From Dichotomies to Dialectics
After submitting that most scholarly and practical debates about the law of international organizations can be construed as a battle between arguments based on the idea of a contract and those based on the idea of a constitution, this article discusses international legal scholars’ ability to turn the foundational dichotomies between contractualism and constitutionalism into a dynamic and dialectic framework. It makes the argument that international legal scholars, and especially legal academics, while unanimously acknowledging the existence of such paradigmatic tensions, are regularly tempted to iron them out through the promotion of a series of dialectical concepts or moves.
International Organizations Bolstered
This article contests mainstream accounts of international responsibility and argues that the act of subjecting certain forms of conduct to the regime of international responsibility has a constitutive dimension. It argues that international responsibility constitutes, rather than constrains, power. More than legal personality, it is international responsibility that makes international organizations huge hubs of power. This article starts with some introductory remarks on the extent to which responsibility ought to be understood as a set of formal modes of legal reasoning through which the determination and allocation of the burden of compensation is debated, as well as a few reminders of the political choices that informed the design of its main formal modes of legal reasoning. After showing how the rules regarding the responsibility of States are constitutive of the power of States, attention turns to the claim that the regime of responsibility of international organizations similarly constitutes the power of international organizations and their member States. This article ends with some remarks on the divergent constitutive roles of personality and responsibility, and on the consequences of a shift in perspective from accountability to power in studies on international responsibility.
It is classically contended that when an international organization endowed with international legal personality commits an international wrongful act, the organization is to be held exclusively responsible even though the act would have constituted a violation of its member states' obligations if committed by them. This Article intends to depart from such a rigid interpretation of the responsibility of international organization and makes the argument that when member states abuse the international legal personality of an international organization through the exercise of an excessive control over the decision-making process of the organization, they must be held, together with the organization, responsible for violations of international law by the organization provided that such a wrongful act would also constitute a breach of the member states' international obligations if committed by them. It is posited here that, in this situation, member states can no longer hide behind the screen of the international legal personality of the organization. Failing to take the extent of control exercised by member states over the decision-making process of an international organization into account boils down to ignoring that autonomy is one of the constitutive elements of the legal personality of an international organization, which can bolster the contemporary move away from international institutionalism.
It is against the backdrop of the conceptual impairment inherited from the Articles on State Responsibility (hereafter ASR) that this note, rather than zeroing in on what could have been better devised at the micro-level of the Articles on the Responsibility of International Organizations (hereafter ARIO), adopts a holistic view on the approaches to the law of international responsibility. In so doing, the ARIO are not approached in isolation but together with the ASR. This paper argues that, envisaged together with the ASR, the ARIO magnify the structural straits of the law of international responsibility. It more particularly argues that the ARIO reveal that the minor and almost invisible defects at the level of the ASR have enlarged on the occasion of their transposition to the responsibility of international organizations, unveiling the conceptual fissures of the whole law of international responsibility (Section 1). It then formulates a few epistemological considerations on how a normative instrument that so openly lays bare the limits of the current law of international responsibility could nonetheless be usefully received by our professional community (Section 2).