of this book are for this very reason treated in the
second part.
Definition
The Concept of International Organisations
The exponential growth of inter- and transnational forms of cooperation has
effects on the law of International Organisations in its entirety. New structures
of organisation must be explained, differentiated and integrated (→ paras 14 ff.).
This growth, however, does not affect the definition of International Organisa-
tion; other forms of organisation must be designed and categorised. There is
consensus on an International Organisation
8
being an association of two or
more subjects of public international law (mostly States) based on an inter-
national treaty, that is vested with own bodies and designed to fulfil tasks of
common interest.
Particular Features
The legal basis of an International Organisation is its founding treaty (→
paras 115 ff.). By definition, such a treaty lies at the basis of the foundation of an
International Organisation. There are cases in which the agreement on the estab-
lishment of an institution at international level was deliberately not concluded
by means of an international treaty to prevent the foundation of an International
Organisation. The central example for this kind of development is the Confer-
ence on the Security and Cooperation in Europe (CSCE), the founding docu-
ment of which was not legally binding (so called soft law or pré-droit).
9

10
Meanwhile, the CSCE has been transformed into the OSCE, but it is continuous-
ly assumed that OSCE has no legal personality as a consequence of the non
II.
1.
2.
8 Cf., above all, the definition given by the ILC (‘Report of the ILC’, 55th Session, GAOR 58th
Session Supp 10, 38). On terminology Schmalenbach, ‘International Organizations or Institutions,
General Aspects’, MPEPIL (2006), paras 2 and 3.
9 Graf Vitzthum, in: id./Proelß, para 1/152; Stein/von Buttlar, para 32.
10 Cf. only Schweisfurth, ‘Zur Frage der Rechtsnatur, Verbindlichkeit und völkerrechtlichen
Relevanz der KSZE-Schlußakte’, 36 Zeitschrift für ausländisches öffentliches Recht und Völker-
recht (1976), 681 at 684 ff.
II. Definition
5
9
10

binding status of the organisation agreement.
11
Due to the requirement of a
founding treaty, many structures within the United Nations, created by General
Assembly resolutions or by resolutions of other organs are not considered as In-
ternational Organisations.
12
They may be considered as subsidiary organs of the
UN (→ paras 290 ff., also para 294, para 701). In part they are organised as au-
tonomous International Organisations – e.g. UNCTAD (→ para 640), UNDP
(→ para 639), UNEP (paras 684 ff.) – but rarely have they evolved into au-
tonomous International Organisations by concluding a proper founding treaty
(example: UNIDO, → para 639). This method of organisation increases the
United Nations’ flexibility if not their transparency.
13
International Organisations are associations of subjects of public interna-
tional law. Entities that are not vested with legal personality cannot create a new
International Organisation with public international legal personality. This is the
main difference between International Organisations and non-governmental or-
ganisations (NGOs, → paras 20 ff.), the international legal personality of which
is nonetheless the object of current discussion (→ para 22). In the vast majority
of cases International Organisations are created by States alone. Membership of
International Organisations in other International organisations, be it as a found-
ing member or by later accession is possible and not rare (→ para 117). The
Nordic Council may be viewed as a particular situation. According to the
Helsinki Treaty of 1962, this organisation is based on the cooperation of the par-
liaments of the Nordic States.
14
International Organisations need to possess own organs in order to be able to
act. In practice, there are no “bodiless” entities without such organs. However,
there are organisational structures which do not belong to an International Orga-
nisation but were established for the realisation of a public international legal
treaty that does not found an organisation. The main examples are treaty organs
for the protection of human rights (→ paras 526 ff.; sometimes as tribunals or
courts) and for the international protection of the environment (→ paras 692ff.;
e.g. a State conference on the creation and supervision of standards).
Finally, International Organisations generally pursue a certain aim. The multi-
tude of International Organisations mirrors the variety of possible aims (→
paras 11 ff.). For an easier understanding, International Organisations can be ty-
pologically categorised. Thus, we can differentiate between general and func-
11 See extensively Epping, in: Ipsen, para 6/235, followed by Stein/von Buttlar, para 436 and
Herdegen, para 45/8; → para 486 of this book and also the OSCE Final Report and Recommenda-
tions of the Panel of Eminent Persons On Strengthening the Effectiveness of the OSCE of 27 June
2005, Common Purpose: Towards a More Effective OSCE, paras 28-30, as referred to by Ulfstein,
‘Institutions and Competences’, in: Klabbers/Peters/Ulfstein (eds.), The Constitutionalisation of In-
ternational Law, 2011, 45 at 52 f.
12 See Schermers/Blokker, § 38.
13 On the whole subject matter Szacz, ‘The Complexification of the United Nations System’,
3 Max Planck UNYB (1999), 1.
14 Treaty of Cooperation between Denmark, Finland, Iceland, Norway and Sweden (the Helsinki
Treaty), 434 UNTS 145, Art. 44-59.
§ 1 Concept and Theory of International Organisations
6
11
12
13

tional (or special) organisations.
15
While the former have general access to all
topics of cooperation, the subject matter of the latter is (sometimes narrowly) li-
mited to certain (functional) areas – a limitation which is also reflected in their
powers (→ paras 197ff.).
16
There is an important difference between universal
and regional International Organisations. Nevertheless, one should not be mis-
led: universal organisations are not only such organisations that in fact represent
the international community as a whole – at present, this would only be the
United Nations, and even the UN are not complete
17
–, but also those that strive
for such representation.
18
On the other hand, “regional” may not be understood
merely in a geographical sense. The quality of “regionality” may also be ful-
filled by ascertaining a certain proximity in security or economic policy (→
para 612 and para 450).
Similar and Differing Concepts
a) Regimes of Differing Organisational Density.The various forms of orga-
nisations in modern public international law may be categorised according to
their differing organisational density. Not every organised structure in interna-
tional relations is an International Organisation. Starting from concepts of politi-
cal science, international legal scholarship uses the term regime in this respect.
19
A regime is a construction of public international law that serves – based mostly
on an international treaty – to fulfil common tasks of the States involved, creates
objective obligations and provides comprehensive mechanisms for dispute reso-
lution.
20
In terms of organisations such a regime can be developed into an Inter-
national Organisation –that process, however, does not necessarily have to take
place.
21
If an organisation is not based on an international treaty such as CSCE-OSCE
(→ para 10), a broad understanding of the term “regime” can still enable a cate-
gorisation on the continuous scale of different forms of organisation. One form
3.
15 Cf. also Dicke, in: Völkerrecht und Internationales Privatrecht in einem sich globalisierenden
internationalen System – Auswirkungen der Entstaatlichung transnationaler Rechtsbeziehungen,
2000, 328 ff.; Feld/Jordan, International Organizations: A Comparative Approach, 3
rd
edn. 1994,
9 ff.
16 It is also possible to treat general organisations as universal by subject matter.
17 The Vatican, the Cook Islands and the territory of Niue (a coral island in the Pacific) are not
Members of the UN.
18 Cf. Amerasinghe, 11, with reference to the work of the ILC.
19 Slaughter/Tulumello/Wood, ‘International Law and International Relations Theory’, 92 AJIL
(1998), 367; Rittberger (ed.), Regime Theory and International Relations, 1995. → para 36.
20 Classical definition: Krasner, ‘Structural causes and regime consequences: regimes as inter-
vening variables’, in: id. (ed.), International Regimes, 1983, 1 f. (with further references on similar
definitions); precised for public international law by Murase, ‘Perspectives from International Eco-
nomic Law on Transnational Environmental Issues’, 253 RdC (1995), 283 at 413 f., Ott, Umwel-
tregime im Völkerrecht, 1998, 37 ff. (definition p. 43). The term had initially been limited to terri-
torial regimes, e.g. Klein, Statusverträge im Völkerrecht – Rechtsfragen territorialer Sonder-
regime, 1980; id., ‘International Regimes’, EPIL II (1986), 1354.
21 Ruffert, ‘Zuständigkeitsgrenzen internationaler Organisationen im institutionellen Rahmen der
internationalen Gemeinschaft’, 38 Archiv des Völkerrechts (2000), 129 at 142 f.
II. Definition
7
14
15

of organisation with a higher density yet still below the threshold for the founda-
tion of an International Organisation is the treaty regime with so called treaty or-
gans that is used for the implementation, realisation and survey of the treaty’s
aims.
22
This includes treaty regimes for the protection of human rights with their
supervisory bodies or tribunals and courts respectively (→ paras. 526 ff.) as well
as various treaty regimes in the field of international environmental law with
committees for the survey of the implementation of environmental standards (→
paras. 692 ff.). In this way, the development of theory and practice of Interna-
tional Organisations touches the evolution of international treaty law and its the-
oretical bases.
23
b) Supranational Organisations.Whilst in the context of regimes legal schol-
arship discusses forms of organisations that do not reach the organised density
of an International Organisation, supranationality means a particular quality of
International Organisations that do not only exceed mere interstate cooperation
but which transcend and transform Member State based structures. However, it
would be going too far to create an individual category of supranational organi-
sations apart from International Organisations because first, supranational orga-
nisations remain International Organisations – albeit with special qualities –,
and, second, the only institution with the quality of supranationality is the Euro-
pean Union. Various criteria are important to discern the supranationality of an
organisation:
A first indicator is the ability of the bodies of the organisation to reach bind-
ing decisions that need to be respected by the Member States; if such deci-
sions can be made by majority vote this is a very strong indicator for suprana-
tionality. It is a characteristic feature of supranationality that the organisation
has law-making capacity and that such law-making prevails over Member
States’ law. The greatest emanation of supranationality, finally, is the direct ap-
plicability of the law created by the International Organisation within the Mem-
ber States without any Member State contribution, i. e. direct effect on natural
or legal persons within these States. This effect which penetrates the Member
States’ sovereignty illustrates that the European Union – created as a suprana-
tional European Community – is the prototype and central example for all forms
of supranational organisations.
24
As a matter of fact, supranationality outside the
EU could up to now only develop to a very limited extent; if it all – with ques-
22 Cf. Szacz, ‘The Complexification of the United Nations System’, 3 Max Planck UNYB
(1999), 1 at 17 ff.; for the international protection of the environment Churchill/Ulfstein, ‘Au-
tonomous Insitutional Arrangements in Multilateral Environmental Agreements: a Little-Noticed
Phenomenon in International Law’, 94 AJIL (2000), 623.
23 See the seminal article by Tietje, ‘The Changing Legal Structure of International Treaties as
an Aspect of an Emerging Global Governance Architecture’, 42 GYIL (1999), 26.
24 This is made clear by Dicke, in: Völkerrecht und Internationales Privatrecht in einem sich
globalisierenden internationalen System – Auswirkungen der Entstaatlichung transnationaler
Rechtsbeziehungen, 2000, 318.
§ 1 Concept and Theory of International Organisations
8
16
17

tionable scope – within the WTO.
25
Finally, even supranational organisations
are not capable of acquiring powers of the Member States (so called Kompetenz-
Kompetenz or compétence de la compétence).
c) Public Law Categories.Here, the theory of International Organisations is
linked with the general theory of the State and public or constitutional law. It is
in the German theory of federalism that for decades scholars have struggled for
an appropriate distribution of competences between the federal government and
the Member States of the federal State as well as for the solution of the problem
of sovereignty in federal States.
26
The early theory of federation differentiates
between the loosely connected confederation (Staatenbund) and the integrated
federal State (Bundesstaat).
27
In the confederation, Member States maintain
their sovereignty as well as full responsibility towards the outside world, and the
federal construction is mainly intended to organise the cooperative fulfilment of
common tasks, whereas in the federation the separation of responsibilities (with
respective consequences for legal protection against the federation or the feder-
ated States) leads to highly complex problems of the attribution of sovereignty.
This differentiation has long ago lost its importance for the supranational EU –
not only because the creation of a European federal State exceeds the political
planning – and has been replaced by the opposition of the association of
sovereign States (Staatenverbund) on the one hand and multilevel constitution-
alism (Verfassungsverbund) on the other hand.
28
While the supporters of the
idea of an association of sovereign States place emphasis on the supranational
union’s statist roots, the theory of multilevel constitutionalism stresses the com-
plementary link between various levels of constitutions. Because of this contro-
versy, it is becoming more and more evident that not the controversy as such but
the common elements of combination (Verbund) are decisive.
29
25 Neyer, ‘Supranationales Regieren in EG und WTO. Soziale Integration jenseits des
demokratischen Rechtsstaates und die Bedingungen ihrer Möglichkeit’, in: Neyer/Wolf/Zürn
(eds.), Recht jenseits des Staates, ZERP-Diskussionspapier 1/99, 33 at 59f..; Krajewski, ‘Demo-
cratic Legitimacy and Constitutional Perspectives of WTO Law’, 35 Journal of World Trade
(2001), 167 (171): WTO law “functionally equivalent to supranational law”.
26 Seminal article by Oeter, ‘Souveränität und Demokratie als Probleme in der “Verfassungsen-
twicklung” der Europäischen Union’, 55 Zeitschrift für ausländisches öffentliches Recht und Völk-
errecht (1995), 659.
27 Cf. only Doehring, Allgemeine Staatslehre, 3
rd
edn. 2004, paras 155 ff.
28 On the first see Kirchhof, ‘Der deutsche Staat im Prozeß der europäischen Integration’, in:
Handbuch des Staatsrechts, Vol. VII, 1992, §183 para 38, as taken up in BVerfGE 89,, 155 at 188.
On the second see Pernice, ‘Bestandssicherheit der Verfassungen: Verfassungsrechtliche Mecha-
nismen zur Wahrung der Verfassungsordnung’, in: Bieber/Widmer (eds.), Der europäische Verfas-
sungsraum, 1995, 235 at 261 ff.; id., ‘Europäisches und nationales Verfassungsrecht’, in:
60 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer (2001), 148 at 160ff.
The concept of Staatenverbund is stressed again by the Bundesverfassungsgericht in its Lisbon-
judgment: BVerfGE 123, 267 at 348; translation available at http://www.bundesverfassungsgericht.
de/entscheidungen/es20090630_2bve000208en.html.
29 The article by Schönberger, ‘Die Europäische Union als Bund’, 129 Archiv des öffentlichen
Rechts (2004), 81, is very important in this respect. Cf. the detailed study by Beaud, Théorie de la
fédération, 2009.
II. Definition
9
18

These reflections revive theoretical constructions of the theory of the State.
Nonetheless, these categories are of minor importance for the general doctrine of
International Organisations below supranationality. International Organisations
are not confederations – chiefly because of the limitation of their subject matter;
instead of creating States and statal combinations, their main issues are coopera-
tion and a functioning organisation.
30
d) Non-State Organisations.In the context of the more recent development
of international relations and of public international law, international non-gov-
ernmental organisations (NGOs) are continuously gaining importance. Their
number is usually given as 5,000-6,000, and they are vested with extensive pow-
ers of participation within bodies of International Organisations or at State con-
ferences.
31
Although the range of subject matters NGOs deal with is vast, there
are a number of large and well-known organisations that have a special role in
international relations, such as Greenpeace, Human Rights Watch or Médecins
Sans Frontières.
32
One important mechanism of participation for NGOs is the conclusion of an
agreement under Article 71 of the UN -Charter to organise consultations be-
tween the NGO and the Economic and Social Council of the United Nations
(ECOSOC).
33
ECOSOC resolution 1996/31
34
introduces three categories for an
NGO’s consultative status.
35
Universally active organisations that cover a broad
range of subject matters are vested with general consultative status (category I).
An NGO that is characterised by special expertise in one of ECOSOC’s fields of
action, is awarded special consultative status (category II). All other NGOs (cat-
egory III) may be listed in a roster in order to be able to provide comments on
individual aspects of ECOSOC’s work. The different categories come with dif-
ferent possibilities of participation (written or oral comment, observers in meet-
ings, influence on agenda).
36
The legal personality of NGOs is not yet clear. The notion of them being
vested with partial legal personality if they are granted certain rights by agree-
30 Cf. Klein/Schmahl in Graf Vitzthum/Proelß, para 17; Doehring, para 174; Hobe/Kimminich,
122. Cf. also the classical analysis by Kunz, Die Staatenverbindungen, 1929.
31 Schweisfurth, 1. Kap. paras 148 ff.
32 On the special category of ‚BINGOs‘ (Business NGOs) Anne Peters, ‘Membership in the
Global Constitutional Community’, in: Klabbers/Peters/Ulfstein (eds.), The Constitutionalisation
of International Law, 2011, 153 at 248 ff.
33 S. Lagoni/Chaitidou in Simma, Art. 71 paras 5 ff.
34 Consultative Relationship between the UN and Non-Governmental Organisations; E/RES/
1996/31.
35 Sergey Ripinsky/Peer van den Bossche, NGO Involvement in International Organisations,
2007, 24 ff.; Schweisfurth, 11. Kap. paras 52 ff.
36 S. Lagoni/Chaitidou in Simma, Art. 71 paras 19 ff.
§ 1 Concept and Theory of International Organisations
10
19
20
21
22

ments with ECOSOC is steadily gaining ground.
37
It is beyond doubt that such
an award of rights depends on the respective arrangement and may also be with-
drawn. Apart from the controversial issue of personality, there is an ongoing
debate on legitimacy problems of NGOs that operate on an international lev-
el.
38
NGOs are founded by individuals or by private associations. As these are not
subjects of public international law, NGOs lack a quality required by definition
of an International Organisation. Whatever the outcome of the controversy about
legal personality of NGOs, they are not International Organisations.
39
e) Hybrid Forms of International Administration.More recently, there has
been a global rise in importance of institutions that are created by private indi-
viduals – with varying amounts of support by States – and are subjected to ana-
tional jurisdiction even hough they engage in international activities. Their task
is to set standards or to perform administrative tasks at the global level. Thus,
the International Organisation for Standardization (ISO), a private law asso-
ciation under Swiss law, assembles the most important national (private) organi-
sations for standardisation. Their standards are widely recognised in the interna-
tional and national spheres.
40
Similar importance is accorded to the work of the
International Accounting Standards Board (IAS) for accounting law
41
and to
the Codex Alimentarius Commission for food law.
42
Finally one needs to men-
tion the Internet Corporation for Assigned Names and Numbers (ICANN), a
37 Epping in Ipsen, para 6/22 (explicitly enumerating treaties giving rights to NGOs); Dahm/
Delbrück/Wolfrum, Vol. I/2, § 107 III; Wedgwood, ‘Legal Personality and the Role of Non-Gov-
ernmental Organizations and Non-State Political Entities in the United Nations System’, in: Hof-
mann (ed.), Non-State Actors as New Subjects of International Law, 1998, 21; Hobe, ‘Der
Rechtsstatus von Nichtregierungsorganisationen nach gegenwärtigem Völkerrecht’, 37 Archiv des
Völkerrechts (1999), 152 at 261 ff.; Nowrot, ‘Legal Consequences of Globalization: The Status of
Non-Governmental Organizations under International Law’, 6 Indiana Journal of Global Legal
Studies (1999), 579; Hempel, Die Völkerrechtssubjektivität internationaler nichtstaatlicher Organ-
isationen, 1999, 190ff., Hummer, ‘Internationale nichtstaatliche Organisationen im Zeitalter der
Globalisierung – Abgrenzung, Handlungsbefugnisse, Rechtsnatur’, 39 Berichte der Deutschen
Gesellschaft für Völkerrecht” (2000), 45 at 195 ff.; van der Hout, Die völkerrechtliche Stellung der
Internationalen Organisationen unter besonderer Berücksichtigung der Europäischen Union,
2006, at 88 ff.; see the comprehensive analysis by Lindblom, Non-Governmental Organisations in
International Law, 2005, 119 ff., further Dupuy/Vierucci (eds.), NGOs in International Law, 2008;
Nikol/Bernhard/Schniederjahn (eds.), Transnationale Unternehmen und Nichtregierungsorganisa-
tionen im Völkerrecht, 2013; a divergent view is taken by Schweisfurth, 1. Kap. paras 157 ff.
38 Schweisfurth, 1. Kap. para 160. Cf. also Peters, ‘Dual Democracy’ , in: Klabbers/Peters/
Ulfstein (eds.), The Constitutionalisation of International Law, 2011, 263 at 315 ff.
39 Cf. also the report ‘We the peoples: civil society, the United Nations and global governance.
Report of the Panel of Eminent Persons on United Nations – Civil Society Relations’, A 58/817 of
7 July 2004, paras 19 and 24.
40 Röhl, ‘Internationale Standardsetzung’, in: Möllers/Voßkuhle/Walter (eds.), Internationales
Verwaltungsrecht, 2007, 319 at 322f., preceded by Marburger, Die Regeln der Technik im Recht,
1979, 236 ff.
41 Cf. Tietje, ‘Transnationales Wirtschaftsrecht aus öffentlich-rechtlicher Perspektive’,
101 Zeitschrift für Vergleichende Rechtswissenschaft (2002), 404 at 413.
42 Tietje, Internationalisiertes Verwaltungshandeln, 2001, 309 ff., as well as Afonso Pereira,
‘Why Would International Administrative Activity Be Any Less Legitimate? – A Study of the
Codex Alimentarius Commission’, 9 German Law Journal (2008), 1693.
II. Definition
11
23
24

