CHAPTER

6 Formal Intergovernmental
Organizations
Jan Klabbers
[Link]

Pages

133–151

• Published:

06 November 2017

Abstract
International law provides little support for a hard and fast distinction
between formal and informal international organizations (IOs). To the extent
that the terms are useful, it is to signify a relative value: some organizations
exhibit a higher degree of institutionalization than others or, differently put,
the mixture of formal and informal elements in any organizational design may
locate the organization on different points on a continuum between formal
and informal. This chapter explores to what extent the formal-informal
distinction affects foundational decisions: the decision to set up an
organization, to grant or withhold international legal personality, and to
endow it with specific powers. It suggests that the distinction between formal
and informal meets with little resonance in the law of IOs or, more accurately,
that while founding actors can opt for higher or lower degrees of
formalization or institutionalization, their intentions have little direct bearing
on the legal nature of the organization per se.
Keywords: Collective security, International organizations,
membership, International organizations, practice and
procedure, International organizations, resolutions, Procedural law in
international organizations
Subject
International LawLaw
Series
Oxford Handbooks
Those who design institutions, of whatever kind, will generally be torn
between two contradictory imperatives. On the one hand, there is the desire
to make the organization as effective and efficient as possible. It will be set up
in order to ‘get things done’, and to do so with as little cost as feasible, in order
to achieve maximum results. And yet, on the other hand, there is a realization
that maximum results cannot be achieved by low costs alone; it is also
important to hear what the relevant stakeholders have to say, and make sure
that those who need to be involved can be involved. In a small pizza
restaurant (this too is an organization, lest we forget) doing so may involve
nothing more than setting up an ideas box for staff suggestions; with bigger
entities, exercising public tasks may involve the creation of democratic
organs.
Hence, in any organization, there is a constant tug-of-war ongoing between
the imperative of effectiveness and the imperative of legitimacy, whether
described as technocracy versus politics,
Oakeshott’s universitas versus societas, or, different in form but similar in
inspiration, formalization versus deformalization.1 Whenever an entity is
considered too formal, ways will be invented to circumvent formal
procedures; and whenever it is deemed too informal, there will be a call to
strengthen control over decision-making, or at least a call to broaden
possibilities to influence decision-making.2 And these, typically, take the form
of formal procedures. International organizations then will exhibit both
formal and informal elements, albeit in different quantities and mixes.3
With this in mind, it is not all that plausible to distinguish between formal and
informal organizations—the latter even comes close to being a linguistic
impossibility: any chosen form will somehow be ‘formal’, if words have any
meaning.4 In actual fact, international organizations typically display features
of both formality and informality, and will do so in varying degrees. Still, there
are two break-even points on the continuum between formal and informal: at
one end, an organization that becomes too formal becomes redundant, if not
in theory then at least in practice—it will collapse under the weight of its own
formalism. At the other end, an entity that becomes too informal ceases to be
an organization.5
What complicates things further is that the choice of a precise point on the
continuum is not dictated by instrumental rationality alone. Given that politics
is a messy business, decisions concerning institutional design tend to be
influenced by numerous concerns, geopolitical, personal, or otherwise.6 Surely
no rational designer would have dreamt of giving five states a right to veto
any decisions in the Security Council; permanent membership could be
probably be justified on a rational basis (these were supposed to be the five
states with special responsibilities for the maintenance of international peace
and security7), but the veto serves no instrumental-rational purpose. It does,
however, serve an eminently political purpose: it was considered the price to
pay to get some of those five states on board to begin with and therewith give
the United Nations (UN) the chance for relevance that the League of Nations
never had. This, however, taps into political rationality rather than
instrumental rationality. Likewise, the expansion eastwards of the European
Union (EU) over the last decade cannot immediately be explained on the basis
of the EU treaties and the stated desire to form an ‘ever closer union’ between
the member states—if anything, it works in the opposite direction, diluting
such unity as there was among the original six member states.8 Yet, the
eastward expansion finds its rationale in making a return of communism
impossible by bringing a number of relatively poor states into the embrace of
the West—even at the cost of diluting the EU. And by the same token, the
involvement of the World Trade Organization (WTO) with intellectual
property rights (in the form of the Trade-Related Aspects of Intellectual
Property Rights Agreement) owes more to the lobbying of a handful of
industrial sectors than to any particular rational concern: arguably,
strengthening the World Intellectual Property Organization (WIPO) would
have been just as plausible.9
In short, international organizations are not established, and do not function,
