Reconstructing the International Institutional Order

1In 1516, a few years before founding the Collège de France, Francis I signed the Traité de Fribourg (lit. Treaty of Fribourg) in the city of the same name, in Switzerland. Better known as the Traité de paix perpétuelle (lit. Treaty of Perpetual Peace), this treaty bound France to the thirteen cantons forming the Helvetic Confederation at the time. The reasons the treaty – the only Traité de Fribourg in international law – was concluded in Fribourg were manifold. Back then, the Canton of Fribourg was the place of origin of countless mercenaries in the service of European princes. Moreover, at a time of quasi-secession between the Confederates, this bilingual canton had become France’s favourite political intermediary.

2Renewed in 1521, the Traité de Fribourg was successful in maintaining peace between our two countries for nearly two centuries. Today, the only contemporary event remembered in popular history is the famous victory of Marignano of 1515. However, if that battle is now commemorated as a victory (both by the French and the Swiss, in fact), it is because international law fulfilled its role. It allowed the parties to build something that turned them both into victors: a regional institutional order ensuring peace and prosperity. The treaty initiated the premises of Switzerland’s neutrality under international law, and most importantly it established its diplomatic autonomy. It also instituted it as a State and orchestrated its first steps on the international scene. As for France, the treaty granted it with the exclusive services of the Swiss mercenaries, as well as partial control of the coveted Milanese territory.

3In light of the importance of this sixteenth-century treaty for both our countries, it is comforting to think that international law as a discipline now returns to the Collège de France in the person of a Swiss professor, and one who happens to teach at the University of Fribourg. At the same time, of course, one cannot help noticing a certain irony at the thought of a Swiss national (even though there have been others before) entering this beacon of humanism, an institution founded more or less at the time one of Machiavelli’s letters described the Swiss as lacking humanism. As Patrick Boucheron tactfully reminded me, however, Machiavelli’s description was actually a tribute to the Swiss citizen-soldier: a citizen who knew how to distance himself from an elitist culture grounded in humanist individualism.

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4Excellencies,
Honourable Administrator,
Dear Colleagues,
Dear Collège de France’s Teams,
Dear Family, Dear Friends,
Ladies and Gentlemen,

5Make no mistake in listening to the seemingly light-hearted story I have just told about the golden hours of international law in our two countries. As the year 2020 comes to a close, the state of international law is critical. Coming as a final blow in the succession of climate, security, economic and migration crises since the turn of the millennium, the current global health crisis has confirmed this once more.

6In many ways, and unfortunately, the challenges international law faces are as important as the expectations it now creates. I will only mention three of these challenges here: first, the increasing dismissal by populations or, at least, by their governments of international legal norms and institutions perceived, alternatively, as a remnant of Western imperialism, as a reflection of a techno-scientific logic serving the global market or a few mercantile empires, or even as “foreign” and thus undemocratic law (this is what one may refer to as the challenge of international authority and legitimacy); second, the growing paralysis of international organizations whose purpose, in a globalized world, should precisely be to address the transnational issues that cannot be solved by each State individually, as well as, and it is related, States’ increasing inability to enter into multilateral treaties whose coordinating role is gradually taken up by transnational “soft law”, a “law” whose flexibility mostly equates with a lack of political controllability (this is what may be referred to as the challenge of international law-making); and finally, the seemingly chronic and planned irresponsibility under international law of certain States, international organizations and multinational corporations, enhanced by the lack of a mandatory international justice system and the interplay of sovereign immunities (this is what one may refer to as the challenge of international responsibility).

7Under these circumstances, the inauguration of a chair specifically dedicated to the study of the International Law of Institutions in this forum open to all people and knowledge may, of course, be perceived as the sad confirmation of the state of international law. It is also, and this will be the chair’s ambition, a sign of great hope.

8Unlike some of my ancestors, I do not appear before you tonight in mercenary service and am not about to risk my life for a couple of écus. However, the honour you have conferred upon me, dear Colleagues, in electing me to this chair, is no less formidable. I cannot begin to tell you how grateful I am for the trust you have placed in me, despite the anxiety that comes with such a heavy responsibility.

9Thankfully, I will not be alone when facing that responsibility. I have the privilege, indeed, of following in the footsteps of many illustrious predecessors.

10In the first few years after the creation of the Collège de France, the Law was admittedly missing among the disciplines taught therein. It only found its way into the teachings of the royal lecturers in 1612, with the establishment of the Chair of Droit canon (lit. canon law) (1612-1793). Since then, lawyers have been present at the Collège de France for almost four centuries, and continuously so but for a long interruption between 1919 and 1979 and another shorter one from 1989 to 2003, two interruptions I will come back to later on in this lecture.

11In many ways, the history of Law at the Collège de France amounts also to that of the teaching of international law. Indeed, what we owe to the Collège de France’s humanist tradition is an emphasis on universality in all matters, including therefore an interest for universal law since the origins. In this respect, one should acknowledge the influence, from the very beginning, of Guillaume Budé’s legal humanism, together with his idea of a common law of the good government, an idea which still resonates in the project of the chair we are inaugurating tonight.

