A. The ‘International’ Element: Purpose and Contract

The first element of an international organisation is that it is ‘international’. This does not speak to the territorial scope of its activities, but rather reflects the fact that these organisations owe their existence to binding agreements (almost invariably treaties)Footnote ²⁶ struck between StatesFootnote ²⁷ under international law. It is this intergovernmental collaboration which distinguishes international organisations from other forms of international association, such as non-governmental organisations or transnational corporations.

The agreements establishing international organisations represent a careful balancing of rights and obligations at both a horizontal level (between the contracting States) and a vertical level (between those States and the new organisation). Thus, for example, the States will delegate certain powers to the organisation and establish mechanisms by which those powers are to be exercised (vertical) while also allocating financial obligations and agreeing to recognise certain acts of the organisation as valid and binding as between themselves (horizontal). Since the earliest discussions of the nature of international organisations before international courts, it has been recognised that—as with any binding agreement—their establishment entails the surrender of a certain degree of sovereignty, which States are unwilling to relinquish lightly.Footnote ²⁸ These sovereignty costs vary. At their most benign, they may involve the acceptance of an obligation to contribute financially to the organisation, or a commitment to recognise certain organisational acts as binding within fields of technical cooperation. But they can also involve more intrusive commitments, such as the surrender (inter partes) of rights under customary international law.Footnote ²⁹

These costs are not borne altruistically. Rather, they can only be explained by reference to the purposes which States expect these organisations to achieve. To use an imperfect analogy, the pursuit (and eventual attainment) of an international organisation's goals operate as a form of consideration which States receive in exchange for the surrender of a measure of sovereign autonomy.Footnote ³⁰ On the vertical level, the organisation's purposes also operate as the basis for, and limits of, the delegation of certain functions by the States to the organisation, forming a principal–agent relationship in which these purposes demarcate a careful balance between powers delegated and powers reserved.Footnote ³¹ The consequence of these contractual origins is that the purposes of an international organisation, and the means by which they may be pursued, are negotiated, carefully calibrated and, above all, finite.

B. The ‘Institutional’ Element: Purpose and Constitution

The second element of an international organisation is that it is ‘institutional’. The key requirement here is independence; that is, international organisations have a single, autonomous will distinct from that of their members, rather than acting collectively on behalf of each of them.Footnote ³² This is not to say that they are free from all constraints, or enjoy the plenary powers of States.Footnote ³³ What it does mean is that, as the Permanent Court of International Justice (PCIJ) observed, within the constitutional and functional limits laid down for it by its creators, an international organisation is free to exercise its powers to their full extent as it sees fit, in pursuit of its purposes.Footnote ³⁴ This independence is essential for two reasons. First, it allows international organisations to take decisions without the imprimatur of each of its members at every juncture.Footnote ³⁵ Second, the value of international organisations as a form of international cooperation depends on their autonomy, as it is their independence from any individual State, and their centralisation of action, which enables them to resolve collective action problems and minimise transaction costs.Footnote ³⁶

Certain institutional requirements flow from this autonomy, notably the necessity of independent organs through which this will may be exercised on a continuous basis.Footnote ³⁷ However, an institutional framework can only go so far in enabling an international organisation's autonomy. It is here that purpose once again takes on a central role, as the exercise of independent will depends on an organisation possessing an understanding of its purpose(s). Its will must be capable of being directed at something. Without an awareness of its own longer-term objectives, an organisation would lack the capacity to assess the merits of any course of action, leaving it in an aimless stasis. In this sense, the purposes of an international organisation, given to it by its creators, serve as a vivifying force that transforms its legal institutional structures—the bones of the organisation—into a living institution capable of independent action.

In light of this institutional element, it is clear that alongside their contractual dimension, international organisations also have a constitutional dimension, insofar as the agreements establishing them are intended to constitute a new internal legal order which is both empowered and circumscribed by the purposes it is designed to achieve. It is this aspect which prompts the tendency to describe the agreements establishing these organisations using constitutional terminology, a linguistic choice which brings with it certain hermeneutic assumptions.Footnote ³⁸

C. The Useful Tension in the Purposive International Organisation

This, then, is the tension inherent in international organisations. They are contractual, in the sense that they are born out of a carefully negotiated outcome as to the purposes they are to pursue and the limited means by which they are to pursue them. But they are also constitutional, in the sense that, by design and necessity, the agreements establishing them serve as the ‘organic law’Footnote ³⁹ of autonomous legal orders, suggesting the need for a degree of adaptability so as to sustain and facilitate the operation of a complex legal and institutional ecosystem over time.

This tension serves a useful function by squaring the circle of establishing an actor that is equal parts independent and restrained. International organisations enjoy an independent will, but not a truly ‘free’ will; unlike the will of a natural person, which might be directed towards any number of objectives, their ends are externally fixed. The key to this apparent paradox is the organisation's purpose, which sits at the intersection of these two contradictory elements. It delimits the parameters of an international organisation's delegated functions by defining the finite goals that it is designed to achieve; the goals for which its States have agreed to bear certain sovereign costs. At the same time, it facilitates independent action within those parameters, serving as the North Star towards which the new institution's autonomous will can be directed and which will ultimately shape its normative agenda. The difficulty, of course, is that this important tension between the contractual and the constitutional is fragile. It depends on the maintenance of a careful balance between the two by the organisation, its member States, and those other actors (international and domestic courts, for example) who may interact with it.

