Who cares about theorizing international organizations? A Rejoinder to Christiane Ahlborn

My latest article, ‘Statehood and International Organization: Rethinking Their Conceptual Relationship with Reference to Customary International Law’, addresses whether, how, and to what extent, doctrinal propositions that we accept about the legal personality of states can be extended to international organizations. I argue that our theories would make much more sense if we let go of the widespread conception that states are roughly analogous to natural persons of domestic law. Breaking with the domestic law imagery of ‘natural’ vs ‘artificial’ legal persons, I instead argue that both states and international organizations should be viewed as part of the same family of legal persons. I then explain how this helps illuminate old doctrinal puzzles regarding the legal status of international organizations as well as their place with respect to the formation and application of customary international law. I am thankful to Christiane Ahlborn for engaging thoroughly with my piece in her recently published reply.

Before I share my thoughts on Christiane’s reply, I would like to make my case as to why any of this may be of interest to you, the reader. Why would anyone care about international organizations in this day and age?

Growing up in the 90s in Greece, one of my first encounters with international organizations was watching the NATO bombing of neighbouring Yugoslavia on national television. This was followed by the endlessly unfolding Eurozone crisis, with IMF and other ‘troika’ officials becoming household names. But next to all this, I also grew up watching a lot of sci-fi movies. And, whenever humanity somehow managed to make it into the far future in a semi-decent state, there was some international organization, most often the UN, at the helm. For all of their shortcomings, not many institutions are still able to exert the kind of symbolic influence in popular imagination that international organizations do (arguably even Trump’s Board of Peace taps into the same fantasy).

All this is my long way of saying that studying international organizations is to deal with some of the last remaining aspirational elements of our culture as well as confronting a lot of its ugliness. It is little wonder then that, as Angelo Golia has recently argued, international organizations law provides a privileged entry point to interrogate several dynamic dimensions of social reality.

By some weird coincidence, international organizations also represent one of the knottiest subjects of our field. Theorizing international organizations, one cannot but engage with the inherent tensions and ambiguities of international law itself, perhaps more so than any other subfield. It is impossible to productively study these institutions without simultaneously having a working theory on many highly complex and divisive fundamental issues of international law, such as legal personality, sovereignty, interpretation, customary international law, and many others. Thus, theorizing international organizations is never just about international organizations: it is probably the shortest way to access one’s beliefs about the system and their underlying assumptions.

It is then with great anticipation that I read Christiane’s reply, an author whose work on international organizations was one of the first I read in detail and have learned much from over the years.

In a nutshell, my argument unfolds as follows. Challenging existing approaches that would view states as ‘natural’ and international organizations as ‘artificial’ legal persons, my article suggests that both kinds of institutions belong to a common class of entities as far as customary international law is concerned. My article shows that most current approaches to theorizing international organizations have, implicitly or explicitly, tended to imagine the state as the natural person of domestic law, and in any event as an irreducible and somehow fundamental entity. I argue that this tendency is misplaced and confusing when it comes to international organizations as it embeds a false binary of natural vs artificial legal persons into our theories. Instead, we should proceed on the image of the state itself as a corporate actor within a broader family of such institutions. The common denominator of all these entities is not that they fulfil some platonic archetype of ‘statehood’ (or ‘international organization’), but rather that they stem from a common root: the capacity of a community of human beings to organize themselves by setting up institutions. Redescribing all these institutions as members of the same family or class of legal persons, my article tackles three classic problems of customary international law regarding international organizations. I argue that their legal personality need not be recognized by non-members before it can be opposable towards them; that they are bound by customary international law in the same manner and extent as states; and finally, that their practice should count towards the formation of customary international law, with the caveat that it should be assessed according to their membership.

Christiane raises four points concerning my argument. First, she argues that the traditional methods of seeing international organizations that my article challenges are ‘largely capable of reaching the same results’ as my framework. Second, that:

‘characterizing international organizations in terms of political communities, Chasapis Tassinis’ framework inevitably has an internal focus, which has limited added value in explaining which customary international law rules apply to them in their external relations with third parties’.

Third, that there is some debilitating ambiguity in my theory:

‘it is difficult to make “the more limited argument” that the element of ‘organized political community’ is decisive for the attribution of international legal status without defining what the term means’.

Fourth, Christiane suggests that my approach to international organizations’ contribution to the formation of customary law ‘undermines the international organization’s distinct will or autonomy from its member states.’

Christiane’s first point caught me by surprise on two fronts. To begin with, in my mind, the yardstick of a theory’s success should not be whether it reaches unprecedented results, but rather whether it reaches those results in a manner that is more convincing and/or illuminating than current approaches. If as Christiane suggests existing approaches are ‘largely capable’ of reaching the same results as my approach, then the logical next step should be to choose the better one based on the soundness of its premises. I was thus caught off guard to see that ‘reaching the same results’ was presented as the end rather than the beginning of a conversation. The second surprise came because the difference between a theory being ‘largely capable of reaching the same results’ and ‘actually’ reaching the same results is presented in Christiane’s reply as some minor detail, whereas in my mind it is immense. In fact, I would argue that traditional approaches are, if anything, largely incapable of reaching the same results — at least in the way we would normally go about reasoning about these things. All in all, in my mind, a meaningful comparison between old and new approaches should not only compare end-results but expose the buy-in of each theoretical framework and explain why one is preferable over the other. At the same time, end-results should be compared across the board, and not only where they happen to coincide.

