Lecture
In What Sense are International Organisations 'Public'?
- Date
- Wednesday 4 December 2024
- Time
- Location
- Wijnhaven
Turfmarkt 99
2511 DP The Hague - Room
- 3.46
The growing privatisation of the rights and obligations of States and the converse publicisation of those of private persons in and under international law pose a major threat to the rule of law and democratic legitimacy, both domestically and internationally. No wonder some international lawyers have started reflecting on what makes the State a public institution and how best to protect it. The difficulty is that such a reflection cannot be complete without including international organisations (IOs). Indeed, by turning their Member States’ sovereign powers which they have been “delegated” into mere “functions” and by re- “delegating” those functions to private persons, IOs and their law have actively contributed to the privatization of those States’ rights and obligations. It suffices here to think of how, for instance, the World Health Organisation has brought its Member States to share their decision-making powers and other participation rights in the organization with various “non-State actors”, or how the International Organisation for Migration has required its Member States to commission private companies to control their maritime borders and manage their asylum applications. To that extent, the publicness of IOs themselves should be in question. Merely assuming that IOs are public institutions, for instance on grounds of their State-membership or of their pursuit of public interests, is no longer sufficient. The difficulty, however, resides in the lack of a clear “legal status” of those organisations under contemporary international law, not to mention their lack of clear legal status as “public” organisations. In response, this lecture purports to identify and flesh out a minimal “international public law” of IOs.
Based on an institutional-normative account of publicness defended elsewhere and restated in its first section, the lecture’s second section explains how, even though an international law “of the public” has gradually developed in the international law of statehood since the 19th Century, that public dimension has never been very strong. This second section also explains how, due to their construction as functional and a-political organisations and to the private law analogies that have allowed for such a construction, the international law of IOs has quickly turned into a vector of public/private hybridization of both States and IOs. To address this challenge, however, it is important to evade mere analogies with States’ public rights and obligations and to broach the difficult issues of what could be the specific sovereignty and democratic representativeness of IOs themselves in continuity with those of States. To help construct that public status of IOs under international law, the lecture’s third section spells out what could be the international public rights of IOs which may not be conferred to private persons and whose interpretation could be strengthened, while its fourth section turns to the specification of IOs’ international public obligations that, when duly applied, could set limits on the private exercize of these rights.
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