This contract–constitution dichotomy has long been observed in both theoryFootnote ⁴⁰ and practice.Footnote ⁴¹ But it is particularly relevant here as it not only explains the central (and conflicting) roles that purpose plays when it comes to international organisations, but is also the paradigm which shapes the rest of this inquiry. It explains why, when seeking to understand the legal rights and obligations of these actors, it is possible to speak about purpose using the language of both facilitation and limitation. This article traces the way in which these two halves of the essential tension at the heart of international organisations compete in international law, and the point at which their balance was upended.

A. International Organisations Prior to World War II

The pre-League history of international organisations is typically told as a history of nineteenth-century public international unions,Footnote ⁴⁵ although equivalent models of cooperation can be found in both the ancient worldFootnote ⁴⁶ and the Middle Ages.Footnote ⁴⁷ These were the organisations established by States to coordinate action in various fields of cooperation, from communication to transboundary rivers, as the globalising force of the Industrial Revolution brought the world closer together. At the time, however, these organisations were not seen as the stirrings of supranational constitutionalism; rather they were an expression of sovereignty. This is apparent in Reinsch's early account of the new international unions, in which he draws a clear distinction between an idealistic cosmopolitanism and its vision of a global community, and the more limited internationalism of international organisations.Footnote ⁴⁸ A globalised world brings with it new global risks, he reasoned, which States are unable to confront alone. Thus he concludes that the ‘nation state still remains in the center of the stage’ and ‘merely utilizes these international organizations for the benefit of its own citizens and subjects’.Footnote ⁴⁹ This rationalisation of international organisations as an expression of sovereignty recognises these early modern institutions as the continuation of ancient forms of cooperation; namely, the establishment of organisations through the agreement of independent political units, with the voluntary surrender of a degree of sovereign autonomy being exchanged for collectively-achieved benefits in areas of mutual interest.Footnote ⁵⁰

The end of World War I saw a reshaping of the international institutional landscape, with the advent of the League of Nations and new examples of international cooperation—notably the ILO—with the capacity to directly impact areas of economic and social policy within States. At the same time, a new locus of transnational authority arrived in the form of the PCIJ, and the question of the nature of international organisations and their competences quickly entered the docket of the World Court. While this sudden rise in supranational organisation might seem like the logical time for a more constitutional understanding of international organisations to take root—and, indeed, did see a wider shift in scholarship and practice towards the language of constitutionalismFootnote ⁵¹—the PCIJ's jurisprudence on the subject maintained a careful balance between the contractual and the constitutional, remaining largely State-centric while making incremental concessions to institutional needs where strictly necessary. From its earliest decisions on the subject, the PCIJ was at pains to emphasise that when it came to interpreting their constituent instruments, it was uninterested in arguments relying on the sui generis nature of international organisations, whether those arguments favoured more restrictive interpretation,Footnote ⁵² expansive teleological approaches,Footnote ⁵³ or external political or social theories.Footnote ⁵⁴ As far as the Court was concerned, these institutions were established by treaties, and it was simply interested in what the text of the treaty said.Footnote ⁵⁵ In this sense, the Court was clearly sympathetic to the contractual side of international organisations, and had little interest in legal innovation.

Nevertheless, the Court's reasoning also reflects an awareness that these treaties established legal orders which were expected to function autonomously, often in spite of constituent instruments which could be laconic or ambiguous. Thus, for instance, it was willing to recognise that the ILO may exercise certain ancillary powers where they were essential to the performance of an express function.Footnote ⁵⁶ Likewise, it was willing to draw on the purpose or spirit of particular institutions where necessary to resolve patent ambiguities arising from their constituent instruments, such as the upper limit of the jurisdiction exercised by the European Commission of the Danube (and the division of competences between the Commission and Romania as the territorial power)Footnote ⁵⁷ or the process and responsibility for the referral of questions from the Mixed Commission for the Exchange of Greek and Turkish Populations to the President of the Greco-Turkish Arbitral Tribunal.Footnote ⁵⁸ These were, however, only limited concessions to the constitutional side of the international organisation paradigm, drawing on teleological considerations to resolve ambiguities or lacunae only where such a resolution was essential to the exercise of the existing express powers or functions of the institution.Footnote ⁵⁹

In fact, despite hints of teleological reasoning, the PCIJ was careful to maintain a balance between the contractual origins of international organisations and their constitutional needs. It recognised that there was a link between an organisation's competences and its purposes, and that the latter could be instrumental in resolving ambiguities regarding the former, but was also conscious of the fact that those same competences and purposes represented finite limits on sovereignty negotiated by contracting States.

B. The International Court of Justice and the United Nations

The establishment of the UN was greeted with an overwhelming sense of optimism and expectation.Footnote ⁶⁰ It was perceived not merely as the establishment of a new international organisation, but rather as a turning point in human history. US lawmakers, who had only a few decades earlier united to prevent US participation in the League of Nations, welcomed the Charter as ‘the greatest document of its kind that has ever been formulated’, ‘a turning point in the history of civilization’ and ‘the greatest and most hopeful public event in history’ foreshadowing ‘inexorable tides of destiny … towards a golden age of freedom, justice, peace and social well-being’.Footnote ⁶¹

For its early apologists, the UN represented not merely a functional means to an end, like those international organisations that had gone before it. Rather, the achievement of international organisation was an end in and of itself. This was mirrored in the work of international lawyers of the time. Hersch Lauterpacht, for instance, equated the establishment of a ‘general political organisation of mankind’ with the entire cause of international law, considering it to be a means by which the law could be perfected.Footnote ⁶² The relevant question was not how this new vision of world organisation would fit within international law, but rather how international law could be reformed to fit with it.

