Orfeas Chasapis TassinisWhat law should apply to contracts concluded between international organizations and private parties? Probing the concept of a ‘right’ to party autonomy, this chapter employs a Holfeldian framework to unpack the perspectival dimension of this age-old problem. It argues that international organizations may be at liberty of choosing the law applicable to their contracts, but domestic legal orders are not necessarily under an obligation to recognize that choice as effective. Arguably, however, deference to party choice is due in the context of arbitration. Yet, the frequent absence of party choice puts pressure on arbitrators to make principled choices on applicable law. Given the lack of clarity on how these choices are supposed to be made, the ‘closest connection’ test is put forward as perhaps the best safeguard for objectivity and predictability.

This chapter introduces the problem of theorizing international organizations. It breaks down the problem to two parts: the structural relationship between international organizations and their members and conceptual relationship between these institutions and other entities in international law, including states and non-state actors. The first relationship concerns whether international organizations should be analyzed as legally distinct from their members. The second relationship relates to international organizations’ rights, obligations, and capacities in international law, assuming that they are legally distinguishable from their members. The chapter concludes by clarifying how advancing a doctrinal legal theory is understood by this book, as well as the methodology that will be employed in that regard.

If assessing the existence of a corporate entity is meaningless before establishing the presumed existence of its members, we should then first investigate what is supposed to make these members irreducible to begin with. I discuss two broad philosophical outlooks in that regard. The first understands individuals as naturally irreducible, organic or soulful, entities. The second treats individuals themselves as organizations of a miniature size, and in that sense as artificial entities. The first approach essentially poses an insurmountable barrier to the possibility of genuine corporate existence; the second is more accommodating. Rather than suggesting which approach is correct from a philosophical perspective, this chapter extracts from the aforementioned discussion a more nuanced way of thinking about the problem of corporate existence in general, setting the stage for revisiting how we theorize international organizations.

Having discussed the main limitations of current approaches in theorizing international organizations, this chapter goes on to investigate their core assumptions about the state. These are the notions that the state can be analogized to the ‘natural’ person of domestic law and that it forms an opaque and closed-off unitary actor. This chapter goes on to explain how this image may inadvertently distort how international organizations are theorized – from how we are to understand the relationship with their members to more technical questions of customary international law. Concluding this chapter, I suggest that theorizing international organizations should proceed from an altogether different premise. This is the idea the state itself is an artificial entity rather than a somehow naturally irreducible one.

This chapter critically examines how international lawyers have conceptualized the structural relationship between organizations and their members. First, it argues that popular accounts behind the notion that international organizations enjoy a personality that is opposable to non-members rest on problematic, and ultimately unproven, assumption. Next, the chapter explores the idea of volonté distincte. This is the notion that international organizations must exhibit a will of their own before they can be thought of as distinct from their members. The chapter zeroes in on the discipline’s most commonly employed test in this respect, namely checking the capacity of an organization to adopt decisions without the consent of all of its members. It argues that, on closer inspection, this test turns out to be incoherent and cannot serve the purpose it was devised for.

This chapter zeroes in on the relationship between international organizations and customary international law. First, it explains why and to what extent international organizations can contribute with their practice to the formation of customary international law. This chapter argues that the practice of all the organs of an international organization should count towards the formation of new customary norms, with the caveat that this practice should not be weighed separately in terms of its representativeness. Next, this chapter revisits the problem of the extent to which customary international law applies to international organizations. It argues that in principle these institutions are bound to the same extent by custom as states are, with the caveat that they will often derive different rights and obligations from it, given their varied factual circumstances. The chapter then explains how this would apply in practice by looking at human rights and immunities in relation to international organizations.

This chapter argues that the prevalent way for theorizing international organizations cannot properly account for the conceptual relationship between these institutions and states. At closer inspection, the popular treaty/contract versus subject/constitution frameworks for looking at international organizations address only the structural relationship between these institutions and their members. Nevertheless, one cannot simply assume that international organizations count as states for legal purposes just because they enjoy a legal personality that is distinct from their members, or because they share some relevant similarity with them. Equally important problems arise with analysing international organizations as merely another name for their member states acting together, and thus reducing the former to the latter. This view tends to disregard the fact that international organizations are often membered by entities that are neither states nor international organizations. Followed consistently, it also undermines the supposed distinct legal existence of these institutions.

This chapter brings together the threads of Chapters 8 and 9 to advance an alternative theoretical foundation for international organizations. First, it explains why we should understand the state as an artificial rather than as a natural construct, even for the purposes of international law. It traces states’ emergence back to a national community’s capacity for self-description through socially grounded rules of transformative re-description. Doing so, this chapter unveils the inherent openness of international law to admitting any other institutions that can also be traced back to this capacity. Thus, it recasts the state as just one institution among a family of such entities. All these entities, including international organizations, are equally admissible by default in international law without the need for any legislative intervention to that effect.

How can we make up our minds on whether or not international organizations are different from the sum of their parts? Taking a step back from doctrinal analysis, this chapter explores how the challenges that international lawyers have faced in that regard correspond to broader themes in philosophical discourse on ontological reductionism. This chapter suggests that questions of existence are inherently relative in the sense that they only make sense when considered in relation to other entities that are already admitted as non-redundant. Thus, the key to assessing the distinctiveness of international organizations is to first uncover the rationale that international law employs in buttressing their members as ‘real’ entities and then examine whether it can be equally applied to international organizations.

This book addresses two interrelated problems regarding the legal nature of international organizations in public international law. The first problem concerns whether and why these institutions can be thought of as legally distinct from their members. The second problem pertains to the content of international organizations’ legal personality, meaning their capacities, rights, and obligations, assuming that they are legally distinct from their members. To address these two problems, this book embarks on a philosophical investigation of the nature of corporate existence itself. It argues that we cannot adequately theorize the existence of any corporate entity, including international organizations, without first making up our minds as to how and why the existence of its members is possible to begin with. Thus, this book revisits deeply entrenched doctrinal assumptions about international organizations as well as their members, including, most prominently, states. Rather than dwell on how international organizations may compare to or differ from their members, this book draws emphasis on the fact that all these entities represent potentialities of communal planning and organization. The outcome is a legal theory of ‘institutional genealogy’. I coin this term to signify that both international organizations and their members ultimately rise from the same root: the capacity of an organized community of human beings to self-describe.

There has always been something paradoxical with mainstream theories of international organizations in public international law. Yet the source of the field’s many perplexities has remained somewhat elusive. Instead of adding another layer on top of existing constructions, this book has argued that the real problem lies right at the bottom. It pertains to how international lawyers have generally tended to theorize the state for analytical purposes, explicitly or implicitly, literally or fictionally. So long as we leave these assumptions about the state uninterrogated, our theories are bound to push themselves into the same analytical corner.