12One may identify three stages in the history of international law at the Collège de France, from the eighteenth century to the present: that of the law of peoples, that of comparative international law and, finally, that of “world law”.

13The introduction of international law at the Collège de France took place in 1773, with a first course dedicated to the law of peoples and the creation of the Chair of Droit naturel et des gens (lit. natural law and the law of peoples) (1773-1887). With this new chair, the Collège de France positioned itself as a pioneer in France where the law of peoples or jus gentium was not yet taught in universities. This was the time when Christian natural law (jus naturale), now conceived as a secular rational law, was contrasted with a more voluntary or conventional kind of law. That same opposition was drawn within the law of peoples itself, and this may explain the juxtaposition of both terms in the chair’s title. Indeed, based on the reception by thinkers within the scholastic and Enlightenment traditions of the complex distinction made by Roman jurists between jus civile, jus naturale and jus gentium, the law of peoples was considered, depending on the author and the period, as a form of either natural or voluntary law.

14Unfortunately, the focus on jus gentium faded away from that chair’s activities rather quickly, to make way for the exclusive study of natural law and, later on, of moral philosophy in general. This occurred as soon as the first chairholder, Mathieu-Antoine Bouchaud, and his successor, Pierre de Pastoret, were replaced. This was actually also the time when, in Europe, international law (like domestic law) started being caught up in a utilitarian and legal positivist whirlwind. Lawyers lost sight of the Law’s normative dimension and began approaching it as a purely social phenomenon. It is also during the said period that positive international law, in the midst of the nineteenth century codification processes, entered the curriculum of French law faculties. In 1887, therefore, the Chair of Droit naturel et des gens was replaced by a chair in experimental and comparative psychology.

15Fortunately, a second turning point in the history of international law at the Collège de France had taken place a few years beforehand with the creation of a second chair of Law, the Chair of Histoire générale et philosophique des législations comparées (lit. general and philosophical history of comparative legislations) (1831-1919). Eugène Lerminier first held that chair, soon followed by Edouard Laboulaye. Once again, the Collège de France was at the legal forefront in France, this time by inaugurating a chair in comparative law. The chair’s courses also included international law, albeit in a way that differed from the approaches en vogue in the second half of the nineteenth century: the study of international law also entailed the comparison of categories common to different legal traditions. That second chair of Law thus introduced, well ahead of its time, the now popular project of comparative international law.

16Once again, however, the legal dimension of the new chair withered over time. As Alain Supiot has skillfully demonstrated about the history of law in the nineteenth century, this was the time when the Law gradually lost ground to the “laws of science”. International law was no exception in this search for scientific credentials. It was also the moment when the study of comparative law made its way into universities’ teachings. Unsurprisingly, therefore, the Chair of Histoire des législations comparées was replaced, following the death of its last holder in 1919, by a chair in the history of science.

17Unlike what had occurred after the first interruption in the history of the legal discipline at the Collège de France, however, no further chair of Law was created at the time. This was a turning-point and the beginning of what one may refer to as a “lawless” period of sixty years in the institution.

18The timing could not have been worse, however, given how critical the moment was for international law: the First World War had just ended and the second was looming large. The inter-war and post-war periods were phases of major transformation for international law. It was also a pivotal time for the international law of institutions, to which the work of great French internationalists like Paul Reuter, Suzanne Bastid or Michel Virally bears witness.

19The international institutional order that had slowly been constructed around the State since the seventeenth century, and especially during the nineteenth century, had to be fundamentally rebuilt. Not “all at once or according to one single plan” but in several stages, as stated in the 1950 Schuman Declaration with respect to the foundations of the European Communities.

20This new order was first universalized by the extension of the institution of the State to all peoples in the world, mostly following decolonization. It guaranteed the equality of rights of those States and contributed, at the same time, to positing the equality of all human persons and peoples under their jurisdiction. Sovereign equality was formally protected by the United Nations Charter, while human persons and peoples were recognized as holders of equal rights by various human rights treaties that have since then been gathered together under the denomination “International Bill of Human Rights”. Today, the gist of this new post-war universal and egalitarian institutional order is best captured by reference to the guarantee of the “right to have rights” in Article 28 of the Universal Declaration of Human Rights. According to that provision, “[e]veryone is entitled to a social [i.e. national] and international order in which the rights and freedoms set forth in this declaration can be fully realized”.

21At this point, new institutions rapidly started to see the light and to complement the States’ international order. The League of Nations’ failure gave rise to the United Nations’ system, and many other international organizations were instituted as of the 1950s. Sadly, and I will come back to this later, the construction of those organizations (especially the universal ones like the United Nations) has remained incomplete to this day. This is especially the case with respect to the equality between human persons and peoples in those organizations, even though the guarantee of that equality was, and still is, at the very heart of the established international institutional order.

22All the same, it is not until much later, in 1979 and the middle of the Cold War, that the third turning-point in the history of international law at the Collège de France came about. A new chair of Law, whose title was simply Droit international (lit. international law) (1979-1989), was inaugurated. The professor elected to that chair was René-Jean Dupuy.