These winds of change were not immediately apparent at the ICJ. Indeed, in its first advisory opinion, the Court's approach to the Charter was one of caution and continuity, following in the PCIJ's textualist footsteps and treating it as it would any other multilateral treaty, requiring ‘a decisive reason’ to depart from any ‘interpretation other than that which ensues from the natural meaning of the words’.Footnote ⁶³ The one hint of the changes to come, however, was in the individual opinion of Judge Alvarez, who set out his own vision of an emergent ‘new international law’ in which international organisations formed part of a ‘universal international society’ and must develop ‘in accordance with the requirements of international life’.Footnote ⁶⁴ According to Alvarez, this ‘new international law’—which he developed through a series of judicial opinionsFootnote ⁶⁵—required limits to the ‘absolute international sovereignty of States’Footnote ⁶⁶ and existed ultimately for the purpose of bringing about the ‘well-being of the individual and of society’.Footnote ⁶⁷ Most importantly, Alvarez regarded the ICJ's role in this new international law as one of facilitation. The fact that the new law was ‘in formation’ required the ICJ ‘to develop it’ through its jurisprudence, while consciously avoiding the international law of the pre-War years.Footnote ⁶⁸

As it happened, Judge Alvarez did not have long to wait to see his vision of a ‘new international law’ begin to take shape. Within a year of this first opinion, the Court issued its second—its landmark Reparations opinion—which had been requested by the General Assembly following a series of attacks against UN agents during the Arab–Israeli War in 1948. Faced with the financial burden of medical and funeral expenses and indemnity payments to bereaved families, the General Assembly sought the Court's advice as to whether the UN was capable of bringing an international claim against a State responsible for the injury of one of its agents, for damage caused to either the UN itself or the victim.Footnote ⁶⁹

This opinion is widely remembered for the Court's affirmation of the UN's international legal personality, and its consequent capacity to seek reparation for its own losses.Footnote ⁷⁰ For present purposes, however, it is the Court's second conclusion that is most relevant; namely that the UN was capable of claiming reparation for damage suffered by its agents on their behalf.Footnote ⁷¹ In other words, the Court attributed to the UN the right to exercise diplomatic protection vis-à-vis its employees, which had until then solely been the responsibility of States with respect to their nationals.Footnote ⁷²

It is the reasoning used by the Court to arrive at this conclusion, in a situation where the express terms of the Charter offered no answer, that is of particular interest. According to the Court, the ‘rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice’.Footnote ⁷³ This is, in essence, a restatement of the functional view of international organisations that the PCIJ had adopted in European Commission of the Danube,Footnote ⁷⁴ although it is notable that the Court acknowledged the possibility of implicit purposes, in addition to implicit powers or functions. Building on this foundation, however, the Court then set out its understanding of the doctrine of implied powers:

Considered in isolation, this doctrine has a compelling logic that can be tied back to orthodox methods of treaty interpretation. According to the Court's formulation (as opposed to its application) of the doctrine, a power may only be implied where it is necessary for the performance or achievement of an express power, function, or purpose.Footnote ⁷⁶ According to this logic, an implied power is not invented to fill a lacuna; rather, it was always there to begin with as an integral, if implicit, component of the parties’ express terms, without which those terms would be meaningless.Footnote ⁷⁷ In this purest of forms, therefore, the doctrine of implied powers is little more than an application of existing notions of good faith treaty interpretation.Footnote ⁷⁸ As a form of legal reasoning, it is ultimately based on textual, not teleological, considerations.

However, while the Court's justification for its doctrine of implied powers may have been expressed in terms of necessity, its actual reasoning reflects a different reality. According to the majority, the UN's implicit power to raise protective claims on behalf of its agents was necessitated by the purposes and functions of the UN, which required them to work in ‘disturbed parts of the world’.Footnote ⁷⁹ Given the requirement of independence incumbent on UN employees,Footnote ⁸⁰ and the risk that their home States may be unable or unwilling to exercise diplomatic protection in connection with their UN missions, the majority concluded that the UN's member States must have intended to grant the fledgling organisation the legal capacity to bring diplomatic claims previously enjoyed only by States. Footnote ⁸¹

The difficulty with this claim, of course, is that such a power is not necessary. The majority's reasoning conflates the necessity of overcoming a problem with the necessity of a particular solution.Footnote ⁸² Thus, it is hard to disagree with the fact that UN agents in conflict zones should be able to rely on some form of protection. One solution to this problem was an implied power of functional diplomatic protection. This option was no doubt ideal from the UN's perspective,Footnote ⁸³ and was certainly an efficient solution to a legitimate problem facing the organisation, but it was not necessary. For example, one simple alternative would have been for the UN to assure its agents of reparation under their employment contracts and then claim that amount as damage to the organisation from the offending State.Footnote ⁸⁴ This would offer the same protection, in an arguably ‘more direct, more effective and more immediate’ manner, while remaining squarely within the power of the organisation to bring claims in its own right.Footnote ⁸⁵ Alternatively, if member States did want to resolve the problem by delegating their power of diplomatic protection to the UN, it was always open to them to do so by express agreement.Footnote ⁸⁶ Thus, while it may have framed its reasoning in the language of necessity, the test advanced by the Court in practice was one of expediency, resting not on the textual basis that an asserted power was essential to the fulfilment of the express terms of the Charter, but rather on the teleological ground that such a power would enhance the UN's ability to fulfil its mission.