in a political vacuum. Instead, they are set up to meet with particular
historical circumstances following the desires (and whims perhaps) of
particular actors and always have to make sure that both input and output
legitimacy, so to speak, are sufficiently guaranteed lest they become
irrelevant.10 Input legitimacy depends, in part, on formal characteristics: for
example, will all member states have a say in decision-making; and are
parliaments and perhaps courts involved in controlling decision-making
processes? Output legitimacy, on the other hand, depends predominantly on
the work the organization does and whether it leads to desired results.
International law, it would seem fair to say, treats all organizations as ‘formal’,
regardless of their precise degree of formalization, provided a certain
threshold of ‘organizationhood’ is met. Where exactly the threshold is placed
is debated, but the term ‘informal international organization’ is, legally, close
to meaningless: at best it functions as a shorthand way of indicating that the
entity concerned is not highly formalized. But it does not mean, contrary to
the suggestion implicit in the term, that there exist two categories of
international organization, subject to two distinct international legal regimes
or, worse still, subject to two distinct normative regimes one of which
(relating to formal entities) would be international law, while the other
(relating to informal entities) would be something else—which would raise
serious questions as to what that ‘something else’ could possibly be.
This chapter will therefore treat the formal–informal distinction as one of
degree within international law, merely signifying that some organizations
have attained (or suffer from) a higher degree of institutionalization than
others. On the highly formal end of the continuum one can find entities such as
the EU, the UN, and the World Bank, although here too elements of informality
are present, and sometimes very visibly so, such as the informal arrangement
that the president of the World Bank will be American.11 On the more informal
end of the continuum one can find entities such as the Council of the Baltic Sea
States or the Contact Group on Piracy off the Somali Coast, although here too
some formalities will be present, if only in relation to such questions as who
gets to preside meetings, how administrative matters are taken care of, the
right to attend meetings, and who gets to launch initiatives. Typically, all
organizations occupy a position on the continuum between formal and
informal, and much the same even applies to the individual organs of
organizations: the UN Security Council too displays both formalization and
deformalization, or informality perhaps.12 Examples of the latter include the
increased relevance of Presidential Statements (not mentioned in the UN
Charter), the way the voting procedure over time has changed to make
abstentions by permanent members possible, and the well-known ‘pre-
cooking’ of decisions by the permanent members prior to involving the
elected members.
It is sometimes suggested that ‘informal’ equals ‘extra-legal’, but this must be
rejected, at least for two reasons. First, it may be doubted whether it is even
possible to establish an international organization on an extra-legal basis. The
claim is sometimes heard with respect to the Organization for Security and
Co-operation in Europe (OSCE) and the Financial Action Task Force (FATF),
but in both cases the claim is less than plausible. The OSCE works much like
any other international organization: it has a constituent document, organs
and programmes, staff, headquarters, and operations in a number of states. To
claim that it is extra-legal would somehow mean that it remains outside (and
above) the law. Surely however, were the OSCE to be engaged in wrongdoing
it could not escape being held responsible by claiming that it is extra-legal;
and surely, being held responsible cannot depend on the self-characterization
of an entity to begin with. And while the FATF is a strange creature, set up by
the G7 and located within and administered by the Organisation for Economic
Co-operation and Development, it too functions much like a regular
organization.13
Second, even if it would make sense to claim that an entity would somehow
remain outside the law, such entities can still display greater or lesser degrees
of formalization. The FATF seems fairly strongly formalized: it has a
Secretariat, it meets at regular intervals, there are procedures to provide for
the presidency and vice-presidency, et cetera. The most curious aspect of its
existence is perhaps that its life-span is not unlimited: it operates on
mandates that are valid for a number of years. This may be seen as a sign of
de-formalization (if no longer deemed desirable, it can easily be disbanded),
but that only strengthens the general point that all institutional structures will
combine elements of the formal and the informal.
The law of international organizations is too vast a topic to be
comprehensively covered in a chapter such as this.14 Instead, I will explore to
what extent the formal-informal distinction affects foundational decisions: the
decision to set up an organization, to grant or withhold international legal
personality, and to endow it with specific powers. These are not the only
topics that could be discussed, nor are they even, for the everyday life of an
international organization, necessarily the most relevant: it may well be
argued (as will be suggested below) that international legal personality is not
all that important. They do however have a bearing on the threshold between
‘organizationhood’ and ‘non-organizationhood’, and therewith merit attention
in a chapter on ‘formal international organizations’.

