4.1 Moving Past the Analytical Dead-End
While the four corners of theorizing international organizations are relatively easy to identify, it is more challenging to move anywhere beyond that. When should an entity be thought of as an aggregate of its members and when as an international organization? How do international organizations relate to states in the international legal system? If anything, Chapters 1–3 have argued that these problems cannot be properly conceptualized in terms of the familiar ‘all-embracing dichotomies’, which at closer inspection turn out to be neither ‘all-embracing’ nor confined to only two analytical images.
If existing solutions are analytically the best that they can be but still exhibit serious limitations, how can we move past them? Instead of trying to find a solution that better fits the current framework according to its own terms, the following pages question whether these are the right terms to begin with. The argument is that, while there is something wrong with current efforts to theorize international organizations, this ultimately boils down to how the problem has been construed in the first place. Crucially, this involves the dominant models about not only international organizations but also those concerning the state. The commonplace moves that underpin this problematic conditioning will be shown to be (1) employing a rough atomistic image of the state akin to a natural person, even if only for analytical purposes, often complemented by (2) drawing an ensuing working analogy with how domestic private law tends to conceptualize the problem of corporate existence. After explaining the origins and underlying rationales behind these moves, this chapter will explain how they lie behind many of the field’s conundrums.
That a common set of assumptions underpins much of our current theorizing efforts may not be obvious at first glance. Indeed, international organizations’ discourse features a rich syncretic vocabulary that may seem to defy neat categorization in terms of a single overarching framework. ‘Functionalism’, ‘constitutionalism’, ‘global administrative law’, or ‘international public authority’ represent only some ways in which lawyers and non-lawyers have sought to imagine these institutions. Without taking anything away from the diversity of these outlooks, the focus here will be on the underlying analytical assumptions insofar as questions of positive law are concerned. These turn out to be much more streamlined than may be initially assumed. This set of starting assumptions – perhaps not shared by all scholars in the field but potent enough to shape the discourse – will be argued to have misleadingly imposed an uncompromising initial framing, no matter how many layers of theory are then applied over it.
While these assumptions may not always be explicit, they reveal themselves more clearly once we reverse engineer the theorizing problem from the devised solutions. The first shared assumption is essentially hidden in plain sight: coming up with benchmarks to analytically distinguish international organizations from their members only makes sense if one accepts that a challenge to escape group reductionism lies at the foundation of the discipline to begin with. In other words, regardless of where one stands on the ‘treaty/subject’ binary, the debates we have so far explored exhibit a common analytical baseline, namely that by default international organizations are ‘nothing over and above’ their members.Footnote 1
Differences of opinion as to where to go from there should not obscure this shared starting point. While the treaty conception understands this starting point as insurmountable, and thus analyzes international organizations as treaties, the subject conception devises ways to move past it, arguing that international organizations may indeed rise ‘over and above’ their members from the perspective of the international legal order, provided certain circumstances are met. Simply put, both outlooks see an obstacle to the admission of international organizations in the international legal system. The difference is that the second outlook suggests that the obstacle can be, or already has been, overcome.
The main arguments for achieving this should be familiar by now. Some have linked the emergence of international organizations as distinct legal entities to ‘a radical extension of the definition of international law’.Footnote 2 Others have spoken of a ‘structural change’ that occurred in the international community at some point in the development of the discipline.Footnote 3 More recent scholarship has theorized this in terms of a new customary rule that recognized the legal personality of international organizations – as we have seen sometimes conceptualized as a rule of incorporation.Footnote 4 Regardless of individual variations, the common denominator underpinning such positions is that some change in law, however that change is construed, needs to have taken place before international organizations can be thought of as distinct legal entities in the eyes of international law.