company under Californian law which distributes web addresses on a global
scale without any State involvement.
43
The existence and the activities of such institutions pose a challenge for na-
tional as well as international law.
44
Above all, legal scholarship discusses the
legitimacy of their actions as well as judicial review of their measures. Notwith-
standing the results of such discussion, these bodies are not International Or-
ganisations, because these “hybrid” (private-statal) institutions are never creat-
ed by international legal subjects nor do they bas their activity on international
treaties.
Theories of International Organisations in International Law and
International Relations
When one tries to conduct an in-depth analysis of International Organisations
it does not suffice to merely describe the factual phenomena of their existence.
Rather, the development needs to be put into the context of an overall theoretical
framework. Mere reference to functional necessities of modern international re-
lations is insufficient for that purpose. Since it cannot be excluded per se that
International Organisations pursue problematic or even illegal aims,
45
theoretical
concepts of International Organisations’ conditions of functioning, of their ca-
pacity for problem-solving as well as of the limits of their internal cooperation
are necessary.
For that purpose, international relations theory has developed theoretical ap-
proaches that are also relevant in international law. These theories aim at the in-
III.
43 Comprehensively: Froomkin, ‘Wrong turn in cyberspace’, 50 Duke Law Journal (2000), 17;
illustratively Schneider, ‘Zur Ökonomisierung von Verwaltungsrecht und Verwaltungsrechtswis-
senschaft. Begriffsbildung und einführende Analyse ausgewählter Beispielsfälle’, 34 Die Verwal-
tung (2001), 317 at 336 ff. Cf. also Engel, The Role of Law in the Governance of the Internet,
MPP-RdG Preprints 2002/13, 4; König, ‘Öffentliche Verwaltung und Globalisierung’, 92 Verwal-
tungsarchiv (2001), 475 at 482; Röben, ‘International Internet Governance’, 42 GYIL (1999), 400
at 412 ff.; Walter, ‘Constitutionalizing (Inter)national Governance – Possibilities for and Limits to
the Development of an International Constitutional Law’, 44 GYIL (2001), 170 at 186f.; Jayme,
‘Kollisionsrecht und Internet – Nationalisierung von Rechtsverhältnissen oder “Cyber-Law”?’, in:
Leible (ed.), Die Bedeutung des Internationalen Privatrechts im Zeitalter der neuen Medien, 2003,
11 at 16; Mayer, ‘Das Internet, das Völkerrecht und die Internationalisierung des Rechts’,
23 Zeitschrift für Rechtssoziologie (2002), 93 at 108 ff.; Kleinwächter, ‘ICANN als United Nations
der Informationsgesellschaft? Der lange Weg zur Selbstregulierung des Internet’, MMR
1999, 452 ff.; Meyer-Schönberger, ‘The Shape of Governance: Analyzing the World of Internet
Regulation’, 43 Va.J.Int’l Law (2003), 605 at 656 ff.; Frankel, ‘The Managing Lawmaker in Cy-
berspace: A Power Model’, 27 Brooklyn Journal of International Law (2002), 859; Hanloser, ‘Die
Internet Corporation for Assigned Names and Numbers (ICANN) – Legislative, exekutive und
judikative Selbstverwaltung im Internet’, JurPC Web-Dok. 158/2000; Kleinwächter, ICANN. Der
lange Weg zur Selbstregulierung des Internet, 2007; Voegeli, Die Regulierung des Domainnamen-
systems durch die Internet Corporation for Assigned Names and Numbers (ICANN), 2006;
Hartwig, ‘ICANN - Governance by Technical Necessity’, in: von Bogdandy et al. (eds.), The Exer-
cise of Public Authority By international Institutions, 2010, 575.
44 Dederer, Korporative Staatsgewalt, 2004, 515 ff.; Ruffert, Die Globalisierung als Heraus-
forderung an das Öffentliche Recht, 2004, 36 ff.
45 Klabbers, Introduction, 38, para. 151.
§ 1 Concept and Theory of International Organisations
12
25
26
27

clusion of International Organisations into an overall concept of international re-
lations. They inquire into the political consequences of enhanced cooperation
within stable institutional structures as well as into possible changes Internation-
al Organisations may bring about in international relations. Employing a certain
degree of simplification, one can discern three major approaches: realism, insti-
tutionalism and idealism.
46
Realism and Neo-Realism
Realism is based on the assumption that international politics are decisively
influenced by power struggles of States. In order to secure its enduring exis-
tence, each State must ensure that its competitors remain less powerful than it-
self.
47
Based on this premise, cooperation in International Organisation is not a
free choice of States but determined by their interest to monitor and control the
action of other States, while at the same time using the fora provided for by In-
ternational Organisations to promote their own interests.
Particularly the U.S. policy towards certain International Organisations
(UNESCO,
48
but also the UN in general)
49
may be viewed as an illustration of
the fact that the relationship between a powerful State and an International Orga-
nisation may become troubled if the State gains the impression that on balance
membership in the organisation does not sufficiently serve the purpose of pro-
moting its interests.
However, realism and neo-realism are too limited in their analytical perspec-
tive as they are unable to include ‘soft’ factors of long-term interest politics.
‘Soft’ power is mainly based on the attractiveness of certain values which are
associated with a State.
50
The attractiveness of the U.S. as a country in which to
obtain a university education may serve as an example.
Idealistic Theories
The opposite end of the range of possible theoretical concepts is marked by
idealistic approaches, which may be traced back to the works of Immanuel Kant,
notably his writing on ‘Perpetual Peace’. A movement which has become known
as ‘normative idealism’ understands International Organisations as fora for the
creation and development of common values. A good example for this approach
is President Wilson’s concept of the League of Nations according to which the
1.
2.
46 Rittberger/Zangl, International Organization, 2
nd
edn. 2012, 15; in addition, there are also
other systematizations, cf. for example Archer, International Organiszations, 2001, 65 ff.
47 Morgenthau, Politics Among Nations: The Struggle for Power and Peace, 1955.
48 The US stopped funding UNESCO after its vote to grant the Palestinians full membership in
2011.
49 For example the Kassebaum–Solomon amendment of 1985 to the Foreign Relations Autho-
rization Act for fiscal year 1986 and FY 1987 withheld 20 percent of U.S. assessed contributions to
the UN budget until weighted voting on budgetary matters was adopted.
50 Nye, The Paradox of American Power, 2002, 8 ff.
III. Theories of International Organisations in International Law and International Relations
13
28
29
30
31

League was to operate as the “conscience of the world“.
51
The United Nations
may be regarded as being a continuation of this approach. Furthermore, in mod-
ern international legal literature there is school which argues for the constitu-
tionalisation of international law on the basis of such a value-based approach,
largely drawing on the values incorporated in international human rights instru-
ments.
52
Such normative-idealistic concepts present an attractive vision for un-
derstanding the role of International Organisations. However, this vision is too
often blurred by the harsh realities of international politics. Hence, an idealistic-
normativist perspective cannot sufficiently explain the day-to-day operation of
International Organisations.
In this context one should also mention federalist conceptions which try to
understand International Organisations as federations of States, or that even
place them close to federal States, some developing the vision of a ‘world repub-
lic’.
53
Under these conceptions, sovereign States create International Organisa-
tions in order to establish a binding common order while at the same time trying
to preserve their national and cultural identity to the largest extent possible. This
approach was quite successful on a regional level during the early phase of
European integration.
54
Social constructivist approaches are viewed as yet another shade of ideal-
ism.
55
Social constructivism is based on the assumption that in social contexts
actors are not only driven by their own interests, but also by their social environ-
ment’s expectations. From this perspective, subjects associated with easily com-
municatable values (human rights, environmental protection, abolishment of
weapons of mass destruction, combating international terrorism and organised
crime) are particularly well suited for being dealt with by International Organi-
sations. The more elaborate the institutional structure of an International Organi-
sation and the broader its powers, the easier the organisation will be able to pur-
sue its own agenda on individual issues. The Commission of the European
Union and the ECJ as engines of European integration are impressive examples
which constantly develop new initiatives for the harmonisation of relevant trade
and competition rules as well as – more recently – of anti-discrimination mea-
sures. Broad monitoring powers combined with effective mechanisms to sanc-
tion violations create important incentives for Member States to respect the ap-
plicable EU law and to adhere to the common values that are enshrined in these
rules. The infringement procedure under Art.258ff. TFEU, which is the most
important means for implementing EU law, illustrates the importance strong in-
stitutional structures have for effective International Organisations.
51 Speech of 14 September 1919.
52 See for example Faßbender, ‘Der Schutz der Menschenrechte als zentraler Inhalt des völker-
rechtlichen Gemeinwohls’ , EUGRZ 2003, 1.
53 For details see Höffe, Demokratie im Zeitalter der Globalisierung, 2002, 422 ff.
54 See Oppermann/Classen/Nettesheim, Chapter 1 para 23 ff.
55 Rittberger/Zangl, International Organization, 2
nd
edn. 2012, 27 ff.
§ 1 Concept and Theory of International Organisations
14
32
33

Institutionalism
According to institutionalist approaches, relations between States are more
than mere power struggles. At the same time, proponents of such approaches try
to avoid the accusation of a lacking sense for the realities of international rela-
tions which is often voiced against idealistic conceptions. This leads to a strong
focus on the necessity of legal regulations for international relations. A utilitari-
an movement among the institutionalist theories embraces the argument of the
overall benefit for all members of the international community (in contrast to the
individual benefit of each State which is emphasised by realists). A good exam-
ple for cooperation based on such a motivation may be found in the Preamble to
the WTO-Agreement according to which the WTO-members recognise that their
“relations in the field of trade and economic endeavour should be conducted
with a view to raising standards of living, ensuring full employment and a large
and steadily growing volume of real income and effective demand, and expand-
ing the production of and trade in goods and services […].” Utilitarian institu-
tionalism suggests that once successful cooperation has been established with re-
gard to commercial and social matters, the approach may be extended to the
field of international security.
56
International Organisations may also serve as platforms of coordination that
help States find a mutually acceptable reconcilement of interests in a given area.
An essential precondition for reconciling interests in such a way is, however,
that the interests at stake are neither completely parallel nor mutually exclusive.
Only under this precondition is there a sufficient overlap allowing for reconcile-
ment.
57
The collective mechanisms of monitoring and implementation, which
usually exist in International Organisations, create incentives for States to re-
frain from unilateral action even when their respective interests collide. Thus, in
the long run each Member State may profit from the establishment of such col-
lective mechanisms of monitoring and implementation. According to the institu-
tionalist position, refraining from self-help and unilateral action will lead to
common and comprehensive solutions to the benefit of all participants. This pos-
ition may be exemplified by developments in the area of technical standardisa-
tion, in which increasing mutual economic interdependence has led to the adop-
tion of common standards in certain areas. Thus, it is no coincidence that the
first International Organisations were established to develop technical coopera-
tion in the fields of telecommunications and postal services (→ para 44 f).
One special teaching within institutionalist conceptions is the so-
called ’regime theory’.
58
This theory was developed in the early and mid 1990s
and is based on the assumption that cooperation will reduce transaction cost and
3.
56 Frost, Ethics and International Relations, 1996, 153 ff.
57 See in this regard Rittberger/Zangl, International Organization, 2
nd
edn. 2012, 18.
58 Keohane, ‘The Demand for International Regimes’, 36 International Organization (1982),
325ff.; Hasenclever/Mayer/Rittberger, Theories of International Regimes, 1997; further references
may be found at Fischer-Lescano/Teubner, Regime-Kollisionen, 2006, 18 f.
III. Theories of International Organisations in International Law and International Relations
15
34
35
36

thus be beneficial for all participating States. Regime theory operates on the ba-
sis of a broad concept of regimes which requires only norms and procedures, but
no additional stability in form of institutional structures. From the perspective of
traditional international law and also of international institutional law such an
approach may seem problematic because it blurs the lines between law and non-
law and between normative rules and institutional structures. At the same time,
an advantage of the broad concept may be seen in the fact that it is capable of
covering the broad existing range of different forms of cooperation. This permits
the inclusion of informal forms of cooperation such as professional exchange of
national and international judges at informal meetings or the cooperation of the
presidents of national Central Banks within the Basel Committee on Banking
Supervision.
59
59 Slaughter, ‘Judicial Globalization’, 40 Va.J.Int’l Law (2000), 1103 ff.; van Aaken, ‘Transna-
tionales Kooperationsrecht in der Finanzmarktaufsicht’, in: Möllers/Voßkuhle/Walter (eds.), Inter-
nationales Verwaltungsrecht, 2007, 219 at 234 ff.; Möllers, ‘Transnationale Behördenkooperation.
Verfassungs- und völkerrechtliche Probleme transnationaler administrativer Standardsetzung’, 65
ZaöRV (2005), 351 ff.
§ 1 Concept and Theory of International Organisations
16

§ 2
History of International Organisations
Literature:
Fellner, Vom Dreibund zum Völkerbund, 1994; Herren, Internationale Organisationen seit
1865, 2009; Kolb, ‘History of International Organizations or Institutions’, MPEPIL (2011);
Knipping/von Mangoldt/Rittberger (eds.), Das System der Vereinten Nationen und seine
Vorläufer, 3 vol, 1995/1996; Mangone, A Short History of International Organization, 1954;
Märker/Wagner, ‘Vom Völkerbund zu den Vereinten Nationen’, 22 AuPZ (2005), 1; Potter,
‘The origin of the term“international organization“’, 39 AJIL (1945), 803; Reinalda, Rout-
ledge History of International Organizations, 2009; Rittberger/Zangl/Kruck, International
Organization, 2
nd
edn. 2012; Volger, Geschichte der Vereinten Nationen, 2
nd
edn. 2008; Wal-
ters, A History of the League of Nations, 1960; Weber, Vom Völkerbund zu den Vereinten Na-
tionen, 1987; Wehberg, ‘Entwicklungsstufen der internationalen Organisation’, 52 Die
Friedens-Warte (1953-55), 193.
The history of International Organisations begins in the 19th century. Al-
though certain precursors and constructs resembling International Organisations
can be traced back into antiquity, these organisational forms were so fundamen-
tally different from modern International Organisations that analysing them
would do little for our understanding of International Organisations today.
1
An-
cient or medieval federations, e.g., lacked the interstate component which is
characteristic for modern International Organisations. For the same reason,
leagues of cities, such as the Hanseatic League or the associations of city-States
in northern Italy that existed in the early middle ages are only of limited compar-
ative value.
The 19th century brought about two developments which – taken together –
led to the foundation of the League of Nations in 1919 as the first modern Inter-
national Organisation with universal aspiration. The two developments are the
advent of the tradition of congresses and conferences as well as the gradual es-
tablishment of administrative unions to regulate modern technical develop-
ments.
Another turning point may be traced back to the year 1945. The creation of
the United Nations not only stands for a second attempt of creating a universal
organisation for the maintenance of international peace and security, but also for
a functionalist or sectoral approach in International Organisation in general. The
evolution of International Organisations since 1945 is marked by the creation of
functionally limited International Organisations that are confined to specific
substantive sectors, such as health (WHO), food and agriculture (FAO) etc.
1 Kolb, ‘History of International Organizations or Institutions’, in Wolfrum (ed.), MPEPIL para
8; Klabbers, Introduction, 16 ff.; Klein/Schmahl in Graf Vitzthum/Proelß, para 3 incl. footnote 5.

17
37
38
39

The 19th Century: Peace Congresses and Administrative Unions as Early
Forms of International Organisations
Starting with the Congress of Vienna (1815), the 19th century gave rise to a
quite regular system of “congresses” or “conferences” that was on the one
hand scarcely institutionalised, but on the other hand dealt with politically sensi-
tive issues of war and peace. The “Administrative Unions” of the late 19th cen-
tury, by contrast, were characterised by a comparatively dense institutional
structure. However, they remained limited to technical issues with only narrow
political dimensions. Between these two poles, the river commissions were the
first examples of institutionally dense structures that dealt with matters of politi-
cal importance. An important element of these commissions was their territorial
character which stemmed from their geographical focus on specific rivers.
“Congresses” and “Conferences”
The Congress of Vienna of 1915, which founded as the so-called “Concert of
Europe“, was the starting point for several congresses and conferences. After the
the Napoleonic Wars, the Congress of Vienna aimed at creating a stable Euro-
pean order. For that purpose, multilateral negotiations including all major Euro-
pean powers took place. The “European Concert” was not institutionalised in
any formal sense. Nonetheless, it created a rather stable forum for multilateral
negotiations – an aspect which remains an important characteristic of Interna-
tional Organisations today.
2
In doing so, it contributed to the legitimacy of new-
ly independent States such as Belgium (1830) and Greece (1827–1832). An im-
portant element that contributed to the success of the Concert of Europe was the
special status granted to the five most important powers (France, Prussia, Aus-
tria, Russia and Great Britain). Certain parallels to the current state of interna-
tional relations may easily be detected – for instance the informal cooperation
among the G8-members or the predominant role of the five permanent members
of the Security Council.
The Concert of Europe as an informal platform for negotiations was comple-
mented by the Hague Conferences which established a specific mechanism
aiming at the prevention of wars and the limitation of their consequences. The
Hague Conferences were established without a concrete situation of conflict. In
that sense they were truly preventive. They led to the adoption of the Hague
Convention on the Pacific Settlement of International Disputes and to the estab-
lishment of a Permanent Court of Arbitration
3
as well as to a first attempt to
I.
1.
2 Reinalda, Routledge History of International Organizations, 2009, 24 ff.; Rittberger/Zangl/
Kruck, International Organization, 2
nd
edn. 2012, 36 ff.; Seidl-Hohenveldern/Loibl, para 207.
3 I. Hague Convention on Pacific Settlement of International Disputes (Hague I); 18 October
1907, 205 CTS 233.
§ 2 History of International Organisations
18
40
41
42

codify the laws of war as comprehensively as possible.
4
The establishment of
the Permanent Arbitral Court was a first step of institutionalisation that bears
importance even today. However, contrary to what the term “permanent court”
suggests, the mechanism does not go beyond the establishment of a list of poten-
tial arbitrators, and in that sense it does indeed fail to create a permanent institu-
tion.
The development described above extends to the maintenance of international
peace and security, including the regulation of military warfare. It thus relates to
an eminently political area which is considered closely related to national
sovereignty until today. The creation of international institutions endowed with
autonomous decision-making capacities was, therefore, to be expected only to a
rather limited extent. The fact that international cooperation nevertheless suc-
ceeded, at least to the point described above, may be viewed as an indication
that even an area that is politically highly sensitive requires a minimum of fora
for cooperation that are not merely based on political commitments but on legal
ones. The need for a universal organisation which is dedicated to maintaining in-
ternational peace and security and goes beyond these rather limited structures
while resting on stable permanent institutional structures and being based on a
legally binding international treaty, was one of the lessons learned from World
War I (→ § 11 para 396 ff.). However, what the 19th century is concerned, one
must conclude that the institutionalisation of the international order did not even
come close to touching the principle of national sovereignty in any given area.
Administrative Unions
A second important step on the road to the advent of modern International Or-
ganisations was the creation of administrative unions in the mid 19th century.
There are three major examples: the International Telecommunication Union
(1865),
5
the Universal Postal Union (1874)
6
and the Paris Union for the Pro-
tection of Industrial Property (1883).
7
The creation of these unions was trig-
gered by the enormous progress made in technical development – notably in
telecommuncations and transport – which began during the second half of the
2.
4 Annex to the IV. Hague Convention respecting the Laws and Customs of War on Land: Regu-
lations concerning the Laws and Customs of War on Land, 18 October 1907, available at: <http://w
ww.refworld.org/cgi-bin/texis/vtx/rwmain?docid=4374cae64>, accessed 24 February 2014.
5 Cf. <http://www.itu.int/net/home/index.aspx>, accessed 24 Feburary 2014; Westphal, ‘Interna-
tional Telecommunication Union (ITU)’, in Wolfrum (ed.), MPEPIL; Tegge, Die Internationale
Telekommunikations-Union – Organisation und Funktion einer Weltorganisation im Wandel,
1994; Cowhey, ‘The international telecommunications regime: The political roots of regimes for
high technology’, 44 IO (1990), 169 ff.
6 Created 1874 as the General Postal Union, Treaty Concerning the Formation of a General
Postal Union (Treaty of Bern), 19 Stat. 577, amended in 1878 to give the organisation its current
name- Universal Postal Union, 152 CTS 235.
7 Created by the Paris Convention on Industrial Property 828 UNTS 305; cf. <http://www.wipo.i
nt/treaties/en/ip/paris/trtdocs_wo020.html>, accessed 24 February 2014.
I.The 19th Century: Peace Congresses and Administrative Unions as Early Forms of IO
19
43
44

