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The precise status of the European Union in international law has never really been settled, and this applies to its predecessors (the European Economic Community (EEC) and European Community (EC) in particular) as well. What is clear, it seems, is that the Union is not a state as commonly conceived. It lacks its own territory and it lacks a population it can call its own, therewith failing to tick the two formal boxes when it comes to statehood.1 Moreover, the European Union is not generally recognized as a state, even though its attitudes and legal order sometimes suggest that statehood might be a close and reasonably accurate analogy. But if the European Union is not a state, then what is it? The most common classification is that it is an international organization, yet this is often accompanied by the caveat that it is an organization unlike any other. Traditionally, this has been captured in a variety of ways. Thus, for some, the European Union is the archetype of a supranational organization. It is held to be a species of the genus “international organization,” but one where decision making is more centralized than in others and actually takes place not so much between the member states but above them. This claim is then often accompanied by the statement that there is really only one example of such a supranational organization: the European Union.
Likewise, the European Union is sometimes said to be an international organization sui generis, in a class of its own. According to this line of reasoning, while it is an organization, it does not resemble other organizations in all respects and, if the sui generis label is taken seriously, may even not be an international organization at all. This label then reveals conceptual paucity: the European Union is placed in a category whose contours are undefined and within which it might not fit that well. Sometimes the European Union is deemed to be an international organization but one that is of a higher nature than others. This presupposes that there are sliding scales of “organization hood,” with some being more developed than others. Some might constitute merely rudimentary forms of interstate cooperation, but the European Union, so the argument goes, would be at the other end of the spectrum and can be seen as a model for other international organizations to emulate. Neither of these labels is very satisfying: they each create a category of one, and if that is the case, then perhaps the category may not be all that well chosen. I explore a different route. Instead of trying to fit the European Union into an existing category I aim to rethink that category. While one of the brilliant aspects of the Union is that it allows observers to make their own classification (and here it is useful to remember that those versed in domestic law or political science may find yet other ways to characterize the European Union), it does cast some doubt on the wisdom of the enterprise. Maybe the problem is not only that the Union is uncategorizable, maybe it is also that the label “international organization” is not all that well considered, to begin with. Maybe the European Union’s existence should force the community of international lawyers to rethink both the very concept of international organization and, related to this, the discipline’s main theory concerning international organizations: the theory of functionalism. In what follows, I will first address the standard definition of international organizations and the theory of functionalism before discussing why the status of an international organization may be deemed attractive. Thereafter, the chapter focuses on the European Union.
Defining International Organizations
There is no airtight definition of “international organization” available in international law, and the concept of the international organization comprises an enormous variety of disparate entities. These range from military alliances, such as NATO, to public cartels (OPEC, and also, in their own way, the various commodity organizations) and from financial institutions, such as the various investment banks, to predominantly academic enterprises, such as the European Forest Institute. Likewise, in form, these entities can be radically different. The UN, on the one hand, is highly structured, the Council of the Baltic Sea States, on the other hand, is a loose collection of cooperating states which, for want of a better label, is sometimes also considered as an international organization. While lacking some degree of formalism, the various meetings of the parties or conferences of the parties set up under multilateral environmental agreements are sometimes seen as international organizations. A case can be made that simply because some organizations are set up explicitly on the basis of an instrument considered to be no legal in nature (such as the Organization for Security and Co‐operation in Europe (OSCE)) does not entail that for that reason alone, they ought not to be regarded as international organizations. In short, the concept of an international organization is a broad church accommodating a wide variety of rather different actors. This broad approach owes much to the absence of a definition, beyond the purely formal. The literature is united in thinking that there are three, or perhaps four, main elements that are characteristic of international organizations. These elements stem, it seems, from an inductive analysis: scholars have looked at what they held to be international organizations, drawn comparisons, and singled out the elements those entities appear to have in common.
The first of these common elements is that international organizations are created - typically but not invariably – by states. The second that international organizations are typically set up on the basis of treaties. The third that, although most will have more, international organizations are generally deemed to possess at least one organ. This serves to distinguish the organization from mere regular interstate meetings: if there is an institutional pattern, then it probably is an international organization. These three elements are purely formal in nature, and can be verified with relative ease. If two or three states meet, decide to create a common organ, and do so by means of a treaty, the resulting entity will be regarded as an international organization, regardless of what the organization is supposed to be doing or how it will perform its tasks. For this reason, perhaps, some have advocated the fourth element, introducing a more substantive consideration: the organization should possess a will of its own, separate from the will of the member states (a volonté distincte). While to some extent this is captured in the element of there being at least one organ, it is nonetheless not quite identical: the idea behind the volonté distincte is to make sure that the “proper” organization is differentiated from the state vehicle. Yet, this is also highly problematic: once thought through it would entail that the only proper organizations are those which can tell member states what to do, even if those member states are unwilling to comply. In other words: it presupposes an organization which is, first, capable of taking decisions binding on the member states, and second, capable of taking such decisions by majority vote (or any other mechanism which does not give each and every member state a veto: hence, unanimity and consensus are disqualifying factors). Thus seen, very few organizations will actually qualify as “proper” organizations: the European Union, part of the UN (the Security Council in particular), perhaps the International Civil Aviation Organization, and maybe a small handful of others. As a result, this fourth element is usually not taken all that literally and functions more as a reminder that organizations are different from regular meetings of states. Be that as it may, once an international organization exists, it is deemed to operate along functional lines. The powerful theory of functionalism explains that international organizations (lacking territory, after all) are not set up along territorial lines but in order to fulfil certain functions that are delegated to them by their member states. The functions and the powers necessary to give effect to them are deemed to be conferred on the organization, and both member states and nonmember states are expected not to interfere with the exercise of these functions and powers. This finds its normative justification in the thought that the functions of international organizations are generally considered to comprise the global common good. It is this contribution to the common good that justifies, for example, the proposition that international organizations are usually immune from suit and exempt from taxation and that their officers enjoy privileges and immunities as well. In short, the functioning of the organization should not be impeded. Much the same justification applies to the implied powers of organizations: following the International Court of Justice (ICJ) in the classic Reparation for Injuries opinion, these have been held justifiable precisely in order to enable the organization to exercise its functions. The theory also comes with limits to what organizations can do. As Bekker put it with brilliant brevity, an international organization “shall be entitled to (no more than) what is strictly necessary for the exercise of its functions in the fulfilment of its purposes.” This is problematic because, if indiscriminately applied, this would mean that even organizations with a nasty purpose should be given free hands. Yet, functionalism has never been able to distinguish properly between “good” and “bad” organizations, as organizations are by its definition meant to contribute to the global good. Where this contribution is substantively doubtful, functionalism can resort to a higher level of abstraction: all organizations embody cooperation between states, and since cooperation between states is generally a good thing, it follows that international organizations are generally a good thing too, no matter how nefarious their purposes may be. The law and theory relating to international organizations, then, conspire to create a very broad concept of international organization. Some observers denied the organization hood of the Warsaw Pact and Comecon for largely political (substantive, value‐based) reasons, but since an overtly political argument is not available, this had to be dressed up: Comecon and the Warsaw Pact were thus sometimes regarded as nonentities because they were dominated by a single member state. Likewise, most works on international organizations have difficulties.