What does it take to be a loyal member : revisiting the ‘good membership’ obligations in the law of international organizations

Abstract

The goal of this article is to examine the nature and the scope of the 'good membership' obligations that every state acquires as a consequence of its membership in international organizations. While the concept of membership duties represents one of the most foundational issues in the law of international organizations, so far, it has received little attention in legal scholarship. This article aims to remedy this gap and to demonstrate that, contrary to the descriptive approach prevailing in the field, the 'good membership' duties are more than a simple reiteration of member states' commitments formulated in an organization's constitution. Instead, it is argued that these obligations are of a more far-reaching nature, having their basis in the application of the principle of good faith to the interpretation and performance of member states' institutional commitments. In this regard, good faith represents an overarching principle of institutional legal order, which – through the generation of more concrete norms and sub-principles – serves to maintain the loyalty of member states to the joint enterprise by ultimately requiring them to cooperate and compromise for the achievement of common institutional goals. The article subsequently illustrates this thesis by exploring the use of the principle by the International Court of Justice and the Administrative Tribunal of the International Labour Organization to determine the scope of members' obligations in three case studies concerning, respectively, the United Nations membership crisis in the late 1940s, the potential transfer of the World Health Organization's Regional Office for the Middle East in 1980 and the premature ousting of the Organisation for the Prohibition of Chemical Weapons' Director-General in 2003. The resulting analysis underscores the potential normative value of good faith, which can contribute to the continuous development of institutional legal order while protecting the primacy of common endeavour from manifestations of excessive unilateralism by the member states.