Why Create an International Organization?

Theorists of international relations or world politics have presented various

possible reasons why states may wish to set up an international organization
and, often enough, these reasons tend to be traceable to the positions those
theorists occupy on international relations generally.15 So-called realists
generally pay little attention to international organizations; one of the classic
texts of the genre hardly mentions them16 and, to the extent that realists do
pay attention to international organizations, they tend to treat them as
epiphenomenal and having little influence on the behaviour of states. The one
exception realists generally allow for is that of the military alliance: such
alliances are considered as useful vehicles for the furtherance of state
interests,17 even if most realists would tend to see military alliances as fleeting
forms of cooperation, useful only until the next shift in the balance of power.
All this follows directly from the basic premise of realism: states are engaged
in a struggle for survival, and therefore only interested in increasing and
cementing their absolute power. As a consequence, realists have little patience
with the formal–informal distinction: if organizations are by definition
epiphenomenal or close to epiphenomenal, then it hardly matters how they
are set up. Formalities, moreover, will have to give way to political realities: to
the limited extent that realists would form an opinion on the formal-informal
distinction, they would hold that power trumps procedure.
Liberal institutionalists, as the label suggests, are less dismissive of
international organizations.18 They agree with realists that international
affairs are about power, but differ on two counts. First, for institutionalists,
power does not only come out of the barrel of a gun, but may also include
economic or social power. Second, they hold that a relative (as opposed to
absolute) increase in power may also be considered satisfactory. Thus, for
them, international organizations can play a useful role in getting things done:
they can help create stable expectations; and they can help reduce transaction
costs. The result, though, is highly instrumental: if the same—or better—can
be achieved by other means, then states may be tempted to opt for such other
means. Not surprisingly then, it is in this tradition in particular that
discussions on the extent of formalization and questions of institutional
design tend to be most prominent.19
A less (or perhaps differently) instrumental approach is offered by
constructivists. Their basic premise is that the global order is a social
construct: norms and institutions help structure the world and give meaning
to it. In this view, international organizations are useful as forums for
discussing and influencing opinion, or as places where standards for
behaviour can be created, monitored, and maintained. Organizations,
moreover, can learn and adapt, and come to play a role of their own in world
politics that is no longer solely reducible to the aggregate or mean interests of
their member states. Here then, there may be close attention for insights from
academic disciplines such as organizational sociology.20 That is not to say that
constructivism ignores other factors: leading constructivists have observed,
for instance, that several organizations have predominantly been created with
a view to protecting the domestic status of political elites in their member
states;21 thus, organizations can be put to political use.
In a sense, the perspective of international lawyers is closest to
constructivism. International law conceptualizes international organizations
as independent creatures with an identity of their own, often (though not
invariably) symbolized in the possession of international legal personality.
Most international lawyers would agree with the view that international
organizations are established by their member states in order to perform
certain tasks that those member states are unable or unwilling to perform on
their own. According to the leading theory of functionalism,22 then,
international organizations are almost by definition working for the common
good, and should not be hindered in their work: this would explain, for
example, such phenomena as the recognition that international organizations
may have implied powers (as will be discussed below) and will typically be
granted tax breaks and immunity from suit before domestic courts.
With some tasks, the need for collective action or management seems quite
obvious: it is next to impossible for state A to guarantee that parcels sent from
it arrive soundly at their destination in state B without B’s cooperation, and
with 200 states, such cooperation is probably best achieved through an
international organization. While it is not unthinkable to have a network of
identical bilateral agreements between 200 states relating to postal matters
(after all, the law on extradition, for example, is still largely structured along
bilateral lines), it was realized early on that an institutional form would much
facilitate things. Likewise, the management of international or transboundary
waterways, railway traffic, and other forms of communication is no doubt
much easier to achieve through an institution than through series of bilateral
agreements. It is hardly a coincidence that the first organizations arose,
during the nineteenth century, in relation to transport and
communication.23 As a result, many have held that cooperation on technical,
non-divisive, non-political issues, might be easiest to achieve,24 and
functionalist integration theory predicted that eventually, technical
cooperation might ‘spill-over’ into other walks of life. This too was based on a
constructivist insight avant la lettre: states would over time learn to
appreciate the values of cooperation and come to act accordingly.25