This framing may seem appealing at first, especially as it broadly corresponds to popular understandings of the field’s historical evolution. In its general outline, this suggests a move from proto-international organizations of the nineteenth century that were thought to be hardly distinguishable from treaties, towards complex forms of governance through a sequence of evolutionary frog leaps in the late 1910s and then the late 1940s – roughly coinciding with the establishment of the League of Nations and the UN.Footnote 5 In an almost Darwinian manner, international organizations are often thought to have evolved from inanimate assemblages to protozoan and then highly complex institutions, as international life and the international legal system underwent fundamental changes.Footnote 6
Most importantly, this narrative has also influenced contemporary accounts of the field’s doctrinal trajectory.Footnote 7 The latter is often conceptualized as a series of doctrinal breakthroughs that largely mirror the field’s perceived historical development. Thus, first came the gradual acceptance by scholars that states were not the only subjects of the international legal order.Footnote 8 This was accompanied by the emergence of the International Labour Organization (ILO) and the League of Nations, along with the recognition that the latter enjoyed a legal status that was distinct from its members.Footnote 9 This was followed by arguments that took the League’s status as a basis of comparison for other international organizations.Footnote 10 At the last, and current, stage of evolution came Reparation for Injuries, which famously recognized the UN’s legal personality.Footnote 11 The reception of that opinion and the eventual expansion of its rationale to practically all international organizations represents the closing of the first ‘doctrinal circle’ in theorizing the separate legal personality of these institutions, even as critical details have remained elusive.Footnote 12
The simplified but popular narrative of progressive advancement towards legal recognition through a series of doctrinal leaps reveals something so obvious that is hardly ever questioned. This is the idea that not just the political but also the original analytical environment posed a barrier to international organizations becoming entities of their own, and that, therefore, a series of developments or ‘turning points’ were in fact decisive in ensuring that the legal system opened up to admit such new entities.Footnote 13 Hence, our ‘folk’ histories of the field’s evolution are often structured around the notion of changes in the international legal system. However, we seldom pause to ask whether these changes really needed to take place from an analytical point of view. Instead, we tend to take this for granted and then try to work things out from within that framework.
But is it actually correct to suggest that international law had to undergo such a change as a matter of law? We cannot answer this question before we get a clear grasp of the assumptions that made such a change seem necessary in the eyes of those advocating for, and occasionally against, it. This will pave the way for arguing that the problem of accommodating international organizations into the contemporary international legal system has never been at its basis analytical. It has never been analytical in the sense that no new or separate norms were ever needed to admit those institutions as distinct legal entities. Likewise, no structural change or redefinition of the international legal system needed to have occurred at a definite historical moment in the past, be it the League of Nations or the UN (without taking away anything from the broader political significance that attached to the emergence of these two institutions). Instead, the analytical possibility for such institutions was there all along, even if for some other (extra-legal) reasons it was not picked up immediately or it was initially met with hesitancy by part of the discipline.
4.2 The Heart of the Problem: Theorizing the Corporate Existence of the Members of International Organizations
4.2.1 Anthropomorphism in Theorizing the State for the Purposes of International Law
It is now time to ask: what have been the implicit assumptions that necessitated a discourse of leaps in terms of positive law in the first place? Perhaps counterintuitively, the problem lies with latent understandings of the state when theorizing international organizations, rather than with the latter as such. In this respect, an unrefined understanding of the state’s legal personality seems to have taken hold within international legal scholarship, with downstream consequences for how the possibility of international organizations’ emergence and existence have been conceptualized. This unrefined understanding has many scholars view the state as roughly analogous to the natural person of domestic law, if only for the purposes of legal analysis. In its broad outline, this model aligns with the also popular ‘billiard ball’ metaphor that treats the state as an opaque, closed-off, unitary, and irreducible unit of legal analysis.Footnote 14 In turn, such background assumptions about the state’s naturalness and fundamentality, whether explicit or implicit, have created an almost impossible analytical situation for international organizations. Within this framework, the latter have to be conceptualized either as artificial, and thus somehow less real entities, or as natural ones, and thus somehow equivalent to states. Ultimately, this framing warps the analysis surrounding international organizations as well as states, asking the discipline to prove propositions that it does not have to, while leaving others beyond its reach.
