Introduction

Whereas the previous chapter dealt with the various sorts of legal instruments that may be created by and within international organizations, this chapter deals with two related aspects. The first is the question of how those legal instruments are adopted. Second, one may wonder to what extent the adoption of instruments is governed and controlled by legal factors. In other words: are there possibilities for judicial review, and, if so, on what grounds? This entails in particular the topic of the validity of legal instruments. Studying the validity of legal instruments, in turn, leads almost inevitably to discussion of a third topic: the possibility of a hierarchy between various categories of legal instruments.

With all these issues, the complicated relationship between the organization and its member-states once more comes to the fore, and the complication can perhaps best be described as one of how to protect the interests of a minority of members against the wishes of the majority. One obvious way to protect the minority is through the decision-making procedure itself; another method is by facilitating judicial review, which will in turn be greatly facilitated if there is a clear hierarchy between legal instruments.

But there is more to it than that. Most decisions will somehow also engender effects outside the limited confines of the organization itself and its member-states. Obviously, this is the case when the organization decides to conclude an agreement with a third party.