Legal Personality

The law of international organizations is not governed by a single universal

legal instrument nor even by a clear and universally accepted set of customary
international legal rules. Typically, organizations have their own ‘internal’
systems of rules, while their relations with the outside world tend to be
governed by international law—the same international law, by and large, that
relates to the activities of other actors operating in the international sphere.26
The question of when and whether an international organization comes into
existence is answered on the basis of general international law, and there is
widespread consensus among international lawyers that the criteria set by
international law are neither strict nor precise. Generally speaking, it would
seem that the literature accepts a set of four requirements: international
organizations, so it is suggested, are typically (1) set up between states, (2) on
the basis of a treaty, with (3) at least one organ which (4) is supposed to have
a distinct will from the organization’s member states. I will briefly discuss
these below, as well as two other possible criteria that are sometimes
mentioned in connection with the legal existence of international
organizations: recognition and the public nature (vel non) of the
organization’s tasks. Before doing so, however, the confusing relationship
between existence and legal personality of international organizations needs
to be discussed, because it is especially on this point that symbolic battles
between formalization and deformalization often play out: those who
advocate a low degree of formalization often also (and not surprisingly)
advocate that the organization not be given international legal personality.
While legal personality under domestic law is considered very relevant for
international organizations (this would allow them to rent buildings, hire
staff, participate in legal proceedings, etc.), personality under international
law may not be all that relevant. There is some empirical support for this
proposition: most constituent documents will either contain a grant of
personality under the domestic law of the organization’s member states or
will contain a clause on the specific legal capacities of the organization under
domestic law. By contrast, clauses explicitly granting international legal
personality have traditionally been few and far between, which might suggest
both that personality was not considered all that relevant and that a grant of
personality was considered more or less redundant. Both suggestions are
plausible.
Personality under international law is a problematic concept and, with respect
to international organizations, often considered of limited relevance. This
finds its cause in at least two related circumstances. First, organizations need
powers (competencies) to act. When a power to act externally is granted (e.g.
the power to conclude treaties), a separate grant of international legal
personality may not be required: the power to conclude treaties
presupposes—or implies—personality. The reverse, incidentally, does not
hold true: a grant of personality does not automatically imply any particular
powers.27 As a result, it is more useful (one is tempted to say ‘functional’) to
endow an organization with specific powers than to endow it with a general
grant of international legal personality that will need further elaboration in
the form of specific powers.
Second, for a long time it was thought that organizations could do no wrong:
they were created in order to help achieve the ‘salvation of mankind’ and for
this, no personality would be required.28 The one exception, generally
acknowledged, would relate to the financial institutions: in their case, a grant
of personality would at least ‘presumptively shield the member states from
liability’.29 More recently, another reason for attaching importance to
international legal personality has been put forward: under the articles on
responsibility of international organizations, adopted by the International
Law Commission in 2011, it transpires that organizations can only be held
responsible in their own right if they possess international legal personality,
as only international legal persons can engage in internationally wrongful
acts.30
The International Court of Justice addressed the question of the UN’s legal
personality in a 1949 advisory opinion brought on by the death of a UN-
appointed mediator in the Middle East. In Reparation for Injuries, it specified
that the UN was to be regarded as a legal person, both by its member states
but also, more importantly perhaps, by third states.31 That member states are
to accept the legal personality of their own creation is perhaps no cause for
surprise, although it does suggest that legal personality is not something
member states can easily withhold from their creations.