It may seem puzzling to suggest that such a rough, perhaps even outdated, set of ideas about the state’s legal personality would have any influence on the doctrine of international organizations as it stands today. Indeed, the idea that the state enjoys some kind of metaphysical or natural existence, or that it is somehow ontologically fundamental, has lost its purchase with most contemporary international lawyers – for roughly the same reasons that Gierke’s corporate realism also lost its appeal in the domestic legal context.Footnote 15 Imagining the state as an organic entity that enjoys its own soul and/or body and mind was eventually thought of as being epistemically defenceless: one could neither prove nor disprove these notions. It was also gradually understood to threaten the core tenet of ethical individualism, that is, the notion of the inherent moral worth of each individual human being. Thus, many prominent international legal scholars promoted a ‘fictional’ understanding of human associations, the state included, and their avowed demystification.Footnote 16 In this context, the individual was taken by many as the true ontological focal point remaining once all fiction was set aside.Footnote 17 Catherine Brölmann concisely summarizes this intellectual development, observing that ‘[t]he legal identity of the state was no longer linked to a pre-existing metaphysical identity but seen as a fictional and conventional understanding’.Footnote 18
Crucially, however, this change in philosophical thinking about corporate entities, including the state, was never really pushed to its full analytical conclusions by international lawyers, who generally steered clear of any sort of ‘anarchic individualism’.Footnote 19 The state may have been demystified by being analyzed by many as nothing ‘over and above’ the sum of its parts except for the intervention of a legal fiction; however, this line of reasoning was generally exhausted in the moral domain, rather than employed to dismantle the state altogether as a locus of rights and duties.Footnote 20 In other words, whatever its philosophical significance, the emerged reductionist stance towards the state did not really alter how many international lawyers conceptualized the analytical foundations of the law and the ensuing rough analogy between the state and the individual human being. Thus, the analogy, even if not taken literally, has had an enduring impact. In many respects, the discipline still appears to operate at least as if the state is analogous to the natural person.Footnote 21
But before exploring the analogy’s legacy in contemporary legal thinking, we should pause to appreciate the problem that it was devised to address in the first place.
Indeed, international law faces a reductionist challenge with states that is conceptually quite similar to the one that it faces with international organizations. Of all institutions in international law, it is states that certainly need to be theorized as entities ‘over and above’ their parts, if they are to serve as distinct objects of legal concern, let alone the system’s most common points of reference. As Nehal Bhuta suggests in this respect, ‘[t]he status of a state as both legal and moral subject rest[s] upon a strong ontology of the sources of its unity, boundedness, and agency’.Footnote 22 If those are taken away and the state is analyzed from a legal perspective as literally the mere assemblage of some individual human beings, then that is as good as saying that it does not exist: it cannot assume obligations, it cannot be held responsible, it cannot authorize individuals to act as its representatives, and so on. The analogy between the state and the natural person provides a model for overcoming this challenge by approximating the abstraction of the state to the closely lived reality of the individual human being. Therefore, the analogy is aimed at an existential problem of international law, while also being fairly intuitive in its broad outline – one need only think how casually the analogy is utilized when teaching international law.
It is little wonder then that the discipline remains ‘replete with anthropomorphic moves’ when theorizing the state.Footnote 23 In this respect, epithets such as ‘original’ or ‘natural’ are still frequently employed to describe the state’s legal subjecthood.Footnote 24 For instance, the Max Planck Encyclopaedia entry on the subjects of international law suggests that states are ‘original’ subjects in the sense that they are ‘born’ instead of being ‘created’.Footnote 25 As another classic study on statehood puts it, ‘States are natural-born … and are not relative subjects of international law created by existing States as, for example, international organizations.’Footnote 26 From this point, the analogy with domestic law almost suggests itself: as an original subject, the state is ‘presumably pre-existing the legal order in which it operates, comparable to the individual in municipal law’.Footnote 27 The analogy with the individual then serves as a basis for constructing the legal image of the state as a commensurably naturally or inherently unitary and irreducible entity.Footnote 28
Such an anthropomorphic conception of the state, whether we take it literally or not, is bound to influence our doctrinal models. If anything, it makes further analogies with domestic law appear themselves more natural. Consider for example how often criminal law concepts are recruited to frame issues such as justification and excuseFootnote 29 or coercion.Footnote 30 Yet, regardless of whether the analogy’s underlying logic is truly adhered to at a philosophical level (one may presume that it is often not), it brings with it a whole lot of conceptual baggage that we should be conscious of.Footnote 31 Indeed, it makes little doctrinal difference if we philosophically distance ourselves from the notion of the state as enjoying its own metaphysical existence but then still theorize it as such, if only for the purposes of international law.Footnote 32 In practice, many doctrinal models of the state continue to largely echo a notion of the human being as a fundamental, natural, intrinsic, organic, and non-reducible entity for a variety of different contexts.
