The Analogy between States and International Organizations - Dr Fernando Bordin

Dr Fernando Lusa Bordin

Fernando is a Fellow and Lecture in Law at Sidney Sussex College, Cambridge. He is also an Affiliated Lecturer at the Faculty of Law, and a Fellow at the Lauterpacht Centre for International Law. His research focuses on topics of public international law, including law-making, the law of treaties, the law of international responsibility, international organizations and the intersection between international law and legal theory.

Fernando's book 'The Analogy between States and International Organizations' received the Certificate of Merit in a specialized area of international law by the American Society of International Law (ASIL) in the summer of 2020.

The Analogy between States and International Organizations - Fernando Bordin

Book Blurb: The book investigates how an analogy between States and international organizations has influenced and supported the development of the law that applies to intergovernmental institutions on the international plane. That is best illustrated by the work of the International Law Commission on the treaties and responsibility of international organizations, where the Commission for the most part extended to organizations rules that had been originally devised for States. Revisiting those codification projects while also looking into other areas, the book reflects on how techniques of legal reasoning can be - and have been - used by international institutions and the legal profession to tackle situations of uncertainty, and discusses the elusive position that international organizations occupy in the international legal system. By cutting across some foundational topics of the discipline, the book makes a substantive contribution to the literature on subjects and sources of international law.

What made you write on this topic?

There is an anecdote behind it, actually. I knew that I wanted to investigate the legal implications of the status of international organizations as subjects of international law, but was coming to the topic from a rather abstract perspective, unsure of how exactly to tackle it. Then I had the opportunity to serve as assistant to Special Rapporteur, Giorgio Gaja, at the International Law Commission in the summer of 2009, when the Commission completed the first reading of the Articles on the Responsibility of International Organizations for Internationally Wrongful Acts. As I was helping Prof Gaja edit and format the draft commentaries appended to the Articles, I was puzzled by an argument that recurred in the text: that various provisions from the 2001 Articles on State Responsibility could be extended to international organizations because there was no reason to distinguish between those organizations and states. That assumption seemed reasonably convincing, but I kept asking myself, ‘what kind of justification is this?’. 

A few days later, as I was idly browsing the shelves of the library at the UN Headquarters in Geneva, I came across Sir Hersch Lauterpacht’s ‘Private Law Sources and Analogies of International Law’, which happens to be based on the doctorate he defended at the London School of Economics in 1926. Reading through the first sections of that book, it dawned on me that the reason I thought the ILC’s approach was somewhat appealing is that saying that there is no reason to distinguish between states and international organizations is the same as saying that the two categories of international legal subjects are analogous for certain purposes. And that, if this were indeed true, there would be a basis in legal reasoning to extend rules from one category of international legal persons to the other. That provided me with a productive angle to approach the questions that captured my imagination at the time.

How long did it take to produce your book from initial conception to publication?

More than nine years passed from the epiphany in the library to the date of publication of the book. But the doctoral thesis on which the book is based was written between October of 2010 and February 2014, and I worked on the manuscript on and off until submitting it to the publisher in February 2018.

What is the most difficult part about writing for you?

First drafts, for sure. I quite enjoy the editing process but find committing my thoughts to writing for the first time a bit stressful.

Why should people read your book?

The book does a number of things that people may find interesting. It offers some reflections on how gaps in international law are filled and how participation in the international legal system has been widened and transformed with the emergence of international organizations. For those interested in international organizations, the book discusses what kind of international legal creatures they are and what can be illuminating ways of thinking about the default rules that apply to them on the international plane. It does so by considering the place of analogy in (international) legal reasoning and going through arguments made in favour and against comparing international organizations with states in codification projects carried out by the ILC and in other forums. The book’s ambition is thus not only to theorise about international legal subjects but also to help practitioners work through identifying the law that applies to them in the context of real-life legal disputes.

What book is currently on your bedside table?

My bedside table is reserved for fiction and the occasional biography, so you won’t find any law books there! At the minute, I am finishing ‘Middlesex’ by Jeffrey Eugenides. 

What are you working on now?

I have been busy with a few short-term projects, but the main item on my research agenda is legal reasoning in international law. My plan is to take a close jurisprudential look at forms of legal argument that are prevalent in international law and, by doing so, enhance our understanding of how the international legal system manages to work despite the high degree of uncertainty that the absence of centralised governance structures produces.