19th century.
8
The demand for transnational postal services, for instance, in-
creased to an extent which rendered the existing bilateral postal agreements in-
adequate and required a multilateral solution, the basic principles of which still
remain in force today. A parallel development took place in the field of telecom-
munications. In order to ensure the smooth transmission of telegrams, common
technical standards were necessary. The agreements had to be administered
which, in turn, required the creation of an international office.
9
On the basis of
the positive experience regarding the Universal Postal Union and the Interna-
tional Telecommunication Union, the Paris Union for the Protection of Industri-
al Property was finally established in 1883.
10
The latter was complemented in
1886 by the Berne Union for the Protection of Literary and Artistic Works.
11
Governing purely technical and unpolitical matters, these administrative
unions provided for stable international institutions which were operated by
permanent international staff and thus able to perform administrative tasks in
their respective fields. Thus, the administrative unions provided valuable prac-
tice in the operation of permanent international institutions which could later,
with the creation of the League of Nations in 1919, be transferred to the highly
political area of international peace and security.
River Commissions
The river commissions that also blossomed in the mid 19th century were situ-
ated between the two types of development illustrated above. They bear resem-
blance to the administrative unions as their main tasks were of a technical rather
than a political character. In essence, they dealt with the coordination of com-
mon standards regarding shipping and other uses of waterways. This work was
important not only to riparian States but also constituted a matter of general
interest. A major characteristic of river commissions was their geographical link
to a stream course – a distinctive feature which offers certain parallels to the ex-
ercise of public authority by States. This importance was the decisive reason
why river commissions were the first international institutions to be accorded
partial international legal personality.
12
The League of Nations and the Interwar Period
These developments were joined when, after World War I had ended in 1919,
the League of Nations was founded as the first International Organisation in the
area of international peace and security that was endowed with permanent or-
3.
II.
8 Reinalda (n 2) 85, 89; Rittberger/Zangl/Kruck (n 2) 46 ff.
9 Cf. the analyses by Tietje, ‘The Changing Legal Structure of International Treaties as an As-
pect of an Emerging Global Governance Architecture’, 42 GYIL (1999), 30 ff.
10 (n 7).
11 Berne Convention for the Protection of the Rights of Authors over their Literary and Artistic
Works of 9 September 1886, 331 UNTS 217.
12 Mosler, ‘Die Erweiterung des Kreises der Völkerrechtssubjekte‘, 22 ZaöRV (1962), 9 ff.; Gib-
son, International Organizations, Constitutional Law and Human Rights, 1991, 15 ff.
§ 2 History of International Organisations
20
45
46
47

gans which allowed it to take autonomous action towards its Member States.
The League of Nations were created as a reaction to the lack of permanent insti-
tutional structures for the maintenance of international peace and security – a
deficit which was viewed as a critical factor that led to the outbreak of World
War I. The major step in international institutionalisation that was made by cre-
ating the League of Nations was certainly toadied by the exceptional circum-
stances of the immediate post-war situation. In that sense, it is fair to speak of a
“constitutional moment”.
13
While the importance of the creation of the League of Nations cannot be
overemphasised on a theoretical or conceptual level, its practical impacts were
nonetheless much weaker than what the founders had hoped for. This was main-
ly due to the fact that the League of Nations, in contrast to what its spiritus rec-
tor, U.S. President Wilson, had envisaged, never even came close to universal
membership. The United States never became a party and the Soviet Union ac-
ceded as late as 1934, only to be excluded again in 1939 after its invasion of
Finland. From the German perspective, the formal inclusion of the League
Covenant in the Peace Treaty of Versailles created the impression of an organi-
sation of victors that was further fostered by the fact that Germany was not ad-
mitted until 1926.
14
After the withdrawal of Germany in 1933 and of Japan in
1935, the League became even less universal. How effective collective action by
the League of Nations would have been was, therefore, never tested in practice.
15
Further weaknesses included the (initial) lack of a general prohibition of the
use of force
16
and the absence of an effective mechanism for imposing sanc-
tions.
17
Like the Covenant of the League of Nations, the Constitution of the Interna-
tional Labour Organization (ILO), which was also created in 1919, was in-
cluded in the Versailles Peace Treaty. The ILO’s main task is to contribute to
social justice by developing minimum standards for working conditions. Right
at the beginning, the ILO featured a tripartite composition of its organs that in-
cluded representatives of governments, employers and workers (→ § 13
para. 634). Based on an agreement under Art. 57 UN, the ILO in 1946 became
the United Nations’ first Specialised Agency.
The establishment of the Permanent Court of International Justice (PCIJ)
constituted a third important development of the interwar period. The PCIJ
which took up its work in 1922, i.e. shortly after its statute had entered into force
13 Hudson, Progress in International Organization, 1932, 22 ff.
14 Reinalda, (n 2) 196.
15 Klabbers, International Organizations, 17 ff.; Märker/Wagner, ‘Vom Völkerbund zu den
Vereinten Nationen’, APuZ 2005, 3 ff.
16 The prohibition of the use of force was only introduced later in the Kellog-Briand-Pact in
1928; Lesaffer, ‘Kellogg-Briand-Pact (1928)’ in Wolfrum (ed.), MPEPIL; Brownlie, International
Law and the Use of Force by States, 1963, 74 ff.
17 Tams, ‘League of Nations’, in Wolfrum (ed.), MPEPIL, paras 26, 30; Märker/Wagner (n 15)
5 ff.
II. The League of Nations and the Interwar Period
21
48
49
50

in September 1921, was the first international court that was permanently insti-
tutionalised. It thus stood at the beginning of the “rise of the international judi-
ciary” and contributed to a profound change of international legal culture.
18
On balance, an assessment of the developments during the interwar peri-
od remains ambiguous. On a conceptual level, major things were achieved.
The League of Nations and the ILO were the first permanent International Orga-
nisations with universal ambitions, the PCIJ brought about an institutionalised
international judiciary. From an operative perspective, by contrast, the League
of Nations, despite some achievements in the field of the protection of national
minorities,
19
failed to reach its ambitious goals. This failure was, however, less
the result of a general conceptual deficit in the idea of maintaining peace
through International Organisations, but was rather due to a lack of political will
on the part of the States. For this reason, when a new beginning became neces-
sary in 1945 the concept of a universal International Organisation endowed with
broad competences – notably in the area of international peace and security – re-
tained its persuasiveness irrespective of the League’s failure. Conceptionally,
the United Nations thus rest on the ideas of 1919.
The American international lawyer Manley O. Hudson predicted this develop-
ment as early as 1932 when he phrased the importance of the founding of the
League of Nations as follows: “(…) I venture to predict, men will look back on
the struggles for establishing the League of Nations as we in America look back
on the struggles for establishing the union of these United States. Doubtless the
League will have changed its form, perhaps even its purpose will be different;
but it is difficult for one living in our time to believe that it will have disap-
peared altogether. And if it does not disappear, to our generation must ever be
the credit for its establishment.”
20
The United Nations and Developments After 1945
In the years following 1945, sectorially limited cooperation between Inter-
national Organisations that were competent for specific subject matters be-
came more and more accepted. The immediate postwar period witnessed the
foundation of a number of specialised agencies (“UN family” with legal ties
linking them to the UN (Art. 57 and 63 UN)). Similar to the UN themselves,
these specialised organisations over time virtually achieved universal member-
ship. The “Food and Agricultural Organization of the United Nations” (FAO)
bears its affiliation to the UN in its name. It was founded on 16 October 1945
III.
18 Spiermann, ‘Historical Introduction’, in: Zimmermann/Tomuschat/Oellers-Frahm/Tams
(eds.), The Statute of the International Court of Justice, 2
nd
edn. 2012, para 1.
19 Cf. e.g. the ‘Minorities Treaty between the Principal Allied and Associated Powers (the
British Empire, France, Italy, Japan and the United States) and Poland’, signed at Versailles (28
June 1919)’ available at <http://ungarisches-institut.de/dokumente/pdf/19190628-3.pdf>, accessed
24 February 2014.
20 Hudson (n 13) 45.
§ 2 History of International Organisations
22
51
52
53

and counts 192 members today.
21
The World Health Organization (WHO) which
was founded on 22 July 1946 and had a predecessor in the 1923 League of Na-
tions Health Organization
22
currently comprises 194 Member States. The United
Nations Organization for Education, Science and Culture (UNESCO), a third
member of the UN family, was founded on 16 November 1945. With Palestine’s
admission to full membership in 2011, UNESCO today has 195 members.
23
The number of International Organisations continued to grow exponen-
tially beyond the UN family as well.
24
While it is difficult to find reliable fig-
ures as to the exact number of International Organisations,
25
the general trend is
beyond any doubt. The growing interdependence of the world economy must be
seen as a major driving force for this development. Until 1989/90, it was also the
East-West block structure that contributed to the proliferation of International
Organisations.
Finally, regionalism must be mentioned as another important reason for the
growing number of International Organisations. The regional (and subregional)
level of all continents saw a development which was – albeit sometimes with a
considerable delay – parallel to the proliferation of International Organisations
at the universal level. On the one hand regional organisations with broad compe-
tence regarding general political issues were founded. In this context, the Orga-
nization of American States (OAS)
26
the Council of Europe
27
as well as the Or-
ganization of African Unity (OAU, later replaced by the African Union, AU)
28
21 191 Member States and one member organisation, the European Union. The FAO also has
two associate members, the Faroe Islands and Tokelau. Cf. <http://www.fao.org>, accessed 24
Feburary 2014; Schiavone, International Organizations, 2005, 141 ff.
22 The League of Nations Health Organization was not an Independent International Organisa-
tion but legally integrated into the League itself; cf. the detailed analysis by Borowy, Coming to
Terms with World Health, The League of Nations Health Organisation 1921-1946, 2009.
23 In addition, the UNESCO has eight associate members – Aruba, the British Virgin Islands, the
Cayman Islands, Curaçao, Faroes, Macao (China), Sint Marteen, Tokelau; cf. <http://www.unesco.
org>, accessed 24 February 2014.
24 Rittberger/Zangl/Kruck, (n 2) 68.
25 Schiavone, (n 21) 7 ff.
26 The OAS Charter (119 UNTS 48ff.) was signed at the Nineth International American Confer-
ence, the founding conference of the OAS, on 30 April 1948 in Bogotá. It came into force on 31
December 1951. As the OAS can be traced back to the first Pan-American Conference which was
convened as early as 1826, it is identified by some scholars as the oldest international organisation,
cf. Kokott, Das interamerkanische System zum Schutz der Menschenrechte, 1986, 11 including
footnote 39; on the development of the OAS, cf. Arrighi, ‘Organization of American States (OAS)’
in Wolfrum (ed.), MPEPIL, paras 3-14.
27 The Statute of the Council of Europe (also called the Treaty of London, 87 UNTS 103, ETS
001) was signed by ten founding member states (Belgium, Denmark, France, Ireland, Italy, Lux-
embourg, the Netherlands, Norway, Sweden and the United Kingdom) on 5 May 1949 in London.
Greece and Turkey joined four days later. Germany acceded in 1950, BGBl. 1950 II, 263. Since the
accession of Montenegro in 2007, the Council has 47 member states [as of Feburary 2014].
28 The OAU was founded in 1963. It was replaced by the African Union (AU) in 2002, cf. Pack-
er/Ruckare, ‘The New African Union and Its Constitutive Act’, 96 AJIL (2002), 365 ff.; Viljoen,
‘African Union’, in Wolfrum (ed.), MPEPIL; Abdulqawi/Ouguergouz, The African Union: Legal
and Institutional Framework, 2012. As for 2013, 54 Member States are united in the AU. Thus,
with the exception of Marocco, all States of the African continent are members.
III. The United Nations and Developments After 1945
23
54
55

may be mentioned. In addition to organisations that have general competence, a
sectoral differentiation takes place at the regional level as well. This led notably
to the founding of regional organisations of economic integration. Apart from
the EEC (later EC and today EU) in Europe
29
the North American Free Trade
Association (NAFTA),
30
the Andean Pact
31
and MERCOSUR
32
can be referred
to regarding North and South America. The Economic Community of West
African States (ECOWAS)
33
may serve as African example for this develop-
ment (→ § 13 paras. 663 ff.).
Notwithstanding proliferation of universal and regional organisations after
1945, the United Nations retained its predominant and formative role in the
postwar international order. Founded in 1945 with originally 51 members (cf.
Art.3 UN), it has today virtually reached universal membership with 193 Mem-
ber States, the youngest member being the Republic of South Sudan which was
admitted in July 2011. In contrast to the League of Nations, the United Nations
succeeded in avoiding the impression of an organisation of victorious powers.
While it is true that the enemy State clauses (Art. 53 para 1 phrase 2, 2nd sen-
tence, and Art. 107 UN) allowed for exceptional measures directed against “any
State which during the Second World War has been an enemy of any signatory
to the Charter” (Art. 53 para. 2), these clauses did not play any role in the prac-
tice of the organisation and it is telling that their abolition was one of the few
points which were easily agreed upon during the reform discussion of 2005.
34
The United Nations underwent significant changes during the more than 60
years of its existence. The changes of the organisation are but a reflection of
general alterations in world politics. Two of the most important developments
were probably the process of decolonialisation which largely dominated the
agenda of the 1960 s and early 1970s
35
as well as the Cold War that brought
with it the corresponding East-West confrontation and the new options for UN
action which became apparent when the Cold War was overcome after 1989/90.
29 Cf. on the history of the European integration: Ott/Vos (eds.), Fifty Years of European Inte-
gration, Foundation and Perspectives, 2009.
30 NAFTA was established by a trilateral treaty between Canada, Mexico and the United States
on 1 January 1994 and creates a free trade area on the North American continent, 32 ILM (1993),
289 ff. and 605 ff.
31 Established in 1969 by the Andean Subregional Integration Agreement (Cartagena Agree-
ment), 28 ILM (1989), 1165 ff.
32 The Southern Common Market was founded on 26 March 1991 by Argentina, Brazil,
Paraguay and Uruguay with the signature of the Treaty of Asuncion 30 ILM (1991), 1041 ff.
33 The Economic Community of West African States was established on 28 May 1975 by the
Treaty of Lagos. It was replaced by a revised treaty as the basis for ECOWAS on 24 July 1993 in
Cotonou, Benin. Cf. Schiavone, (n 21) 106 ff.
34 GA Res A/RES/60/1. 2005 World Summit Outcome, para 177; Ress/Bröhmer in Simma,
‘Art.53’, para 112. The General Assembly already committed itself in its resolution 50/52 of 11
December 1995 to repeal the ‘enemy state’ clauses in a future reform of the Charter.
35 Cf. the ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’, GA
Res 1514 (XV) of 14 December 1960. For details, cf. Kunig, ‘Decolonization’, in Wolfrum/Philipp
(eds.), United Nations: Law, Policies and Practice, vol. I 1995, 390 ff.
§ 2 History of International Organisations
24
56
57

The process of decolonialisation not only provoked a sharp increase in UN
membership but also led to a significant change of majorities and interests in fa-
vor of the developing countries. These changes provoked institutional amend-
ments. The size of the Security Council, for instance, was increased in 1963.
36
Furthermore, a considerable number of specialised institutions with a specific
focus on development were created.
37
Starting with the 1960s, the North-South
divide gradually became as decisive for world politics as the East-West con-
frontation already was.
38
The end of the Cold War in 1989/90 resulted in a considerable boost in im-
portance for the United Nations. The most visible expression of new options for
UN action is the reinforced activity of the Security Council. It may even be said
that the mechanism established by Chapter VII of the Charter became operable
in the originally intended way for the first time. The number of Security Council
resolutions experienced a significant rise
39
and the Security Council demonstrat-
ed its capability of action in a first major crisis when Iraq invaded Kuwait in
1990.
40
However, there were also setbacks and steps in the opposite direction. The
Balkans crisis of the 1990 s and notably the differences concerning the situation
in Kosovo revealed that, at least in some (important) areas, old tensions between
the United States and Russia were still very much present. This was further un-
derlined by the crisis in South Ossetia where the same confrontation became ap-
parent.
41
In addition, the unilateral actions taken by the United States in the
wake of the 9/11 attacks (intervention in Afghanistan without a Security Council
mandate;
42
invasion of Iraq
43
) undermined the United Nations’ credibility as a
truly universal organisation for the maintenance of international peace and secu-
rity. Finally, the failure of the overall UN reform in 2005 must be considered a
setback. The ambitious project to detach the UN Charter from its origins in the
immediate postwar situation of 1945 and to bring about a Security Council re-
form reflecting the current geopolitical situation failed utterly. What remained
were minor institutional changes below the level of a formal revision of the
Charter: the creation of the Peacebuilding Commission for a better coordination
36 GA Res 1991-A (XVIII) of 17 December 1963.
37 Notable examples are the UN Conference on Trade and Development (1965) and the UN In-
dustrial Development Organisation (1966).
38 Reinalda (n 2) 443 ff.; Gareis/Varwick, Die Vereinten Nationen, 2006, 31.
39 Cf. the UN documentation at <http://www.un.org/Docs/sc/unsc_resolutions.html>, accessed
21 February 2014; also cf. the decrease in the usage of the veto power described by Klein/Schmahl
in Graf Vitzthum/Proelß, para 145.
40 SC Res S/RES/660 of 2 August 1990; SC Res S/RES/661 of 6 August 1990; SC Res
S/RES/662 of 9 August 1990.
41 The adoption of a draft resolution issued by France and supported by the United States, re-
questing Russia to comply with the ceasefire and to withdraw all remaining troops, failed due to
the Russian resistance, cf. UN Doc. S/PV.5961 of 19 August 2008.
42 In its resolution S/RES/1368 of 12 September 2001 the Security Council regards the attacks of
11 September 2001 against the United States as ’a threat to international peace and security’.
43 For details cf. von Heinegg, ‘Invasion of Iraq (2003)’, in Wolfrum (ed.) MPEPIL.
III. The United Nations and Developments After 1945
25
58
59
60

of UN peacekeeping activities
44
and the replacement of the politically controver-
sial Human Rights Commission by the newly founded Human Rights Council.
45
It is difficult to believe that these changes will suffice to prepare the United Na-
tions for the challenges of the 21st century which will certainly include finding
answers to threats to international peace and security that emanate from the pri-
vate sphere such as international terrorism and organised crime.
44 UN Doc A/60/L.40; SC Res S/RES/1645 of 20 December 2005. For details cf. → § 11
para 415.
45 GA Res A/RES/60/251 of 3 April 2006. For details cf. → § 12 paras 511 ff.§ 2 History of International Organisations
26

