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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 starts to explain what the genealogical continuity between states and international organizations means in practice. First, it reappraises how we should go about defining international organizations. Crucially, it is not because international organizations meet certain abstract criteria of ‘organizationhood’ that they should be admitted into our legal ontology, but rather because these institutions are expressions of the same communal capacity to self-describe. The chapter then revisits two persistent doctrinal puzzles regarding these institutions: the notion that international organizations enjoy a will that is ‘distinct’ from their members and the notion that they enjoy a legal personality that is opposable to non-members. It argues that both problems should be viewed in the context of more general problems that equally affect states’ corporate existence.
This chapter explores the legality of the IMF’s shift in mandate, and considers the overarching question of whether the institution was legally entitled to expand its mandate over time through de facto legal doctrines rather than express or implied consent of the members. The analysis begins with a consideration of the legal basis of the Fund’s initiative by examining the international legal theory on the legal personality of international organisations. That is, whether the mandate of an international organization is strictly dependant on the wording of its constitutive instrument(s), or whether the mandate can evolve so as to accommodate new de facto attributions and competences. The Fund’s mandate shift is then tested by taking into account the power of soft law. A key aspect in the legal literature is whether the constituent doctrine of ‘separate will’ or ‘volonté distincte’, which allows an organisation to act independently – that is without the express or implied consent of members – would apply to the mandate expansion as the move ensured the Fund maintained relevancy in an ever-changing world. Finally, the chapter concludes that the Fund’s mandate expansion was in line with the standards of international law applicable to international organisations.
The EU functions as a receptor and promoter of customary international law (CIL). However, from a theoretical (and international law) perspective, the questions why and when the EU is bound by CIL still have not been answered in definite terms. This chapter argues that the EU should be afforded a similar treatment as is afforded to (newly independent) states. This is based on a close examination of its practice in the field of international humanitarian law (IHL), where the primary organization tasked with ensuring peace and security – the United Nations – has so far avoided explicitly affirming that it is bound by customary IHL. After showing that it is indeed the EU which might bear direct responsibility in the context of military operations authorized under the Common Security and Defence Policy, the chapter examines the EU’s behaviour when it comes to new regulatory efforts, its executive and operational conduct, and the CJEU’s case law. On the basis thereof, it is concluded that the EU’s practice confirms the theoretical conclusions reached, and that therefore any theoretical uncertainties on whether and why international organizations are bound by CIL might in future be answered by paying closer attention to their practice.
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