4.2.2 The Anthropomorphic Premise in Theorizing International Organizations
Certainly, modelling the state after the individual human being, even when adopted on an ‘as if’ basis, has some explanatory value. As already mentioned, it rationalizes the state’s unity and agency as in some sense independent from the underlying substratum of individual human beings, while also opening up avenues of reasoning present in private law.Footnote 33 Nevertheless, it may also conceal questionable metaphysical propositions, namely the obscure notion that the state is somehow a ‘natural’ and ‘intrinsic’ entity, and that it shares with human beings not only unity of agency but also an analogous ontological position.
Such notions are often considered a harmless relic of the past that does not have an impact on the doctrine as it stands today: who after all really believes that states are ‘born’ or that they have a soul/mind of their own? Yet, regardless of whether all this is taken at face value or not, scholars too often proceed to analyse international organizations as if states were individual human beings.
To begin with, many scholars explicitly analogize the state to the individual human being for doctrinal purposes when theorizing international organizations. As Brölmann observes: ‘[o]n the international plane the natural person could be said to have its counterpart in the state, the primary subject of international law, whereas legal or corporate persons … would be the secondary subjects of international law with “derived” personality.’Footnote 34 Elsewhere Brölmann explains that the contradiction between states as natural and international organizations as artificial legal persons has led to a ‘mechanistic, functionalist view of international organizations that has persisted even when international organizations came to be recognized as independent actors’.Footnote 35 Jan Klabbers also describes the dominant functionalist approach towards international organizations as stemming from the assumption that international organizations are the creations of other entities, whereas states are ‘somehow organically existing’.Footnote 36 Confirming Klabbers’ observation, it is common for scholars to refer to international organizations as analogous to ‘corporations of private law’.Footnote 37 Quite tellingly, a classic study of the subject describes sovereign states as ‘natural persons’, and international organizations as civil law corporations. It argues that just as a corporation ‘cannot marry and is not subject to military service’, so international organizations cannot exercise all the rights and duties that states have.Footnote 38
More subtle evidence that a rough anthropomorphic conception of the state has been at work can also be found in the way that international lawyers seek to address specific problems of international organizations law. In this respect, as we have seen, many scholars implicitly or explicitly draw inspiration from domestic law on the relations of private individuals. This is done, for example, when theorizing the existence of a rule of incorporation and drawing analogies with corporate bodies of domestic law,Footnote 39 or insisting that the correct analogy lies with ‘those systems of municipal law which take the opposite approach by recognizing the general juridical personality of associations without legislative provisions and/or incorporation’.Footnote 40 Similarly, others analogize organizations without legal personality as ‘unincorporated associations or partnerships of national law’.Footnote 41 Almost naturally, many scholars proceed on the familiar notion that if the state is like an individual in the international legal order, then it makes sense to conceptualize international organizations as the respective corporate legal person of private law.Footnote 42
Crucially, this underlying analytical conditioning of the problem prevails regardless of whether one subscribes to a so-called constitutional or contractual understanding of these institutions. Therefore, the aphorism that ‘[t]he constitutional view relies on the public dimension of international institutions, while the contractual view is based on the analogy with private national enterprises’Footnote 43 seems inaccurate when viewed from an analytical perspective, even if it may capture well elements of more normative debates. Instead, most international lawyers have tended to conceptualize international organizations for doctrinal purposes via private law concepts: either as corporations of private law or as mere contractual arrangements. By contrast, ideas of public law have supplied mostly normative inspiration rather than alternative analytical models.Footnote 44
All in all, rather than being a relic of the past or analytically toothless, the atomistic conceptualization of the state as a ‘natural’ individual human being and an irreducible point of reference remains the conceptual context in which some of the most problematic aspects of international organizations’ law have been theorized. Ultimately, however, this anthropomorphic premise about the state leaves only narrow, and ultimately unnecessarily stringent, theorizing paths for international organizations. It does erect a ‘prison of our own choosing’Footnote 45 that conditions how we understand issues such as international organizations’ legal personality, their functions in relation to their members, as well as their relationship to states as species of legal actors.