While the Court did not provide much by way or argumentation on legal
personality vis-à-vis member states, it did provide an argument as to why the
UN’s legal personality would also be opposable to non-member states. The
argument, however, is very much geared to the particular characteristics of
the UN, and thus not entirely capable of generalization. The Court applied an
inductive approach and derived the personality of the UN first and foremost
from the UN’s activities: these included treaty-making and could thus only be
explained by means of the existence of legal personality. And to bolster its
conclusion, the Court handily referred to the power of numbers: fifty states,
representing the vast majority of then existing states, had the power to bring
into being a new international legal person, whose personality would also be
opposable to non-members.
Reparation for Injuries can be interpreted in several ways. One reading,
plausible in its own right, is that it supports the proposition that eventually
the existence of legal personality depends on the legal system concerned, in
casu international law. On such a reading, the intentions of the founders may
have probative value, but will not be decisive. Alternatively, Reparation for
Injuries can be read as supporting the proposition that, to the extent that the
founders’ intentions are decisive, these manifest themselves through the
specific powers granted to international organizations. Thus, on this reading,
if an organization has been granted treaty-making powers, it can only mean
that its founders intended their creation to have international legal
personality. Since few organizations are purely internally focused, a strong
presumption persisted that organizations would almost by definition possess
international legal personality, even without an explicit provision to this effect
in their constituent treaty.32 After all, even the conclusion of a headquarters
agreement—probably the most common manifestation of treaty-making by
international organizations—would presuppose personality. And indeed,
given the scarcity of clauses granting international legal personality, it could
hardly be otherwise.33
This changed some two decades ago when, in the midst of much legal
confusion, the EU was created as a new entity without an explicit grant of
personality, giving rise to the proposition that therefore, it would not possess
legal personality. Legally the argument was never very convincing, all the
more so as that same EU was supposed to have a foreign policy and a
migration policy—both would seem highly implausible in the absence of
international legal personality, at least on the theory that such personality is
somehow a condition for action. Still, the putative legal personality of the EU
came to symbolize the abdication of sovereignty of member states, and the
argument that the EU lacked international legal personality thus acquired
considerable political traction, even if not all international lawyers agreed.
Perhaps the current law is best presented as follows. There is a strong
presumption that once an organization is created, it will be a legal person for
purposes of international law, but the presumption can be rebutted, for
example when the member states explicitly withhold personality, but this is
rare, perhaps even non-existent. It can also be rebutted when organizations
are not expected to have external affairs and have no intention of concluding
even a headquarters agreement in their own name. Rare as this may be, there
was consensus that this description fitted the Benelux for most of its
existence, until its constitution was reformed in 2008,34 and to some extent it
may apply to an entity such as the Council of the Baltic Sea States, which does
not have a headquarters agreement itself but whose Secretariat has a separate
headquarters agreement with Sweden.35 Finally, the presumption can be
rebutted (if this is the proper way to put it) if the entity in question does not
quite add up to an international organization. This is probably the most often
encountered situation: states set up an entity for cooperative purposes, but in
such a loose format that doubts remain whether the entity is an international
organization properly speaking—whatever that may mean. And if the entity
fails to meet the threshold for organizationhood, it would seem to follow that
it cannot aspire to international legal personality either. One set of examples
may include the various Committees of the Parties or Meetings of the Parties
set up under multilateral environmental agreements. These are
institutionalized in the descriptive sense of the term (e.g. they meet regularly,
have a Secretariat, and produce documentation of normative relevance) but
are often seen as falling just a few inches short of being a ‘proper’
organization.