The significance of this jurisprudential development was not lost on the Court's judges. Judge Alvarez, unsurprisingly, welcomed the decision as according with his vision of ‘the new international law’, describing it as an ‘exercise of the power, which I recognise the Court as possessing, to develop international law and to contribute to its creation’.Footnote ⁸⁷ By contrast, a number of his fellow judges were less impressed, describing the majority reasoning as a ‘liberality of judicial construction’ transcending the text of the CharterFootnote ⁸⁸ and an example of reasoning de lege ferenda which ‘introduce[d] a new rule into international law’.Footnote ⁸⁹ Nor did its significance escape the attention of contemporaneous scholars, who presciently identified the ‘far-reaching consequences’ of the new principle of construction laid down for the CharterFootnote ⁹⁰ and suggested that its ‘astonishing amount of progressive restatements of international law’ would see the opinion ‘referred to more and more’.Footnote ⁹¹ Perhaps most telling of all was the reaction of the UN itself, which hailed the decision as one which ‘laid down a principle of construction’ and established principles that would ‘lay a firm foundation for future development’.Footnote ⁹²

This disconnect between the Court's language of necessity and the teleological approach that it applied in practice was further entrenched when the Court returned to the subject of implied powers five years later in its Effect of Awards opinion. The Court was asked whether the General Assembly could refuse to implement awards made by the recently established UN Administrative Tribunal,Footnote ⁹³ requiring it to consider whether the General Assembly had the implicit power to establish a tribunal capable of issuing judgments binding on the UN itself. The UN's immunity before national courts and the lack of any express mechanism in the Charter for resolving ‘inevitable’ staff disputes risked leaving aggrieved staff members with no means of redress, a situation the Court considered to be inconsistent with the ‘expressed aim of the Charter to promote freedom and justice for individuals’. Consequently, the Court concluded that such a mechanism was ‘essential to ensur[ing] the efficient working of the Secretariat’, and that the power to establish it arose ‘by necessary intendment out of the Charter’.Footnote ⁹⁴

As with its reasoning in Reparations that the UN's agents needed some assurance of protection in the field, this initial conclusion of the Court appears entirely reasonable. This is particularly so with respect to the establishment of the Administrative Tribunal, since the Charter itself confers on the General Assembly the express power to establish staff regulationsFootnote ⁹⁵ and ‘establish such subsidiary organs as it deems necessary for the performance of its functions’.Footnote ⁹⁶ Yet once again, as in Reparations, the Court conflated the necessity of overcoming a particular deficiency in the Charter with the necessity of a particular solution (viz the establishment of a tribunal capable of binding the UN). Certainly, the creation of such an independent judicial body may well have been the solution most aligned with the abstract organisational telos of promoting ‘freedom and justice for individuals’, but an ideal solution is not necessarily an essential one. In fact, as Judge Hackworth noted in his dissenting opinion, such an implied power was arguably in conflict with the terms of the express power of the Assembly to create subsidiary organs, which must by definition be subject to the Assembly's oversight.Footnote ⁹⁷

Unlike its reasoning in Reparations, however, the Court confronted this issue directly, examining the argument that ‘an implied power can only be exercised to the extent that the particular measure … can be regarded as absolutely essential’.Footnote ⁹⁸ In a marked softening of their own threshold for implied powers, the majority concluded that while:

It is difficult to reconcile this approach with the Court's own ‘necessary intendment’ test for implied powers. Not only did the Court acknowledge that the power to establish a tribunal capable of binding determinations was not essential to resolve the gap in the Charter's express terms, it also clarified that the capacity to determine the necessary scope of implied powers rested with the organisation itself, rather than the Court.

Thus, in the space of five years, the ICJ succeeded in first weakening, and then severing, the textual connection between an international organisation and its purposes on the one hand, and its member States on the other, with the Effect of Awards opinion completing the legal development the Court had started in Reparations. Through the combined action of the two opinions, the Court established a new teleological approach to international organisations whereby legal outcomes could be justified, not on the basis that they were essential to operationalising a particular textual provision in a treaty, but because they were capable of advancing the wider objectives of the organisation.

C. The European Court of Justice and the European Economic Community

Barely a decade after the establishment of the UN, another major project of supranational governance was beginning. In 1957, six European States signed the Treaty of Rome, bringing into existence the EEC,Footnote ¹⁰⁰ with the aim of establishing a common market between them, harmonising their economic policies and activities and bringing about economic expansion, stability, a rise in living standards and closer relations.Footnote ¹⁰¹

Overseeing the ‘interpretation and application’ of the Treaty of Rome was the ECJ, continuing in a role it already fulfilled within the European Coal and Steel Community.Footnote ¹⁰² As with the ICJ in the early years of the UN, the ECJ's jurisprudence was instrumental in shaping the new organisation. The most important of these early cases were Van Gend en Loos Footnote ¹⁰³ and Costa v ENEL,Footnote ¹⁰⁴ two landmark decisions which reshaped the new European legal order within the space of two years by establishing the doctrines of direct effect and supremacy. These totemic cases have generated a voluminous body of literature in the decades since they were decided,Footnote ¹⁰⁵ and the purpose of this section is not to revisit these decisions in detail. Rather, its purpose is to see how the teleological turn that began in the early years of the UN is replicated and amplified in the experience of the EEC and the ECJ.

