Samantha Besson
Abstract The privatization of rights and obligations of states under the influence of international organizations (IOs) is a challenge for international law. The difficulty resides in the lack of a clear public status of those organizations. This article purports to identify an ‘international public law’ of both states and IOs. Only such a law could indeed institute international organizations as ‘public’ institutions of their member states’ peoples and thereby ‘reinstitute’ those peoples. The article’s first section presents an institutional-normative account of publicness. A second section presents how, even though an international law ‘of the public’ gradually developed after the nineteenth century, that public dimension was never very strong, not the least because of the role played by IOs. The third section explains indeed how, due to IOs’ construction as functional and apolitical organizations and the private law analogies that have dominated their organization, the international law of IOs quickly turned into a vector of public/private hybridization of both states and IOs. To address this challenge, the fourth section argues not only for a general and minimal common public status of IOs under international law, but also against quick analogies with states’ sovereign rights and obligations. To help consolidate the proposed distinct albeit continuous public status of IOs, the fifth section spells out what could be the common but differentiated public rights of states and IOs which may not be conferred to private persons, and their common but differentiated public obligations that could set limits on the private exercise of these rights.