§ 3
International Organisations within the Constitution
of the International Community
Literature:
Alvarez, International Organisations as Law-makers, 2005; Aston, Sekundärgesetzgebung in-
ternationaler Organisationen zwischen mitgliedstaatlicher Souveränität und Gemeinschafts-
disziplin, 2005; Auby, La globalisation, Le droit et l’État, 2003; Boyle/Chinkin, The Making
of International Law, 2007; Dicke, ‘Erscheinungsformen und Wirkungen von Globalisierung
in Struktur und Recht des internationalen Systems auf universaler und regionaler Ebene sowie
gegenläufige Renationalisierungstendenzen‘, 39 BerDGVR (2000), 13 ff.; Diggelmann/
Altwicker, ‘Is There Something Like a Constitution in International Law?‘, 68 ZaöRV (2008),
623ff.; Fassbender, ‘The United Nations Charter As Constitution of the International Com-
munity‘, 36 Colum. J. Transnat’l L. (1998), 529ff.; id., Targeted Sanctions and Due Process,
2006, available at: www.un.org/law/counsel/Fassbender_study.pdf; Feinäugle, Hoheitsgewalt
im Völkerrecht, 2011, 141 f., id., ‘The UN Security Council Al-Quaida and Taliban Sanctions
Committee: Emerging Principles of International Institutional Law for the Protection of Indi-
viduals?’, 9 German Law Journal (2008), 1513ff.; Frenzel, Sekundärrechtsetzungsakte inter-
nationaler Organisationen, 2011; Friedmann, The Changing Structure of International Law,
1964; Frowein, ‘Konstitutionalisierung des Völkerrechts’, 39 BerDGVR (2000), 427 ff.; Hal-
tern, ‘Internationales Verfassungsrecht?’, 128 AöR (2003), 511 ff.; id., ‘The UN Anti-Terror-
ism Administration and the Rule of Law‘, Festschrift Tomuschat, 2006, 785ff.; Harlow,
‘Global Administrative Law: The Quest for Principles and Values’, 17 EJIL (2006), 187ff.;
Kingsbury/Krisch/Stewart, ‘The Emergence of Global Administrative Law’, 68 Law and Con-
temporary Problems (2005), 15 ff.; Koskenniemi, ‘International Legislation Today: Limits
and Possibilities’, 23 Wisconsin Int’l L J (2005), 61 ff.; Krisch, ‘The Pluralism of Global Ad-
ministrative Law’, 17 EJIL (2006), 247 ff.; Paulus, Die internationale Gemeinschaft im Völk-
errecht, 2001; Peters, ’Rechtsordnungen und Konstitutionalisierung: Zur Neubestimmung der
Verhältnisse’, 65 ZÖR (2010), 3ff.; Petersen, ‘Der Wandel des ungeschriebenen Völkerrechts
im Zuge der Konstitutionalisierung‘, 46 AVR (2008), 502 ff.; Ruffert, Die Globalisierung als
Herausforderung an das Öffentliche Recht, 2004; Schmidt-Aßmann, ‘Die Herausforderung
der Verwaltungsrechtswissenschaft durch die Internationalisierung der Verwaltungsbeziehun-
gen‘, 45 Der Staat (2006), 315ff.; Schmidt-Aßmann/Rademacher, ‚Rechtsschutzgarantien des
internationalen Rechts‘, Jahrbuch des Öffentlichen Rechts der Gegenwart, neue Folge (2013),
61ff.; Szasz, ‘The Security Council Starts Legislating’, 96 AJIL (2002), 901ff.; Tietje, ‘The
Changing Legal Structure of International Treaties as an Aspect of an Emerging Global Gov-
ernance Architecture‘, 42 German Y.B. Int´l L. (1999), 26 ff.; Tomuschat, ‘Die internationale
Gemeinschaft‘, 33 AVR (1995), 1ff.; Uerpmann, ‘Internationales Verfassungsrecht‘, JZ 2001,
565ff.; Walter, ‘Constitutionalizing (Inter)national Governance – Possibilities for and Limits
to the Development of an International Constitutional Law‘, 44 German Y.B. Int´l L. (2001),
170ff.; Wihl, „Freiheit als Unwert? Verwandlungen des Völkerrechts aus liberaler Perspek-
tive“, in Tomuschat (ed.), Weltordnungsmodelle für das 21. Jahrhundert, 2009, 65 ff.

27

How International Organisations Constitutionalise Public International
Law
The Constitution of the International Community
Currently, public international law is undergoing a process of change. Until
long after World War II the focus was on realising and coordinating the inter-
ests of sovereign States. Since this period began with the 1648 peace treaties of
Münster and Osnabrück (which ended the Thirty Years’ War) it is called the
“Westphalian System”, the central idea of which being that sovereign States take
on obligations by means of agreements in realisation of the principle of consen-
sus.
1
This State-centred perspective has long since been replaced by the interna-
tional law of cooperation which underlines the need for cooperation as well as
the multitude of cooperative entanglements between the States.
2
International
Organisations are the most important actors of the international law of coopera-
tion. More recently, the international law of coordination and the international
law of cooperation have been modified by a new school of international legal
thinking which views international law as the constitutional law of the interna-
tional community of States.
3
At the core of this change is the fact that the international community of
States’ as a whole is recognised as a public international legal entity, as is
expressed in Article 53 VCLT, which provides that a treaty which is in conflict
with a peremptory norm of international law (ius cogens) is void – a peremptory
norm being defined as a rule which is accepted and recognised by the interna-
tional community of States as a whole to constitute a norm from which no dero-
gation is permitted and which may only be modified by a subsequent rule of in-
ternational law of the same character.
4
The international community is constitut-
ed by institutions and organs that serve common values shared by all States
which may be considered public interests of the whole world – for this reason
I.
1.
1 The classical formulation is provided for by the so-called Lotus-Doctrine following PCIJ, The
Case of the S.S. Lotus, 1927 P.C.I.J. Rep. (ser. A) No. 10, at 18: “International law governs rela-
tions between independent States. The rules of law binding upon States therefore emanate from
their own free will as expressed in conventions or by usages generally accepted as expressing prin-
ciples of law and established in order to regulate the relations between these coexisting indepen-
dent communities or with a view to the achievement of common aim. Restrictions upon the inde-
pendence of States cannot therefore be presumed.”.
2 The foundations are laid by Friedmann, 45 f. at 61 f.
3 Cf. only the critical assessment by Kadelbach/Kleinlein, ‘International Law – a Constitution
for Mankind? An Attempt at a Re-appraisal with an Analysis of Constitutional Principles’, 50 Ger-
man Y.B. Int`l L. (2007), 303. On the sequence coordination – cooperation – constitutionalism
Wihl, ‘Freiheit als Unwert? Verwandlungen des Völkerrechts aus liberaler Perspektive’, To-
muschat (ed.), Weltordnungsmodelle für das 21. Jahrhundert, 65 at 72.
4 On the international community in international law cf. Tomuschat, ‘Die internationale
Gemeinschaft’, 33 AVR (1995), 1 ff.; Paulus, Die internationale Gemeinschaft im Völkerrecht,
2001, and on the parallel idea of a constitution of world society Fischer-Lescano, ‘Globalverfas-
sung: Verfassung der Weltgesellschaft‘, 88 ARSP (2002), 348.
§ 3 International Organisations within the Constitution of the International Community
28
61
62

the term public law approach is often used.
5
Such a constitution cannot be con-
ceived without having recourse to International Organisations. From a theoreti-
cal point of view, this change of perspective requires a separation of the con-
cept “constitution” from the idea of the “State”,
6
which becomes all the more
difficult if the concept of constitution shall not lose its main features while re-
placing its traditional object with a new one.
7
The three ideas of public international law – coordination, cooperation, and
constitution – are, strictly speaking, not separate concepts that exclude each oth-
er. On the contrary, modern developments of public international law are char-
acterised by a simultaneous existence of anachronistic and new concepts as well
as by continuous shifts of perspective.
8
Furthermore, the constitutional perspec-
tive’s historical roots run very deep. Some time ago the international legal
scholars Alfred Verdross and Hermann Mosler regarded the legal system created
by the United Nations as a constitutional system of the international communi-
ty.
9
Later, this approach was intensified by identifying several decisive constitu-
tional elements within United Nations law:
10
(1) The UN-Charter’s constitution-
al moment and the time of its creation (i.e. the revolutionary approach), (2) the
institutional system of the United Nations, (3) rules on membership, (4) the hier-
archy of norms established by Article 103 UN, (5) the particular stability of the
UN-Charter with respect to modifications, (6) the concept of a “charter”, (7) the
role of the UN-Charter as a point of departure for further development of public
international law, and finally (8) the UN-Charter’s universality. Other approach-
es relate the constitutional perspective to different areas of public international
5 Cf. only Frowein, Collected Courses of the Academy of European Law, 1990, Vol. I Book 2,
428.
6 Cf. only Peters, Elemente einer Theorie der Verfassung Europas, 2001, 93ff.; also Möllers,
‘Verfassunggebende Gewalt – Verfassung – Konstitutionalisierung’, in: von Bogdandy/Bast (eds.),
Europäisches Verfassungsrecht, 2
nd
edn. 2009, 227.
7 Critically Wahl, ‘Konstitutionalisierung – Leitbegriff oder Allerweltsbegriff? ’, in: Eberle
(ed.), Der Wandel des Staates vor den Herausforderungen der Gegenwart, Festschrift für Winfried
Brohm zum 70. Geburtstag, 2002, 191 at 199 ff., as well as Haltern, 128 AöR (2003), 511.
8 Cassese, 21.
9 Verdross, Die Verfassung der Völkerrechtsgemeinschaft, 1926, in particular 12f. and 42 f., fol-
lowed by Verdross/Simma, ‘Preface to the 3
rd
edition’, in: Universelles Völkerrecht, at VII f., and
para 374; Mosler, ‘The International Society as a Legal Community’, Vol. 140 RdC (1974-IV), 1;
Dupuy, ‘The Constitutional Dimension of the Charter of the United Nations Revisited’, 1 Max
Planck U.N.Y.B. (1997) 1; Macdonald, ‘The Charter of the United Nations in Constitutional Per-
spective’, 20 Austl. Y.B. Int´l L. (1999) 205; Franck, ‘Is the UN Charter a Constitution?’, in:
Frowein (ed.), Verhandeln für den Frieden. Liber Amicorum Tono Eitel, 2003, 95.
10 Fassbender, ‘The United Nations Charter as Constitution of the International Community’,
36 Colum. J. Transnat’l L. (1998), 529.
I. How International Organisations Constitutionalise Public International Law
29
63

law, primarily international economic law
11
or even to the international commu-
nity as a whole.
Constitutional Elements
a) Functions and Institutions.The international law elements identified as
forming the international community’s constitution are closely linked to the de-
velopments of the law of International Organisations. Naturally, this mainly
holds true for institutional elements. Building on George Scelle who elaborated
on the quality of State institutions as organs of the international community as
early as the 1950 s (“dédoublement fonctionnel“ – State organs as organs of the
State and the international community),
12
the institutions of International Orga-
nisations may today easily be classified within the institutional fabric of the in-
ternational community’s constitution.
13
In this regard, one may detect traces of a
specific, functional separation of powers:
14
dispute resolution, rule-making and
execution of laws are developing towards the well-known triad of jurisprudence,
legislation and administration (→ paras 66 f.).
b) Aims and Values.International Organisations also play a major role in re-
alising the international community’s substantive law. The decisive factor is in-
ternational law’s orientation towards values that are embedded in peremptory in-
ternational law (ius cogens), thereby being immune to modification via agree-
ment between subjects of international law, and which give rise to obligationes
erga omnes, the implementation of which lies in the interest of the international
community as a whole.
15
It is on the basis of these values that public internation-
al law as constitutional law of the international community formulates certain
targets, the fulfilment of which is often transferred to International Organisa-
tions. This is evident for the United Nations and the goal of peace and security
(→ §11). However, human rights also constitute values of the international
community that are primarily implemented by International Organisations at the
2.
11 Above all Petersmann, Constitutional functions and constitutional problems of international
economic law, 1991; see for WTO → para 606; Stoll, ‘Freihandel und Verfassung’, 57 ZaöRV
(1997), 82; Krajewski, Verfassungsperspektiven und Legitimation des Rechts der Welthandelsor-
ganisation (WTO), 2001, for ILO see Osieke, Constitutional Law and Practice in the International
Labour Organisation, 1985; Maupain, ‘L’OIT, la justice sociale et la mondialisation’, Vol. 278
RdC (1999), 201; Duplessis, ‘Le recours à la constitution de l’OIT dans l’acquisition de son au-
tonomie institutionelle’, 37 Revue Belge de Droit International (2004), 37.
12 Scelle, ‘Le phénomène juridique du dédoublement fonctionnel’, in: Schätzel/Schlochauer
(eds.), Rechtsfragen der internationalen Organisation. Festschrift für Hans Wehberg zu seinem 70.
Geburtstag, 1956,324.
13 Uerpmann, ‘Internationales Verfassungsrecht’, JZ 2001, 565 at 566 f.
14 Analysis by Möllers, Gewaltengliederung, 2005, 287f. Critically Ulfstein, ’Institutions and
Competences’, in: Klabbers/Peters/Ulfstein (eds.), The Constitutionalisation of International Law,
2011, 45 at 47, following ICTY, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, Case IT-94-1-AR72 Appeals Chamber, 2 October 1995, para
43.
15 See the contributions in: Tomuschat/Thouvenin (eds.), The Fundamental Rules of the Interna-
tional Legal Order, 2006, as well as Uerpmann, ‘Internationales Verfassungsrecht’, JZ 2001, 565
at 569 f.
§ 3 International Organisations within the Constitution of the International Community
30
64
65

global level (→ § 12).
16
In addition, there is the aim to maintain natural re-
sources which is pursued by international environmental organisations (→
§14). Finally, various aspects illustrate the emergence of a world economic
constitution. This constitution recognises individual economic freedom as the
driving force for all economic development. Yet, it must be able to achieve a
balance between diverging economic interests and integrate non-economic mat-
ters in an institutional way (→ § 13).
Elements of an International Separation of Powers
The idea of separation of powers was developed in the constitutional law of
the State, to control the State’s powers by mutual checks and balances. It is a
relatively new idea that the principle of the separation of powers also aims at
achieving a distribution of competences which reflects the different functional
abilities of the individual institutions.
17
At the international level, the principle
of separation of powers is not enshrined in a constitutional statute. Nonetheless,
one may detect a distribution of the three powers to different types of organs of
International Organisations that takes account of the differences between the or-
gans’ functions.
Executive Function
a) International Organisations as an Alternative to World Government.Gov-
ernance and steering activity at the international level as well as the execution of
international law vis-à-vis the State suggest traditional ideas of a world govern-
ment. Nevertheless, the theory of international relations, public international law
and diplomatic practise are opposed to such a notion and have been so for a very
long time. This refusal does not call into question the need for political activity
and implementation of the rule of law beyond the confines of individual States.
These tasks are functionally attributed to the ensemble of International Organi-
sations.
b) Political Governance.The institutions of International Organisations are
vested with manifold tasks of political governance. This is particularly true if a
general member organ (→ paras 295 f.) or another organ permits high-level
State representatives – heads of State or government (“summit”). Some organi-
sations explicitly provide for this possibility (→ para 656 on G8; Article 15
TFEU on the European Council). However, organs of International Organisa-
II.
1.
16 Cf. only Walter, ‘Constitutionalizing (Inter)national Governance – Possibilities for and Limits
to the Development of an International Constitutional Law’, 44 German Y.B. Int´l L. (2001) 170
at 196 f.; id., ‘Die Europäische Menschenrechtskonvention als Konstitutionalisierungsprozeß’, 59
ZaöRV (1999), 961; Hoffmeister, ‘Die europäische Menschenrechtskonvention als Grundrechtsver-
fassung und ihre Bedeutung in Deutschland’, 40 Der Staat (2001), 349; Bryde, ‘Konstitutional-
isierung des Völkerrechts und Internationalisierung des Verfassungsrechts’, 42 Der Staat (2003),
61.
17 On the preceeding orientation of national, above all German constitutional law cf. Zippelius/
Würtenberger, Deutsches Staatsrecht, 32
nd
edn. 2008, § 12 para 15.
II. Elements of an International Separation of Powers
31
66
67
68

tions which are composed in a different manner may also fulfil governance
tasks. This is particularly true for the power to take the initiative in political pro-
cesses (e.g. the environmental conference of Rio 1992; → para 673) or in inter-
national rule-making (→ paras 80 f.). An International Organisation’s far-reach-
ing discretionary powers in the implementation of the law also imply a large de-
gree of formative power in solving “highly political” questions by its organs. Fi-
nally, there is room for political decisions in the coordination of International
Organisations’ activities amongst each other (→ paras 212 f.) as well as of the
concomitant cooperation with the States.
18
c) Implementation.The implementation of public international law was until
recently dominated by decentralised mechanisms. As the sovereign equality of
States is firmly guaranteed (Article 2 para 1 UN), this perspective remains un-
changed as a matter of principle. Public international law generally is imple-
mented by permitting the State whose rights have been infringed to take counter-
measures in conformity with public international law.
19
This approach is some-
times continued in the law of International Organisations, e.g. in the WTO’s dis-
pute settlement mechanism (→ paras 329-331 and 654). From the perspective of
decentralised implementation, implementing the law sometimes cannot be easily
distinguished from dispute resolution between conflicting parties.
The concept of countermeasures was complemented by the notion of duties
erga omnes: if a rule of public international law is violated the adherence to
which constitutes an obligation towards the international community as a whole,
all members of the international community are entitled to take countermea-
sures.
20
Objective duties and implementation mechanisms beyond the bilateral-decen-
tralised concept also play an eminent role in the law of International Organisa-
tions. Often, founding treaties create substantive duties while compliance is en-
sured by organs of International Organisations.
21
There are several mechanisms
to enable such a way of control:
–In many instances, reporting systems impose an obligation on the involved
States to report on their progress in implementing the substantive obliga-
tions they took on within the International Organisation as well as on possi-
ble deficits and difficulties.
22
Discussing such reports is by itself capable of
18 Cf. Schermers/Blokker, paras 448 f.
19 Instructively Crawford, The International Law Commission’s Articles on State Responsibility,
2002, 254 f.
20 Leading case: I.C.J., Barcelona Traction, Light and Power Company, Limited, Second Phase,
1970 I.C.J. Rep.,3, para 33.
21 E.g. Art. 22 ILO-Convention. See above all Chayes/Handler Chayes, The New Sovereignty,
1995, also Tietje, ‘The Changing Legal Structure of International Treaties as an Aspect of an
Emerging Global Governance Architecture’, 42 German Y.B. Int´l L. (1999), 26; Brown Weiss
(ed.), International Compliance with Nonbinding Accords, 1997.
22 Schermers/Blokker, §§ 1402 ff.; Sands/Klein, paras 12-037 ff.
§ 3 International Organisations within the Constitution of the International Community
32
69
70
71
72

creating public pressure and enhancing compliance by the respective States
(→ paras 528 f., para 682).
–In some International Organisations the organs themselves are entitled to
establish facts.
23
This may be done by establishing contacts to State institu-
tions but also by accepting private information, e.g. by NGOs (→ paras
20f.). In exceptional cases information may be collected by inspections.
24
The best-known inspections are those by the International Atomic Energy
Agency (IAEA).
25
–Deploying election observers is a mechanism that is frequently used by In-
ternational Organisations to ensure compliance. At universal level, this is
primarily done by the United Nations, in Europe it is the OSCE (→ para
558 at the end).
–Additionally, some International Organisations provide for the possibility to
impose sanctions on individual members. The most prominent sanctions
mechanism is the one the United Nations employs in case of a threat or
breach of the peace (→ paras 426 f.). Suspending voting rights or imposing
financial burdens are less severe forms of sanctions.
26
d) Internal Administration.Finally, International Organisations fulfil internal
administrative tasks when they establish and implement their budgets as well as
in the personnel sector (→ paras 385f.). This also includes revision processes to
trigger and implement organisational reforms.
Rule-Making
a) Rule-Making in the International Community.The theory of the sources of
public international law is still dominated by Article 38 ICJ which was origi-
nally worded in the early 1920 s. Indeed, it cannot be denied that the sources this
rule names – treaties, custom, general principles of law – form the basis of pub-
lic international law, and that jurisprudence as well as scholarly opinion may
and must be employed as useful support for establishing the law in international
matters. Today, however, international law is also created outside the categories
of this enumeration which by now is more than 90 years old.
27
One of the main
reasons for this development is the law-making activity of International Organi-
2.
23 Sands/Klein, paras 12-046 f.
24 Schermers/Blokker, §§ 1414 ff.; Sands/Klein, paras 12-048 f.
25 Chauvistré, The implications of IAEA inspections under Security Council Resolution 687,
1992; Schermers/Blokker, § 1418.
26 Schermers/Blokker, §§ 1455 ff.
27 Cf. v. Bogdandy/Dann/Goldmann, ‘Developing the Publicness of Public International Law:
Towards a Legal Framework for Global Governance Activities’, 9 German Law Journal (2008),
1375 at 1388; see also Petersen, ‘Der Wandel des ungeschriebenen Völkerrechts im Zuge der Kon-
stitutionalisierung’, 46 AVR (2008), 502.
II. Elements of an International Separation of Powers
33
73
74
75
76
77

