Beyond Binary Oppositions? The Elusive Identity of the International Organization in Contemporary International Law

Abstract

Much of the conceptual work on international organizations situates the identity, nature or legal form of the institution between binary oppositions: ‘open’ vs ‘closed’, ‘agora’ vs ‘actor’, ‘contract’ vs ‘constitution’, etc. These oppositions are informative and revealing of tensions underpinning different aspects of international institutions: the extent to which they are vehicles for their member states versus autonomous actors in their own right; that they have limited, derivative and defined powers, but are also able to evolve and adapt to take on new competences and unforeseen powers, and so on. At the same time, insofar as many of the core doctrines of international institutional law, on e.g. personality, powers, responsibility, etc., rely most heavily on the European Union and the United Nations – arguably two of the most unique institutional structures – as evidence for these doctrinal developments, it is clear that there is something more special, unique, indeed sui generis that needs to be thrown into the conceptual mix in order to fully understand the nature and importance of international institutions in contemporary international law. In this way, I will argue, international institutions have a more complex identity and relationship with international law in which they not only exist within (closed) and as part of (open) contemporary international law, but also aim to overcome its limitations, to transform it in some way. For this reason, rather than being competing understandings of international institutions, the interplay between these kinds of binary oppositions actually only reflect back broader theoretical tensions ingrained within international law as a decentralised legal system – a condition which makes it impossible to definitely ‘pin down’ the seemingly elusive identity of the international organization. However, it is also a condition which allows for the construction of tentative hierarchies and forms of more centralised governance within international law, whilst always leaving scope (through legal form) to challenge any such pretentions to authority. This article is part of the iolr Special Forum on ‘Contested Fundamentals of the Law of International Organizations’.