23For the third time, the Collège de France positioned itself as a forerunner in the field. This third phase in the history of international law coincided indeed with a new way of approaching international law: a law that was no longer solely international (as in “inter-State” law), but also supranational, i.e. the law of a global community or of what the chairholder boldly referred to as the law of the “cité terrestre” (lit. the earth-city). What set René-Jean Dupuy’s work apart from that of his French contemporaries had nothing to do with any systemic thinking (that he rejected), but lied rather in his unique and original method of open dialectic.

24At the turn of the millennium, and after a second, albeit shorter this time, “fallow” period between chairs of Law (which coincided once again with a key moment in the history of international relations: the end of the Cold War), work on the conceptualization of what would be, from then on, referred to as “world law” resumed at the Collège de France. This occurred with the election of two lawyers: Mireille Delmas-Marty and, later on, Alain Supiot. Interestingly, both of them came from a domestic law background (criminal law for the former, social and labour law for the latter) that was going through intense internationalization, and both sensed the danger there was in developing a uniform international law.

25In reaction, the research programme introduced in 2003 by Mireille Delmas-Marty for the Chair of Droit comparé et internationalisation du droit (lit. comparative law and internationalization of law) (2003-2011) set out to cultivate what she referred to as an “orderly legal pluralism”. This enabled her in particular to reconnect with the Collège de France’s tradition of comparative international law. In 2012, Alain Supiot was elected to the Chair État social et mondialisation: analyse juridique des solidarités (lit. welfare State and “world-ization”: legal analysis of solidarities) (2012-2019). He set out to reflect on an alternative to “global” law and proposed a form of international law qua law of a mundus (Latin for “universe”, “order” or “world”), i.e. the law that could enable the world to remain habitable for all those who live and work in it.

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26The chair that the Collège de France’s Assembly of professors is entrusting me with and that we are inaugurating here tonight bears, once again, the terms “Droit international” (lit. international law) in its title. This title enables the chair to embrace all the stages which, one by one and over centuries of legal teaching at the Collège de France, have also made their mark on the history of international law more specifically: Christian natural law, the law of peoples, comparative international law, and world law. At a time when all eyes are set on the future of international law, and we will of course come to this, a greater awareness of its past should enable us to cultivate a “broader sense of the possible”.

27Thus, insisting on the origins of international law in Christian natural law is not only relevant to its own exegesis. It is also a reminder of the close relationship there still is between law and religion in other legal cultures than our own, especially since it is ours that has become the mould of contemporary international law. It is also important to recall the artificial distinction that has long been made between natural and voluntary law. Indeed, the distinction still weighs over our understanding of the law of peoples, and realizing this may help to ward off certain contemporary voluntarist forms of international legal positivism. Furthermore, the central role originally played by comparison in international legal reasoning should be kept in mind. Therein lies the key to the legitimacy of international law, especially if it is to be able to justify its claim to universality without imposing uniformity. Finally, let us think of international law not as a form of global law between States, but rather as world law, i.e. the law of the peoples represented by those States and who, according to Hannah Arendt, “inhabit the earth and [thanks to that law] form a world between them”.

28While the chair we are inaugurating tonight perpetuates a centuries-old tradition of international law at the Collège de France, its title also signals a specific project by referring to the international law “of institutions”. It thus breathes a new direction into the tradition.

29As Philippe Descola reminded us in his inaugural lecture, the comparative study of human institutions has been a long-standing concern at the Collège de France. It was first the case in the law of peoples, of course, and more recently, in social anthropology. The chair inaugurated this evening re-engages with the normative and comparative treatment of institutions fostered by the first lawyers of the Collège de France, but focuses, for the very first time, on the institutions of international law, i.e. those institutions common to all individuals and peoples around the world.

30With its emphasis on the international law that rules institutions, and conversely, on the international law that is created by these institutions, the title of the chair shifts the focus from law to institutions and back, thus examining their mutual relationship in a dynamic way.

31By doing so, the aim is to highlight the intimate bond between international law and institutions, a relationship which is often overlooked. Many contemporary international lawyers, perhaps under the influence of a judicial conception of law, focus exclusively on international law. They view institutions as a normatively inert social phenomenon or, worse still, as a pure creation of law. Conversely, even though this type of “over-institutionalization”, as opposed to international law’s “under-institutionalization”, is less common among international lawyers than in political science, and in particular international relations, it would be a mistake to envision international institutions without the law that rules them (based on the literal meaning of the “rule of law”), and to boil international law down to a mere instrument at the service of institutional actors, or, worse, to a simple by-product of their activity.

32Delving into the relationship between law and institutions allows us to reaffirm not only the normative and jurisgenerative aspect of institutions, but also, conversely, the structuring and organizing dimension of law, and hence its “instituting” power. As a matter of fact, it is from this complementarity or balance (as opposed to their identity) between law and institutions in the context of social and political organization, that an “order” (both in a legal and institutional sense) may emerge, as Maurice Hauriou and Santi Romano have explained albeit in different ways. This order amounts to much more than a basic “system” of legal norms, or worse, than a coercive and power-mediation “order”, even though they may of course be related. The word stato from Machiavelli’s Prince, to which we often trace the origin of the term “State” and that of the modern pair formed by the State’s institution and (its) law, is an accurate reflection of the ordering and orderly or ordered (ordo ordinans) nature of the legal institution: it literally means the “upholding of the state”.

