Beyond the Either/Or Paradigm in the Formation of Customary International Law by International Organizations

Abstract

This paper proposes a theoretical framework for the role of international organizations in the formation of customary international law that rejects their traditional conceptualization as double-faced entities. Under this paradigm, organizations are either considered as fora for the development of the practice and the opinio iuris of States, or as independent actors that autonomously contribute to the formation of customary international law. The aim of the following pages is to describe an alternative framework to reconcile these two faces of the same coin. It will be shown that one approach does not exclude the other, and the adoption of one perspective is only motivated by specific purposes that do not rule out the relevance of the other view. The paper first describes the either/or paradigm in order to read the work of the International Law Commission and of the International Court of Justice. Later, it describes three ‘anomalies’ of this paradigm that concern the development of so-called ‘objective regimes’ (Section 3). Finally, section 4 builds a theoretical framework on the role of international organizations in the formation of customary international law that acknowledges their dual (and not double) nature.

Keywords: international organizations, customary international law, international law commission

JEL Classification: K33