4.3 How an Anthropomorphic Image of the State Distorts the Theorizing of International Organizations as Entities Distinct from Their Members
4.3.1 Ascription of Legal Personality
Conceptions of the state as analogous to private individuals of domestic law suggest that states cannot grant a distinct legal personality to organizations on their own or that, even if they can, this personality will only have a relative ambit and not affect non-members without prior recognition.Footnote 46 In other words, the default position here seems to be that international organizations cannot rise as entities over and above their members vis-à-vis non-members if they only owe their status as distinct legal persons to their members. Given the underlying analogy between the state and the natural person, this position initially makes sense. Indeed, it would seem counterintuitive for most lawyers to accept that two individuals can create a corporate entity, bestow it with a legal status on their own, and have that arrangement to be legally opposable to third parties. A similar conceptualization of the problem for international organizations appears almost self-evident: their status must be shown to be something more than a direct ascription by their member states, or otherwise it should be dealt with as an inter partes predicate.
Setting up the discipline’s conceptual starting point in this manner also points to possible avenues for moving past it. These are the theories of legal personality that have been discussed in Chapter 3. Such theories seek to overcome a default position of relative personality by arguing that (1) international law has evolved in such a way that it now contains a rule of incorporation that ascribes an objective status to such arrangements regarding international organizations; and/or (2) international organizations owe their status directly to international law rather than to the will of their member states; and/or (3) that international organizations obtain their status essentially by being themselves ‘real’ entities akin to states, that is, by being autonomous or self-governing actors. The problems that these theories run into have been discussed in Chapter 3. What is worth keeping in mind here is how the solutions mirror how the problem is perceived, whether the latter is stated explicitly or not.
4.3.2 International Organizations’ Distinct Will
As seen in Chapter 3, mainstream approaches to the problem of distinct will suggest that if all the decisions of international organizations can be traced back to the attitudes and decisions of their members, then these institutions are simply another name for the latter acting in tandem. The latent anthropomorphic premise here is that states should be dealt with as ‘natural’ agents, again akin to the position that humans roughly occupy in domestic legal settings.Within this framework, states are fundamental entities, below and beyond which no cause is traced in the legal system unless otherwise stipulated. In the same manner in which in a domestic legal setting we would legally attribute a murder to the murderer rather than to his arm,Footnote 47 the rough analogy with the natural person suggests that states subsume the causal contributions of sub-state actors and assume the authorship of acts that are appropriately connected to them, as the law provides. For example, in a legal context, we do not claim that the state’s head of state caused her state to sign this treaty. Instead, we treat the state as an entity that incorporates certain kinds of causes and re-describes them as parts of a process. Accordingly, a head of state signing a treaty counts as the state signing the treaty.