33The aim of this chair is to re-examine the relationship between law and institutions, at least since its emergence in the Modern era and, above all, in Western political thought pertaining to the rule of law. It puts that relationship to the test by confronting it, on the one hand, to the universality of contemporary international law and thus to non-Western political thought and, on the other, to the possibility of non-State law and institutions. More specifically, I would like to suggest we first and foremost consider the relationship between international law and institutions as one of political representation and, accordingly, from the standpoint of the international order’s democratic legitimacy.

34Understood in this way, the chair’s project is to critically assess the international institutional order as a whole. Its title refers to “international institutions” in the plural form, and not only to the first institution of modern international law that is the State. It does not, however, aim at considering only the law of “international organizations” as if they were the only institutions of international law, even if this is a common view among international lawyers when they discuss variants of so-called “international institutional law”. Rather, the project is to include all the institutions that adopt the rules of international law and that are ruled by international law, starting with the States and international organizations, but stretching out to cities, regions, multinational corporations, non-governmental organizations, trade unions, religious organizations, as well as non-territorial political institutions.

35The very diversity of these international law institutions is an integral part of the conceptual and normative challenge this chair aims at addressing. And so is their continuity with States and hence with the peoples instituted as States. It is indeed solely on the basis of the legal relationships between States, and thus between the peoples they institute, but also between these States-peoples and the other institutions through which they re-institute themselves, that we can truly contemplate an institutional “order”.

36If there is one international institution that deserves special attention on the part of those working on the international institutional order in Europe, it is the European Union (EU). Its (alleged) institutional features of a “third kind” (neither State-like nor purely “organizational”), its specific political project (and especially its constitutional order, its citizenship and democratic legitimacy) and, most importantly, the “autonomy” it vindicates from international law have not ceased to tantalize both EU and international lawyers. Given the existential crisis the EU is currently going through, in light of the many calls emitted recently for its “refoundation” or “renaissance”, and bearing in mind the growing role of regional organizations in international law in general, this chair’s contribution will be to introduce the study of the EU (and of its foreign relations) as an institution of international law at the Collège de France.

37When the Abbé Jean-Jacques Garnier started lobbying for the creation of a Chair of Droit naturel et des gens in 1773, he was animated by a sense of “public utility”. In the same spirit, I would like to emphasize the practical urgency in concerning ourselves with the future of the international institutional order. Doing so at a time in the history of international relations when international law has helped spread, albeit with limited success, the institution of the State and of Western law outside Europe and to the whole world, on the one hand, and when, even in the West, the State is challenged in itself and by other institutions, on the other, is by no means easy. One should be ready, however, to face the state of international law (to revert to the first meaning of stato) or, more accurately, the instability of that law. It is in order to anticipate the “dis-order” that follows the “dis-institutionalization” of international law, on the one hand, and by reference to the connection between disorder and violence made by the two previous holders of a chair of Law at the Collège de France in their inaugural lectures, on the other, that this chair proposes to confront openly and directly the questions of reforming, and hence of reconstructing the international institutional order.

38I am well aware of the magnitude of the task and the depth of its ambition. Like all the other lawyers at the Collège de France since Eugène Lerminier, I will not break with the tradition of calling to mind his political setbacks and stressing the risks inherent in a professor of law’s practical commitment. During the memorable moments of intellectual intimacy of the visits that prepare an election to the Collège de France, a few among you, dear Colleagues, were curious about how exactly an academic lawyer could have the project of criticizing and reforming the Law and would go about it. And yet, this is exactly how the legal practice works and how (both teaching and practising) lawyers participate therein: they build and rebuild constantly. International lawyers have certainly been more timid in this regard, and, as we will see, that is precisely the issue. There have been some notable exceptions, of course, among which Monique Chemillier-Gendreau’s proposals for the reform of the United Nations.

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39If I have been able to find the courage and inspiration to develop this project, I owe it to many people to whom I would like to pay tribute tonight.

40It took more than one master to guide me down the sinuous path of the study of legal, moral and, finally, political equality. I am especially grateful to Pierre Tercier, Jörg Paul Müller, Joseph Raz, Christopher McCrudden and Jeremy Waldron. Nothing would have been possible, however, in exploring the conditions for the legitimacy of international and European law, without my brothers and sisters in science, in particular: José Luis Martí, John Tasioulas, Nicolas Levrat, Pierre d’Argent and Jean d’Aspremont.

41Importantly, it is to the invaluable assistance of many doctoral and post-doctoral students belonging to a new and passionate generation of international and European lawyers that I owe the smooth progress of my journey. They cannot all be named here, but will recognize themselves in this expression of my gratitude.

42Finally, reaching this shore, dear Colleagues, would not have been possible without the help of some of you. I cannot thank Thomas Römer enough for having agreed to be my présentateur (lit. my “introducer” to the institution) – perhaps because Law, like religion, is what links or “re-elects” us? My heartfelt gratitude also goes to Alain Supiot, whose initiative it was to create a second chair of Law. Our paths met late in life, but he is much more than a predecessor here. From the salt marshes of Guérande to those of the Gujarat, he introduced me to the “regard persan” (lit. the Persian gaze, inspired by Montesquieu’s Lettres persanes), and made me see what I could not.

