The Recognition of the Formal Equality of International Organizations by Means of an International Rule of Incorporation

Abstract

One of the major developments of the law of international organizations of the last decade was the conclusion of the project on international responsibility. In this period, the ARIO prompted a critical reflection on the foundational principles of international organizations. The notion of equality is one of the most controversial issues. This paper focuses on its meaning and how it relates to the equality of other subjects of international law. In particular, I criticise the conventional description of international organizations as “fundamentally unequal” and its foundation in the so-called principle of speciality. This is a very confusing notion, even if consistently applied by legal scholarship. To clarify the theoretical framework, I apply the notion of formal equality to international organizations, distinguishing it from substantive equality. I contend that the substantive inequalities affecting states and individuals are interconnected with the formal inequality of organizations. The paper discusses issues such as unequal voting rights, unequal rules on the attribution of conduct, unequal capacity to bear obligations. I conclude the paper by claiming that the equal capacity to bear rights and obligations has to be based on a rule of general international law that gives a meaning to organizationhood as sovereignty does for statehood.

Keywords: international organizations, international law, equality, rule of incorporation, international law commission

JEL Classification: K33