sations. Not only are they a driving force behind the creation of law along the
lines of the traditional sources mentioned above – promoting the creation of in-
ternational treaties in many ways (→ paras 79f.). They are also to a large extent
enabled to not only emit punctual legal acts but also to formulate and implement
legal norms – or at least existing competence norms are adjusted in this sense.
28
The rule-making by International Organisations contributes to the diversifi-
cation of the international legal system. They occupy an important place with-
in the pluralistic, polycentric ensemble of law-making institutions. Traditional
concepts of the hierarchy of sources only provide a limited picture of the global
legal reality.
29
Binding legislation by International Organisations does not
necessarily have to be brought about by means of law-making acts by States.
Consequently, there are various overlapping layers of law which complement
each other and which need to have concrete hierarchical relationships in the case
of collisions.
30
In sum, International Organisations increasingly adopt rule-mak-
ing functions within the international community’s constitution.
31
However, it is
by no means easy to speak of international legislation. Using this term would
ignore the difference between State legislation by means of parliamentary proce-
dures on the one hand and rule-making by International Organisations on the
other. In any event, both cannot be considered equal, above all because rule-
making by International Organisations is usually devoid of democratic legitima-
tion in comparison to parliamentary legislation in democracies. In the case of
European integration, it would have been correct to introduce the terms “law”
and “legislation”; according to the draft constitution, the “regulation” of Article
249 para 2 EC would have been renamed “European statute”, yet this failed the
test of the French and Dutch referenda and was not taken up again in the Treaty
of Lisbon (→ now Article 288 para 2 TFEU).
32
No International Organisation –
and above all not the international community as a whole – reaches the Euro-
pean Union’s level of integration including that organisation’s structures of le-
gitimacy, so that one should speak of rule-making and leave aside the formal
concept of legislation.
b) Typology of Rule-Making by International Organisations. aa) Treaties
and International Organisations.International Organisations may use the vari-
ous possibilities treaty law provides for rule-making. International agreements
28 See the typology developed by Goldmann, ‘Inside Relative Normativity: From Sources to
Standard Instruments of the Exercise of International Public Authority’, 9 German Law Journal
(2008), 1865 at 1879.
29 On global legal pluralism see Teubner, ‘’Global Bukowina’: Legal Pluralism in the World So-
ciety’, in: id. (ed.), Global Law Without a State, 1996, 3; and also – with a particular relation to
hierarchical concepts Röhl/Röhl, Allgemeine Rechtslehre, 3
rd
edn. 2008, 308 f.
30 Cf Ruffert, ‘Rechtsquellen und Rechtsschichten des Verwaltungsrechts’, in: Hoffmann-Riem/
Schmidt-Aßmann/Voßkuhle (eds.), Grundlagen des Verwaltungsrechts, Vol. I, 2
nd
edn. 2011, §17
paras 26 f.
31 Taking a critical stance towards this reasoning Klabbers, Introduction, 205 f.
32 Cf Ruffert, in: Calliess/id. (eds.), EUV/AEUV-Kommentar, 4
th
edn. 2011, Art.288 AEUV,
para 4.
§ 3 International Organisations within the Constitution of the International Community
34
78
79

not only comprise (mostly bilateral) exchange treaties but also (multilateral or
even universal) rule-making instruments. In fact, the rising importance of in-
ternational treaty law goes hand in hand with the rise of International Organi-
sations. In the practice of International Organisations one may distinguish four
categories of treaty rule-making:
–Initiative: International Organisations are able to initiate negotiations for
the elaboration of multilateral treaties by means of their institutional frame-
work.
33
The high density of diplomatic contacts within International Organi-
sations makes this form of rule-making highly effective.
34
–Treaty conferences: Universal organisations, above all the United Nations,
employ their institutional framework to organise conferences which may
lead to the conclusion of a multilateral international treaty. The attribution
to the organisation may be arranged by various means, be it that the organi-
sation provides the respective resources (secretariat), by installing special
drafting committees or by the temporary founding of sub-organisations for
the purpose of treaty-making.
35
Most prominent examples from the recent
past are the United Nations Conference on the Law of the Sea with the sub-
sequent conclusion of the respective Convention (UNCLOS III 1982) as
well as the Conference of States for the Negotiation and Elaboration of the
Statute of Rome for the International Criminal Court in The Hague.
–Elaboration of treaties by experts: This form of rule-making is also part
of the institutional framework of International Organisations. The most im-
portant example is the International Law Commission of the United Nations
(ILC). The ILC was founded on the basis of Article 13 para 1 lit. a UN by a
resolution of the General Assembly.
36
Its 34 members are public interna-
tional lawyers from all parts of the world.
37
During its annual sessions that
last several weeks the ILC deliberates on projects to codify rules of public
international law and proposes corresponding drafts. If the Sixth (Legal)
Committee of the General Assembly and subsequently the Assembly as
such approve a draft such a text may be adopted as an international treaty by
the States.
38
The most important examples for this are the Vienna Conven-
tions on Diplomatic Relations and on Consular Relations
39
as well as the
33 Sands/Klein, para 11-028.
34 Alvarez, 279 f., with many examples.
35 Ibid., 292 ff.
36 GA Res. 174 (II) of 21 November 1947 with the Statute of the ILC.
37 See the list available at: http://www.un.org/law/ilc/.
38 Koskenniemi, ‘International Legislation Today: Limits and Possibilities’, 23 Wisconsin Int’l L
J (2005), 61.
39 Vienna Convention on Diplomatic Relations: 500 U.N.T.S. 95; Vienna Convention on Con-
sular Relations: 596 U.N.T.S. 261.
II. Elements of an International Separation of Powers
35
80
81
82

Vienna Convention on the Law of Treaties.
40
UNCITRAL plays a similar
role in the area of international trade.
41
–Ratification of decisions: One institutional procedure of treaty-making par-
ticular to International Organisations is the ratification of texts that have
been adopted by an organisation’s organs in accordance with the constitu-
tional provisions of the Member States.
42
Such a procedure is part of the
work of the International Labour Organisation (ILO, → para 636) obliging
the ILO members to initiate the ratification procedure (Article 19 para 5
ILO). It is in cooperation of the International Labour Conference and the
Governing Body that convention texts are elaborated which are based on
problem analyses of the Member States’ legal systems. In order to become
binding a draft convention needs to be ratified by the Member States after
its text was adopted by the International Labour Conference by a two-thirds
majority (on the institutional structure of ILO → paras 634f.).
43
A certain
number of other International Organisations apply similar procedures (e.g.
FAO, UNESCO, IMO).
44
The plenary assembly of WHO for instance may
elaborate conventions subsequently need to be ratified by the Member
States (Article 19 f. WHO).
45
Multilateral international treaties may of course also be concluded outside of
International Organisations. This, however, is not widely practiced. The techni-
cal complexity of the issues dealt with as well as the necessity for a structured
balance of interests call for a broad institutional backing of the process of treaty
rule-making. As members of International Organisations the States remain the
co-actors of the emerging global legislative. In this context, the shift from
sovereign self-obligation by the States to organised rule-making with substantial
participation by the States is obvious. This shift becomes evident in the case of
the fourth rule-making method in which the individual States’ rule-making ca-
pacity may be reduced to a veto position in the ratification process.
bb) Binding Secondary Rule-Making. (1) Specialised Agencies of the UN.In
some UN specialised agencies the founding treaty empowers the organisation’s
organs to make rules that are binding on the organisation as well as on its mem-
bers. Nonetheless, the degree to which these rules are binding may differ. Some
decision must undergo a particular procedure of assent within another organ be-
fore attaining binding force. Often individual Member States have the opportu-
nity to opt out: the provision enters into force, its rules become binding on the
40 Vienna Convention on the Law of Treaties: 1155 U.N.T.S. 331. See in general Anderson,
‘Law-Making Processes in the UN System – Some Impressions’, 2 Max Planck U.N.Y.B. (1998),
23.
41 Herdegen, Internationales Wirtschaftsrecht, § 4 para 23.
42 Schermers/Blokker, paras 1281 f.
43 Alvarez, 332 f.; Aston, 139 f.
44 Alvarez, 333; Aston, 144 f.
45 On this see Aston, 142.
§ 3 International Organisations within the Constitution of the International Community
36
83
84
85

Member States – with the exception of those States that have made use of their
opting-out capacity. Some examples may be helpful in explaining these rule-
making mechanisms:
–International Civil Aviation Organisation – ICAO: Civil aviation provi-
sions that have been passed by the ICAO Council as international standards
and recommended practises by a two thirds majority are vested with binding
force if they are not within three months rejected by a majority of Member
States (Article 90 lit. a, second sentence IACO).
46

47
The binding force ex-
tends to all Member States. Individual Member States, however, may de-
clare the adopted standards to be either completely or partially impractica-
ble to comply with and may thus prevent the rule from attaining binding
force by unilateral notification (Article 38 ICAO). This means of opting out
is inapplicable only to cases of rules concerning the airspace over the high
seas.
48
Examples for such international standards and recommended practis-
es that are formally binding annexes of the ICAO-Convention are rules on
aircraft safety, on the investigation of accidence or airports. Within the
World Meteorological organisation WMO there is a similar procedure with
reduced binding force of the legal provisions passed.
49
–World Health Organisation – WHO: According to Article 21 WHO, the
World Health Assembly of the World Health Organisation is entitled to pass
by a two thirds majority Health Regulations which have a binding effect yet
are subject to the Member States’ right of opting out (Articles 21 f. and 60
WHO).
50
Until the present, the WHO has but rarely used this instrument –
mainly in passing the important international Health Regulations of 1969
which were thoroughly revised in 2005.
51
In this case the World Health As-
sembly did not accept a possibility of opting out concerning individual regu-
lations but asked States to decide either in favour of or against the Regula-
tions.
52
46 Convention on International Civil Aviation (Chicago-Konvention), 15 U.N.T.S.295;
Buergenthal, Law-Making in the ICAO, 1969; Manin, L’Organisation de l’Aviation Civile Interna-
tionale, 1970; Abeyratne, ‘Law making and decision making power of the ICAO Council. A Criti-
cal Analysis’, 41 Zeitschrift für Luft- und Weltraumrecht (1992), 387; Ducrest, ‘Legislative and
quasi-legislative functions of ICAO: toward improved efficiency’, 20 Annals of Air and Space Law
(1995), 343.
47 Aston, 134. Doubted by Alvarez, 223, other categorization by Schermers/Blokker, para 1264
(international treaty).
48 Aston, 136 f.
49 Aston, 147 f.
50 Aston, 142.
51 International Health Regulations (1969): 764 UNTS 3; revision: http://www.who.int/csr/ihr/W
HA58-en.pdf. See Bishop, ‘Lessons from SARS: why the WHO must provide greater economic
incentives for countries to comply with international health regulations’, 36 Georgetown Journal of
International Law (2005), 1173.
52 Cf. Aston, 142 f.
II. Elements of an International Separation of Powers
37
86
87

–Union Postale Universelle – UPU and International Telecommunication
Union – ITU: The Congress of the World Postal Union may adopt rules that
are binding on the Member States – some even by a simple majority (a quo-
rum of State representatives is required to be present). This applies mainly
to the UPU’s General Regulations
53
as well as to the Universal Postal Con-
vention containing the substantive law on postal traffic.
54
The Postal Opera-
tions Council’s Executive Orders on letters and parcels are, according to Ar-
ticle 22 paras 3 and 5 UPU, equally binding as are the Arrangements ac-
cording to Article 22 para 4 UPU. The International Telecommunication
Union is vested with similar punctual powers of rule-making.
55
The described possibilities of rule-making are all rather technical and limi-
ted in substance. However, if one considers health or telecommunications regu-
lations for instance, this does not necessarily imply that the regulations’ scope is
limited. All of the illustrated rule-making powers were originally contained in
the respective organisations’ founding treaties and were not developed from
powers to take individual measures.
(2) Security Council.The Security Council’s rule-making activity, on the
other hand, is relatively new. Its decisions have always been binding on the
Member States according to Article 25 UN. However, this Article primarily
refers to decisions that are taken on the basis of Chapter VII as a reaction to a
threat to the peace or a breach of the peace implying non-military or – ultima
ratione – military sanctions (Articles 41 and 42 UN, → paras 430f..) as well as
constituting measures for the respective conflict.
56
By means of Resolutions 1373 (2001) and 1540 (2004), the Security Council
began to follow a new path.
57
Res. 1373 (2001) concerns the fight against ter-
rorism. States are obliged to prevent and combat the financing of terrorist activ-
ities, to seize terrorists’ bank accounts and to punish terrorism and terrorist acts.
In spite of the motive (terrorist acts of 11 September 2001) and of its clear aim,
the resolution has rule-making character as it prospectively aims bringing about
changes in the legal systems and practice of the UN Member States. Similar ef-
fects were caused by Res. 1540 (2004) with regard to the non-proliferation of
weapons of mass destruction among non-state actors.
The Security Council’s power to engage in such rule-making activity needs to
be discussed in two respects.
58
First, such activity leads to a further broadening
53 611 U.N.T.S. 7.
54 Ibid.
55 Ibid.
56 On practice Aston, 65 f.
57 See Alvarez, 199 f.; Aston, 68 f.; Talmon, ‘The Security Council as World Legislature’,
99 AJIL (2005), 175; Rosand, ‘The Security Council As “Global Legislator”: Ultra Vires or Ultra
Innovative’, 28 Fordham Int’l LJ (2004), 542; Szasz, ‘The Security Council Starts Legislating’,
96 AJIL (2002), 901.
58 Summarised by Herdegen, Völkerrecht § 20 para 3.
§ 3 International Organisations within the Constitution of the International Community
38
88
89
90
91
92

of the interpretation of Article 39 UN since latent, ever changing situations may
be considered a threat to or breach of the peace, which certainly holds true for
international terrorism or the proliferation of weapons of mass destruction. Sec-
ond, the acceptance of this activity further broadens the interpretation of Arti-
cle 41 UN. If the establishment of territorial administrative institutions or the
founding of tribunals for the punishment of serious crimes in armed conflicts are
already part of the non-military measures to be taken by the Security Council, it
would not be convincing to exclude from these powers a prospective rule-mak-
ing competence to suppress dangers to peace and security. Consequently, on the
same line as the one on which abstract dangers posed by terrorist activities may
be considered threats to the peace according to Article 39 UN (→ paras 423f.
and 433), Chapter VII enables the Council to take general normative counter-
measures. This legal situation, nevertheless, is not devoid of problems in terms
of democratic legitimation and the attribution of powers (→ para 425).
cc) Non-Binding Legal Provisions.The possibility to pass non-binding provi-
sions, often designated as recommendations, resolutions or opinions, has always
been part of the repertoire of the organs of International Organisations.
59
The
non-binding quality serves as a means of protection against non-desired limita-
tions of sovereignty.
60
Given the merely recommendatory character of such ac-
tions, their rule-making capacity is limited but their importance should not be
underestimated:
61
Resolutions which are non-binding as such may indicate the emergence of
customary international law if the international community as a whole or a
substantial part of it participated in their creation. This applies in particular to
Resolutions of the United Nations General Assembly.
62
The ICJ has explicitly
recognised that a line of congruent resolutions may express the opinio iuris nec-
essary for the creation of customary international law.
63
Indeed, many of the
General Assembly’s basic resolutions such as the Friendly Relations Declara-
tion
64
or the Definition of Aggression
65
are the basis of customary international
law. However, this needs to be closely assessed in every individual case. There-
fore, the creation of “instant custom”,
66
of spontaneous customary international
law, by a resolution of the General Assembly is a rarity.
67
Other concepts con-
59 Cf Sands/Klein, paras 11-043 f.; Schermers/Blokker, §§ 1217 f.
60 Klabbers, Introduction, 201.
61 Cf also Amerasinghe, 175f., according to whom they may create “a duty to consider, […] to
cooperate, […] to comply, […] to assist, providing an authorization for action, […] a basis for im-
plementation or […] evidence for one of the formal sources of law“ (177).
62 Cf Herdegen, Völkerrecht, § 20 para 2.
63 I.C.J., Military and Paramilitary Activities in and against Nicaragua, 1986 I.C.J Rep. 14,
para 188; I.C.J., Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. Rep. 226, para 70
(but also para 73).
64 GA Res. 2625 (XXV),of 24. October 1970.
65 GA Res. 3314 (XXIX), of 14 December 1974.
66 Cf the explanation by Herdegen, Völkerrecht, § 16 para 4.
67 Also sceptical: Verdross/Simma, §§ 566 and 571.
II. Elements of an International Separation of Powers
39
93
94

sider resolutions of the General Assembly to be authentic interpretations of the
UN-Charter or attempt to deduce State obligations to abide by these resolutions
from the principle of good faith.
68
These opinions, however, have not found
their way into public international law. Beyond the creation of customary inter-
national law, Resolutions of the General Assembly of the United Nations are
not binding.
69
Furthermore, the effect of recommendatory resolutions by International Orga-
nisations should not be understated by using the term “soft law”.
70
This holds
true for the simple reason that “soft” recommendations that are only politically
binding (“pré-droit”) may lay the ground for future binding rules. Besides, non-
binding legal provisions or measures may sometimes equal or even surpass
binding norms in terms of effect as their prima facie non-binding character is
less prone to provoke criticism and resistance. The OECD’s influence on politics
within its Member States by merely conducting studies may serve as impressive
proof of this function (example: PISA).
71
The same applies to the reports of the
International Panel on Climate Change (→ para 693). Other examples may be
seen in the practice of the International Maritime Organisation (IMO)
72
or in the
recommendations of the International Labour Organisation (ILO),
73
the World
Health Organisation (WHO)
74
as well as of the International Atomic Energy As-
sociation (IAEA).
75
The IMF’s Guidelines on conditionality passed without ex-
press empowerment – rules on obligations with the Member States wishing to
draw on the IMF’s resources – must also be mentioned in this context.
76
dd) Techniques of Reference.By employing elaborate techniques of refer-
ence, legal acts which are initially non-binding, either in general or with respect
to the relevant organisation, may gain binding character. Norms that are not part
of binding public international law or which do not create an obligation of the
particular organisation (e.g. because it has not signed the respective treaty or is
68 Cf Klabbers, Introduction, 206 f. with other references.
69 Aston, 119 f.
70 See also the critical view by Goldmann, ‘Inside Relative Normativity: From Sources to Stan-
dard Instruments of the Exercise of International Public Authority’, 9 German Law Journal (2008),
1865 at 1869.
71 von Bogdandy/Goldmann, ‘The Exercise of International Public Authority through National
Policy Assessments. The OECD’s PISA Policy as a Paradigm for a New Standard Instrument’,
5 International Organisations Law Review (2008), 241; Ruffert, ‘Rechtsquellen und Rechtsschicht-
en des Verwaltungsrechts’, in: Hoffmann-Riem/Schmidt-Aßmann/Voßkuhle (eds.), Grundlagen
des Verwaltungsrechts, Vol. I, 2
nd
edn. 2012, § 17 para 47. On OECD see also Klabbers, Introduc-
tion, 212.
72 Aston, 155.
73 Alvarez, 227 f.
74 Schermers/Blokker, § 1220.
75 Alvarez, 231. On the activity of the IAEA see further Johnson, ‘IAEA Treaty-Making Activi-
ties in 1997’, 2 Max Planck U.N.Y.B. (1998), 51.
76 Lowenfeld, International Economic Law, 2
nd
edn. 2008, 645 ff.; Boisson de Chazournes,
‘Treaty Law-Making and Non-Treaty Law Making: The Evolving Stucture of the International Le-
gal Order’, in: Wolfrum/Röben (eds.), Developments of International Law in Treaty Making, 2005,
463 at 471 f.; Alvarez, 235 f.
§ 3 International Organisations within the Constitution of the International Community
40
95
96