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43But what is the state of the international institutional order? Why is rebuilding it so difficult? And above all, how will that reconstruction come about exactly?

44International relations today are characterized by the activities alongside States, but sometimes in their place, of many other institutions whose relationship to States and their peoples remains indeterminate. These institutions, both public and private, are diverse in nature and varied in powers. Most of the time, they act without clear relations between them and without reference to a specific territory, and sometimes even without a personal relationship to the individuals whose conduct they bind. Finally, their concentration and influence vary according to their domains of activity and across regions.

45International lawyers have long been faced with this institutional complexity, but one would look in vain for clear indications in international law, including for the basic principles of an “international law of institutions”. It is such an international legal regime, however, that should help us answer three fundamental questions pertaining to our social and political organization: who can act on behalf of whom in international law? What are the conditions for these actions to bind us legally and have the legitimacy to do so? And who may be held responsible, by whom and how, in case of breach of international law?

46We should first and foremost cast a critical eye on the state of the “international law of institutions”.

47Hidden behind this seemingly technical phrase lies a great tension. It stems from the original conception of international law as a legal order instituted from the start by and for States. This is why one sometimes describes the relationship between State and international law as “immediate”: there would be no international law without States, nor would there be any States without international law.

48This immediateness explains why the institutional question is rarely openly addressed by international lawyers. It renders the idea of an international law of institutions, depending on the standpoint, either tautological or revolutionary.

49Admittedly, a legal regime akin to an “international law of statehood” has effectively consolidated over time. However, that regime never fully took on an instituting role. As for what some lawyers already refer to as the “international law of institutions”, its scope has too often been limited to the “law of international organizations”. It does not yet rule all the other public and private institutions that organize people’s lives and, more broadly, their world.

50First, let us dwell for a moment on the international law of statehood. For long, and following in this respect the liberal conception of the 17th and 18th centuries, the international legal order was thought of mainly as a contractual network linking States to each other, thereby approaching the latter as one would individuals on a horizontal plane. In this context, there was no need for an international law of statehood, by contrast to what applies in domestic law and especially in the regime of domestic law dedicated to public organization (including the State).

51With the colonization and its “civilizing” mission from the end of the nineteenth century, on the one hand, and following the decolonization and the promise of “development” during the twentieth century, on the other, the institution of the Western State was gradually exported to various parts of the world. It is in this context that the international law of statehood flourished: it contributed to the universalization of the State’s institution outside domestic borders and especially outside those of Europe. By the beginning of the twentieth century, that regime of international law had indeed established itself as a means to shape new States in the form of Western States (qua “carbon copy of European institutions”, to quote Judge Foster in the International Court of Justice’s Western Sahara Advisory Opinion of 1975). It is only a little later, however, as early as the 1960s, that the international law of statehood acquired another role at a time when different international organizations were instituted by States. It is then indeed that it also became the law of the delineation of the legal “personality” of (Member) States from that of their international organizations.

52Nowadays, the international law of statehood’s two roles go hand in hand. Indeed, international organizations are often called upon to shape the features of their Member States, in particular by way of the case law of their courts or other interpretative bodies. Being themselves designed according to the Weberian and, more broadly, functionalist State model of the late nineteenth century, international organizations and their organs have contributed to further entrenching that model in return through their interpretation of the international law of statehood, thereby giving rise to a closed interpretative loop around a certain legalized conception of the State.

53Unsurprisingly in those circumstances, the international law of statehood has gradually gelled into a form of “State science”. It has turned into a collection of techno-practical recipes for the proper administration and governance of States. No wonder then international lawyers generally have a difficult time approaching the State as a political institution. Under the influence of the (post-)utilitarian theory of international relations, most of them have indeed rejected the fiction of the State, forgotten the popular origin of its sovereignty, and obliterated the triangular relationship linking the State, on the one hand, to the government (respectively, the representatives), and, on the other, the governed (respectively, the represented). Contemporary international law no longer considers the State as anything other than a governmental entity, sovereign in and of itself and, a fortiori, regard it as the only conceivable sovereign institution there is and could ever be under international law.

54In other words, and to come back to the alternative between tautology and revolution mentioned before, the international law of statehood does not yet play the revolutionary part that it could as the first prong of the international law of institutions. And yet, as I have explained, the State’s institution has clearly been “internationalized” by the international order that States have gradually established since the seventeenth century and then reformed during the twentieth century in the hope of instituting themselves and their populations not only universally, but equally.

55That first international institution of the State was probably too partial to succeed – possibly, albeit not solely, because it was too focused on the rights of individuals. Thus, if the majority of States in the world are considered today to be “failed” or “fragile” by reference to the various indexes in use, it may simply be because international law itself has failed those States-peoples by failing to re-institute them in the first place.

56Secondly, what about the law of international organizations? When it does take place, the institutional conversation in international law seems indeed to occur within the boundaries of the law of international organizations. It is actually even customary to refer to this law as the “international law of institutions”, as if what we call the “institutionalization” of international relations was nothing but the doings of those organizations.