What is then the buy-in and pay-off of current approaches, and how do these compare to my article’s arguments?

Most ‘traditional methods of seeing international organizations’ that Christiane mentions rely on viewing the state as a natural person. I find this premise both ontologically questionable as well as epistemologically troublesome (what does it mean for a state to have a soul? How can you prove it?). The approaches that do view the state as a natural person also tend to reach results that are the exact opposite from my approach: international organizations may enjoy a legal personality but only one that is opposable to their members; it remains uncertain to what extent, if any, they are bound by the same customary norms as states; and they cannot contribute in their own right to the formation of custom as they are ‘soulless’ entities when compared to states. At the very least then, these traditional approaches differ substantially from my argument both in their premises as well as the results they reach.

Christiane rightly points out that there is another strand in current literature that views states and international organizations in terms of analogy. There are certainly some contexts in which this could work. Analogy can be a useful tool when drawing inspiration for highly abstract codification topics such as responsibility or the law of treaties (as Fernando Bordin has argued), and I do not wish for a moment to dismiss analogy as a legal method tout court. Yet, the approach has key limitations when it comes to positive law. With respect to legal personality for example, it generally rests on a premise of a putative customary rule of incorporation similar to domestic law. Christiane’s reply, as well as most other writings in the field, rightly concede that no such rule currently exists in international law. But in my mind, this absence leaves the entire approach hanging and cannot be simply glossed over. In other words, even if that theory reached similar results as my article (for example with respect to the opposability of legal personality of international organizations vis-à-vis non-members) it would still suffer from its key premise remaining unsubstantiated as far as positive law is concerned (since that rule of incorporation is nowhere to be found).

The other challenge with this approach is its baked-in ambiguity: one can never really know what rights and obligations are inherent in one variety of corporate personhood as opposed to another. For me, trying to figure out what is the international-organization-equivalent to the notion that a corporation ‘cannot marry and is not subject to military service’ is to send scholars on a wild goose chase. Christiane acknowledges this ambiguity but treats it as not specific to international law: ‘uncertainty regarding the extent of corporate rights and obligations also exists in domestic legal orders’. But the fact that domestic law features a similar problem as classic approaches to international organizations should offer little consolation. Instead, we should not give a pass to the problematic premises (the idea of an unsubstantiated rule of incorporation) as well as ambiguous results (the difficulty of coming up with definitive answers with respect to rights and obligations) of current approaches.

The final approach that Christiane develops regarding specifically the rights and obligations of international organizations stems directly from the idea of sovereign equality as the foundation for applying customary law to states. Citing Island of Palmas, Christiane argues that ‘[i]f sovereignty is translated as independence […] it can be applied to international organizations.’ I see the appeal with Christiane’s approach, but I am hesitant to adopt it for three reasons. First, I always found traditional interpretations of independence as ‘exclusive competence’ hard to apply to international organizations that are generally supposed to be membered by entities that are themselves sovereign (a problem described extensively by Catherine Brölmann). Second, I am uncertain about the inherent logic of the argument. International law features many less-than independent entities that exercise some form of public power while being legally separate from a state. Imagine for example if Hong Kong were free to use force or be a victim of it because, while it possesses for some purposes a distinct legal personality in international law, it is not in any way independent in the Island of Palmas sense. Third, I find the logic largely counterintuitive when applied consistently with respect to international law-making. If international organizations are indeed sovereign, then presumably their practice should count on equal terms as states: they should each get one vote. And the same would presumably apply to the emergence of peremptory norms of international law, where the ‘acceptance and recognition’ by international organizations should count just as much as that of states. Yet this is not how international law seems to treat international organizations and perhaps for good reason, since otherwise, it would be almost impossible for new rules to develop in practice.

Compared to these frameworks, the ‘continuity’ approach that I advance argues that both states and international organizations should be seen as members of a broader class of legal persons. This (a) breaks with questionable premises about the state being a ‘natural’ legal person; (b) does not demand that specific rules, such as a rule of incorporation, have developed specifically with respect to international organizations; (c) produces a more intuitive approach to the law-making problem whereby the practice of international organizations counts but is weighed according to their membership; (d) better coheres with practice from other areas of international law, including sub-state entities with legal personality, confederations, condominia, non-self-governing territories, and others. I develop these points in my article and will not rehearse them here. Instead, I would like to focus on Christiane’s critique of my argument’s persuasiveness.