unable to ratify it for legal reasons) can be incorporated into the organisation’s
law by referring to them in legal acts of the respective organisation – whether
generally in an abstract manner, by execution or by dispute resolution – and may
thus become binding on the organisation and its members. This applies primarily
to technical rules elaborated by experts.
77
The most important example as well
as the source of the method of reference is the reference to the Codex Alimenta-
rius
78
in WTO law, elaborated by an expert commission of FAO and WHO. Its
binding character is highly questionable, but it is binding on the WTO and its
members since the relevant WTO agreement refers to it and the dispute resolu-
tion body of the WTO has relied on this referral.
79
Another example for the ap-
plication of techniques of reference is the incorporation of technical standards
by the United Nations Convention on the Law of the Sea (UNCLOS).
80
c) Public International Law or New Legal Order?The variety of rule-mak-
ing opportunities of International Organisations deserves a look at the legal clas-
sification of the rules in question. It is no longer acceptable to consider this law
as treaty law simply because the founding States consented to the founding
treaty or because they cooperated in the rule’s elaboration.
81
Consequently, it is
often assumed that by establishing rules the organs of International Organisa-
tions create law that is separate from public international law leading to legal
orders sui generis or, alternatively, that the law made by the organs of an Inter-
national Organisation should be considered as an independent legal system.
82
The background for distinguishing organisation-made rules from general public
international law is the European Union’s development on the basis of the ju-
risprudence by the ECJ that began to classify the law of the organisation E(E)C
as autonomous as early as the 1960 s.
However, this particular development should not lead one to separate law cre-
ated by International Organisations from public international law. No such ne-
cessity is established by Article 38 para 1 ICJ as long as this provision is not
considered as a complete enumeration of all sources of public international law
but rather as a mere rule on the law the ICJ may apply (→ para 77). The said
separation would at least cause practical difficulties as it would lead to different
77 See the overview: Edeson, ‘The Role of Technical Bodies’, in: Wolfrum/Röben (eds.), Devel-
opments of International Law in Treaty Making, 2005, 63 f.
78 Website: http://www.codexalimentarius.net/web/index_en.jsp. Cf Alvarez, 222.
79 Annex A (3) SPS-Agreement; Cf Herrmann/Weiß/Ohler, para 590; Gehring/Jessen, in: Hilf/
Oeter, § 21 para 16, as well as the decision by the WTO Appelate-Body EC-Hormones, paras 102
and 165.
80 Aston, 160 ff.
81 This was the position in: P.C.I.J., Railway Traffic between Lithuania and Poland (Railway
Sector Landwarów-Kaisiadorys), 1931 P.C.I.J. (ser. A/B) No. 42, at 116; cf Klabbers, Introduction,
203 f.
82 Bernhardt, ‘Qualifikation und Anwendungsbereich des internen Rechts internationaler Organ-
isationen’, 12 BerDGVR (1973), 7 at 9 f.; Miehsler, in id., 68 f.; Schmalenbach, ‘International Or-
ganizations or Institutions, General Aspects’, MPEPIL (2006), para 55. The former position that
denied the quality of law (Pallieri, ‘Le droit interne des organisations internationals’, 127 RdC
(1969-II), 1) is obsolete.
II. Elements of an International Separation of Powers
41
97
98

forms of rule-making (→ paras 77 f.) which would need to be subsumed under
different headings depending on whether the organisation is establishing rules in
the form of treaties or rather passing decisions the binding nature of which may
vary.
83
In practice it is also not viable to distinguish between internal and exter-
nal rule-making as there are often mixed forms which would create new difficul-
ties of classification.
84
Apart from that, international legal principles provide
practical rules of interpretation (cf. Article 31 VCLT).
85
Moreover, law that In-
ternational Organisations can make in accordance with their founding treaty
would remain applicable before international bodies of dispute settlement as
general international law, although the applicability before the ICJ would cause
difficulties due to the narrow wording of Article 38.
86
Establishing a categorical border between the founding treaty and the law de-
rived from it by an organisation’s institutions is also impossible in theoretical
terms as the founding treaty is the source and the basis of the validity of rules
made by the institutions.
87
Generally, the law created by international institu-
tions is part of public international law. The example of the EU is an excep-
tion that underlines the existence of the rule and does not constitute a reason to
deviate from it.
88
In the case of the EU a practice established by its organs and
lasting for decades has led to a separation of the organisation’s law from general
public international law.
89
It is decisive for this development that as early as in
the founding treaties the Member States created a strong institution for the “con-
servation of the law” (now Article 19 TEU) and enabled it to interpret and apply
the EU law to the Union/Community and to develop it with respect to this legal
order.
90
As a matter of principle, such a development could be effectuated in
many International Organisations which are similar to the EU because of their
membership or their institutional structure and their aims. Then it would be jus-
tified to speak of a new legal order sui generis in each individual case.
d) Unanswered Questions of Legitimacy.The question how democratic legit-
imacy of binding rule-making within International Organisations may be effec-
83 This becomes clear when considering the relevant legal literature; cf Klabbers, Introduction,
219, who considers the opting-out-procedure according to the Chicago-Convention as part of inter-
national treaty law (→ para 86).
84 Contrary to the position of Klein/Schmahl, in: Graf Vitzthum/Proelß, para 114, the problem
does not stem from the law of International Organisations not being directed towards subjects of
public international law. Divergent from the view taken here also Klabbers, Introduction, 200 f.
85 Klein/Schmahl, in: Graf Vitzthum/Proelß, para 116.
86 Aston, 217 f.
87 Klein/Schmahl, in: Graf Vitzthum/Proelß, para 115; Aston, 218; Meng, Das Recht der inter-
nationalen Organisationen – eine Entwicklungsstufe des Völkerrechts, 1979, 177 ff.
88 A different view is taken by Klein/Schmahl, in: Graf Vitzthum/Proelß, para 117, who conse-
quently consider EU Law to be part of public international law.
89 More details: Ruffert, in: Calliess/id., Art. 1 AEUV paras 16f. Also the most recent trends –
public international law constructions as “substitute EU law” (this term coined by Lorz/Sauer, ‘Er-
satzunionsrecht und Grundgesetz’, Die Öffentliche Verwaltung 2012, 573) apparently does not
change the general direction of EU institutional law, as made clear by the ECJ in Case C-370/12,
Pringle v. Ireland, judgment of 27 November 2012, nyr., paras 153 f.
90 Cf only Wegener, in: Calliess/Ruffert, Art. 19 EUV paras 9 f.
§ 3 International Organisations within the Constitution of the International Community
42
99
100

tively achieved largely remains unanswered. Even on the level of European inte-
gration severe legitimacy problems are discussed under the heading “democratic
deficit”. On the international level problems are even greater: legitimacy is only
established by government accountability – which is, nonetheless, indispens-
able
91
–, parliamentary bodies are virtually non-existent and the heterogeneity of
the States participating in International Organisations prevents the establishment
of common standards of legitimacy. What legal scholarship can offer is nearer to
approaches than to real solutions. The opportunities of new governance concepts
(→ paras 703 f.) have not yet been fully analysed and the limits and dangers of
models of “output”-legitimacy, i.e. such concepts of legitimacy that do not aim
at creating a link to the subject of democracy (i.e. the people) as in concepts of
“input”-legitimacy but rather rely on decision-making structures and their wel-
fare effect have not yet been completely elaborated and compensated for (→
para 708).
Dispute Settlement and Adjudication
Traditionally, peaceful settlement of international disputes is used as the col-
lective term for various methods of resolving international disputes. Among sev-
eral other forms this term includes judicial settlement by international courts and
tribunals. The main purpose of dispute settlement consists in avoiding the esca-
lation of disputes which might otherwise endanger international peace and secu-
rity. This overall purpose is aptly expressed in Art. 33 UN which contains an
obligation to seek peaceful settlement and refers to disputes „the continuation of
which is likely to endanger the maintenance of international peace and security.”
Judicial settlement is thus but one of several means (Art. 33 UN mentions nego-
tiation, enquiry, mediation, conciliation, arbitration and regional arrangements
or agencies) for the peaceful settlement of international disputes.
The judicial settlement of international disputes is by no means self-evident.
In fact adjudication had, and continues to have, to overcome many obstacles.
While the tradition of settlement by arbitration goes back to the 19
th
century
(with some even earlier examples),
92
these arbitral tribunals, because of their ad-
hoc character, could not provide for institutional stability. At the beginning of
the 20
th
century attempts for establishing a permanent international judiciary
failed at the Second Hague Peace Conference. The reason for this failure, was
essentially the lack of consent concerning the composition of the Court and the
election of the judges. It was only after the end of the First World War that these
difficulties could be overcome. In September of 1921 the Statute of the Perma-
3.
91 The role of domestic institutions in democratic global governance is made very clear by Pe-
ters, ‘Dual Democracy’, in: Klabbers/id./Ulfstein (eds.), The Constitutionalisation of International
Law, 2011, 263 at 286.
92 Cf. Brower II, ‘Arbitration’, in: Wolfrum (ed.), The Max Planck Encyclopedia of Public Inter-
national Law, 2012, paras 9 ff.
II. Elements of an International Separation of Powers
43
101
102

nent Court of International Justice (PCIJ) entered into force.
93
The failure of the
League of Nations, the Second World War, and finally the creation of the United
Nations as a new universal organisation for the maintenance of international
peace and security led to the institution of a new judicial organ, the International
Court of Justice (ICJ), in 1945. However, the new Court was to be closely tied to
its predecessor. The idea of continuity between the two courts is expressed in
Art.92 UN, which expressly refers to the Statute of the PCIJ as basis for the
Statute of the ICJ. A further expression of continuity between the two courts
may be found in Art. 37 ICJ Statute, according to which declarations under the
optional clause of the PCIJ Statute automatically remained in force under the
new system of the ICJ.
94
Formally, the ICJ was granted an enhanced role among the main organs of the
United Nations by being referred to as the “principle judicial organ of the United
Nations” in Art. 92 UN. However, there are no actual gains in competencies,
which go along with this qualification. Under the rules of its Statute, which are
still decisive for determining the scope of the Court’s jurisdiction, only states
may be parties to a dispute (Art. 34 ICJ Statute). This excludes contentious pro-
ceedings of a constitutional character between organs of the United Nations.
95
Furthermore, the obligatory character of international adjudication remains very
limited. The Court’s jurisdiction is still primarily based on the principle of con-
sent, which – very much in the tradition of peaceful settlement of international
disputes in general – requires, in principle,
96
the consent of all parties to a dis-
pute in order to establish the jurisdiction of the ICJ.
97
These obstacles notwithstanding, the judicial settlement of international dis-
putes has witnessed an enormous increase in the almost 70 years since the estab-
lishment of the ICJ. This increase is, first of all, related to the ICJ itself. The
number of pending cases has augmented considerably in recent years. Especially
noteworthy is the increased number of cases from Africa and Latin America. Of
great importance concerning the subject matters of the disputes, are the inclusion
of highly political issues such as the use of military force,
98
the establishment of
93 Cf. generally: Spiermann,‘Historical Introduction’, in: Zimmermann/Tomuschat/Oellers-
Frahm (eds.), Commentary on the Statute of the International Court of Justice, 2
nd
edn. 2012, para
23.
94 The provision was applied 16 times in the history of the ICJ. For details cf. Simma/
Richemond-Barak, ‘Art. 37’, in: Zimmermann/Tomuschat/Oellers-Frahm (eds.), Commentary on
the Statute of the International Court of Justice, 2
nd
edn. 2012, paras 7 ff.
95 → Para. 325.
96 For dispute settlement organs in International Organizations, cf. below § 9 paras 324 ff.
97 In more detail, cf.: Walter ‘Rechtsschutz durch den Internationalen Gerichtshof’, in: Ehlers/
Schoch (eds.), Rechtsschutz im Öffentlichen Recht, 2009, paras 31 ff.
98 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), ICJ Rep. 1986, para 188; Case Concerning Armed Activities on the Territory of
the Congo (Democratic Republic of the Congo v. Uganda), ICJ Rep. 2005.
§ 3 International Organisations within the Constitution of the International Community
44
103
104

the crime of genocide
99
or the immunity of ministers
100
and states in the context
of war crimes.
101
Also, the settlement of border disputes has become a major
field of activity in recent years.
102
A second major characteristic of the development since 1945 is the creation
of several specialized judicial or quasi-judicial bodies for the settlement of dis-
putes in specific subject areas. Among those institutions are the International
Tribunal for the Law of the Sea (ITLOS), the Panels and the Appellate Body un-
der the WTO Dispute Settlement Understanding (DSU),
103
the various human
rights monitoring bodies,
104
the international criminal courts (including the ad-
hoc tribunals established by the Security Council for dealing with war crimes in
the former Yugoslavia (ICTY) and in Ruanda (ICTR), and the International
Criminal Court under the Rome Statute (ICC).Finally, the increasing importance
of arbitration in international investment disputes also deserves mentioning.
105
The development of these specialised jurisdictions is sometimes viewed as a
challenge for the unity of international law, and also for its consistent interpreta-
tion and, possibly, development by the judiciary. Jurisdictional conflicts have
been discussed concerning the WTO mechanism and ITLOS concerning fish-
eries and the preservation of endangered species
106
and between an arbitral tri-
bunal established under the Convention on the Law of the Sea and the European
Court of Justice.
107
The ICTY and the ICJ (seemingly) disagreed on issues of
attribution.
108
Whether or not the “sectoralisation” of international law which is
expressed in this development will lead to its “fragmentation“ has been a matter
99 ICJ, Case Concerning the Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007,
para 297.
100 ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Con-
go v. Belgium), ICJ Rep. 2002.
101 ICJ, Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), ICJ Rep.
2012.
102 Merrills, International Dispute Settlement, 5
th
edn. 2011, 148 ff.
103 → paras 509 ff.
104 For details → para 654.
105 Dolzer/Schreuer, Principles of International Investment Law, 2
nd
edn. 2012, 238 ff.
106 Neumann, ‘Die materielle und prozessuale Koordination völkerrechtlicher Ordnungen’, 61
ZaöRV (2001), 529.
107 ECJ C-459/03 Commission v. Ireland 2006 ECR I-4636, para 121; Kwiatkowska, ‘The Ire-
land v. United Kingdom (Mox Plant) Case: Applying the Doctrine of Treaty Parallelism’, 18 Int’l
J. of Mar. and Coastal L. (2003), 1; Lavranos, ‘Regulating Competing Jurisdictions Among
International Courts and Tribunals’, 68 ZaöRV (2008), 575; Wegener, ‘Familienstreitigkeiten
nicht nach außen tragen?! Irlands Klage gegen die MOX-Anlage in Sellafield im Kompetenzstreit
zwischen EuGH und Internationalem Seegerichtshof’, ZUR 2006, 582.
108 For the so-called effective control test: ICJ, Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), ICJ Rep. 1986, para 115; by contrast
an overall control test is favoured by the ICTY: International Criminal Tribunal for the Former Yu-
goslavia, Appeals Chamber, Prosecutor v Dusko Tadić, 15 July 1999, para 112 ff. (esp. para 145).
http://www.icty.org/x/cases/tadic/acjug/en/tad-aj990715 e.pdf; cf. Cassese, ‘The Nicaragua and
Tadic Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’, 18 EJIL (2007), 649.
II. Elements of an International Separation of Powers
45
105
106

of some debate and is still an unanswered question.
109
While there are clear indi-
cations that the establishment of sectorally limited, strong and self-confident in-
stitutions favours fragmentation, international law has developed beyond a point
where one single judicial institution, such as the ICJ, could be capable of dealing
with the number of issues and, even more importantly, the number of cases.
An overall assessment must lead to the conclusion that the area of internation-
al adjudication is largely heterogeneous. Not all existing bodies may be qualified
as “judicial” in the proper sense of the term. The WTO-mechanism is a hybrid
construction including elements of arbitration and judicial settlement,
110
many
of the human rights treaty bodies are not qualified as courts, but their members
enjoy independence similar to that of judges and their “opinions” come close to
decisions or judgments by courts. Another element of diversity must be seen in
the highly specialised character of some mechanisms, for instance the arbitral
tribunals in international investment protection. Finally, the procedures applied
and the subjects treated by the different bodies are highly diverse, ranging from
classical inter-state disputes, over the protection of individual rights in interna-
tional human rights litigation and investment protection, to individual criminal
responsibility in international criminal courts. If one were to nevertheless pin-
point certain characteristics common to all of these diverse bodies, which could
justify speaking of an “international judiciary“, the following could be men-
tioned: complete independence of all members of bodies with judicial or quasi-
judicial functions,
111
decision-making in a formalised procedure
112
and precisely
according to rules of law.
113
109 For details cf. ‘Fragmentation of International Law: Difficulties arising from the diversifica-
tion and expansion of International Law’, Report of the Study Group of the International Law
Commission, finalised by Koskenniemi, UN Doc. A/CN.4/L.682 13 April 2006, as well as the cor-
responding ‘Conclusions of the work of the Study Group on the Fragmentation of International
Law: Difficulties arising from the Diversification and Expansion of International Law’, UN Doc.
A/61/10, para 251, which was adopted by the UN General Assembly; see also Sauer, Jurisdiktion-
skonflikte in Mehrebenensystemen, 2007; Lavranos (n 16).
110 → Para 332.
111 Art.2 ICJ Statute; Art. 2 para 1 Statute of the International Tribunal for the Law of the Sea;
Art.40 Rome Statute of the International Criminal Court; Art. 13 Statute of the ICTY; Art.12
Statute of the ICTR; Art.21 para 3 European Convention on Human Rights and Fundamental Free-
doms; Art. 31 para 1 African Charter on Human and Peoples' Rights; Art. 8 para 2 WTO Dispute
Settlement Understanding.
112 ICJ Rules of Court (1978); Arts. 24-34 Statute of the International Tribunal for the Law of
the Sea; Rules of Procedure and Evidence for the International Criminal Court; Rules of Procedure
and Evidence for the International Criminal Tribunal for the Former Yugoslavia; Rules of Proce-
dure and Evidence for the International Criminal Court for Ruanda.
113 According to Art. 38 para 2 ICJ Statute the Court may decide a case ex aequo et bono if the
parties so agree. Until now there have been no decisions exclusively based on this provision. While
the ICJ decided several disputes concerning the delimitation of maritime zones “in accordance with
equitable principles”, it stressed in all these judgments that they were not decisions ex aequo et
bono, but remained within the legal framework of international law. Cf. ICJ, North Sea Continental
Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Nether-
lands), ICJ Rep. 1969 para 88; cf. also Pellet, ‘Art. 38’, in: Zimmermann/Tomuschat/Oellers-
Frahm (eds.), Commentary on the Statute of the International Court of Justice, 2
nd
edn. 2012,
para 153.
§ 3 International Organisations within the Constitution of the International Community
46
107