57Regrettably, however, that debate has focused almost exclusively on the internal structure of international organizations, and thus on the functional relations between their different organs or agents and between these organs or agents and their Member States. There are very few mentions of the relations between these organizations and the peoples of their Member States, and even less of the re-institution of these peoples in the course of the institution of international organizations by their States. Not to mention, of course, the limited treatment of the relations between an international organization’s Member States and their peoples, on the one hand, and the other peoples and their respective third States outside the organization, on the other.

58The institutional questions that are not broached by the law of international organizations are often addressed by way of analogies (that are actually rarely justified) with the international law of statehood (as I said before, however, Member States are themselves re-organized according to the institutional model of the international organizations they have instituted in the first place), or through ad hoc solutions specific to the internal rules of these organizations. In many respects, therefore, there are still as many laws of international organizations as there are organizations in international law – there is no singular international “organization” (yet) whereas there is a “State” under international law. And this organizational plurality is evidence of contemporary international law’s inability (as of yet) to rule such organizations in institutional terms.

59Finally, what about the way other institutions are handled in international law? There has not been an in-depth institutional discussion in international law pertaining to the other collective entities active on the international plane, either public (such as cities or regions) or private (like multinational corporations or non-governmental organizations).

60Unsurprisingly, therefore, their institutional treatment is piecemeal once more. Instead of building institutional continuity between those other institutions and the States that institute the individuals and peoples concerned, international lawyers mostly resort to (unsubstantiated) analogies, either with States or with international organizations. This is confirmed by the terms “quasi-State” or “quasi-intergovernmental” used to describe them. These speedy analogies have not only precipitated the kind of State-like rights and duties acquired by the new private institutions, but also the influence they have gained in international law-making processes and the like. They have also affected the internal organization of States and international organizations in return, particularly by turning the entrepreneurial organization into a relevant institutional model to be applied to them.

61These different social entities already organize the lives of the people on this earth in a structured and sustainable way, including through legal means, and may therefore be considered as institutions. Still, their organization is not, or only to a small extent, ruled by international law. Due to their transnational scope of activity, they also remain (at least partly) out of reach for the various domestic laws pertaining to such institutions. Most of the time, as a result, when those institutions are private, they are unfortunately also, and at the same time, treated like individuals under international law and granted some of the latter’s rights. This has led to the watering down of the specific protection of individuals by the relevant (recent and quite fragile) regimes of international law such as international human rights law.

62Given the state of the international law of institutions, why is rebuilding it taking so long?

63The main difficulty is that the “institutions” of international law are rarely recognized as such. The terminology is telling in this respect. International law discussions mostly refer to “subjects”, “actors” or “participants”.

64The terms of the debate thus remain those set by the liberal conception of international law qua contractual network and by that conception’s legacy in the field of international relations: the economic theory of agency. The difference is that there are now several types of international “actors” and that States are not alone anymore. Worse, individuals themselves are often considered as international “actors” and placed on the same playing field as States and other international institutions. Thus, instead of an institutional discussion, a curious debate has been taking place about the existence or lack of international legal “personality” of the various “actors”.

65For the rest, the institutional discussion in international law could be characterized mainly as a headlong rush. Since the end of the Cold War, it has indeed been fashionable to criticize the State. At first, this was the case because of the abuses of the Second World War. Later on, the critique pertained to the State’s “comparative disadvantage” when compared to other “institutions” like the market or civil society – note that the latter comparison is ironic given the co-originality and complementarity of the concepts of “civil society” and “State”.

66Giving in to the siren song of obsolescence, the death of the State was quickly endorsed. Instead, a new form of “transnational” or “global” (not to say “international” to avoid bringing the State back into the loop) “governance” has become the common creed. This “post-national” legal order (provided it may be regarded as one) is said to be situated “beyond” the State. However, it is not clear, institutionally speaking, if the term “beyond” indicates the replacement of the State, the institutional coexistence between the State and other international institutions, or a super-State.

67In order to set a new direction in the international institutional debate, it may therefore be necessary, for a while at least, to return from “beyond the State”. To assess the state of the State, it is important indeed to consider and distinguish between three types of potential challenges thereto: first, substantive challenges (for instance, the increase in coordination problems pertaining to the common interests of humanity and that go beyond the capacities of States, like environmental and health protection or cybersecurity); second, conceptual challenges (for example, the growing division of sovereignty, the progressive dissociation of authority from sovereignty or even of power from authority, and the loss of relevance of territory for jurisdiction); and, finally, normative challenges (for instance, the questioning of individual equality and, more generally, of the conditions for political community and equality to arise in the first place).

68Only once the nature of the challenges to the State has been clarified, and the relevance of each of them confirmed, may we draw conclusions as to the state of the State. The concept could be difficult to use, but this does not yet mean that it has become useless and ridden with contradictions: it may simply have undergone transformations or a mere change in paradigms, and thus in conceptions.

69Taking the institutional question in international law seriously in this way does not mean, however, that one should endorse the status quo. Nor should one be hoping for the “return” of the State, whether of a national, regional or global kind. In the long narrative of human institutions, not only is the State recent in history, but it has also undergone multiple transformations in the course of time. To quote Michel Foucault, the State may only have been a “péripétie de la gouvernementalité” (lit. a vagary in governmentality).

