The Contributions by Jochen von Bernstorff and by Maja Smrkolj

Abstract

In order to analyse the exercise of public authority by international institutions, it is necessary not only to take a look at the power and authority granted to international institutions by their respective founding treaties – constitutions – but also to focus on how international institutions actually apply their respective powers on a daily basis. In this regard, the law in action1 is of course always substantive law (whether hard or soft law) based on certain procedures determining the way in which the substantive law is made or applied. According to Hans Kelsen, the validity of law depends, inter alia, on adherence to existing procedural requirements.2 This, however, is not only true with regard to law-making in a legislative sense, but also concerning administration. Procedure – and decision-making as a central element of procedure – is thus crucial for the legitimacy of law as such.3 These very general thoughts highlight the importance of the topic addressed by Maja Smrkolj and Jochen von Bernstorff. This comment is structured as follows: first, the content of the two papers will briefly be outlined. Second, some general remarks on the topic of the two papers shall be made, thus not focusing on the individual papers separately. In this regard, the following issues will be discussed: (1) some general aspects of the decision-making powers of international organizations (IOs) with regard to the concept of international organizations as such; (2) whether a more precise distinction between different types of IOs is necessary; (3) the necessity of differentiating between decision-making with “internal” and “external” effects in order to highlight the dualistic character of administrative law of international organizations.

Jochen von Bernstorff, Procedures of Decision-Making and the Role of Law in International Organizations, in this volume; Maja Smrkolj, International Institutions and Individualized Decision-Making: An Example of UNHCR’s Refugee Status Determination, in this volume.