The first critique is that my ‘framework inevitably has an internal focus, which has limited added value in explaining which customary international law rules apply to them in their external relations with third parties’. Perhaps I have come too accustomed to my own conceptual vocabulary, but I found this point hard to decipher. Is there some unwritten rule whereby ‘an internal focus’ concerning the foundation of international organizations’ legal personality precludes investigating what part of custom is applicable to them?

My ‘internal focus’ goes back to my rationale for classifying states as well as international organizations (and condominia/confederations etc) into a single class of legal persons. That rationale is not analogical: it is not premised on any abstract comparison of these institutions as platonic archetypes. Rather it is what I have elsewhere called ‘genealogical’. It is based on tracing the possibility of all these institutions back to the capacity of an organized community of human beings to self-describe. Thus, even though all these entities may feature different definitional elements (eg territory, population etc) they owe their existence to the same status-endowing capacity of a political community, without which I argue that not only international organizations cannot be accounted for, but also states. So, yes, some community of human beings has to view the world in a certain way before states as well as international organizations can emerge. Both these institutions are expressions of that capacity. It is that historical/ontological common lineage in how these institutions are created that brings them into the same family of legal persons (alongside any and all other institutions, such as unions of states, confederations, etc growing out of the same root). In short, my theory places at the centre of international law the capacity to assign status as opposed to one platonic institutional form (statehood).  

Still, my article suggests that a community’s freedom to organize by setting up public institutions is matched by a restriction: these institutions always operate within the same framework of a single set of norms of customary law. This conclusion aligns with practice (see section 6.B. of my article) but also makes sense on its own terms: imagine if peoples could get away from the corpus of customary international law just by creating new types of institutions. Thus, while my theory has an ‘internal focus’—shifting attention towards the common element of intentionality that animates both states as well as international organizations (what some might call a Hartian approach) — I do not see what makes this inherently paradoxical when it comes to placing both institutions in the same class of legal persons as far as how their interactions with other legal persons are concerned.

The next point that Christiane raises is that I fail to define the term ‘organized political community’ whose capacity for self-description I place at the core of international law’s ontology. It is true that I avoid defining such communities in any deep sociological sense. On the other hand, that is (mercifully) not necessary for my argument. My theory is not interested in either prediction or prescription on this front. I am not looking at the world and wonder which entities could or should be able to create institutions such as states. Rather I am looking at existing institutions such as states and international organizations and ask: what is the most reasonable account for their emergence? And how does this account make these institutions relate to each other? When I look at states, international organizations, condominia, confederations etc., I see the same capacity being at play. In other words, my solution to this problem is mathematical/relational: if a community is capable enough of creating a state, then it should be thought of as equally capable of creating an international organization, and thus, both entities belong to a common class of entities since they ultimately stem from the same foundation. This class encompasses all entities that have a recognized right of self-description in international law or are its products. A mental shortcut for this is to examine whether an entity possesses a right of self-determination or is created by an institution that was itself created in the exercise of the right of self-determination. To thus reply to Christiane, this is the basis on which I draw the distinction between NGOs/multinational corporations/investors etc (they do not have nor are they expressions of a right of self-determination) and states/federations/confederations/international organizations etc (they are expressions of that right and thus belong to a common class of entities that is separate from NGOs/multinational corporations/investors etc).

My argument has important ramifications outside of international organizations law. For example, it entails that the rights and protections associated with statehood do not lapse when some of its definitional elements become absent. My argument can thus account for why low-lying island states would maintain those rights and protections even if their territory becomes submerged due to climate change. The argument also renders largely irrelevant for customary law purposes endless debates on whether entities such as Palestine constitute a state. It is self-determination that lies at the core of what is protected in international law, and hence principles such as territorial integrity apply to Palestinian Territories regardless of whether the classic Montevideo criteria are met or not (for a similar conclusion generally regarding non-self-governing territories, see the Chagos Advisory Opinion at para 160).

Finally, Christiane argues that:

‘by suggesting that the practice of organs composed of member states should only count as state practice, the article risks undermining the distinct will of international organizations, which is the crucial condition for their international legal personality.’

It is hard for me to respond to this passage because it does not accurately reflect my views or words. In my article, I write that the practice of international organizations:

‘do[es] not count just insofar as states or other members can directly input their views in their activities as, for example, when voting for a resolution; the practice of their organs, including the practice of their courts, secretariat or peace­keeping forces, should also count. (emphasis added)’.

I thus do not suggest that ‘the practice of organs composed of member states should only count as state practice’, quite the opposite. But to speak to the underlying point, I also do not think that the distinct will of international organizations is threatened when their practice is weighed keeping their membership in mind. Distinct will has to do with being a separate legal person in the eyes of international law, whereas the weight of a given practice has to do with its connection to an underlying political community. Saying that given their different membership the UN’s practice on peacekeeping should carry more weight than that of Trump’s Board of Peace has little to do with admitting both entities as legal persons that are distinct from their members.