70To reflect further on the international law of institutions, one should therefore be ready to rethink the State in the international institutional order. Without a clear understanding of what the State has been and, to some extent, still is under international law, it will indeed be difficult to reform the existing order without jeopardizing what it stands for. The contemporary international order of States, with the general, exclusive and ultimate authority that international law recognizes to each of them to make law, is the guarantor of peace and physical security, both nationally and internationally. It also guarantees (formal) equality between States and by extension, even if the transitivity between States and individuals is not perfect, the equality between individuals wherever they live in the world. Even if it has not yet been fully implemented, this universal guarantee of security and equality provided by the international order of States since 1945 remains unprecedented in the history of human institutions. Not to mention the role of the State as the public institution of reference for the further institution of other institutions, both national and international and both public and private.

71In these circumstances, it is not surprising that rethinking the State has proven so difficult. It should be mentioned, however, that the theory of the State itself also first emerged from a multitude of other institutional remains, at first medieval and, later on, imperial. Today, rethinking the State requires emancipating ourselves from two postures: on the one hand, from what one may refer to as a form of “methodological statism” and the pattern of self-referentiality of the State in the modern legal tradition in general; and, on the other, from the “ordinary universalism” that characterizes the Western conception of the State and the relationship between Law and State, a relationship that was first universalized by international law on grounds of its “civilizing mission” and which, from the twentieth century onwards, became that of international law.

72Finding this path will not be easy. It implies, among other things, circumventing the sterile opposition between imperialism and relativism that has tended to bog down the critique of international law. This will involve, in particular, resorting to comparative law in order to interpret different concepts in the international law of institutions (starting with that of the State, whose translation in the many languages of international law is full of surprises), as well as other forms of “governmentality” in the world. From a procedural perspective, developing this common international law of institutions also requires showing respect for the political (including epistemic) equality of individuals and peoples, as it is guaranteed by the current international order. This could be done, for example, by granting greater institutional weight to the various regions within which civilizational identities and solidarities crystallize and by organizing their concertation.

73Given these critiques of the international institutional debate, how should one envision the reform of the international law of institutions?

74In a globalized world, the future of the international order seals our common destiny. Its current state should therefore prompt us to institutional reform and innovation. It is this chair’s project to accompany this endeavour in international law. To this end, and in reaction to the three challenges identified at the outset of this lecture and to address the three fundamental questions pertaining to social and political organization mentioned later on, the chair’s teaching and research programme will be organized around three axes: international representation, regulation and responsibility.

International representation

75The first question to address is that of representation. You may remember that the question pertains to who may act on behalf of whom at the international level.

76Ensuring ultimate, effective and equal control by individuals over international law-making procedures between their representatives, i.e. States and other international institutions where applicable, grants those individuals the status of subjects and authors of that law. Clarifying that relationship of international representation between individuals, peoples and their States should also affect the organization of the relations between those States and the other international institutions, public or private, through which those peoples are re-instituted. These institutional relations are indeed best constructed as a continuation of the first relationship of political representation. Importantly, multiple representation and hence institutional plurality do not necessarily imply the equality of institutions themselves, contrary to what is sometimes alleged about the equality between international organizations or between international organizations and States.

77The principles of ultimate and effective control and of equality are constitutive of democratic legitimacy and are protected by international law. Even though they are meant to apply primarily at the national level, there is no reason one should exempt international law itself from the requirement of democratic legitimacy towards the individuals subject to that law, whether it is directly, or also, and above all, indirectly through their State – without, of course, necessarily having to conceive of international democracy along cosmopolitan lines. In fact, caring for international representation should enable us to break away from the post-democratic impasse we have been led into by the very quest for “beyond the State” governance mentioned earlier. It may also be the safest antidote to the feeling of political dispossession that many experience today towards international law, and the forms of populism this has triggered.

78As mentioned before, however, contemporary international law treats the State primarily as an individual agent. Worse, it equates it to its government (as in the term “intergovernmental” organizations sometimes used to refer to international organizations). In doing so, it eludes the relationship of representation that both links the government to the governed and separates it from them. At most, the relationship of the State to its people is then conceived as an instrumental relationship of service (e.g. to protect human rights). It is also often reduced to a legal and vertical bond known as nationality, devoid of any political and horizontal dimension of collective belonging, and therefore increasingly disconnected from citizenship.

79Without a clear link between the sovereignty of the State and the popular sovereignty from which it derives its right, the original bond between sovereignty and authority in the modern conception of the State has become illegible in international law. Under these circumstances, it is easy to understand why it has been at all possible, in the absence of any sense of the representation relationship and thus of the importance of effective control over those representatives, for other unelected international institutions, both public and private for that matter, to see parcels of States’ public authority (under the guise of “functions” or transitive “competences”) delegated or transferred to them and, in return, for those States to become mere enforcement powers without residual authority in these areas.