The Traditional Elements

Entities are generally considered international organizations (formal

organizations, if you will), if they are set up by states, on the basis of a treaty,
with at least one organ that, in turn, has a will that is distinct from the will of
its member states (a volonté distincte).36 Those criteria are, however, highly
flexible, and may give rise to much oscillation between formalization and
deformalization. Intriguingly perhaps, the designation used by the founders
may provide clues as to the desired degree of formalization, but is not
considered to be of much legal relevance. Entities called Study Group or
Network may well have a looser structure than those referred to as Union or
Organization,37 but are nevertheless usually considered international
organizations and may even be explicitly endowed with international legal
personality.
Entities set up by, or involving, other international organizations may well be
international organizations, despite the general requirement that members be
states: the WTO is an example (one of its founding members is the EU), and
perhaps the most intriguing example is the Joint Vienna Institute, set up
exclusively by other international organizations in 1992 to provide training to
state officials from the formerly communist states of Eastern Europe.
Likewise, international organizations can encompass territorial units that are
not considered independent states (Taiwan, Hong Kong, and Macau are
members of the WTO), or can encompass organs of states or even non-state
entities: Interpol was created by police officials, the Bank for International
Settlements used to have private shareholders, and the European Committee
for Standardization was set up by national standardization bodies rather than
states per se.
While it is the case that most international organizations are set up on the
basis of a treaty,38 this is not invariably the case. Indeed, it is often held that
states have the choice between using a legally binding instrument and a non-
legally binding instrument, and the OSCE is often considered to be set up on
the basis of such a non-legally binding document. Other organizations have
been created on the basis of a resolution adopted by an existing organization,
and the Nordic Council was set up by parallel decisions taken by the
parliaments of the Nordic states.
The requirement that an organization possesses at least one organ helps to
distinguish institutionalized cooperation from non-institutionalized
cooperation. Put differently, a group of states meeting annually does not
amount to an organization, but the same group of states meeting annually as
the plenary organ of an organization (the organ in which all member states
are represented) does amount to an organization. Often, at least two organs
will be present: a plenary and a secretariat. The plenary will decide on
activities, while a permanent secretariat can be entrusted with recurring
tasks: preparing the agenda, sending out the invitations, providing translation,
etc.
The fourth requirement is that of the volonté distincte: at least one of the
organs ought to have a distinct will from the aggregate wills of the member
states. While the first three requirements are predominantly formal in nature,
this requirement taps into substance, and doing so immediately encounters
problems. Taken literally, the volonté distincte can only mean that the organ in
question can take binding decisions by majority vote. After all, decisions taken
by unanimity or consensus are indistinguishable from the aggregate wishes of
the member states, and with non-binding decisions it becomes problematic to
speak of a volonté, whether distincte or otherwise. Empirically, however, few
organizations (or organs thereof) can boast a volonté distincte conceptualized
in this way: the Security Council can take binding decisions, as can the EU and,
concerning air traffic over the high seas, the International Civil Aviation
Organization, but the total number of organizations that can do so is rather
small. Hence, interpreted this way, the fourth requirement would mean that
there are really only a handful of international organizations.
Not surprisingly then, this requirement is usually interpreted in a more
relaxed sense: as long as there is an impression that the organization is more
than a vehicle for its member states, it is taken to have the required volonté
distincte. This, obviously, might apply quite often: a meeting persuading a
single member state to soften its stance on topic X, Y, or Z can already be said
to have a volonté distincte in this loose sense, and perhaps this is as it should
be. After all, organizations are not just decision-making devices, but also
settings where states can socialize, debate, and aim to persuade one another:
the formal and the informal vie for prominence. More technically, even though
law-making proper by organizations remains rare, typically organizations can
and do set binding internal rules through majority decision-making: rules on
the budget, the admission of new members, or the appointment of high
officials. Such internal administrative acts (if that is the proper way to classify
them) may then be seen to manifest the volonté distincte.
At the end of the day, the four requirements mentioned play but a limited role
in the identification of organizationhood.39 As a result, additional factors
are sometimes invoked. Two of these require separate discussion: recognition
of the organization’s existence by third parties, and the possibly public nature
of the organization’s task.
Explicit acts of recognition of international organizations are rare, although
acts of non-recognition may be somewhat more common: for a long time the
USSR refused to recognize the European Economic Community (EEC), even to
the point of refusing to bring a claim after an EEC driver had caused a traffic
incident in Brussels, out of fear that pressing a claim could be interpreted as
implied recognition.40 Nonetheless, it is sometimes posited that an
organization can hardly be said to exist in any meaningful way unless others
want to engage with it. Sensible as this position is, it does not amount to all
that much: the very act of engaging with an organization presupposes some
kind of recognition. If state A concludes a treaty with organization X, this is
taken both as evidence and as constitutive of A’s recognition of X. Whereas
unrecognized states can have all sorts of relationships with each other
without this affecting the formal absence of recognition,41 such is not the case
in the law of international organizations. This reflects the fact that
organizations enjoy a secondary status in international affairs: they are formal
in nature, and they lack territory, population, and natural resources: states
may need to have ‘back channel’ relations with unrecognized states for
strategic, economic, or other reasons, but it will be very rare indeed that any
state will need to ‘back channel’ with, say, WIPO, or the World Meteorological
Organization. Either way, since engagement with an organization manifests
recognition while being constitutive of it, as a criterion to distinguish
organizations from non-organizations, or formal from informal ones, it is not
all that helpful.
The more interesting criterion would be the public nature of the
organization’s tasks. After all, it is commonly understood that private for-
profit companies cannot be seen as international organizations. If
organizations are seen as a force for the common good, as many would
intuitively accept, then insistence on a public task might be warranted. On
several occasions, courts have indeed hinted at such a conception: a local
court in Paris, the EU courts on a few distinct occasions, and the Permanent
Court of Arbitration have all held, in pertinent cases, that one of the decisive
elements behind an international organization was the presence of a public
task.42 And while an entity is perhaps allowed to make a little profit, as long as
it does so in executing a public task it must still be considered an international
organization.
Although an insistence on public tasks may work in particular settings, it is
not all that helpful as a general criterion, largely because all organizational
tasks can be seen to include a public element. Perhaps the most obvious
example of an organization having first and foremost the protection of the
interests of its member states in mind is the Organization of the Petroleum
Exporting Countries (OPEC); hence, there is some merit in the suggestion that
OPEC is an interest club or lobby group first and foremost, and should not be
considered an international organization. And yet, not only does OPEC’s
constitutional document refer to some public tasks, it is also the case that
OPEC does what it does for its member states with a view to enhancing the
well-being of those member states. Hence, it exercises a public task, no matter
how limited the ‘public’ concerned may be.43

