Research Handbook on the Law of International Organizations

Research Handbook on the Law of International Organizations

Research Handbooks in International Law series

Edited by Jan Klabbers and Åsa Wallendahl

This pioneering Research Handbook with contributions from renowned experts, provides an overview of the general doctrines making up the law of international organizations.

Chapter 8: International Organizations as Law-makers

Jan Wouters and Philip De Man

Subjects: asian studies, asian law, law - academic, asian law, european law, human rights, intellectual property law, international economic law, trade law, public international law, politics and public policy, human rights, international politics, international relations


Jan Wouters and Philip De Man INTRODUCTION The purpose of this chapter is to analyse the law-making processes of international organizations and the impact thereof, particularly in the light of the functionalism-constitutionalism dichotomy and agency theory. The former distinction has been dealt with rather extensively earlier in this volume by Jan Klabbers and essentially juxtaposes the claim of international organizations to such rights, privileges and authority as are necessary to fulfil their functions, and the call for more control over these organizations. The constitutionalist approach is more recent and has been developed mainly in reaction to apparent flaws in the functionalist model. There are two strands of constitutionalism (de Wet, 2006): one emphasizes the existence of a number of universal core values such as human rights that permeate every level of the world legal order, the other rather focuses on the possibility of controlling international organizations through various provisions in their constituent charters. Agency theory, on the other hand, is a socio-political and microeconomic theory (Ross, 1973: 134–139) that can and has been applied equally well to political science and international relations.1 It will be discussed briefly in a separate section below. Afterwards, we will elaborate on the basic premises underlying the attribution of law-making powers to international organizations. We will then proceed to discuss how agency theory compares to the classic doctrines of functionalism and constitutionalism in explaining the lawmaking methods of international organizations and the decisions of their judicial organs. The same approach will be applied in...

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