80This first axis of the chair’s research and teaching project therefore proposes to develop a theory of international democratic representation. It will explore the possibilities of constructing a relationship of multiple, but systemic and above all continuous representation of the same political communities, albeit by different international institutions in parallel. This will imply complementing political representation by various public institutions with representation by other private institutions, such as multinational corporations and non-governmental organizations – the latter institutions still being all too loosely referred to as international “civil society”. In this context, the articulation between public political representation (for the time being, by the State), which should come first, and private representation, that complements it, has to be carefully organized in international law and it is the chair’s ambition to contribute to that articulation.

International regulation

81In the light of this institutional relationship of representation, once revisited, a second axis of the chair’s research and teaching project will be to address the issue of international regulation or, more adequately and by reference to the French distinction between régulation and règlementation, the issue of international “law-making”. It has indeed become quite common among international lawyers to criticize the sources of international law, i.e. its procedures of adoption. One of the criticisms raised pertains to their lack of inclusion of “non-State actors” or, and the two are related, their overly formalistic exclusion of other types of “norms”, deemed more “flexible” (soft law).

82Unsurprisingly, the former critique actually stems from a misunderstanding about the institution of the State, but also about other international institutions’ role. It approaches international law-making procedures exclusively from a horizontal perspective and from the point of view of its “participants”, and neglects the representative role of the institutions involved, both as authors and subjects of international law. As to the latter critique, many lawyers have a hard time distinguishing between different forms of normativity at work at the international level. Again, that difficulty stems from what I referred to previously in this lecture as the “dis-institutionalization” of international law. The latter makes it very difficult, indeed, to distinguish between a norm adopted by an institutional representative such as the State and a commitment in good faith adopted by any person in a private capacity.

83In order to address the international law-making question properly, the chair’s project is to explore whether and how the distinction between the public and the private applies within the international institutional order, and in particular to international organizations. This implies justifying the universality of the distinction and that of the State/civil society couple, but also assessing whether or not that distinction depends on the State remaining the primary public institution of international law in the future.

International responsibility

84The third axis of the chair’s research and teaching project will focus on the law pertaining to the international responsibility of States, international organizations and other public or private institutions. That law should indeed be reformed so as to reflect these institutions’ internal organization and, more specifically, their institutional continuity in the articulation of the multiple representation of those peoples whose international institutional order they form.

85For the time being, the law on international responsibility only applies to certain selected public institutions (States, and sometimes, international organizations), excluding private institutions. Where it applies, moreover, it merely transposes to public international institutions a model of responsibility that has been constructed on grounds of different Western traditions of private (mostly tort) law. Finally, numerous unfounded analogies between States and international organizations have led to an obliteration, within the international responsibility law pertaining to international organizations, not only of the differences between States and organizations, but also, and most crucially, of the institutional relations that exist between them.

86This state of the art is all the more regrettable as, like its domestic counterpart, the law of international responsibility contributes in an essential way to the internal organization of any institution held responsible. It does so, indeed, by identifying the “organs” whose actions should be attributed to them. It also constrains the authority of the responsible institution and, thereby, defines the scope and content of that authority. As I will argue during my first set of lectures on Diligence et négligence en droit international (lit. Diligence and negligence in international law) at the Collège de France this year, specifying international institutions’ international responsibility for negligence may play a crucial role in setting the content of their duties of diligent conduct under international law and hence of what may reasonably be expected of them in the future. This may hopefully be the way, by reference to Guillaume Budé’s project mentioned earlier in this lecture, to forge a common international regime of “good governmentality” (as opposed to “good governance”), a regime situated at the heart of a truly “public” international law.

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87I opened tonight’s lecture with a reference to the Traité de paix perpétuelle of 1516. While this treaty laid the first stones of the European institutional order, it is the battle that preceded it in 1515 that has remained in the popular memory.

88There is nothing out of the ordinary there for international lawyers. Here is what Edouard Laboulaye, holder of the Chair of Histoire des législations comparées at the Collège de France, wrote in 1869 in his preface to the French translation of Droit international codifié (lit. international law codified), a book authored by his friend, the Swiss lawyer Johann Kaspar Bluntschli:

“Politics and law do not have the privilege of immortality that belongs only to poetry. Once found with great difficulty, the truth immediately falls into the public domain. The common man can easily imagine that he has discovered what he understands. The greater the service, the brighter the light, and the less one worries about the benefactor, except for a few pious scholars who maintain a cult of remembrance.” (this author’s translation)

89This chair dedicated to the international law of institutions does not aim to maintain such a cult. It could, however, at least assist in preventing us from forgetting. If peace between France and Switzerland could last a few centuries, it is because international law guaranteed it would. It is important to emphasize this at a time where other post-war institutional constructions of international law, such as the European Union or the United Nations, show signs of weakness. If the global climate, migration, health, economic and security crises have demonstrated just how much the international legal and institutional order is weakened, they may also serve as a useful reminder of that order’s importance to the peoples whose world those international institutions organize and of the urgent necessity to reconstruct it.

90Because international law does not have the privilege of immortality that only belongs to poetry, it is only right one should give the Collège de France’s poet the last word. Let us remember with Paul Valéry, a fellow “constructor”, that “[l]e droit est l’intermède des forces” (lit. Law is the interlude of forces).