The organisation that is now the modern EU is, of course, something of an outlier within the universe of international organisations. The degree to which it has succeeded in establishing a self-contained constitutionalised system has seen it described as more akin to a form of supranational federal order than an international organisation.Footnote ¹⁰⁶ Likewise, Community lawyers have, since its earliest days, been at pains to insulate the EU from wider international law.Footnote ¹⁰⁷ There is, of course, a certain sleight of hand to this. The foundations of its constitutional edifice remain treaties concluded under international law, and its self-contained system can only remain so for as long as its members are willing to operate within it, and to settle their differences within the boundaries of that system without resorting to the general law of State responsibility.Footnote ¹⁰⁸ Even so, there is no denying that the EU today defies easy comparison to other international organisations.

As it happens, it is this sui generis nature that makes the example of the EEC and the ECJ valuable to the present analysis, since the very features which today distinguish it were a product, rather than a cause, of the teleological turn. The Treaty of Rome was not originally intended to be a vehicle for wider integration; it was the comparatively modest solution that emerged after the more radical attempt to establish a European Political Community had failed in 1954.Footnote ¹⁰⁹ This was a treaty establishing an international organisation focused on economic integration; it was ambitious, certainly, but it was a limited ambition, at least on the part of its original members who ‘had not collectively embraced the notion of European constitutionalism’ and drew no distinction between European and international law.Footnote ¹¹⁰ Rather, the very features that now distinguish the EU from other international organisations had their origins in the early years of the EEC, when its legal service, together with the ECJ, used the reasoning characteristic of the teleological turn to construct a normative universe on the modest foundation of the Treaty of Rome. In these early cases it is possible to see a replication of the logic of the earlier ICJ jurisprudence, as well as an illustration of the full creative potential of this new teleological reasoning as a tool of institution-building.

The first of these cases, Van Gend en Loos, was referred to the ECJ under Article 177 of the Treaty of Rome—which permitted the domestic courts of Member States to seek preliminary rulings on questions relating to the interpretation of the Treaty—by the Dutch Tariefcommissie. A company, Van Gend en Loos, had challenged the application of a tariff applied to chemical imports from Germany on the basis that the rate applied was higher than the rate applicable at the time the Treaty of Rome came into effect, violating the stand-still provision in Article 12. Since the Treaty entered into force, the Netherlands had ratified a Benelux protocol which reclassified the chemical in question under a new tariff heading, resulting in the increase.Footnote ¹¹¹

It is not the ECJ's interpretation of Article 12 that is important for present purposes, but rather the broader initial principle it was asked to resolve; namely, whether provisions of the Treaty—in this case Article 12—had direct effect within the domestic legal orders of Member States. In other words, did the Treaty create substantive rights for nationals of Member States which domestic courts were obliged to protect?Footnote ¹¹² This is not a question which is resolved by the text of the Treaty, and it is telling that three of the (then) six EEC Member States made submissions to the Court insisting that Article 12 did not have direct effect, as did the Advocate-General.Footnote ¹¹³ Other than Van Gend en Loos, the only advocate for direct effect was the EEC itself.Footnote ¹¹⁴

To resolve this question, the ECJ drew extensively on the ‘spirit’ of the Treaty, including its objective of establishing a Common Market ‘of direct concern to interested parties in the Community’, its references to the ‘peoples’ of Europe in its preamble and the direct participation of individuals in organs such as the Assembly.Footnote ¹¹⁵ It concluded that the EEC constituted a ‘new legal order of international law’, the subjects of which also included the nationals of Member States on whom Community law conferred ‘rights which become part of their legal heritage’.Footnote ¹¹⁶ As a result, clear, unconditional prohibitions like that of Article 12 created a negative obligation which nationals could benefit from irrespective of its domestic legislative implementation.Footnote ¹¹⁷

This is the key innovation of the principle of direct effect. It pierces the traditional boundary between the domestic and international layers that is traditionally maintained by international law, which recognises that the question of how international obligations are implemented domestically should be resolved by the constitutional law of each State. While the idea of self-executing treaty provisions might be familiar to monist States, the idea of direct effect is anathema to dualist States who require a separate act of incorporation to integrate international obligations on the domestic plane.Footnote ¹¹⁸