Effects of the Law of International Organisations at the Domestic Level
The Issue
The diverse nature of International Organisations’ activity in rule-making and
administration is able to cause legal effects at the domestic level. Nonetheless,
such effects cannot be accurately described and explained by simply referring to
a “classic” concept particularly since the “classic” concepts of monism and du-
alism could not yet be adopted to the situation of public international law in the
21
st
century following Fitzmaurice’s 50 years old criticism (“strictly beside the
point”)
114
which remains valid today. The actual effects in individual cases de-
pend on two decisive factors: the constitutional situation in the relevant State
and the design of the organisation’s founding treaty as well as the mode of rule-
making.
Constitutional Law (particularly in Germany)
The constitutional situation within the individual States is manifold. Pre-
cise rules refer to public international law in general or the traditional sources:
treaty, custom and general legal principles.
115
The rule-making by International
Organisations must be compared with these constitutional rules.
The German constitutional system is particularly friendly towards public in-
ternational law (“Völkerrechtsfreundlichkeit”) based on the openness of the
Grundgesetz towards international law.
116
For customary international law
and general principles of law this becomes visible in the monist model of incor-
poration that is enshrined in Article 25 Grundgesetz
117
which in its second sen-
tence even provides for the dominance of public international law before simple
statutory law and which is accompanied by the procedural provision of Article
100 para 2 Grundgesetz.
118
For the law of International Organisations, though, it
is Articles 24 paras 1 and 2 GG as well as Article 59 Grundgesetz that are of
III.
1.
2.
114 Fitzmaurice, ‘The General Principles of International Law Considered From the Standpoint
of the Rule of Law’, 92 RdC (1957-II), 1 ff. at 70.
115 Kunig, in: Graf Vitzthum/Proelß, paras 46 ff.
116 See the crucial book by Vogel, Die Verfassungsentscheidung des Grundgesetzes für eine in-
ternationale Zusammenarbeit, 1964. Comprehensively Hobe, Der offene Verfassungsstaat zwis-
chen Souveränität und Interdependenz, 1998.
117 “The general rules of international law shall be an integral part of federal law. They shall take
precedence over the laws and directly create rights and duties for the inhabitants of the federal ter-
ritory.” – The translation of this and the following articles was accomplished by Christian To-
muschat, David P. Currie and Donald P. Kommers for the Deutscher Bundestag (https://www.btg-b
estellservice.de/pdf/80201000.pdf).
118 “If, in the course of litigation, doubt exists whether a rule of international law is an integral
part of federal law and whether it directly creates rights and duties for the individual (Art. 25), the
court shall obtain a decision from the Federal Constitutional Court.”.
III. Effects of the Law of International Organisations at the Domestic Level
47
108
109
110

prime importance.
119
The transfer of sovereign powers to International Organi-
sations according to Article 24 para 1 Grundgesetz enables these institutions to
exercise rule-making activity with direct legal effect on Germany. After Ger-
many’s participation in the EU was given its own legal basis in Article 23
Grundgesetz in the course of the 1994 constitutional reform, the provision of Ar-
ticle 24 para 1 Grundgesetz is today only of punctual importance (Eurocontrol,
European Atomic Energy Agency, Moselle Commission, Central Commission
for the Navigation of the Rhine, European Patent Organisation, International
Criminal Court and – which is disputed – NATO).
120
Article 24 para 2 Grundge-
setz opens the constitution to a comparable transfer of sovereign rights to sys-
tems of collective security. It may be doubted whether NATO constitutes such a
system besides the UN but it is to be welcomed that an opinion is more and
more advancing according to which NATO is vested with the quality of such a
system of collective military security, that its former character as a defence al-
liance is replaced by this new idea and that, consequently, Article 24 para 2
Grundgesetz may also be applied to NATO.
121
Article 59 Grundgesetz provides for the possibility for Germany to conclude
international treaties. While until recently the theoretical evaluation of the effect
international treaty law has on Germany remained relatively open, the Bun-
desverfassungsgericht in its Görgülü-decision opted for a dualist concept and
ruled that obligations from international treaties are generally subject to transfor-
mation into domestic law by a corresponding statute under Article 59 para 2
Grundgesetz.
122
According to this approach, legal acts of International Organisa-
tions cmay only on the basis of the German transformation statute develop legal
effects within Germany.
123
This approach is theoretically deficient as it is not
able to tackle the interrelationship between the individual levels of the law with
their complex relationships of hierarchy (either in validity or application), and in
119 Art.24 “(1) The Federation may by a law transfer sovereign powers to international organi-
sations. … (2) With a view to maintaining peace, the Federation may enter into a system of mutual
collective security; in doing so it shall consent to such limitations upon its sovereign powers as will
bring about and secure a lasting peace in Europe and among the nations of the world.”
Art.59 “(2) Treaties that regulate the political relations of the Federation or relate to subjects of
federal legislation shall require the consent or participation, in the form of a federal law, of the
bodies responsible in such a case for the enactment of federal law. In the case of executive agree-
ments the provisions concerning the federal administration shall apply mutatis mutandis.”.
120 See Streinz, in: Sachs (ed.), Grundgesetz, 6th edn. 2011, Art. 24 para 30; on NATO Ger-
many: BVerfGE 68, 1, 80f. and 93ff..; Germany: BVerfGE 77, 170, 232; Germany: BVerfGE 90,
286, 350.
121 See only Pernice, in: Dreier (ed.), Grundgesetz, Vol 2, 2
nd
edn. 2006, Art. 24 paras 55-57
with references, as well as → para 493.
122 Germany: BVerfGE 111, 307, 318.
123 Cf. in detail Frenzel, Sekundärrechtsetzungsakte internationaler Organisationen, 2011, at
264 f.
§ 3 International Organisations within the Constitution of the International Community
48
111

practice it may well lead to Germany breaching obligations from international
law.
124
The Structure of Rule-Making and Administration of the Respective
International Organisations
The individual legal acts of International Organisations are confronted with
this constitutional situation – in the individual States in general and in Germany
in particular. As far as rule-making follows one of the forms of international
treaties (→ paras 79 f.) the rules within the relevant constitutional law apply to
the domestic effects of such treaties. In Germany, according to Article 59 para 2
Grundgesetz, it is decisive whether political relationships are at stake or whether
the federal legislator has to take the responsibility for domestic transformation
of the relevant treaty or not (in the latter case the treaty may be transposed as an
administrative agreement according to Article 59 para 2, second sentence
Grundgesetz without any participation of the legislator).
125
In the cases of rule-
making by an organisation’s institutions it is crucial in how far the States have
transferred rule-making capacity to the respective International Organisation:
with or without binding force and with or without direct effect on interstate legal
relationships (supranationality). With respect to its creation and reach, the law
of International Organisations that stems from an institution follows the re-
spective founding treaty. The same applies to executive activity of Internation-
al Organisations.
The example of “smart sanctions” by the UN Security Council shows that
the distribution of powers is also important in assessing supranational structures
(→ para439).
126
Various resolutions of the Security Council obligate the UN
Member States to “freeze” bank accounts of individuals and companies that are
listed in annexes to the respective resolutions. The list is continuously re-ar-
ranged by decisions of the relevant Sanctions Committee of the Security Coun-
cil. According to Articles 75 and 215 TFEU, the Council (under Article 75
TFEU, together with Parliament) is competent for the sanctions’ implementation
within the European Union – a task which it performs by issuing special regula-
tions. These regulations have direct effect within the EU (cf. Article 288 para 2
TFEU) leaving no need for implementing statutes by the Member States. Diffi-
culties arise primarily concerning judicial review since an individual’s standing
3.
124 On the deficit in theory Ruffert,‘Perspektiven des Internationalen Verwaltungsrechts’, in:
Möllers/Voßkuhle/Walter (eds.), Internationales Verwaltungsrecht, 2007, 395ff. at 413; on the
risk of a breach of international law id., ‘Die Europäische Menschenrechtskonvention und inner-
staatliches Recht’, EGRZ 2007, 245 at 252 with references. The conflict has been avoided in later
instances by a differentiated jurisprudence of the Bundesverfassungsgericht: BVerfGE 120, 180
(Caroline von Hanover); 128, 326 (Preventive detention).
125 Cf on these criteria Jarass, in: id./Pieroth, Grundgesetz, 12
th
edn. 2012, Art. 59 paras 12-14.
126 An older example would be the relationship between the WTO and EC/EU in the jurispru-
dence of the ICJ; cf only Hahn, in: Calliess/Ruffert (eds.), EUV/AEUV-Kommentar, 4
th
edn. 2011,
Art. 207 paras 160 ff.
III. Effects of the Law of International Organisations at the Domestic Level
49
112
113

to bring an action against him or her wrongfully being listed in the resolution’s
annex –practically impeding the economic potential of the individual or compa-
ny concerned (→ para 439) – is still at an early stage.
127
While the CFE merely
pleaded for a limited control of such regulations by the standard of ius cogens,
the ECJ reviews the respective regulations by applying the EU fundamental
rights.
128
The importance of correctly interpreting the powers of International Organi-
sations and their institutions granted by the founding treaty is beyond question.
This importance has become evident in the German controversy about the
“Waldschlößchenbrücke” in Dresden, a bridge spanning the river Elbe to es-
tablish a road link considered to be important. Following a local referendum, the
construction of a bridge across the Elbe was decided leading the World Heritage
Committee, a UNESCO sub-organ, to list the Elbe valley near Dresden among
items of cultural heritage in danger on the basis of the World Heritage Conven-
tion (cf. Article 11 para 4 World Heritage Convention) which meant the revoca-
tion of the world heritage status in case of the plans being carried out.
129
The
competent administrative court of appeal based its decision on the lack of trans-
formation of the World Heritage Convention and thus decided in favour of con-
struction without examining the effects of the decision by the World Heritage
127 Feinäugle, Hoheitsgewalt im Völkerrecht, 2011, 141f., id., ‘The UN Security Council Al-
Quaida and Taliban Sanctions Committee: Emerging Principles of International Institutional Law
for the Protection of Individuals? ’, 9 German Law Journal (2008), 1513; id., ‘Die Terrorlisten des
Sicherheitsrates – Endlich Rechtsschutz des Einzelnen gegen die Vereinten Nationen’, ZRP 2007,
75; Faßbender, Targeted Sanctions and Due Process, 2006, available at: www.un.org/law/counsel/
Fassbender_study.pdf; Frowein, ‘The UN Anti-Terrorism Administration and the Rule of Law’,
Festschrift Tomuschat, 2006, 785; Schmidt-Aßmann/Rademacher, ‘Rechtsschutzgarantien des in-
ternationalen Rechts’, 61 Jahrbuch des Öffentlichen Rechts der Gegenwart, neue Folge (2013), 61;
Von Arnauld, ‘Der Weg zu einem „Solange 1 ½“’ Europarecht 2013, 236. Earlier views: Albin,
‘Rechtsschutzlücken bei der Terrorbekämpfung im Völkerrecht’, Zeitschrift für Rechtspolitik 2004,
71; Schmalenbach, ‘Normentheorie vs. Terrorismus. Der Vorrang des UN-Rechts vor EU-Recht’,
JZ 2006, 349; Hörmann, ‘Völkerrecht bricht Rechtsgemeinschaft? Zu den rechtlichen Folgen einer
Umsetzung von Resolutionen des UN-Sicherheitsrates durch die EG’, 44 AVR (2006), 267.
128 EU: Ct. First Instance, Case T-306/01 Yusuf (2005) ECR II-3533, paras 260f..;
Case T-253/03 Ayadi (2006) ECR, II-2139, paras 116 at 118 f.; followed by ECJ, Joint Cas-
es C-402/05 and C-415/05 Kadi and Al Barakaat (2008) ECR, I-6531, and ECJ, Joint Cases C-584,
593 and 595/10 P, Kadi v. Commission and UK, judgment of 18 July 2013, nyr; cf Heun-Rehn,
Kadi and Al Barakaat, ‘Der EuGH, die Gemeinschaft und das Völkerrecht’, ELR 2008, 322 at 327;
Sauer, ‘Rechtsschutz gegen völkerrechtsdeterminiertes Gemeinschaftsrecht? Die Terroristenlisten
vor dem EuGH’, NJW 2008, 3685; Ohler, ‘Gemeinschaftsrechtlicher Rechtsschutz gegen person-
engerichtete Sanktionen des UN-Sicherheitsrats’, Europäische Zeitschrift für Wirtschaftsrecht
2008, 630.
129 Convention Concerning the Protection of the World Cultural and Natural Heritage,
1037 U.N.T.S. 151; cf. Zacharias, ‘The UNESCO Regime for the Protection of World Heritage as
Prototype of an Autonomy-Gaining International Institution’, 9 German Law Journal (2008), 1833.
On the problems of ratification and transformation Hönes, ‘Zur Transformation des Übereinkom-
mens zum Schutz des Kultur- und Naturerbes der Welt von 1972’, Die öffentliche Verwal-
tung 2008, 54; Wolf, ‘Weltkulturvölkerrecht und nationalstaatliche Umsetzung’, Natur und
Recht 2008, 311.
§ 3 International Organisations within the Constitution of the International Community
50
114

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CHAPTER IX.
SOME LEAVES FROM A DIARY.
Generally keeping a diary is very much a matter of sentiment, but
with Katie Ashley it was done only in fulfillment of a promise, and
not at all from any desire to record either feelings or events. Mrs.
Ashley had several daughters, all well educated, but all singularly
averse to writing letters. They were dutiful enough in other ways,
but it was very uncomfortable for their mother when she was
separated from them to have no communication except through an
occasional telegraphic dispatch. It was too late to make a reform
with grown-up children, but Mrs. Ashley determined that Katie, her
youngest child, should become so familiar with her pen that she
would be free from the family failing; so she exacted the promise
when she sent her to boarding-school that made daily entries in her
elegantly bound diary the condition of receiving a larger allowance of
pocket-money than had ever been given to her sisters.
The record was to be kept entirely private—sacred, Katie called it
—and no one at home was ever to ask to see it or even to allude to
it. But in the vacations, when Katie used to go off on little trips with
her mother, she used to get very confidential at bed-time, and her
talks about school usually ended in her getting the book out of her
trunk, and the tiny silver key off her watch-chain, and unlocking the
miniature padlock which secured the covers, and reading page after
page aloud to her very appreciative hearer. Sometimes the details
were very scant, sometimes they were quite full and interesting. It
all depended on the writer’s mood at the time of writing. A few
specimens will show the curious variations in this respect:
“September 18.

“Arrived here at school.
“September 19.
“Five new girls. One is a beauty, prettier than Lily; her name is
Edna Tryon. Seems to feel pretty aristocratic—turns her nose up at
almost every thing.
“September 20.
“I forgot to put down that one of the new girls looks like a
chambermaid, and a very poor class of one, too. She don’t compare
to our maids. Mrs. Abbott wants us to be good to her. There’s a long
story about it, very interesting. Mem.—Tell mamma about it when I
get home.
“September 21.
“The girls are horrid to Mary Ann Stubbs.
“September 22.
“Little Elfie is an angel. We all love her to death. I took a walk with
her and her black mammy to-day.
“September 23.
“There’s a funny thing I never thought to put down before. When
we got back to school we found the high iron front gate taken down
and heavy wooden doors with a big bolt put in its place. Mrs. Abbott
hasn’t told us why it was done, and Miss Blake only said that Mr.
Bellamy had it done. It’s horrid; we are entirely shut in. The board
fence has spikes on it, so we couldn’t climb up and look over if we
wanted to. We used to be very fond of looking out of the iron gate.
Edna says she thinks there is some mystery somewhere. She wont
tell what she means, but she says an old man where they used to
live put a high board wall around his place and then got married and

made counterfeit money. That’s silly, for Mrs. Abbott hasn’t got any
tools and machinery; besides, she would never do any thing wrong.
“September 23.
“Knew all my lessons. Lily missed in political economy.
“September 24.
“I missed in algebra—generally do.
“September 25.
“New French teacher came. Made us all laugh at prayers. When it
was her turn to read a verse she read, ‘And He healed de six,’
instead of the sick.
“September 26.
“Mrs. Abbott went to New York to-day. She wont be back till to-
morrow night.
“September 27.
“To-day Edna said to Lily and me, ‘Let’s slip out the back gate and
go to the village. Miss Blake’s so near-sighted she wont see us.’ Lily
was angry, and told Edna she insulted her by asking her to do such a
thing when she knew Mrs. Abbott objected. After she had gone
down-stairs Edna said, ‘Lily’s a born coward. She’d just love to go
out that gate, but she’s so afraid she daresn’t. Now you’ve got more
pluck, and I do like to see a girl who isn’t a ’fraid cat.’ After that I
was afraid to refuse, so I guess I was a coward myself. We went up
to the store, and Edna bought raisins and nuts, and I bought a pine-
apple and some packages of lozenges. They don’t keep much of any
thing nice at the store.
“September 28.

“Last evening Edna and I gave a party in her room after we went
up to bed. We had nuts and raisins, and the pine-apple was cut into
slices; but it was sour. Edna ran into the dining-room pantry and
grabbed a cupful of salt. She thought it was sugar. Luckily she found
it out before she had sprinkled much on the pine-apple. Edna said
the party was great fun, but I didn’t have a very nice time. I kept
thinking what if Miss Blake should come in and ask where we got the
things.
“September 29.
“Some of us were in the front yard at recess and the gate-bell
rang. Bertha said, ‘Come in the house, quick, before Johnny comes
to answer the bell.’
“I started to go with the others, but Edna held on to me till
Johnny came up and opened the gate. We heard him say:
“‘Mrs. Abbott is away, and I don’t think there’s any ribbons or
things wanted to-day.’
“‘Good, it’s a peddler,’ said Edna. ‘Let him come in. I want some
thread and some shoe-buttons.’
“We could see a man with a covered basket, and he seemed
anxious to get in, for he pushed the gate open. I knew Mrs. Abbott
wouldn’t like it, as she never would have peddlers about, but you
can’t reason with Edna; she just made Johnny let him in. Edward
never would have done it, but he has gone home because his
mother’s sick, and this boy has taken his place a while.
“I am almost afraid the peddler was a burglar, for he looked
around so searchingly and up to every window, and made an excuse
to go a little farther in, so he could look into the arbor. I took a good
look at him, because I thought if he was a burglar I might have to
identify him before a lawyer or something; you never can tell what’s
going to happen. He had light, curly hair and a dark, yellow skin,

and a queer, hooked nose. He unpacked some ribbons and laces,
looking around all the time as if he was hunting for something. I
made up my mind that he was somebody that knew the kitchen girls
and was trying to get a glimpse of one of them. After a while he
held up a pale lavender sash-ribbon with a black edge, and said,
‘This would be beautiful for a young lady in mourning.’
“We were both in blue dresses, as he could see, and I laughed
and said, ‘I guess we wont go into mourning for the sake of wearing
that.’
“Then he asked in the most anxious way if there wasn’t any one in
mourning in the school.
“‘Not one,’ said Edna, ‘except little Elfie, and she’s got more sashes
than she can wear.’
“The man looked at her very sharply—I never saw a common
person show so much curiosity—and said, ‘Perhaps if you could
persuade the young lady in mourning to come and look at my things
she would find something she liked. I have beautiful black and silver
bracelets.’
“There was something horrid about the man, he seemed so
familiar and so eager. I feel sure he is a burglar or something
improper, and I think Edna thinks so too, though she wont own it. I
was wishing with all my might that we could get rid of him, and then
to my delight the dinner-bell rang and Johnny came running back,
and sent him out and locked the gate.
“September 30.
“I kept expecting burglars all last night, but they didn’t come.
“October 1.

“I want to tell Mrs. Abbott about the peddler, he acted so queer;
but Edna says I’m a fool to bring down a scolding and perhaps a
punishment on myself and her too.
“October 2.
“I don’t believe I will keep intimate with Edna, she seems to do so
many wrong kind of things. I am going to ask Miss Blake to let me
sit on the other side of the study-table, so I won’t be next to her any
more.
“October 3.
“Maybe I judged Edna too harshly. She came into my room to-day,
and after she’d looked around a minute she exclaimed, in the most
earnest way, ‘O, you dear, lovely Katie, if you could only know how I
love you and how I admire you!’ Then she told me that from the
very first she had thought I was the very nicest, smartest, and
prettiest girl in the whole school. It seems silly to write down praises
of myself, but it is perfectly sweet to have a girl think so much of
you. I have made up my mind it would be unkind to change my seat
and leave Edna; so I sha’n’t speak to Miss Blake about it.
“October 4.
“Knew my history, but missed in classic literature. I never do
remember whether Juno was a man or a woman.”