Thus, in international law, attributing a particular conduct to a state is often taken to mark the end goal of our causal inquiries. Much in the same way that in domestic law we would normally not attribute a murder to the weapon but to the individual wielding it, in international law we would not be satisfied with attributing a use of force to a missile hitting a target or to an individual pushing the launch button. Rather we try to link that launch back to a state. And, assuming that we could link a respective use of force back to a state, normally through our rules on attribution, we then stop looking for the underlying causes (much like in domestic law we would attribute the firing of a gun to a person rather than to the finger pulling the trigger).Footnote 48
Understanding the role of the state in this manner as both the default limit and goal of our causal inquiries tasks the discipline with showing that international organizations can leave their own causal mark on the world.Footnote 49 In terms of the domestic analogy, international organizations must be shown to be neither the arm nor the weapon.Footnote 50 They need to interpose themselves in the causal chain of events that links their members to a course of action. If the causal contributions of members cannot simply be brushed aside, then the aim here is to show that at least some of the decisions of international organizations do not rely on such contributions from individual members, but instead exhibit their own causal efficacy.
Viewed under this light, the purpose of the volonté distincte requirement is to carve out a space, even the tiniest one, wherein the agency of the members does not take over that of the international organization. Thus, without such distinct will, international organizations are presumed to be mere mirrors of members’ attitudes, and not distinguishable from classic forms of interstate cooperation. When that is the case, they slide back to the assumed default contractual image of these institutions. Once more, the aim here is not to rehearse the difficulties with implementing this line of reasoning, but rather to flag the conceptual framework within which this exercise becomes necessary.
4.4 How an Anthropomorphic Image of the State Distorts the Theorizing of International Organizations in Terms of Their Conceptual Relationship with States
4.4.1 The ‘Either/Or’ Framing of the Conceptual Relationship between International Organizations and States
To begin with, an anthropomorphic understanding of the state may create the impression that ‘state-ness’ is itself an intrinsic or ‘natural’ property, and thus it cannot be transferred to ‘artificial’ or ‘mechanistic’ entities. In this regard, the natural versus artificial framing seems to dominate legal imagination: corporate entities are supposed to be ‘abstract’ and ‘created’ entities, whereas human individuals inherently natural, minded, and/or soulful beings. Construed in this way, the anthropomorphic premise suggests a hardwired qualitative difference between states and international organizations. States are ‘born’, ‘natural’, and/or ‘organic’ legal subjects, whereas international organizations are ‘created’ and ‘artificial’ ones.
This implies a default category distinction between states and international organizations, underpinning different classification and treatment for the purposes of the law. The latter may then serve to preclude automatically extending propositions about the content of the law concerning the former to the latter. This is the type of distinction between states and international organization that could justify seeking separate norms to be identified specifically in relation to the latter, as for example the ICC did with head-of-state immunity in Al Bashir.Footnote 51 In that sense, the anthropomorphic premise creates the space for assuming an intrinsic qualitative distinction between states and international organizations. This leaves two possible avenues for theorizing the legal nature of international organizations: either go around the anthropomorphic premise or go over it – in other words, either admit international organizations as entities inherently different to states or simply extend the anthropomorphic imagery to them as well.
4.4.2 Going around the Anthropomorphic Premise: The Problem of the Blank Slate
Going around the anthropomorphic premise suggests that, while the state indeed occupies a special systemic position, international law is open to other entities joining the system, with the caveat that these entities’ subjecthood does not automatically equate them to states. In this vein, the state’s unique nature as a legal subject is understood as a barrier to entry for other entities such as international organizations not to the system of international law in general, but only to the club of ‘original’ or ‘primary’ legal subjects, or, perhaps more intuitively, to the club of ‘state’ subjects, hence the popular qualifier of international organizations as ‘non-state’ actors to get around this restriction. This designation as non-state thus creates a new default legal–ontological position regarding international organizations that is premised on these institutions being qualitatively different from states.
This implies a conceptual detachment between them and the state, echoing the mechanistic versus natural actor distinction that authors such as Brölmann have been referring to.Footnote 52 Within this framework, the conceptual admission of international organizations leans on the creation of an altogether new category which presumably does not offend the state-centred sensibilities of the anthropomorphic premise. This solution leads to a compromise on the treatment of the category problem regarding international organizations. If the function and creation of international organizations can indeed be conceptualized as independent of their members, and if the legal personality of states is analogized to that of individual human beings with intrinsic and natural connotations, then the picture of international organizations’ legal nature truly is that of non-state actors.