The ECJ extended this new constitutional reality a year later in its decision in Costa, which similarly arose through an Article 177 referral. Mr Costa had challenged the compatibility of a law nationalising the Italian energy market with certain provisions in the Treaty of Rome, and the Giudice Conciliatore in Milan sought an interpretation of the provisions from the ECJ.Footnote ¹¹⁹ Italy, however, raised an important question of admissibility, claiming that the question before the Milanese court only involved the application of domestic law. It objected to a referral which, in its view, was asking the ECJ to determine the compatibility of an Italian law with the Treaty rather than resolve an interpretive question.Footnote ¹²⁰ Complicating matters further was the position of Italy's Constitutional Court that the principle granting prevalence to later-in-time laws was ‘inviolate’, and that the Italian Constitution did not give any greater effect to the domestic law implementing the Treaty of Rome than to the later nationalisation law.Footnote ¹²¹ This raised the prospect that in dualist States in which the Treaty was incorporated into domestic law through ordinary legislation, the effect of the Treaty could be undermined by later inconsistent legislation, a precedent that the Advocate-General suggested would lead to ‘disastrous consequences’ for the functioning of the EEC.Footnote ¹²²

The ECJ responded by turning again to the ‘spirit’ of the Treaty and its overarching purpose in creating ‘a Community of unlimited duration’ in which Members have permanently limited their sovereign rights and ‘created a body of law which binds both their nationals and themselves’.Footnote ¹²³ The force of this new law ‘cannot vary from one State to another in deference to subsequent domestic laws’, the Court reasoned, ‘without jeopardizing the attainment of the objectives of the Treaty’.Footnote ¹²⁴

Directly contradicting the Corte Costituzionale, the ECJ consequently established the principle of supremacy as a cornerstone of the new European legal order. This principle complements the direct effect of EEC law by establishing a normative hierarchy in which the new ‘Community law’ was to prevail over inconsistent domestic law. As with the principle of direct effect, the significance of this doctrine depends largely on one's constitutional context. While the constitutions of some States give primacy to treaty law over domestic statutes, for many others, the consistency of a domestic norm with the State's international obligations is irrelevant to the question of its validity and application before domestic courts.Footnote ¹²⁵

Neither of these two doctrines appear explicitly in the Treaty, yet their combined effect profoundly reshaped the relationship between the new supranational EEC legal order and the domestic legal orders of its Members. The ECJ had essentially created a new mechanism by which EEC-derived norms could be enforced through the private claims of individuals. Moreover, it co-opted domestic courts, whose decisions would typically exert a greater compliance pull on national authorities than the ECJ, to directly and preferentially enforce the organisation's norms, reducing the possibility that States might breach their new Community obligations.Footnote ¹²⁶

The relevant issue here is not whether or not this development was a desirable outcome; the answer to that will depend largely on one's response to the Rorschach Test that is the modern international organisation. Rather, as with the UN and the ICJ, the question once again is whether this reimagining of the inter-State bargain establishing the EEC was a necessary outcome arising from the Treaty of Rome and its purposes. The answer, again, is inescapably that it was not. The Treaty of Rome already contained a mechanism for resolving situations in which a Member State failed to fulfil its Treaty obligations,Footnote ¹²⁷ giving the Commission and other Members (but not individuals) the right to raise issues of non-compliance, which could ultimately be referred to the ECJ for binding determination. This is compatible with the orthodox understanding of the divide between the international and domestic planes. While States might be free to choose how to implement their EEC obligations on the domestic plane (or, indeed, to adopt potentially inconsistent subsequent legislation), they could be held accountable for any failures on the international plane, initially through the mechanism provided for in the Treaty and, ultimately, as a matter of State responsibility.Footnote ¹²⁸

In adopting direct effect and supremacy, the ECJ was not curing a fatal flaw in the institutional regime but rather was adding a parallel process, this time using domestic courts, which offered a new mechanism for the efficient enforcement of EEC norms but which was entirely foreign to the system of compliance envisaged by the original States. It was a solution which certainly enhanced the efficacy of the organisation's supervision regime,Footnote ¹²⁹ but was not essential to the attainment of its objectives.

D. A ‘New International Law’ of International Organisations?

Was this really a ‘new international law’? While the majority of the ICJ's judges may not have endorsed Judge Alvarez's open calls for judicial creativity and legal reform, their successive decisions in Reparations and Effect of Awards amounted to the same thing, marking a teleological turn in the law of international organisations which was subsequently replicated and amplified in the ECJ's early constitutionalising jurisprudence. Two salient features in particular are apparent in the experience of the ICJ and ECJ. The first is a shift from teleological interpretation to a broader form of teleological reasoning, stretching the distance between text and outcome to breaking point. The second (related) feature is the abandonment of necessity in favour of expediency as the link between purpose and outcome. These commonalities, and their implications, are explored further in Part IV.

At a broader level, this was not so much a ‘new’ international law as it was a reimagination of the place of law in international society, at a time in which that society was embarking on bold new projects of international governance. The teleological turn represented a shift from a State-centric contractual vision of international organisations, in which the law was expected to regulate a set of limited vertical and horizontal concessions of sovereignty, to an organisation-centric model of international organisations as nascent constitutional regimes, in which international law as a system was to serve a nurturing, institution-building role. It empowered the advocates of international organisations to use purpose to cloak the aspirational with the legal, offering a more efficient bridge between the lex ferenda and the lex lata. In an early defence of teleological approaches to the Charter, Judge Azevedo suggested that ‘[l]iteral interpretation will not prevail, even through the sinister adage fiat justitia pereat mundus. The aims of the United Nations must be served so that mankind may flourish’.Footnote ¹³⁰ This rejection of the maxim ‘let justice be done, though the world perish’ perfectly captures this new vision. Impartial fidelity to the law as envisaged by contracting States was no longer the order of the day; preventing the world from perishing was a more important goal, and international organisations were a vehicle by which it might be achieved.

