Capturing the juridical will
in International organisations, non-State actors, and the formation of customary international law
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The International Law Commission’s Conclusions on the identification of customary international law show that contemporary international law grant a modest role to international organisations as independent actors in the formation of customary international law, which is remarkable, given that organisations participate ever more fully in international legal affairs. One of the reasons for such a restrictive approach lies in the hesitation of the Commission to ascribe to international organisations a ‘juridical will’. In this chapter, this term is a shorthand for the various subjective, intentional states that systems of law project onto legal participants in order to operationalise legal agency. It shows that international law can accomodate States in this respect, but remains adverse to international organisations. This can be explained through the organisation’s functional and mechanical identity in international law, which has persisted even after organisations emerged as prominent independent legal actors. It is submitted that this is one reason why the ascertainment of an organisation’s opinio juris, or of an organisation’s distinct will in the attribution of practice, may pose a challenge. The chapter proposes that, in light of their current role in global affairs, international organisations assume a role in the formation of custom insofar as this is substantively relevant for their work, and that organisations be understood as the receptacle of a juridical will.

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