The non-state actors view avoids offending the anthropomorphic premise, but the price of this theory is that it yields only limited insights with respect to the category problem. Yes, the legal order can accommodate international organizations under certain conditions, but the nature of their legal personality is by definition different from that of states. One may assume that similar substantive norms may develop with respect to those entities, but the default picture is that they do not automatically have the same rights and duties, as they belong to different conceptual categories of legal subjects. Thus, putative new norms that may develop will be at best specific to international organizations. Before that happens, international organizations are, analytically speaking, essentially a blank slate in the eyes of general international law.
Following this account, the things that we know about the legal personality of non-state actors should also hold true here. For example, as a matter of principle, non-state actors are generally thought of as being incapable of contributing directly and in their own name to the formation of customary international law. As far as the content and effect of their personality are concerned, this view leads to a formal and ultimately relative construction of legal personality, where, as already discussed in Chapters 1–3, legal personality denotes merely the existence of some rights and obligations in relation to some other actors. Pushed to its extreme, the consequences of this analytical construction may – as with the view that reduces international organizations to aggregates of states – also be construed to negate the existence of international organizations as a species of legal entities, but from the exact opposite direction. International organizations do exist, but they are all unique in terms of their rights and duties.Footnote 53
4.4.3 Going over the Top of the Anthropomorphic Premise: The Problems of Unverified Premises and Overgeneration
An alternative tactic is to ‘go over the top’ of the presumed human-like status of the state, essentially claiming that international organizations too should be conceptualized in anthropomorphic terms. This line of thinking denies that a meaningful distinction can be drawn between international organizations and states in the first place. Crucially, this is not achieved by questioning anthropomorphic assumptions regarding the state, but by extending them to international organizations. This view goes over the top, so to speak, of the problem: if states are ‘natural’ or ‘organic’ irreducible entities, then international organizations, and potentially other subjects as well, may qualify for that status. To paraphrase David Bederman, this strand of thought has sought to demonstrate that international organizations too have a ‘soul’Footnote 54 or that they too are ‘organic’ entities, and, in a sense, competitors to their member states,Footnote 55 instead of being ‘spiritless mechanism[s]’.Footnote 56 Such qualities then qualify them to partake in the rights and obligations that states have. This line of reasoning would suggest that international organizations are entities both ‘over and above’ their members, but also occupy an analogous analytical position as their members within the international legal system. Similarly, to the ‘going around’ tactic, this account also does not justify this conclusion on account of these institutions being made up of states. Rather, it reasons that international organizations are comparable to states in some legally relevant sense. The presumed similarities are then isolated and treated as hallmarks of the type of entity that a state is.
‘Going over’ the anthropomorphic comes with its own limitations and path-dependencies. To begin with, we might ask, why focus on the presumed similarities and not on the differences? Certainly, arguments from analogy are not unwarranted when these are focused on a specific relevant similarity.Footnote 57 For example, the shared capacity of states and international organizations to conclude treaties may suggest comparable legal treatment of both entities with respect to treaty law. However, why would it also imply the application of the same substantive rules to both types of entities or the capacity to contribute to the formation of customary international law? As we have already discussed, the answer to such questions seems unpersuasive if it rests on an inductive basis, and incomplete if it posits a change in law – such as a change in the very definition of international law or the emergence of a rule of incorporation – that it cannot substantiate.
As already alluded to, a further limitation of modelling international organizations after states is the side effect of overpopulating the legal order with legal subjects of a supposedly identical analytical footprint. For example, if international organizations too have a soul, one would expect that they can contribute on an equal footing to custom’s formation. This echoes the classic problem of domestic legal theories that admit the ‘real’ personality of the corporation: if they are true persons and not the offspring of a legislative fiction, should not they be allowed to vote as well? If international organizations are truly like states, we should then be surveying both state and international organizations’ practice when assessing the emergence of a new norm, making sure that the practice is representative of both. Accordingly, we would also expect their acceptance and recognition to be taken into account as well when identifying norms of peremptory character. Arguably, both propositions would disrupt in counterintuitive ways the subject ecology of the international legal system.