Powers?

Terms such as tasks and functions are often used interchangeably with terms
such as powers and competencies, and not just in the literature but in the
relevant case law as well. This reflects a large measure of conceptual
confusion which, in turn, provides the space for all sorts of arguments
concerning the desired degrees of formalization or informality. Moreover, as
already alluded to, powers and functions both constitute legal personality, and
are manifestations of personality.44
Powers are generally thought to flow from delegation by member states,45 and
are usually thought to be conferred in two ways. First, powers can be granted
explicitly. Thus, the Food and Agriculture Organization (FAO) has the power
(its constitution speaks of ‘function’) to ‘recommend national and
international action’ relating to, for example, the conservation of natural
resources,46 while the powers of the World Health Organization (WHO)
include the power (again, the constitution speaks of ‘function’) ‘to promote
and conduct research in the field of health’.47 Such power grants may give rise
to interpretative debates (e.g. does the WHO’s power include the power to
conduct studies into tobacco advertising?), but their existence as such is
beyond dispute—even if the power would never be used.
Alternatively, powers can be granted by implication, the underlying
assumption being that the member states would have granted such powers
expressly if only they had thought of them. Hence, the International Court of
Justice (ICJ) has repeatedly confirmed that such implied powers arise ‘by
necessary intendment’: like express powers, they are somehow deemed to
derive from the intentions of the organization’s founders.48
The main practical question then is how such powers can be implied: what is
the basis for their implication? In the leading Reparation opinion, the ICJ
linked implied powers to the functions of the organization: the organization
has implied powers to the extent necessary to function effectively or achieve
its tasks. There are few activities imaginable that could not be seen to fall
under this broad formula, especially as the functions of organizations are
typically cast in broad terms. Thus, to provide a hypothetical example, the UN
could be deemed to have the implied power to organize Miss Universe
contests, on the theory that such contests help to bring nations together and
therewith can be expected to contribute to the maintenance of international
peace and security and the development of friendly relations among states.49
It has sometimes been argued that powers depend not so much on specific
grants or delegations by member states, but rather depend on
‘organizationhood’: once organizationhood is established, the organization
would automatically possess whatever powers it needs, unless its constitution
would explicitly prohibit it.50 The thought is not all that eccentric: it is
generally assumed, for instance, that courts have certain powers which inhere
in the judicial function, regardless of whether their founding documents refer
to them, such as the power to hear expert testimony, or the power to render
interlocutory measures.
Still, the notion of inherent powers of international organizations meets with a
few formidable obstacles. First, there are no clear indicia of organizationhood.
Hence, a debate on the inherent powers of entity X will always be vulnerable
to the argument that entity X might not even qualify, for whatever reason, as
an international organization. That may not be terribly problematic when it
concerns highly formalized entities (the UN, the EU), but will be difficult along
the frontier between organizationhood and non-organizationhood.
Second, the notion of inherent powers is hard to align with the general
relevance ascribed in international law to the intentions of the drafters of
treaties, including treaties establishing international organizations. Surely,
states would find it difficult to accept that the European University Institute in
Florence (which is set up as an international organization) would have the
power to engage in military activities due to the mere circumstance that its
constituent document does not prohibit it from doing so. The underlying
presumption with international organizations generally is, true or false, that
they follow a functionalist logic: they are set up by states in order to achieve
certain specified results, through the powers those states have delegated to
these creatures. Inherent powers simply do not fit the functionalist
model,51 unless limited to administrative matters. Thus, a claim that
organizations have the inherent power to conclude a headquarters agreement
may be plausible; a claim that they can engage in military action unless
otherwise specified is not—the latter is the sole prerogative of organizations
with a military function, whether as alliances or as peacekeeping entities.52
If powers are typically granted either explicitly or by implication, an
important additional source (in particular given the tension between
formalization and deformalization) resides in informal amendment—in fact,
there are but fuzzy lines between legal phenomena such as implied powers,
subsequent interpretation, and informal amendment. The textbook example is
the transformation of the North Atlantic Treaty Organization (NATO) since the
end of the Cold War from a defensive alliance to a global police force. This
took place through informal means, in particular the adoption of a series of
strategy documents rather than formal amendments of NATO’s constituent
document. In doing so, the parliaments of NATO’s member states were hardly
(or not at all) consulted, and much the same applies to judicial institutions.53
What applies to NATO also applies elsewhere. Kirgis has drawn attention to
the changes in the scope of activities the Security Council can undertake,54 and
others have made the more general observation that amendment can take
place formally, but that informal amendment will continue to exercise a huge
attraction for decision-makers.55
Conclusion

