Brölmann: Organizations and Treaties: Contractual Freedom and Institutional Constraint

Catherine Brölmann (Univ. of Amsterdam - Amsterdam Center for International Law) has posted Organizations and Treaties: Contractual Freedom and Institutional Constraint (in Research Handbook on International Organizations, forthcoming). Here's the abstract:

In a classic international setting, the conclusion of treaties is the pre-eminent tool for maintaining legal relations, and a sure sign of independent actorship. International organizations have long entered the select group of international treaty-makers, and they are now party to a large number of treaties. Organizations are also associated with treaty law and practice in other ways: notably in their role as facilitator for the conclusion of multilateral treaties by states, sometimes in such a prominent position that one could forget that technically they are not themselves a contracting party. This paper first considers some aspects of the organizing theme in the Research Handbook on International Organizations (Elgar, 2009): the distinction between the 'functionalist' and the 'constitutionalist' view of international organizations. It subsequently addresses the conclusion of treaties by international organizations. This includes international organizations' treaty-making practice; the applicable law of treaties; as well as specific questions that may arise in relation to international organizations, as opposed to states - which treaties allow for international organizations to become a party; and to which treaties is a given organization allowed to become a party? The latter question usually entails an appraisal of the 'powers' of an organization, which in turn is linked to an interpretation of the organization's constituent treaty - this is briefly discussed in the same section. The paper then looks into the role of organizations as forum for treaty processes of states. In a general sense, this forum role is part of the general topic of 'law-making' by organizations. Some specific law of treaties aspects, however, are considered here. Notably, this section draws attention to the tendency of contractual and institutional elements merging in the framework of international organizations. The final remarks include the proposition that in the treaty law and practice of organizations we see a modest shift from a 'functionalist' to a 'constitutionalist' perspective on organizations.