4.5 A Better Problem for International Organizations Law?
All in all, as the talk of ‘natural’ versus ‘artificial’, and ‘individual’ versus ‘corporate’ legal persons shows, the elemental problem of international organizations law has not been only to show that these institutions are entities ‘over and above’ their members. Rather, it has been to show that these institutions are entities ‘over and above’ their members in a legal system that is presumed to operate as if states enjoy a naturally distinct and irreducible existence, akin to that of the individual human being.
Couched in these terms, the problem fundamentally mirrors the question of whether corporate entities can enjoy a real existence vis-à-vis their individual members in the context of many domestic legal systems. This is the problem of how it is possible to theorize non-reducible corporate entities given popular ontological assumptions about the irreducible status of individual human beings. In a similar manner, the main preoccupation of the discipline with respect to international organizations has been how to theorize these institutions as non-reducible corporate entities given that their members, often presumed to consist only of states, are themselves thought of as being somehow ontologically fundamental, at least for the purposes of international law. Under this account, the legal personality of the state forms a default barrier against recognizing a distinct legal existence for international organizations, a barrier that can only be overcome by a change in positive law.
This chapter promised a better problem for international institutional law rather than a better solution to the problem as it is currently configured. The better problem is this: how to theorize international organizations as entities ‘over and above’ their members in a system that already recognizes the state as an artificial legal person. In other words, this description of the problem drops the anthropomorphic limb of current doctrinal conception of the state, regardless of whether this notion is admitted merely on a fictional basis or not. Stripping away our understanding of the state from its latent metaphysical or naturalistic connotations, a clearer path for theorizing international organizations can emerge. This path suggests that international organizations, even in their most developed form, are an inherent possibility of the system. In a nutshell, the argument is this: any system of law based on the notion of the state as a person also encompasses the notion of international organizations as distinct legal entities with a similar legal footprint to that of the state without the need for any changes in positive law to that effect. Following this account, the state’s legal personality is not an analytical barrier that needs to be overcome by a change in law but the key to unlock a better theory about international organizations.
What does it mean that theory building about international organizations should proceed from the premise that the state itself is a corporate legal person rather than a ‘natural’ one? Answering this question, Chapters 5 and 6 take a step back before moving two steps forward, looking at the problem of corporate existence as such in its more abstract philosophical dimension. The overarching argument will be that the exact same problems that riddle international organizations’ existence are those that underpin the corporate existence of states. International law’s solution to the latter problem entails a solution to the former.
4.6 Conclusion
This chapter has shown that the discipline’s default position is that international organizations are ‘nothing over and above’ their members, and that accordingly some change in law is thought as necessary before they can be admitted as legally distinct entities. The assumption behind this position is that states are themselves somehow in-doctrine natural entities, roughly comparable to individual human beings of domestic law. This premise implies that international organizations are made-up entities, and that the relationship between them and states is akin to that of an individual human being and a corporation. The problem then is how to show that these institutions can be entities ‘over and above’ their member states in a legal system that is presumed to operate as if those members enjoy a distinct and irreducible, ‘natural’ or ‘metaphysical’ existence akin to that of the individual human being.
In contrast to this picture, this chapter has suggested an alternative starting premise. States should not be conceptualized as ‘natural’ human beings, even if only for the purposes of international law. Rather, they too should be understood as corporate persons. The problem of international organizations law can then be conceptualized in the following terms: whether international organizations are entities ‘over and above’ their members in a legal system that already recognizes the state as an artificial legal person. The remainder of this book explains what this proposition means, and how it may help resolve some of the most persistent conundrums of international organizations law. It will be shown that, in the final analysis, international law does not need special rules or doctrines to accommodate international organizations as distinct legal entities, rather a proper configuration of those currently available.
