7. Changing Concepts of Intergovernmental Organization and International Organization

This chapter reviews various paradigms of international organization not established by a treaty and the concepts of and definitions of “intergovernmental organization” and “international organization”. The term “intergovernmental organization” needs to be interpreted in a wider manner to comprise a wide range of international organizations not established by a treaty, including organizations created pursuant to a decision of the conference of the parties to a multilateral convention or organizations established as trust funds. Furthermore, an intergovernmental organization” does not necessarily need to be defined as a public international organization. Hence, also dual and hybrid organizations incorporated under national law may qualify as “intergovernmental organizations”. However, this term is intrinsically problematic as it excludes all organizations not established by government and should, therefore, only be used if warranted by law. As regards the term “international organization”, the current definition of that term by the International Law Commission was coined in the specific context of the work of the Commission on the responsibility of international organizations and needs to be understood in this context. It is not suitable to be given a general application. The term “international organization” should not be understood to comprise only public international organizations. Rather, given the evolution of public international law, dual and hybrid organizations incorporated under national law are a new paradigm of international organization. However, the term “international organization” is broader than “intergovernmental organization”. Therefore, also organizations which are not established by agreement between governments or which do not have predominantly or exclusively states as members may qualify for recognition as international organization. The need for new concepts of “intergovernmental organization” and “international organization” is a corollary of new trends and developments in international law. It is related to the fact that the number of participants in the international legal system is increasing. In this context, a wider definition of international organization is required to include certain actors that were previously classified as nongovernmental. Such broader definition is also necessary as the borderline between public and private is shifting. The public and private and governmental and nongovernmental dichotomies can only capture the legal nature of international organizations to a limited extent. In the past, organizations that were not established by governments, and with representation arrangements not involving government representatives, were ipso facto relegated to the realm of non-governmental organizations. However, such an approach is no longer appropriate.