International law provides little support for a hard-and-fast distinction

between formal and informal international organizations. To the extent that
the terms are useful, it is to signify a relative value: some organizations exhibit
a higher degree of institutionalization than others or, differently put, the
mixture of formal and informal elements in any organizational design may
locate the organization on different points on a continuum between formal
and informal. It is doubtful, however, whether this has any immediate legal
ramifications.56
This chapter has suggested that the distinction between formal and informal
meets with little resonance in the law of international organizations or, more
accurately, that while founding actors can opt for higher or lower degrees of
formalization or institutionalization, their intentions have little direct bearing
on the legal nature of the organization per se. Legal personality under
international law is, as noted, both evidenced and constituted by the facility of
engaging in external action: an organization does not become ‘more formal’,
or ‘more institutional’ if it is granted personality, nor does it becomes less
formal or less institutional if personality is withheld. Likewise, the established
requirements for organizationhood do not seem to signify all that much: they
are too loose and flexible to allow for any strict conceptualization of the
formal and the informal.
Finally, the question of the powers of organizations is inconclusive as well. It
is generally acknowledged that organizations derive their powers from some
kind of delegation by their member states, either expressly or by implication
(or, throughout their existence, through informal amendments), with possibly
some administrative powers inhering in organizationhood. In a quasi-
Kelsenian way, it may be said that the organization is the sum total of its
powers,57 and while the sum total can be high or low (and this would seem to
depend on the institutional design), it cannot be formal or informal, legal or
extra-legal.
All this leaves unaffected, of course, that constituent documents can display
greater or lesser degrees of formalization. Some constitutions have highly
formalized amendment provisions and are thus notoriously difficult to amend:
the UN is a classic example, demanding the approval of the five permanent
members of the Security Council.58 In some cases decision-making by the
organization is subject to parliamentary control and possibly also hemmed in
by judicial review: here the EU is the classic example. In some cases there may
be strict conditions set for aspiring new members, whereas others are more
welcoming, and in some organizations the functions are open-ended while in
others they are more strictly written down. All these variations (and more)
are possible, and tend to be informed by a mixture of instrumental,
functionalist concerns and political concerns, informed by existing political
configurations. But the claim that the very existence of an international
organization in law is subject to the same variation is implausible.