CHAPTER X.
A MEAN ACT.
Friday was composition day—that is, the compositions written
during the week were then, after being corrected by Miss Blake,
read aloud in the school.
The names of the writers were not given, so there was no
embarrassment of that kind. Mrs. Abbott would simply take one from
the pile and hand it to one of the girls to read aloud.
On the next Friday after that rainy Saturday four had been read,
and Mrs. Abbott handed the fifth to Ellen Leigh, one of the younger
girls, who was rather celebrated for her excellent reading. She
opened the paper, which looked exactly like the others, and read:
“EUPHROSYNE, ONE OF THE GRACES.
“O, never, dear girls, let us roam as we will,
Shall we hear conversation like this!
Her ‘gimme’ and ‘haint yer’ and ‘tickled to kill’
Are treats we’d be sorry to miss.
“And nothing so graceful our eyes ever saw
As the way which she deals with her knife,
When she grapples the handle in dainty red paw,
And piles in the food for dear life.”
There were evidently more verses, but Mrs. Abbott interrupted the
reader, reaching out her hand for the paper, and, turning with
surprise to Miss Blake, said:

“Why did you allow a composition of this character to be
presented for reading?”
Miss Blake, looking greatly puzzled, declared she had never seen it
before. She then took the pile in her hand and counted. There were
twenty-one, and twenty was the number she had corrected.
Some of the girls had laughed and shown much amusement as
the verses were read, but seeing Mrs. Abbott was really angry they
all looked preternaturally sober as she turned from Miss Blake and
slowly scanned each face before her. There was a painful silence
which Elfie broke by saying in a sorrowful voice:
“Who’s made poor Mary Ann cry?”
“Yes, who?” asked Mrs. Abbott, emphatically.
“It was that naughty song Ellen read,” said Elfie. “But Mary Ann
isn’t going to say ‘tickled to kill’ any more, she isn’t.”
Elfie was generally as particular as if she had been a scholar never
to speak in school or move about, but she seemed to feel that this
was a case that demanded her assistance. She crossed over silently
to where Mary Ann sat with her face in her hands, bravely trying to
keep back bitter tears, and, throwing her arms around her,
whispered comfort into her ears.
Mrs. Abbott, looking very stern, laid the paper between the leaves
of her blank-book and, taking up another composition, asked Lily to
read it. The girls all noticed that Lily’s cheeks were painfully flushed,
and her voice was so low that she had to be asked twice to repeat a
sentence.
Mary Ann, who had succeeded in controlling her feelings, carefully
avoided looking at Lily, for she, as well as all of the school,
suspected that she was the author of the cruel verses. It was a very
hard knowledge to have, for Lily had seemed to be her friend, and

there had been times when Mary Ann had gone to her as a refuge
and comforter when others had derided her. It is a bitter blow when
you learn that you have been deceived in a friend. If Edna Tryon, for
instance, who made no pretense of being friendly, had written the
lines, she might have borne it; but Lily! The thought overcame her,
and in spite of every effort she dropped her face upon the desk to
conceal the tears that would not be kept back. Miss Blake went to
her instantly, and, obeying a look from Mrs. Abbott, led her from the
room.
“Have you never heard,” asked Mrs. Abbott, in the pause which
followed, “of a rough diamond, and do you not know that one in the
rough is as pure a gem as the one that glistens on a king’s crown?”
Edna, sitting by Lily, who had resumed her seat, passed her a bit
of paper on which she had scribbled, “Rough diamonds need cutting.
I think we had better cut this one. I am ready to say I’ll never speak
to her again.”
But Lily crumpled the paper up after reading it, and took no notice
of the smile and shrug with which Edna emphasized her wit; but she
suddenly raised her hand.
“What is it, Miss Dart?” asked Mrs. Abbott, coldly; probably she
too felt a certainty that Lily was the author, although the verses were
not in her hand-writing.
“I want to tell you,” said Lily, struggling with a great lump in her
throat, “that I wrote that stuff, but I only did it to make two or three
of the girls laugh. I wrote it when we were playing a game last
Saturday, and I never meant any one to see it except two or three
girls who were in the room with me. I thought I tore it up when I
threw it in the waste-basket. Perhaps some one picked out the
pieces and copied the horrid stuff. I am awfully sorry. I like Mary
Ann; I really do, and I wouldn’t have had this happen for the world.
She is a rough diamond; she is, truly, and I knew it all the time while

I was so—so—so—horrid—” Here Lily broke down entirely and
dropped into her seat.
“I hope this will teach you to hold in check the sin that doth so
easily beset you,” said Mrs. Abbott, gravely. “It is a sin to trifle with
other people’s feelings for the sake of having a little amusement. I
think we must all admire your ready candor in trying to atone in a
small degree for your fault by acknowledging it. And I hope your
example will be followed at once by the person who copied your
lines and placed them with the compositions.”
A solemn silence pervaded the room, and the girls looked round at
each other; but the culprit did not avail herself of the opportunity of
confession.
“I am still waiting,” said Mrs. Abbott, but no one spoke. “Perhaps,
then, we can find out in some other way. If any one present knows
or suspects who copied these verses I wish her to raise her hand.”
No one lifted her hand.
“Some one knows,” said Mrs. Abbott, sternly, “and I think the one
who committed the offense would feel better to confess it; but if she
is not courageous enough to face us all let her come to me alone
this evening.”
But the offender preferred keeping her secret, and no advantage
was taken of Mrs. Abbott’s invitation, and she passed the twilight
hour alone, pondering sadly on the troublesome elements that were
disturbing her school.
Further reference was made to the subject a few days later, when
Mrs. Abbott announced that although she did not know herself who
the offender was she had learned that Mary Ann saw one of the
scholars put a paper the size and shape of the compositions into the
pile before school began on Friday morning.

“But no persuasions,” she continued, “will make Mary Ann tell me
who the girl was.”
“Confessing my part of that mean transaction,” said Lily, as soon
as the girls were alone together, “was no fun, and ‘the party or
parties unknown,’ as the papers I copy for papa say, who brought
me to open disgrace have my sincere contempt. I never felt so small
in all my life as I did when I saw poor Mary Ann all broken up by my
wicked poetry. I should like to have hired a mouse-hole and gone to
housekeeping in it with the front door shut and never been heard of
again. I think we have all of us been too dreadful for any thing.
Now, why have we treated her so? She is one of the smartest,
brightest girls in school; she’s as good as gold, as true as steel, and
as bright as silver—in short, she’s a rough diamond.”
“According to you she belongs to the mineral kingdom,” sneered
Edna; “but she’s as common as copper, if you’ll allow there is any
base metal about her.”
“Copper isn’t bad if you have plenty of it in the shape of pennies,”
said Katie, sagely.
“I don’t allow that there’s any base metal about her,” said Lily;
“and I don’t see why we are all so mean to her. Every one of us has
had proofs enough of her good-nature.”
“That’s so,” assented a number of voices in accord.
“And, as far as I can see, there’s nothing against her except her
back-country bringing up and her funny way of talking. Why, dear
me, dialect is all the fashion in stories; what makes us despise it so
in real life?”
“Mary Ann is getting over her dialect very fast,” said Addie Mason.
“I don’t think she talks very differently from the rest of us now.”

“No, she does not,” said Lily; “and that makes it all the worse for
me to have written that stuff; and she doesn’t eat with her knife any
more, either.”
“I think the one who put that poetry on Mrs. Abbott’s desk was
fifty times worse than you,” said Bell Burgoyne.
“So do I,” said several who were brave enough to condemn the
action, although it was generally supposed to be Edna who did it.
Her face grew very dark now.
“It’s a great row about nothing,” she said, “and I don’t think girls
who are born ladies ought to be expected to associate with such
vulgar folks.”
“I say again that Mary Ann is not vulgar; and look here, girls, let’s
rechristen her. Half the trouble is in that absurd name, Mary Ann
Stubbs; but we can change her first name to Marion!”
The girls, who were honestly ashamed of the passive or active
parts they had taken on many occasions in persecuting poor Mary
Ann, received the proposal with applause, and by general consent
the old name was dropped, and soon both teachers and scholars
said “Marion”—all but Edna; she could not be persuaded to say any
thing but Mary Ann, and, as a general thing, she took the trouble to
use the last name too, pronouncing Stubbs with a scornful emphasis
that was very bitter in its wearer’s ears.

CHAPTER XI.
THE S. C.’S.
The average school-girl loves mystery, and when Edna Tryon, who
had become so intimate with the Friendly Five as almost to be their
sixth, proposed to teach them a cipher by means of which they
might communicate with no possibility of any other persons reading
their letters they were ecstatic, and applied themselves with such
zeal to practicing the new accomplishment that soon notes of the
most enigmatical appearance were constantly exchanged between
the initiated.
It was quite generally known that this secret correspondence
existed, and much envy was excited by the obtrusive manner in
which the experts triumphed in their accomplishment.
Often in the few moments after a class had come and the girls
had taken their places a most innocent-looking note, not even
folded, would pass through several hands and its contents glanced
at by eyes whose greatest acuteness could see nothing but a
confusion of letters; but after reaching one of the initiated she would
express so much surprise or disdain or pleasure or other emotion
after reading it by the light of her occult understanding of its secret
that the other girls would pine to know its hidden and interesting
meaning too.
Some of the girls tried to work out the cipher, but no one came so
near it as Mary Ann, who was confessedly the most successful
puzzle-solver in the school. She would undoubtedly in time have
found it out alone, but she had some assistance from Katie, who,
proud of her accomplishment, once read her a sentence of the
secret message in a note she had received from Lily, and then had

thrown it down upon her table according to the ostentatious habit of
the league.
It may be stated here that the Friendly Five, in grateful
acknowledgment of their debt to Edna Tryon, had admitted her to
full companionship, and as the numerical name conflicted with the
fact of a sixth member they had changed it to Secret Cipherers,
using only the initials S. C.’s, which mysterious title caused much
guessing among the outsiders, who rather ill-naturedly affected to
believe the letters stood for “silly creatures,” and called the club by
that uncomplimentary title.
Mary Ann took the note to her room, and by the aid of the
complete sentence she had heard soon worked out the cipher to her
own satisfaction, as she had an early opportunity of proving; for the
next note that was handed around and then thrown conspicuously
down upon the floor contained, according to her key, a hidden
appointment for a candy-pull in the wash-house, by gracious
permission of the laundress.
A little quiet observation proved the correctness of her reading,
and Mary Ann was so triumphant in her discovery that she felt like
announcing it. But then, she reflected, it would spoil their sport; for
they would fear her telling it to other girls. That, of course, she
wouldn’t have done, but just for a moment she did have a desire to
have Edna Tryon know that she had become possessed of her
cherished secret. Then she recollected that others besides Edna
would be discomposed, and remembering how kind they were to her
generally—she had long ago forgiven Lily’s verses—she generously
resolved to keep her own counsel, but was not above enjoying the
idea that the boasted secret was no secret to her.
Whether or not it was right for her thus to read what was not
intended for her eyes began to trouble her after a little; so one day
when a note was thrown to her to pass to Edna, in one of the three-
minute spells which they had in school at the end of every hour,

when they were allowed to talk softly, but not to leave their seats,
she whispered, after the latter had thrown it on the floor, “May I
read it, cipher and all?”
“Make all you can out of it and welcome,” said Edna, loftily; and
after that permission Mary Ann’s conscience was quieted.
All this time Mary Ann’s uncouth ways were fast disappearing, and
her quick wit and good nature were fast winning friends for her, and
her life at school was growing pleasanter. She never forgot her
promise to watch over Elfie during Candace’s sick days, but she kept
the secret so well that no one observed that she was especially
watchful or suspected the need there was for such precautions.
As time wore on the Bellamy prize was often remembered. The
conditions and circumstances attending it were fully understood by
the new scholars, who felt that their chances were as good as any
for obtaining it.
“There ought to be no doubt about one of us S. C.’s getting it,”
said Edna Tryon, one day, in Lily’s room, “if it is managed fairly.”
“It will be managed fairly if I know Mrs. Abbott as well as I think I
do,” said Lily; “but why should it fall to the blissful lot of one of our
select circle? See there, that’s a new interpretation of the mystic
letters S. C.”
“O, that’s been thought of! Lottie Bush and Ellen Leigh asked me a
month ago if that was what S. C. stood for.”
“It’s funny, isn’t it,” said Katie, “the different names the other girls
have fitted to our letters? Something Curious, Sewing Circle,
Screaming Crowd, Sorosis Children, Six Crows, Surly Crew, Sweet
Creatures, etc., and not one has got it right yet.”
“Somebody’s sure to hit it right some day, and then we’ll have to
change it,” said Lily.

“I wish they wouldn’t find it out,” said Bell. “It’s awful fun having
letters instead of using the name outright as we did in Friendly Five.”
Edna took this as a personal compliment, as she was the
suggester of the new name, and looked very proud and self-
conscious.
“I’m glad you like it, girls,” she said. “There’s a good deal in a
name, and I’m never at a loss to think of one. But to come back to
the starting-point. The reason one of us ought to get the Bellamy
prize is because there’s no one else in the school who is likely to
excel us in any thing.”
“I’m not so sure of that,” said Lily. “We don’t know what the prize
is for. May be it’s for patience; if that’s the case some of the smaller
girls are just as patient as we are—more so, even. The same with
amiability, or good nature, or any of the virtues.”
“Pshaw! That old gentleman wasn’t goody-goody enough to set up
a prize for any such stuff,” said Edna. “He knows this isn’t a Sunday-
school. No, it’s for superiority in something, I feel sure. May be it’s
music, may be it’s languages, or some English studies. I wish I had
been here then and heard him myself.”
“If it’s English studies Mary Ann Stubbs has the best chance,” said
Lily. “She’s beyond the whole of us.”
“I don’t see,” said Edna, discontentedly, “why it is that common,
second-class folks are ’most always so smart at books. May be it’s a
sort of compensation for being low-born.”
“What is low-born?” asked Lily in an argumentative sort of way.
“Why, don’t you know? It’s common people.”
“Well, no, I don’t seem to know, in spite of your highly
grammatical explanation.”

“O, bother, how fussy you are! What difference does grammar
make when one is just talking?” said Edna, irritably.
“My, what a superior person you are, to be able to soar above
grammar that way, when I was so stupid as to suppose we couldn’t
talk without it! But, to return to our mutton pies, as we say when
mademoiselle calls us to the French class, what is low-born?”
“I don’t believe you are one half so stupid as you pretend; you
know what it is as well as I do.”
“I ought to,” said Lily, thoughtfully; “but I had an idea you were
referring to Marion, and she is distinctly high-born, as the peak
which has the honor of being her birthplace is, to speak strictly
within bounds, at least one trillion and fifteen feet above the level of
the very tallest high-water mark.”
“I was referring to Mary Ann,” said Edna, angrily, “and she is a
low, common thing, and you know it in spite of all the absurd
nonsense you are saying about it. Can’t you see for yourself that she
is just the opposite of all the rest of us?”
“Then you mean we are high, uncommon things? I am sure I’m
greatly obliged to you, but somehow I don’t feel charmed at being
described that way.”
The girls were all laughing, for Lily had a ridiculous, world-weary
manner of uttering her tantalizing remarks that was extremely
amusing, and Edna was losing her temper so fast that there might
soon have been a disagreeable scene had not a pleasant interruption
come in the form of a basket of the reddest and shiniest baldwins,
with “Mammy Candace’s best compliments, and would the young
ladies please accept the apples with her ’bligingest duty?”
It was beginning to be noticed all through the school that any
special kindness or favor shown to Elfie was always recognized by
the faithful black nurse, who invariably attempted to return it in

some quaint, humble way, and the S. C.’s were quite accustomed to
these touching thank-offerings.

CHAPTER XII.
DRESSING DOLLS.
Even if girls are as tall as their mothers they have a deep, if
unconfessed, interest in dolls; so Mrs. Abbott’s girls responded very
willingly to an appeal from a mission school in New York for fifty
dolls’ costumes. A toy merchant of benevolent disposition had
presented the mission with two hundred unclad dolls, and the
dressing of all but fifty were provided for. Mrs. Abbott advised taking
only twenty-five, but her scholars insisted on the whole number. A
very large box of silks, satins, cashmeres, and other gatherings from
kindly disposed milliners and dress-makers accompanied the dolls,
and the spare room was turned into a workshop and the spare bed
into a depository for dolls in every stage of dressing. As fast as each
one was fully dressed it was laid tenderly away in a bureau drawer.
Miss Blake and Mrs. Abbott helped the younger girls, who sewed
the garments after they were cut out. But all who had skill enough
to do it dressed the dolls without assistance, and costumed them
very much as they pleased; so there was a great variety. There were
German peasants, Roman and Breton peasants, sailor girls and boys,
infants and fine ladies, grandmothers and French nurses, Scotch
lassies and coal-black Dinahs. But each doll, whether she resembled
a princess or peasant, had clothes that would come off and go on,
and the sewing was carefully done and the button-holes were highly
commendable.
The dolls were to be given at Christmas to poor children who
might learn some lessons of neatness and propriety from the well-
made, well-adjusted clothes, and, as Mrs. Abbott said, “What is
worth doing at all is worth doing well;” so there was no slighting, or
what Marion expressively called “cobbling.”

The day scholars came afternoons to help, and really the task of
dressing the fifty dolls was lighter than it sounds, and Mrs. Abbott
admitted that the girls knew better than she did when they carried
the point of speaking for fifty instead of twenty-five.
There was a strange lack of ribbons among the scraps and
gleanings that came in the box of materials, and as it is a well-
known fact that some costumes are barren and incomplete without
sashes, shoulder-knots, and such adornments, it seemed to the busy
girls that even the plainest of the dolls needed some finishing
touches that only ribbons could give.
Delia Howland proposed taking up a penny collection, as they
sometimes did to buy popping corn; but some mental calculation
showed that even if the appeal met a favorable response in every
case thirty cents would be the sum total of the collection, and that
would go only a lamentably small way in ribbons.
After some discussion an improvement was made on the plan, and
scholars and teachers were visited by a committee of two, who
presented a neatly written sheet stating the case thus:
“Know all ladies and girls by these presents, that in this
comfortable and well-arranged house fifty small but beauteous
creatures are suffering for the want of ribbon. Many of the sufferers
have not been seen to smile since their destitution became
apparent. Others are cold and rigid in their stony despair.
“Sisters, shall such things be?
“Give, sisters, give of your abundance.
“Donations of money in sums not less than five and not more than
twenty-five cents are respectfully solicited by the committee, who
pledge themselves to see that the offerings are not squandered for
any purpose but the one mentioned.

“N. B.—A small tin bank will be placed upon the hall table, and
people who wish to give more than the largest sum mentioned
above are at liberty to drop coin in.
“N. B.—Buttons or broken sleeve-links dropped in the bank will be
traced to their source by experienced experts, and humiliation will
follow.”
This high-sounding document proved very efficacious, and Bell
Burgoyne and Fannie Holmes, the anonymous committee, found
themselves in possession of five dollars from the collection and two
dollars which were revealed by the opening of the little tin bank.
That was an unnecessarily large sum to spend for ribbon, Miss
Blake said, and proposed that the boxing and expressing back of the
dressed dolls should be paid out of it, and if any were still left after
the purchases were judiciously made it should be deposited in the
tin bank as a nest-egg, not for a rainy day, but for a day when Mrs.
Abbott’s brother should come, as he had promised to make her a
visit, and tell them stories that would, as Lily had said once, wring
their hearts, and their purses, too, and make them long to give even
a trifle of help to the unhappy creatures he told them of, whose only
crime was their being girls.
For Mr. Eaton was a returned missionary, laid aside from his work,
long before years or failing health had enfeebled him, by an accident
which had nearly destroyed his sight. He was intending to spend the
Christmas holidays with his sister, and the girls, who remembered his
visit of last year with pleasure, were glad to know that they should
find him at school when they returned from their two-weeks’
vacation.
Edna shrugged her shoulders when she heard the others rejoicing
at the prospect of having this minister in the house.
“You’re a queer lot, here,” she said. “Now, at Madame de Lanay’s
all the girls thought ministers were horrid, stiff, solemn things,

looking shocked if any one laughed and all the time poking texts at
people. Goodness! It makes me low-spirited just to think of being in
the house with one of the walking funerals.”
“Walking funerals!” and Delia Howland burst into shrieks of
laughter. “Why, Edna, my father’s a minister, and he is the liveliest,
jolliest man I ever saw.”
“Well, I’m sure I beg your pardon, Del, for not remembering there
was a minister’s daughter present, and I’m sure it’s very nice in you
to think so much of your father.”
“Yes, it’s very obliging of her,” said Lily, dryly; “but Delia’s father,
nice as he is, is not the only cheerful minister. You will have to
change your mind, if you think they are all a mournful lot, when you
see Mr. Eaton. He has had sorrow upon sorrow, Mrs. Abbott says,
and yet he is so cheerful that he brightens up the whole house.”

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Institutionalised International Law Matthias Ruffert Dr Christian Walter

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