International Organizations as Creators of International Law: A Good Thing? A Reply to Jan Klabbers

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It has long been accepted that international organizations have rights and duties under international law. They can enter into treaties, incur international responsibility, and pursue claims against member and non-member states for violations of international law. Whether and when international organizations also play a direct role in the creation of customary international law is a question that, until recently, garnered very little attention. In the current issue of EJIL, I argue that international organizations can and do so play such a role in two sets of circumstances. The first is customary international law that regulates interactions between states and international organizations as well as among international organizations—that is, topics like immunity, treaties to which international organizations are parties, and the responsibility of international organizations under international law. The second is when international organizations engage in the same kinds of activities that states engage in and run the risk of incurring international responsibility, just like states do. Thus, for example, through its activities related to peacekeeping, the United Nations can contribute to international humanitarian law.

In this blog post, I focus on the question that Jan Klabbers raises in his response: is the world—and are the people who inhabit it—better or worse off if international organizations can create customary international law? In his view, international organizations’ participation in customary lawmaking would not be “a good thing,” either for “people of flesh and blood” or for the legitimacy of the international legal system. International organizations are undemocratic, he points out, and the combination of immunity and international courts’ limited jurisdiction means that their actions are rarely subject to judicial review of any kind. Admitting such entities to the “club” of actors who can make customary international law renders customary international law less attractive by making the international legal system even less democratic than it already is. Klabbers argues that this cost to the legitimacy of international law could be tolerable only on the assumption that international organizations are “inherently benign.” But, of course, they are not. Examples of international organizations causing serious harm are all too common.

I share Klabbers’s concern about the practical and systemic consequences of legal arguments; these are essential questions. But I do not share his negative assessment of the impact of customary lawmaking by international organizations. In my view, bringing international organizations into the fold—affirming that they are both bound by and creators of customary international law—constitutes an improvement over the status quo, both for individuals who are affected by their conduct and for some aspects of the legitimacy of the international legal system. Right now, international organizations are not engaging much with customary international law as it applies to themselves, at least publicly: they have said relatively little about the extent to which customary international law regulates their conduct, in most cases neither expressly acknowledging nor expressly rejecting such obligations. While the International Law Commission was developing its Draft Conclusions on Identification of Customary International Law, the European Union alone repeatedly and emphatically took the position that it can contribute directly to the formation of customary international law. (As I explain in my article and in prior work, statements that indirectly address these issues are more common.)

Access to effective remedies is one place where greater engagement with customary international law by international organizations would likely improve concrete outcomes for individuals. Consistent with their general reticence to address their own obligations under customary international law, international organizations have generally not acknowledged customary international law obligations to afford effective remedies. Sachi Schuricht and I have exhorted international organizations to break their silence—to affirm such obligations and to contribute to the development of customary international law on both procedural and substantive aspects of these obligations. To do so, international organizations would need to carefully evaluate their own conduct. They would need to confront the possibility that their existing accountability mechanisms fall short of any plausible interpretation of their obligations to afford effective remedies—and to reform those mechanisms accordingly. International organizations would need to be prepared to publicly defend their views and their practices against criticism from the human rights community, including scholars, activists, and UN special rapporteurs, among others. In light of the pressures on international organizations to be upstanding members of the international community and what we know about how sustained and structured dialogue can improve human rights outcomes within states, it seems likely that such engagement would lead to more and better remedies for individuals harmed by international organizations.

As for Klabbers’s other concern—the legitimacy of the international legal system—there are at least two dimensions along which it is strengthened by bringing international organizations into the fold. The first of these is generality. When the legal system allows gaps and leaves important actors wholly or partly unregulated, its legitimacy suffers. The law shouldn’t facilitate the creation or perpetuation of Guantanamo Bays, entities that are (or purport to be) carved out from national and international law alike. Another dimension is efficacy in regulating conduct. Participation in the development of rules can foster a sense of ownership over the applicable rules and thereby bolster voluntary compliance. The result is closer congruence between rules and conduct. To be sure, there is room for debate about how different dimensions of legitimacy should be weighed against each other. At a minimum, the overall consequences for the legitimacy of the international legal system are mixed.

The law matters. As Klabbers reminds us, “[l]egal rules, of whatever provenance, typically allocate costs and benefits, whether tangible or intangible.” But lawlessness matters too: the absence of legal rules also allocates costs and benefits. The political context and practical consequences of legal arguments that seek to insulate international organizations from customary international law, including those that Klabbers has advanced, also merit attention and careful analysis.

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