The bustani case before the iloat: Constitutionalism in disguise?

International and Comparative Law Quarterly

Volumn 53, Issue 2, 2004, Pages 455-464

  Klabbers, Jan ^a  

^a NONE

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EID: 34248062150     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/53.2.455     Document Type: Article

References (56)

1. See K Wellens Remedies Against International Organizations (Cambridge CUP 2002).
2. See, eg, HG Schermers and NM Blokker International Institutional Law (3rd edn Dordrecht Martinus Nijhoff 1995), at 9–10
3. under explicit reference to M Virally ‘La notion de fonction dans la théorie de l'organisation internationale’ in S Bastid et al Mélanges offerts á Charles Rousseau: la communauté internationale (Paris Pedone 1974) 277–300.
4. Traces of a functional necessity approach can also be found in Virally's earlier L'Organisation mondiale (Paris Armand Collin 1972).
5. See Wellens, above n 1, at 14–16.
6. See also the seminal paper by M Singer ‘Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns’ 36 Virginia Journal of International Law (1995) 53–165.
7. Indeed, he often resorts to the very type of functional necessity reasoning he would so much like to get rid of. See Wellens, above n 1, eg, at 219. In all fairness though, it would seem that his main ambition was to present an analytical model for remedies rather than establish a full-fledged constitutional approach to international organizations and their activities.
8. See J Klabbers An Introduction to International Institutional Law (Cambridge CUP 2002), 36–39.
9. The most sophisticated of such attempts is probably P Bekker The Legal Position of Intergovernmental Organizations: A Functional Necessity Analysis of Their Legal Status and Immunities (Dordrecht Martinus Nijhoff 1994).
10. See also Klabbers ‘The Changing Image of International Organizations’ in JM Coicaud and V Heiskanen (eds) The Legitimacy of International Organizations (Tokyo United Nations University Press 2001) 221–255.
11. Organizations may well be constitutional without a written constitution; see, eg, JHH Weiler ‘In Defence of the Status Quo: Europe's Constitutional Sonderweg’ in JHH Weiler and M Wind (eds) European Constitutionalism Beyond the State (Cambridge CUP 2003) 7–23.
12. It is probably no coincidence that a number of authors have started to argue, without casting it in overly theoretical terms, that organizations are also bound by general international law (and thus subject to external limits on their activities). See, eg, S Skogly The Human Rights Obligations of the World Bank and International Monetary Fund (London Cavendish 2001)
13. M. Darrow Between Light and Shadow: The World Bank, The International Monetary Fund, and International Human Rights Law (Oxford Hart Publications 2003). Others have argued that specific organs ought to be subjected to judicial review, thus again displaying a constitutional approach of sorts.
14. See, eg, M Bedjaoui The New World Order and the Security Council: Testing the Legality of Its Acts (Dordrecht Kluwer 1994).
15. See, eg, WI Jennings The Law and the Constitution (3rd edn London University of London Press 1943).
16. For a critical analysis of the rule of law, see M Loughlin Swords & Scales: An Examination of the Relationship Between Law & Politics (Oxford Hart Publications 2000).
17. The Court first developed this in joined cases 21–24/72, International Fruit Company v Produktschap voor Groenten en Fruit [1972] ECR 1219, and has kept it limited to situations in which the Member States had conferred exclusive powers on the EC.
18. For a lucid analysis, see CM Brölmann ‘A Flat Earth? International Organizations in the System of International Law’ (2001) 70 Nordic Journal of International Law 319–340.
19. Judgment No 2232. The Tribunal's judgments are easily accessible at (last visited 6 Oct 2003).
20. See, eg, GR Watson ‘Constitutionalism, Judicial Review, and the World Court’ (1993) 34 Harvard International Law Journal 1–45.
21. On judicial review and constitutionalism more generally, see JH Ely Democracy and Distrust: A Theory of Judicial Review (Cambridge MA Harvard University Press 1980).
22. The CWC is helpfully reproduced in (1993) 32 International Legal Materials 800.
23. For a useful overview of the OPCW (including its institutional aspects), see EPJ Myjer ‘The Organization for the Prohibition of Chemical Weapons: Moving Closer Towards an International Arms Control Organization? A Quantum Leap in the Institutional Law of Arms Control’ in EPJ Myjer (ed) Issues of Arms Control and the Chemical Weapons Convention (The Hague Martinus Nijhoff 2001) 61–139.
