The European Journal of International Law has started a new initiative. Each issue of the Journal will begin with a ‘Foreword’ – supposed to provide a detailed overview, or ‘state-of-the-game’ picture about an area of international law. These will be written by experts in each field. Professor Weiler explains here.
The first ‘Foreword’ has been written by Jan Klabbers on the theory of functionalism in international organisations law. You can see the full article here. Broadly, Klabbers argues that all international organisations (and by extension lawyers, practitioners and academics) have always adhered (maybe even subconsciously) to the theory of functionalism. In brief, functionalism is a principal-agent theory. The principals (collections of states) pass over certain functions to the agent (the international organisation). In order to carry out these functions, the organisation is granted immunity under international institutional law.
This structure has obvious implications for third parties affected by the organisations activities. Most recently (and Klabbers writes about this is at some length) the cholera outbreak in Haiti which according to many reports (not least the UN’s own investigation!) is directly attributable to Nepalese UN Peacekeepers.
Calls for accountability, however, have fallen foul of functionalist theory which provides for immunities for the UN. The argument goes: if the UN was not privileged and immune from lawsuit, it simply could not perform the functions that states have asked it to perform. Class action lawsuits against the UN in the New York courts have reaffirmed UN immunity and dealt a severe blow to Haitian families calls for accountability.
In terms of ‘post-conflict law’, the jus post bellum has touched on accountability issues as part of a project to reform the laws of occupation. The jus post bellum emerges into a situation where there is no consensus on what obligations attach to actors (unilateral or multilateral) in transitions. Clearly, as international organisations play the main role in international post-conflict reconstruction – there should be a re-think about what constituencies UN peacekeeping missions are accountable to.
Set against functionalism, the jus post bellum might be developed as part of the global governance discourse seeking to impact UN reconstruction missions. However, as a matter of positive international law, the success of this project would seem, as ever, to depend on the will and interest of nation states. At present, the legitimate diversity of opinion seems to indicate that functionalism will be with us for some time yet. The task for international lawyers, however, and as Klabbers himself says, is to take part in its transformation.