A. The Logic of Teleological Reasoning

The use of teleology as a tool of legal argument is not itself, of course, an innovation of either the teleological turn or the law of international organisations. Purposive forms of interpretation, in particular, are familiar to both domestic and international legal systems.Footnote ¹³³ Within international law, this typically finds its form in the principle of ‘effectiveness’, often expressed through maxims such as effet utile or ut res magis valeat quam pereat.Footnote ¹³⁴ However, these concepts—poorly defined and often used interchangeablyFootnote ¹³⁵—obscure a number of distinct variations on the idea of purpose and effectiveness.

Chief among these are two interpretive principles, which could be described as absolute effectiveness and relative effectiveness. Absolute effectiveness reflects the semantic idea that legal texts are intended to convey some meaning, and so an interpretation which would deprive a text of any meaning or effect should be rejected.Footnote ¹³⁶ Relative effectiveness, by contrast, reflects the presumption that when faced with an ambiguity in the text of a legal instrument, the outcome that better effectuates the purpose of the relevant clause—or the instrument as a whole—should be preferred.Footnote ¹³⁷ Both, however, are expected to remain within the bounds of a treaty's text.Footnote ¹³⁸ These principles are now codified in Article 31 of the Vienna Convention, absolute effectiveness being captured in the ‘good faith’ requirement and relative effectiveness in the ‘object and purpose’ element of the interpretive triptych of text, context, and purpose.Footnote ¹³⁹

The early jurisprudence of the PCIJ is largely captured within these two interpretive principles of absolute and relative effectiveness. Under this orthodox approach, notions of purpose and effect played a valuable role in helping the Court to determine the meaning of an organisation's constituent instrument, and resolve ambiguities or lacunae—the upper limit of the European Commission of the Danube's jurisdiction, for instance—where essential to ensuring that express powers or functions were not negated entirely.Footnote ¹⁴⁰ Its yardstick was one of necessity, which it used to draw logical links between text and outcome. Importantly, therefore, the normative foundation on which the legal outcome rested remained the treaty itself and the consent it embodied. The post-War jurisprudence of the ICJ and ECJ, however, strays well beyond these two interpretive principles into a third, more expansive, notion of effectiveness. It does so in two related respects.

The first is a shift from teleological interpretation to a broader form of teleological reasoning. The decisions of both the ICJ and ECJ in relation to the UN and EEC are typically framed as an interpretive exercise, albeit one in which particular emphasis is placed on the object and purpose of an organisation's constituent instrument. In reality, however, the teleological turn sees the link between text and outcome break down. In Reparations and Effect of Awards, the ICJ effectively constructs new protective measures for the UN's fledgling civil service which are absent from the Charter, with emphasis instead placed on the contribution of the outcome to the performance of the organisation's mission. This is even more apparent in the ECJ's jurisprudence. While Van Gend en Loos and Costa involved the interpretation of particular provisions of the Treaty of Rome to determine whether they had direct effect, the Court's creation of the doctrines of direct effect and supremacy had no basis in the Treaty but were instead justified by reference to the overarching purpose of establishing the Common Market and supporting the functioning of the Community as a uniform independent legal order. These were not questions of the scope of an explicit power or an ambiguous provision; they were entirely new constitutional doctrines which fundamentally altered the understanding of what membership of the EEC required of Members vis-à-vis the relationship between the internal and supranational legal orders. This reasoning is still, in one sense, a form of interpretation, but has shifted from an act of ‘content-determination’ to one of ‘law-ascertainment’.Footnote ¹⁴¹

The second, related to the first, is the abandonment of necessity in favour of expediency as the link between purpose and outcome. Both the ICJ and the ECJ sought solutions that were expedient for the organisation and its purposes, rather than considering whether they were rendered necessary by the text of the constituent instrument. This development is an important companion to the new form of teleological reasoning just identified, as it establishes that it is possible for a legal outcome to be justified not only where it is an essential consequence of an organisation's purposes, or is the more effective of the possible textual outcomes arising from an ambiguity, but also where it simply contributes to that purpose or to the organisation's agenda in its own right.

The teleological turn, therefore, sees a new form of legal reasoning applied in the context of international organisations which relies on purpose as an independent normative basis on which legal outcomes can be justified.Footnote ¹⁴² A tenuous link to a treaty may be maintained, of course, since the purposes or objectives might be derived from a particular treaty provision. But even this link becomes frayed, with the ICJ's recognition in Reparations that an organisation may also have implied purposes, creating even greater distance between the original bargain of the constituent treaty and a legal outcome reached through teleological reasoning.Footnote ¹⁴³ It is unhelpful, therefore, to frame this reasoning as an exercise of treaty (or constitutional) interpretation, as this implies that the normative foundation remains the original agreement between States. In reality, the teleological turn sees the task shift from clarifying the content of a fixed constitutional law of an international organisation—aided partly by its purposes—to qualifying new powers, doctrines, or other outcomes, as ‘legal’ by reason of their contribution to attaining the organisation's purpose; or, as one judge put it in his dissent in Certain Expenses, using the organisation's purpose as ‘a legal justification for certain decisions, even if these are not in conformity with [its constituent instrument]’.Footnote ¹⁴⁴

Reduced to its simplest form, then, this teleological reasoning involves (1) the identification of an organisation's purpose; and (2) the justification of a legal outcome on the basis of its capacity to contribute to the attainment of that purpose. Importantly, therefore, teleological reasoning not only involves the identification of a purpose, but also a determination as to how it might be (or should be) attained. Whether or not this reasoning is employed as the sole basis for a decision or merely in support of it, its logic rests on the same assumption; namely that if an outcome is capable of advancing an organisation's goals, then a normative argument can be made to justify that outcome. Unlike teleological interpretation, the normative heart of teleological reasoning lies in the purposes themselves, not in any instrument or the agreement that it embodies.

