Understanding Powers of International Organizations A Study of the Doctrines of Attributed Powers, Implied Powers and Constitutionalism - with a Special Focus on the Human Rights Committee Viljam Engstrom ABO 2009 ABO AKADEMIS FORLAG - ABO AKADEMI UNIVERSITY PRESS
Contents Acknowledgements Abbreviations ix xii Part I Introducing the Doctrines as a Subject of Research 1 1 The Three Doctrines and the Question of "Who Decides" 2 1.1 First Example: Who in the UN Should Authorize Peacekeeping? By What Means? 2 1.2 Second Example: Who Should Decide on the Extent of European Integration? 6 2 Focusing on the Human Rights Committee 8 2.1 The Human Rights Committee as an International Actor 8 2.2 The Human Rights Committee as a Legal Person 12 2.3 The Three Doctrines and Committee Powers 15 2.3.1 The Committee Enjoys Powers that are Functionally Necessary 15 2.3.2 The Powers of the Committee are Limited to those Attributed to It 17 2.3.3 Constitutionalism and the Human Rights Committee.. 19 3 Towards a Better Understanding of Powers 20 3.1 "A Power" vis-a-vis "Power" 20 3.2 An Evergreen or Ignored Subject? Outlining the Aim of the Thesis 25 3.3 Sketching the Research Approach 28 3.3.1 On the Politics of Legal Reasoning 28 3.3.2 Avoiding Subjectivity!...32 3.4 The Task Ahead 35 Part II Reasoning on Powers and the Image of Organizations 40 1 An Outline of a Dichotomy 41 1.1 The Idea of Attributed Powers, 41 1.1.1 Early Powers. Organizations as Standing Conferences 41 1.1.2 The Image of Independence Emerges 45 1.1.3 Attribution as a Viable Notion 49
1.2 The Idea of Implied Powers 53 1.2.1 From an Ever Increasing Enthusiasm 53 1.2.1.1 The ICJ on the Role of the UN 53 1.2.1.2 The Doctrine as a Tool for European Integration 61 1.2.2... to a More Restricted Account? 66 1.3 Concluding Remarks: Defining Powers and the Idea of "Trends" 70 2 Powers - An Inevitable Source of Debate 73 2.1 Framing the Question: On the Source of International Obligations i. 74 2.2 Powers as Constitutive of the Independence of Organizations 78 2.3 Overdoing It: Deriving Powers from the Existence of an Organization 82 2.4 Powers as Expressive of the Intent of Members 87 2.5 Overdoing it: Associating Powers with Member Views 90 2.6 Concluding Remarks: A Dual Image of Organizations 94 3 Structuring the Dichotomy 96 3.1 Internal and External Means of Guidance 97 3.1.1 Expressly Safeguarding Member Prerogatives 97 3.1.2 Principles of Interpretation as Guidance 101 3.2 The Constitutionalization of Organizations 109 3.2.1 From a Constitutional Character to Constitutionalism 109 3.2.2 Constitutionalism in Organizations 114 3.2.2.1 The Supranational Constitutionalism of Europe... 114 3.2.2.2 Constitutionalism in the WTO 118 3.2.2.3 The UN and the Idea of a World Constitution 121 3.3 Concluding Remarks: The Promise of Constitutionalism... 124 Part III Three Doctrines in Search of Content 127 1 Reconciling Attributed and Implied Powers 128 1.1 The Elusiveness of Implied Powers 128 1.1.1 Implied Powers or Implied Functions? 128 1.1.2 Different Expressions of a Functional Character 131 1.1.3 The Problems with Defining Functional Necessity 138 1.1.4 Looking for Guidance in the Constituent Instrument 143
1.2 The Attributed Character of all Powers 150 1.2.1 Attribution by Treaty 151 1.2.2 Attribution by Implication 153 1.3 Concluding Remarks: On the Emptiness of the Attributed and Implied Powers Doctrines 157 2 Breaking Up the Doctrine of Constitutionalism 160 2.1 Identifying Formal and Substantive Aspects of Constitutionalism!...162 2.2 Formal Constitutionalism and its Critique 166 2.2.1 Judicializing Organizations 166 2.2.2 Potential Problems ^.TT. 170 2.2.2.1 Separating Political and Judicial Questions 170 2.2.2.2 Politicizing the Judiciary 176 2.2.2.3 Judicializing the Political Process 181 2.3 Substantive Constitutionalism and its Critique 187 2.3.1 Democratizing Organizations 187 2.3.2 Different Sources of Legitimacy 188 2.3.3 Is Democratic Legitimacy in Organizations Possible? 193 2.3.3.1 Democratic Legitimacy Deficits 193 2.3.3.2 On the Possibility of a Demos 199 2.4 Constitutionalism as Hegemony 204 2.5 Concluding Remarks: The Virtue of Constitutionalism 210 Part IV The Powers of the Human Rights Committee 213 1 Effectiveness, Consent, and the Question of Reservations 214 1.1 Arguing for Implied Powers 214 1.2 Emphasizing Attribution 221 1.3 Using One to Oppose the Other 224 2 Meeting the Doctrines on their Own Terms 231 2.1 Which Effectiveness? 232 2.2 What Consent? 237 3 Constitutionalism and the Human Rights Committee 240 3.1 Arguing in Favor of Judicialization 242 3.2 Potential Risks with Judicialization 246 3.2.1 The Committee Is Politicized 246 3.2.2 Disputes over Civil and Political Rights are Overlegalized 249
3.3 Democratic Legitimacy and the Committee 254 3.4 On the Difficulties of Democratization 257 3.4.1 Introducing Democratic Elements to the Committee. 257 3.4.2 Is There a Universal Conception of Human Rights?... 263 4 Concluding Remarks: Three Dichotomies and the Determination of Human Rights Committee Powers 269 Part V General Conclusion 274 1 A Recapitulation I 274 2 Contributions to Understanding Powers of Organizations 281 2.1 Revealing Different Aspects of "Who Decides" 281 2.2 In Prospect 284 Svensk sammanfattning Bibliography Index xv xxiii lxix