24. See Ambassador Mahley's Opening Statement to the Conference of States Parties, 21 Apr 2002, available at the website of the US Department of State: . A more detailed paper outlining Bustani's activities can be found at the same site as a fact sheet titled ‘Preserving the Chemical Weapons Convention: The Need for a New Organization for the Prohibition of Chemical Weapons’ (OPCW) Director-General (dated 1 Apr 2002) (last visited 6 Oct 2003).
25. See ‘US Initiative to Oust OPCW Director-General’ in (2002) 96 AJIL 711–12, at 711.
26. See In re Bustani, above n 14, para B.
27. AJIL, para C.
28. AJIL. This other organization, so the ILOAT clarified, is UNESCO, which decided in 1999 to insert such an explicit provision in the contract with its Director-General.
29. See In re Bustani, above n 14, para D.
30. This tension is perhaps most clearly visible with respect to the Secretary-General of the United Nations. For a brief discussion, see Klabbers, above n 5, at 173–5.
31. See ‘The Role of the Director-General’, statement by US permanent representative Donald A Mahley, 23 Apr 2002, available at (last visited 6 Oct 2003).
32. Incidentally, the question of to whom staff rules etc apply does not seem to be a major preoccupation in studies of the employment law of international organizations. Cf eg, CF Amerasinghe The Law of the International Civil Service As Applied by International Administrative Tribunals, 2 vols (Oxford Clarendon Press 1988)
33. M.B. Akehurst The Law Governing Employment in International Organizations (Cambridge CUP 1967).
34. See In re Bustani, above n 14, para 7.
35. Art VIII, para 46 CWC.
36. See In re Bustani, above n 14, para 8.
37. The Tribunal (above n 14, para 9) refers to Judgment No 605, In re Madureira (1984), in which it held that its jurisdiction would not normally cover housing disputes unrelated to employment terms
38. Judgment No 967, In re Antal (1989), in which it held that choice of forum clauses are not lightly to be implied in employment contracts.
39. See In re Bustani, above n 14, para 10.
40. Judgment, para 13.
41. Judgment, para 14.
42. Judgment, para 16.
43. Judgment, para 17.
44. Judgment, paras 17–18 and dispositif.
45. There have been other clashes between Member States and Directors-General. These usually either fizzle out, or result in the person concerned not being reappointed (Boutros-Ghali comes to mind), or end with the Member State withdrawing. An example of the latter is the US withdrawal from UNESCO over American displeasure with the way UNESCO was run under M'Bow. For more details, see TM Franck Nation Against Nation: What Happened to the UN Dream and What the US Can Do About It (Oxford OUP 1985), at 265–6. The US only rejoined in the autumn of 2003 after almost two decades of absence.
46. When addressing jurisdiction though, it dismissed as ‘not applicable’ the OPCW's argument that precedent would suggest that the ILOAT has no jurisdiction to address the legality of decisions taken by legislative organs. See In re Bustani, above n 14, para 10.
47. The OPCW had referred to Jugdment No 209, In re Lindsey (no 2), (1973).
48. Szasz has argued that occasionally political decisions may be challenged incidentally before administrative tribunals. See PC Szasz ‘Adjudicating Staff Challenges to Legislative Decisions of International Organizations’, in G Hafner et al (eds) Liber Amicorum Professor Ignaz Seidl-Hohenveldern in Honour of his 80th Birthday (The Hague Kluwer 1998) 699–720.
49. See In re Bustani, above n 14, para 10. See also above, n 36.
50. See N Singh Termination of Membership of International Organisations (London Stevens & Sons 1958), at vii.
51. See Klabbers ‘The Life and Times of the Law of International Organizations’ (2001) 70 Nordic Journal of International Law 287–317.
52. See, eg, M Hirsch The Responsibility of International Organizations Toward Third Parties: Some Basic Principles (Dordrecht Martinus Nijhoff 1995)
53. A. Reinisch, International Organizations before National Courts (Cambridge CUP 2000)
54. in Dutch, R Lawson Het EVRM en de Europese Gemeenschappen (Deventer Kluwer 1999).
55. Others have generally advocated a more politically sensitive ‘culture of formalism’, on the thought that while politics will not readily accept being subjected to any rule of law, it is nonetheless important to avoid or counter decision-making of the type where the end justifies the means. See M Koskenniemi The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge CUP 2002), esp at 494–509.
56. The classic ultra vires doctrine is rather impotent when confronted with general acceptance of an act or activity by the membership of the organization. See Klabbers, above n 5, esp at 241–3.