B. Three Multiplicities

Once teleological reasoning is understood in this way, three complications become apparent which challenge its underlying logic. These complications—considered in turn below—suggest that while the teleological turn offers techniques for institution-building and reform, it also casts a shadow of indeterminacy over the law of international organisations.

C. The Problem (and Promise) of Purpose

Recall the dual nature of international organisations, with which this article began. Created by States to achieve particular objectives, they are simultaneously contractual creatures, owing their competences to a carefully calibrated balance between sovereignty costs and the fulfilment of specific purposes, and constitutional creatures, intended to exercise an autonomous will that is shaped and guided by the pursuit of those purposes. This complex ontology leaves international organisations vulnerable to critique on two contradictory fronts. For those who stare into the Rorschachian ink-blot of international organisations and see opportunity staring back at them, organisations will be open to the critique that they are ineffective where they fail to meet the (often lofty) expectations of their mandate. This is particularly acute in times of crisis, when the need for adaptation in response to unforeseen challenges can collide with the reality of functional limitation, as is all too familiar in the recent history of the WHO.Footnote ¹⁷⁵ On the other hand, for those who see threat, international organisations risk provoking the critique that their evolution and autonomous pursuit of their purposes imperils State sovereignty. Neither the efficacy nor sovereignty critique can ever be fully satisfied, as to resolve one is to exacerbate the other. Efficacy demands empowerment while sovereignty demands restraint.

The common thread running through both aspects of an international organisation's dual nature, however, is its purpose. Its purpose motivates the surrender of sovereignty that creates it and guides the autonomous will that vivifies it. This is the reason why teleological reasoning is seen to offer such promise in the law of international organisations; it is capable of regulating the tension between these sovereignty and efficacy critiques by taking a purpose delegated by States and using it as a basis to adapt and equip organisations to effectively pursue their objectives in ever-changing circumstances. Moreover, the regulative potential offered by purpose is not limited to its function as a tool of empowerment. It is equally applicable, albeit underutilised, as a source of obligation or restraint;Footnote ¹⁷⁶ recall, for instance, the argument in the Fourth Committee that the IBRD's lending practices should be constrained by the broader objectives of the UN.Footnote ¹⁷⁷

In practice, however, the teleological turn raises a number of theoretical and practical problems. The most obvious of these, of course—foreshadowed in the previous section—is indeterminacy. While the logic of teleological reasoning is sound in the context of an organisation with a single, expressly delegated purpose, it collapses when confronted with the complex web of potentially contradictory purposes, existing at various levels of abstraction, that surrounds international organisations in practice, and the multiple stakeholders who may well have very different visions for how those purposes should be pursued. These multiplicities raise a number of unresolved questions. To what extent, for instance, should (or must) international organisations be guided by wider systemic purposes, whether those of other organisations with similar membership or of the international community as a whole? Is it appropriate, in an ever-thickening global community, to continue to see international organisations as teleological silos, as Broches claimed to the Fourth Committee, or should we be looking to the systemic integration not just of norms, but of the objectives of different institutions? And these questions, of course, give rise to others. How are differences between these multiple purposes—explicit, implicit, systemic—to be resolved? Is it possible to speak of a hierarchy between the competing objectives of international organisations or, indeed, to identify peremptory goals towards which the efforts of the entire international community, and its institutions, are expected to be directed? The answers to these questions are beyond the scope of this article; but while it may offer opportunities for empowerment and reform, the teleological turn—for as long as these questions remain unresolved—leaves the law of international organisations with no clear benchmark by which the shape, extent and content of their legal regimes may be fixed.

And then there is the problem of States themselves. The teleological turn marked a significant reorientation towards the efficacy of international organisations which, whatever its benefits, inevitably comes at the expense of the sovereignty side of the equation. While this may not pose any difficulty where States approve of (or tacitly acquiesce to) the shifting functions of their organisations, teleological reasoning's stretching (or severing) of the link between text and outcome creates the risk of State backlash.Footnote ¹⁷⁸ It also fails to account for the fact that sovereignty concerns, and the contractual aspect of an organisation's nature, serve an important function beyond merely the placation of States; they are the ultimate source of democratic legitimacy for the powers exercised by international organisations. While teleological reasoning that seeks to align an organisation's purposes with, for instance, wider systemic goals or values, might offer the prospect of enhancing its outcome-based legitimacy, it risks weakening the source-based legitimacy that comes from State consent.Footnote ¹⁷⁹ At a more fundamental level, greater reliance on teleological reasoning as a tool of reform risks obscuring the role—and, indeed, the responsibility—of States in properly equipping the organisations they create with the powers and structures they need to effectively achieve their purposes.Footnote ¹⁸⁰