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THE BUSTANI CASE BEFORE THE ILOAT: CONSTITUTIONALISM IN DISGUISE?
Published online by Cambridge University Press: 17 January 2008
Abstract
One of the better qualities of Karel Wellens's recent monograph on remedies against international organizations is that, at least nominally, his is a lengthy plea for a constitutional approach towards international organizations.1 Whereas traditionally international lawyers (and much of international law perhaps as well) would approach organizations from a functional perspective,2 in Wellens's view such an approach is no longer advisable, if it ever was: it would fail to do justice to, eg, human rights considerations, as it would often be open to organizations to argue that its functional interests ought to prevail over human rights considerations.3
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References
1 See Wellens, KRemedies Against International Organizations (CambridgeCUP 2002).CrossRefGoogle Scholar
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4 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.Google Scholar
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6 The most sophisticated of such attempts is probably Bekker, PThe Legal Position of Intergovernmental Organizations: A Functional Necessity Analysis of Their Legal Status and Immunities (DordrechtMartinus Nijhoff 1994).Google Scholar
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13 This may help explain why the present paper adopts the broad working definition of a constitutional approach as having something to do with placing limits on the possible range of activities of international organizations. Which precise limits it concerns, where those limits themselves stem from, and who gets to apply them, are all questions which will have to await answers.Google Scholar
14 Judgment No 2232. The Tribunal's judgments are easily accessible at <http://www.ilo.org/public/english/tribunal> (last visited 6 Oct 2003).+(last+visited+6+Oct+2003).>Google Scholar
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16 Then again, the Lockerbie case never lived up to its promise and was withdrawn from the ICJ in 09 2003.Google Scholar
17 The CWC is helpfully reproduced in (1993) 32 International Legal Materials 800.Google ScholarFor a useful overview of the OPCW (including its institutional aspects), see Myjer, EPJ ‘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 Myjer, EPJ (ed) Issues of Arms Control and the Chemical Weapons Convention (The HagueMartinus Nijhoff 2001) 61–139.Google Scholar
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21 Ibid, para C.
22 Ibid. 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.
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24 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.Google Scholar
25 See ‘The Role of the Director-General’, statement by US permanent representative Mahley, Donald A, 23 04 2002, available at <http://www.state.gov> (last visited 6 Oct 2003).+(last+visited+6+Oct+2003).>Google Scholar
26 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, Amerasinghe, CFThe Law of the International Civil Service As Applied by International Administrative Tribunals, 2 vols (OxfordClarendon Press 1988)Google Scholarand Akehurst, MBThe Law Governing Employment in International Organizations (CambridgeCUP 1967).Google Scholar
27 See In re Bustani, above n 14, para 7.Google Scholar
28 Art VIII, para 46 CWC.Google Scholar
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31 See In re Bustani, above n 14, para 10.Google Scholar
32 Ibid, para 13.
33 Ibid, para 14.
34 Ibid, para 16.
35 Ibid, para 17.
36 Ibid, paras 17–18 and dispositif.
37 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 Franck, TMNation Against Nation: What Happened to the UN Dream and What the US Can Do About It (OxfordOUP 1985), at 265–6. The US only rejoined in the autumn of 2003 after almost two decades of absence.Google Scholar
38 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. The OPCW had referred to Jugdment No 209, In re Lindsey (no 2), (1973).Google Scholar
39 Szasz has argued that occasionally political decisions may be challenged incidentally before administrative tribunals. See Szasz, PC ‘Adjudicating Staff Challenges to Legislative Decisions of International Organizations’, in Hafner, G et al. (eds) Liber Amicorum Professor Ignaz Seidl-Hohenveldern in Honour of his 80th Birthday (The HagueKluwer 1998) 699–720.Google Scholar
40 See In re Bustani, above n 14, para 10. See also above, n 36.Google Scholar
41 See Singh, NTermination of Membership of International Organisations (LondonStevens & Sons 1958), at vii.Google Scholar
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44 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 Koskenniemi, MThe Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (CambridgeCUP 2002), esp at 494–509.Google Scholar
45 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.Google Scholar