Jochen von Bernstorff

Procedures of Decision-Making and the Role of Law in International Organizations

There is no general body of procedural law for decision-making in international organizations. At the same time, many of the more than 230 existing international organizations (IOs) exercise public power through legislative and regulatory activities involving a myriad of decisions taken within these institutions every day. These decisions shape societal perceptions of a wide range of pressing humanitarian-, ecological, technical- and scientific issues and direct actions taken in these fields. From a rule of law perspective any exercise of public power outside a limiting framework of public law is reason for concern. According to the domestic rule of law traditions, public law is supposed to prescribe the form in which public power is exercised. It regulates the process of decision-making by establishing binding procedures, including procedural rights of participants and affected individuals. In case of unlawful exercise of power by public officials affected persons and entities have legal recourse to an independent court or tribunal. If formalized procedural constraints for the exercise of public authority are important at the national level they are all the more so at the international level since conflicts over substantive legal standards and disagreement over community values are usually more acute.

An “objective” architecture of international law: Kelsen, Kunz, and Verdross

On the basis of a critical challenge to the traditional theoretical edifice, Kelsen, Kunz, and Verdross developed their own construct of international law at the beginning of the 1920s. In contrast to Triepel and other dualists, their own “objective” theory proceeded from a unitary view of the law. From the monistic perspective, international law and national law were parts of a single, unitary legal system. Moreover, this foundation was to be used to demonstrate that international law – despite the complaints of deniers and doubters – could be conceived as a law fortified with the power of coercion. To that extent it could be subsumed under a uniform legal concept along with domestic law. International law and national law were thus part of a unitary system of norms endowed with the power of coercion. Within this overarching system, the thesis of the primacy of the law of nations was then used to place international law above national law. This objective edifice of international law reflected the confidence of Kelsen and his students in the effectiveness of the medium of international law. In the wake of the First World War, the “new” international law in the era of the League of Nations was to be available to international politics as an effective instrument for securing the peace. Constructing a unitary system The roots of the systems idea, which exerted a substantial influence on Kelsens articulation of international law, are more difficult to pin down than the clearly neo-Kantian works following his Main Problems of State Law would suggest.